Legal Action: Beattie, et al, v. Chief Statistician, et al

See more background on the actions to have the Canadian Census data released

Prepared by Lois M. Sparling, Barrister & Solicitor

Statistics Canada refuses to release any more nominal census returns and insists that the 1901 census will be the last Canadian census the Canadian public will ever see.

Roots of Census Release Lobby

The Law requires the Chief Statistician to turn over the 1906 census to the National Archives for release to the public for research purposes after 92 years. Despite this law, he has refused to do so. We object strenuously to this and do not have to be polite and coax him or wait for him to retire and hope to do better with his successor. We can sue him.

After an extensive lobbying effort across the country, with petitions containing 10s of thousands of names, the only progress made was to have national studies look into the release of the census.

An all-star Expert Panel appointed by the federal government to study the issue of releasing the post-1901 census returns to the public through the National Archives received our submissions. We worked hard on those submissions. We thought our position was convincing.

The Expert Panel made their report to the government in June 2000. Interestingly, the Expert Panel's report was not made public. As the months wore on it became obvious that the Chief Statistician was displeased with the report for some reason. Finally, just before Christmas, the report was released.

The Expert Panel agreed with our position entirely. It found no legal or policy reason to withhold any of the post-1901 censuses after the usual 92-year delay. The confidentiality argument was discounted. Just to clarify things, the Expert Panel suggested that a minor legislative amendment could be made with respect to the release of the post-1918 census to the public. ¹

Over a year later we are being subjected to formal Town Hall meetings because the "public" apparently did not get a fair chance to express its opinion to the Expert Panel. The focus groups done for the Expert Panel apparently did not provide the "right" answers so new focus groups on the subject have also being conducted.

The genealogical community has gathered tens of thousands of signatures to support the Private Members Bills in the Senate and the House of Commons which would make legislative amendments to clarify Statistics Canada's obligation to release the individual census returns to the public after 92 years. Many Members of Parliament and Senators support us. There is no opposition amongst the general public to what we propose at all. None.

It was just over two years ago that we came up with the idea to bring a court action to force the release of the individual census returns for the 1906 regional census of Manitoba, Saskatchewan and Alberta. 'It'll never come to that," we thought. But, we were wrong.

Beatty, et. al v. The Chief Statistician, et. al is a Legal Action we filed on February 5, 2002 in the Federal Court of Canada (FCC), known as a writ of mandamus. That means that we are asking the FCC to order federal government officials to do what the law requires them to do: make the microfilm of the 1906 nominal census returns available to the public through the National Archives. The court action is about the 1906 census because that is the census that should already have been released. We cannot sue in advance for the public access to the 1911 national census. However, exactly the same laws apply to both censuses. Therefore, if the Chief Statistician has to let the public access the 1906 census returns for Manitoba, Saskatchewan and Alberta, he will have to let us see the 1911 census in 2003.

The Legal Action to compel the federal government to release the 1906 census of the Prairie Provinces was filed and served on February 5, 2002. We have also filed and served Affidavits by each of our 11 Plaintiffs (Applicants). The Defendants (Respondents), in turn, must serve us with their Affidavits by April 15. There are very strict time limits for each step in this particular court procedure. All material, including written argument, must be filed with the FCC by the end of June. We can then get a court date for the hearing - likely early fall.

Profile of Our Plaintiffs (Applicants)

Our 11 Plaintiffs come from four provinces and include professional as well as amateur genealogists. One is a history professor.

Mertie Beatty lives in Calgary and is a member of the AFHS. Her grandfather, Wasyl Werenka, came to Canada from Bukovenia in 1903. He returned to Europe and then came back to Alberta, settling in Edmonton with his family. One of his daughters was born in Europe in 1906. Bertie does not know whether or not he was in Canada at the time of the 1906 census.

Muriel Davidson is a genealogist living in Brampton, Ontario and is the backbone of the Census Campaign mailing list. She is working closely with Senator Lorna Milne to collect signatures for the Petition supporting the Senator's Private Members Bill S-12 [An Act to amend the Statistics Act and the National Archives of Canada Act (census records)]. This Bill would make legislative amendments ensuring the release of census returns after 92 years. She did not have family living on the prairies in 1906. Muriel wants to set a precedent for the release of the 1911 census to the National Archives in 2003. She also sympathizes with her fellow family historians who need to see the nominal returns of the 1906 census of Manitoba, Saskatchewan and Alberta in order to make progress in their research.

Dave Obee of Victoria, B.C. is a professional genealogist, journalist, author and the co-owner of Interlink Bookshop. He uses available census material for the Prairies extensively. He has indexed parts of those censuses and has compiled a finding aid for the 1901 census. In 1906, Dave had ancestors in southern Manitoba, and his some of his wife's ancestors were in southern Alberta. His wife's paternal grandfather arrived in Macleod from Ireland in 1903. The 1906 census would be the first to record this ancestor in Canada.

Beverley Rees is a member of the AFHS in Calgary and a professional genealogist. Her great grandparents, Thomas Palecek and Maire Levorova, and her grandmother, Anna Palecekova, moved from Czechoslovakia to Coleman, Alberta in 1905 in search of a better life. They joined relatives who had immigrated earlier. The men worked in the coalmines in the area to support their families while the women stayed home to raise the children. The 1906 census would also assist her with her forensic research for clients.

Louise Sauve of Calgary is a member of and has served on the Board of the AFHS. She has ancestors (Schum, Mohr and perhaps Massier) who immigrated to Regina from Bukovenia, Romania in approximately 1903.

Jean Stanley lives in Combermere, Ontario - just northeast of Bancroft and near Algonquin Provincial Park. Her husband's family went to Alberta in 1906 and returned to Ontario in 1915.

Marilyn Taylor is a member of AFHS. Her grandfather, Juozas Marcinkevicius (later Joseph Frank Moka), was born in Neimistius, Lithuania. He was brought to Canada by the Canadian Pacific Railway (CPR) in 1904 to work on the railroad at Carlstadt, Alberta. Carlstadt was later renamed Alderson and is now a ghost town.

Bill Waiser is a professor of history at the University of Saskatchewan in Saskatoon. The Government of Saskatchewan government has funded him to write a book on the history of that province for their centennial in 2005. Access to the nominal returns of the 1906 census of Saskatchewan is critical to his research. Those returns are the best, if not only, records of the families pouring into the province at that time; an irreplaceable "snapshot" of the people.

Sheila Ward lives in Toronto, Ontario. She is researching her family history in Saskatchewan, particularly the Ward, Davy and McLelland families.

Gordon Watts lives in Port Coquitlam, B.C. Gordon wrote an excellent submission to the Expert Panel on the release of the historic census and has been a major force in organizing the Canadian family history community for this campaign. His maternal grandparents, James Daniel and Elizabeth Belle (Cameron) Perrin, were Canadians who met in the U.S. Their respective brother and sister also married each other. These two couples homesteaded side by side at Fairmount, Saskatchewan, about 12 miles southwest of Kindersley. Gordon would like to see the 1906 census in hopes of clarifying when they came to Saskatchewan and the place and date of birth of one of his aunts.

Tom Worman is a member and has served on the board of the AFHS. His maternal great grandparents, Mr. and Mrs. Ferado, immigrated from Pomerania to the United States. In 1904, they moved with their family to Alberta.

Profile of the Defendants (Respondents)

The Chief Statistician of Canada, Ivan Fellegi, is adamant that no one will ever see any more census returns. He did not want to release the 1901 census, either. He says that would be "breaking a promise to our ancestors."

The Privacy Commissioner, George Radwanski, opposes the unconditional release of the 1906 census to the National Archives; that is, to the general public.

The Attorney General of Canada, Martin Cauchon, is always named as a Defendant in these sorts of cases.

National Archivist, Ian Wilson, is on our side. For technical reasons, he gets named as a Defendant anyway. He officially asked the Chief Statistician to turn over the 1906 and 1911 individual census records to the National Archives on 16 Nov. 1999. Not only did the Chief Statistician refuse, but also Mr. Wilson had to take quick action to stop him from destroying those documents.

Information Commissioner, John Reid, is also on our side but named as a Defendant.

Honour Roll

Many, many individual donors have contributed to the costs of the Legal Action - some individually (about 65), some collectively, and some anonymously. The collective donors are listed here. The map shows the geographical source of donations across Canada. But it didn't stop there - donations were also received from several locations in the United States. Thank you!

• Alberta Family Histories Society (Atlantic, Computer, English, Irish, Legacy, Special Interest Groups)
• Alberta Genealogical Society
• Alberta Genealogical Society - Red Deer & District Branches
• British Columbia Historical Federation
• British Columbia Genealogical Society
• British Isles Family History Society of Greater Ottawa
• Calgary Board of Education Retired Teachers Genealogy Group
• Campbell River Genealogy Club
• Comox Valley Family History Research Group
• "Family History Buffs," Brandon, Manitoba
• Genealogical Association of Nova Scotia
• Kamloops Family History Society
• Le centre d'histoire et de genealogie La regionale Saint-Laurent Inc.
• Manitoba Genealogical Society - Southwest Branch/Brandon
• Moose Jaw Genealogical Society
• Ontario Genealogical Society - Kawartha Branch
• Ontario Genealogical Society - Lambton County Branch
• Ontario Genealogical Society - London Branch
• Ontario Genealogical Society - Haldiman County Branch
• Ontario Genealogical Society - York Region Branch
• Ontario Genealogical Society - Stormont, Dundas & Glengarry Branch
• Saskatchewan Genealogical Society - Border Branch/Lloydminster
• Toronto PAF Users Group
• Vernon & District Family History Society

But, the first cheque arrived from Melville Andress of Abbotsford, B.C. whose donation arrived in our Barrister & Solicitor's office 4 January 2002. The largest donation came from the Alberta Genealogical Society ($2000) which arrived almost as quickly as Mr. Andress' cheque. Over $12,000 has been received; our fund-raising goal for this Legal Action was $8,000.

Footnotes:

¹ In fact, the 1906 census should have been made available to the public in 1998. The 1911 census should be made available to the public in 2003.