Submission to the Senate on Bill S-13

Prepared by Lois M. Sparling, Barrister & Solicitor

There are some major concerns with Bill S-13, "An Act to amend the Statistics Act", introduced by Senator Milne earlier this month to deal with access to the original records of historic censuses. There has been considerable discussion in the genealogical and family history community about this Bill. Many people are quite distressed about new limitations on access to the original records of historic censuses suggested in this Bill. The census is a key resource for those researching their family history. The 1911 census is of particular importance because record numbers of immigrants came to Canada during the first two decades of the twentieth century.

The Summary to Bill S-13 states that its purpose is to remove "legal ambiguity in relation to census records taken between 1910 and 2003."

No such legal ambiguity exists for the 1911 and 1916 census. The law in relation to those two census is identical to the law governing the 1906 census.

The 1906 census was finally released to the public by the National Archives this past January. This was after claims that there was a legal problem were examined and rejected by an Expert Panel which included The Honourable Mr. Justice Gerard LaForest, who had recently retired from the Supreme Court of Canada, and the eminent law professor, John McCamus. It also followed the commencement of an action in Federal Court to compel access to the 1906 census and a finding by the Information Commissioner that access to this census was being withheld illegally.

After a very extensive, detailed and lengthy examination of the relevant law, our Government concluded that the public should have access to the 1906 census after all. There is, therefore, no legal basis for withholding or placing conditions on access to the original records of the 1911 and 1916 censuses after the requisite 92 years have passed. Bill S-13 proposes to place conditions on access to those censuses. This would be an unnecessary and unreasonable restraint on the unconditional access to which the public is entitled under the existing law.

The 1918 Statistics Act included a specific provision on secrecy of the census returns. There is no reason to believe that the government of the day intended to change the rules on public access to the original records of historic censuses. However, those who oppose access to those original records point to this as a legal impediment to access. The Expert Panel conceded that there MIGHT be a need for new legislation to correct this ambiguity so that the public could continue to have unrestricted access to the original records of historic censuses after 92 years.

Bill S-13 proposes to put conditions on access to the original records of historic census taken to date for a 20 year period on top of the existing 92 year waiting period. This is the "Compromise Solution" universally rejected by the family history community over the last 20 months or so.

The first issue is why there is a need for compromise over unconditional access to the historic census taken between 1918 and now. To the best of our knowledge, there is virtually no opposition amongst the general public to the release of these censuses after 92 years, just as there had been no objection to the release of censuses after 92 years to date. Since we do not know the reason for such a compromise, we leave it to this Honourable Committee to weigh the arguments against access to 92 year old census returns, whatever they are, and to decide how much of a compromise is needed to give such arguments due consideration.

Assuming, for the sake of argument, that a compromise is needed, the next issue is access to the census returns after 92 years. We are assured that those researching their family history will be able to see the actual, uncensored census returns and to search through them freely to find their families, relatives, future marriage partners of ancestors and neighbours. The ability to "browse" is necessary not only because the family historian may have only the most tenuous clues as to where their family was living in the census year, but also because locating relatives and friends of their family often provides the clues needed to lead the researcher back to their family's previous residence or place of origin in "the Old Country".

The Family History community is also anxious about whether the necessity of signing an undertaking will impact on their ability to view the census. Will it be necessary to travel to Ottawa to sign the undertaking? Will the National Archives be authorized to distribute microfilm copies of these census to major libraries across the country? Will those who are housebound or who reside outside a limited number of major Canadian cities be able to view the census online? We are assured that the undertaking will not impede access to those who live some distance from Ottawa or other major centers.

We are told that the undertaking envisaged will place limits on what we can do with the information which we find in the historic census. The regulation containing the undertaking will not be disclosed at this time. We are assured that there is nothing to worry about. We will be allowed to release the information of interest to family history research.

Why will we be restricted from publishing how many cows our ancestors owned in 1921 for an additional 20 years? There is no information in the census returns before about 1971 that is more private or sensitive than the so called "tombstone" facts. Why, therefore, should there be this extra administrative step before it is necessary? It will cost the government effort and money to administer this undertaking with no policy reason to justify the expense. It also worries the family history community to no purpose. The recent long census returns are more intrusive. Perhaps the necessary compromise is to require an undertaking to view those long form census returns for an extra twenty years after the short form census return are released.

The censuses are an irreplaceable record of the entire population of Canada. There is no question that the long forms of the modern censuses are very extensive. There is also no question that allowing anyone to opt out of the eventual disclosure of the original census returns harms the historic value of the census. This is because some portion of the population will be left out. Rather than compromise the completeness of the census record for future generations, we would prefer to see a delayed, even a long delayed, release of those census returns for which permission has not been granted for public access after the usual 92 years. There must be some period of time that everyone can agree is long enough that privacy is not an issue anymore.

We therefore recommend that Bill S-13 be amended:

1. so that it does not apply to the 1911 and 1916 census
2. to require that researchers sign an undertaking only for access to the more intrusive, long form census returns
3. to permit public access to the complete historic censuses taken after 2003, including those census returns for which permission has not been provided for access after 92 years, following a further period of time.

Respectfully submitted by the Alberta Genealogical Society, the Alberta Family Histories Society and the Jewish Genealogical Society (Southern Alberta) .