FYI -- My response to MP Paul Steckle Gordon ----------------------------------------- Mr. Paul Steckle, MP Huron-Bruce (Ontario) Dear Sir: This afternoon (12 June 2000) you had a telephone conversation with Mrs. Muriel M. Davidson of Brampton, Ontario. You followed up this conversation with an e-mail, the text of which is included at the end of this message. In the above-mentioned e-mail, you invited comments regarding it's contents. The purpose of my writing at this time then is to respond to your invitation. To begin with I might suggest that when constituents and others request your position on how you would vote on a Bill to allow access of Post 1901 Census records, they want to know your opinion. You would do well to respond with your own thoughts rather than recycling outdated information sheets circulated by Statistics Canada. By far the largest portion of your letter to Mrs. Davidson was quoted verbatim from information sheets produced by Dr. Ivan Fellegi and Statistics Canada at least a year ago. Much has changed since then. It is obvious from your letter that you have relied on, and accepted verbatim, virtually all statements issued by Statistics Canada, and have done little or no investigation of your own regarding the matter of Post 1901 Census. I would sincerely urge you to do some of your own investigation on this matter. You might be surprized at what you find. You began your letter by stating that "release of individual census records is explicitly prohibited, by law, for all censuses following 1901". I must inform you sir, that while this statement has been widely circulated by Statistics Canada and Privacy Commissioner Bruce Phillips, it is incorrect. Statistics Canada bases their position of non-disclosure on a number of legal opinions received from the Justice Department in 1985 or earlier. I would stress that these are only opinions and have not been tested in a court of law. I would stress also that these opinions were based on only one clause (Secrecy) contained in Instructions to Enumerators for the Census of 1906 and others. The legislation in 1905/1906 stated that the Instructions to Enumerators, as made up by the Minister of Agriculture (Mr. Fisher) and approved by Order in Council, had "the force of law". There is every indication that the Secrecy clause was intended only to prevent Officers and Enumerators from disclosing, at the time of Census, contemporary name identified information. It did not state, nor did it imply, that information from Census would never be accessible by the Public. I would point out that the Instructions to Enumerators had other clauses that also had "the force of law". These included statements that Census "will have value as a record for historical use in tracing the origin and rise of future towns in the country", and would be used "for the purpose of future reference and comparison". Also "The Census is intended to be a permanent record, and it's schedules will be stored in the Archives of the Dominion", and "The Census is a permanent record, and it's schedules will be carefully preserved for future reference." Had the various legal advisors in the Justice Department considered all of the pertinent clauses in formulating their legal opinions on this matter, I have no doubt that the campaign to obtain access to Post 1901 Census records would never have been necessary. If all pertinent clauses had been considered, Census records would have continued to be released after 92 years as allowed in Regulations attached to the Privacy Act. Lawyers involved in our research have expressed the opinion that a court challenge to the position of Statistics Canada would very likely result in the release of Historic Census, at least up to the Census of 1916, and perhaps later as well. The first Statute pertaining to Census that had a clause relating to Secrecy was passed in 1918. The clauses of that Statute contained nothing that would prevent the transfer of Historic Census to the control of the National Archives. No statute up to the present day contains any clause that states Historic Census cannot be transferred to the National Archivist. The only thing that prevents the transfer of Historic Census to the control of the National Archivist is a policy of Statistics Canada based on a legal opinion - an opinion based on a mis-interpretation of only one clause of several, contained in Instructions to Enumerators, that should have been considered. Much has been made by Statistics Canada and the Privacy Commissioner regarding a "promise" or "explicit guarantee of indefinite confidentiality" supposedly made to the people of Canada by the government of Sir Wilfred Laurier in 1906. I have asked both Statistics Canada and Privacy Commissioner Bruce Phillips to "show me the promise". To date, neither has been able to do so. After a great deal of research by myself, and others, I can state unequivocally that the promise does not exist. A promise never made cannot be broken. I could go further here but it would only be repeating much of what was contained in my Submission to the Expert Panel on Access to Historic Census appointed by Industry Minister John Manley on 12 November 1999. I have attached to this message the files containing my written submission to the Expert Panel. Although I sent them to you, and all other MPs, attached to an email on 14 April 2000, it is obvious that you did not read them. I would encourage you to do so at this time. Should you so wish, I can send you a CD that accompanied my written submission. This CD contains a great deal more support documentation than was included within the written submission. If you can prove me wrong in anything that I have stated in my submission I invite you to do so. I would welcome any comments you might have regarding my submission. I can be reached by e-mail, by telephone at (604) 942-6889, by Fax at (604) 942-6843, or by mail at 1455 Delia Drive Port Coquitlam, BC V3C 2V9 Sincerely, Gordon A. WATTS gordon_watts@telus.net Keep up to date on Post 1901 Census information at http://www.globalgenealogy.com/census and http://www.geocities.com/Heartland/Farm/7843/poll.html Download and circulate Post 1901 Census Petitions now from http://www.globalgenealogy.com/census/petition.htm -------------------------------------------------------------------- ------------ Text of letter from Paul Steckle, MP to Muriel M. Davidson 12 June 2000 Mrs. Davidson: I am writing further to our telephone conversation (in response to your e-mails), regarding the release of 1911 and subsequent census records to the National Archives of Canada. Please accept my appreciation for taking the time to write on this issue, and for providing me with the opportunity to comment. Before I begin, I should point out that the release of individual census records is explicitly prohibited, by law, for all censuses following 1901. Understandably, this has angered the many genealogists and researchers who had expected that the 1911 census records would be publicly available in 2003 (92 years after the taking of the census). Regrettably, there is a public perception that Statistics Canada has taken an arbitrary position in this matter and is circumventing the "standard 92 year rule" by its decision not to transfer the records. This is not the case. In fact, legislatively speaking, the agency's hands are tied. The Privacy Act is the legislation that provides for the transfer of records to the National Archives of Canada. It permits such transfers only if there are no other acts with a different or a stronger legislative protection. In other words, records can be transferred to the National Archives only if there are no provisions in another piece of legislation that prevents the said transfer. The records of censuses taken in 1901 and in prior years have been transferred to the National Archives of Canada for public access. This was possible (legal) because the legislation that was used to collect these census records did not contain any specific provisions that prohibited their transfer. In short, up to 1901, Census-takers were instructed to protect the confidentiality of the information (while collecting it), but these instructions did not have the force of law. Thus the information contained in these records is protected only by the Privacy Act which stipulates that National Archives of Canada can make these records available to the public 92 years after the taking of the census. Starting in 1906, (and in subsequent censuses) the legislation that gave the authority to collect census information contained statutory confidentiality provisions. These provisions are such that only the person named in the particular record may have access to his/her information. There is also no time limitation on the access. Essentially, even when the person is deceased, the provisions are still legally in effect. As a result of this, Statistics Canada cannot, without breaching the Statistics Act, transfer any census records taken under the authority of the 1906 and subsequent Statistics Acts to the National Archives of Canada. The fact that the United States and Britain both release census records is an issue of different legislation and, perhaps, of historical culture when it comes to the taking of a census. Statistics Canada continues to hold all individual returns of census questionnaires collected between 1906 and 1986. These records have now been transferred from the actual questionnaires, to microfilm, and are available for access by the individual respondents who need to confirm birth dates for pension and passport purposes. The destruction of the 1911 and later census records held on microfilm was never a consideration by Statistics Canada (although the paper questionnaires themselves have been destroyed in accordance with approvals given by the National Archives of Canada). As a result, Statistics Canada does not have the option, as has been suggested by some genealogists and researchers, of being able to filter out the more sensitive information from early census records since microfilm technology, unlike newer technology such as optical imaging, does not lend itself to severance. The original paper questionnaires would have been required for this. Like any law, the Statistics Act can also be amended to permit the release of individual records after 92 years. But, this is where an important principle of privacy protection comes into play: is it right to alter retroactively the conditions under which information was provided by Canadians? Should Parliament declare, in effect, as invalid the explicit guarantee of indefinite confidentiality that was promised to Canadians when the data in question were collected? Or should it perhaps consider the 92-year release rule for future censuses only? This issue, although seemingly cut-and-dry, is very complex. While there is undeniably great value attached to nominative historical census records, there is also great value attached to the information that can be produced from current and future censuses. That information is and will be used for a multiplicity of purposes, many of which are requirements contained in various pieces of legislation to meet specific needs (for example; transfer payments to provinces and the determination of electoral boundaries). Canadian citizens have always demonstrated co-operation in providing personal information about themselves when asked to participate in a census, or in other surveys conducted by Statistics Canada. Some might say that the most important factor contributing to this co-operation is the unconditional guarantee given to respondents that the information they supply will be protected. Canada, for almost 100 years has been able to unconditionally guarantee the confidentiality of the information supplied in the census. Changes to the commitments made to respondents in the past could have a negative impact on the level of co-operation given to future censuses and surveys. A substantial decrease in such co-operation could seriously jeopardize Statistics Canada's ability to carry out its national mandate of producing reliable, timely information on which many users depend. This information is also a fundamental pillar of our democratic system, because it is one of the measures that electors use to evaluate the performance of their governments. With the aforementioned being said, I would respectfully request that you provide your comments on the above. I don't pretend to have all of the answers and, as such, I am interested in hearing any additional thoughts that you may have on this potentially precedent-setting matter. Please accept my appreciation, in advance, for your co-operation. Sincerely, Paul Steckle Paul Steckle, M.P. / député Huron-Bruce (Ontario) 251 Confederation / Confédération House of Commons / Chambre des communes Ottawa (Ontario) K1A 0A6 (613) 995-9848 phone (613) 995-6350 fax