© 2002 - 2005 AFHS
18 Jul 2002
Memorandum of Law
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1891 Southern Alberta Census Transcription - Links to Other Census Challenge Websites Release of Historic Census
Historians and genealogists study census returns for information about family groups, neighbourhoods and communities. It is the only primary source which places the individual in his or her family and community context. Historians and genealogists want the historic census returns to continue to be released to the public after a suitable period of secrecy, i.e., 92 years. The Chief Statistician believes that the public will be less co-operative or less truthful in responding to census questions if their answers are not kept secret forever. This would jeopardize the high quality of Canadian census data. The Privacy Commissioner believes that making individual census returns available to the public is an unacceptable invasion of privacy even 92 or more years later. No one has ever actually complained that the release of the historic census has or would infringe their privacy. There is no empirical evidence that making census returns public after 92 years would effect the way in which Canadians (or even other national groups) participate in the census. Other federal government documents containing sensitive or personal information are routinely made available to the public through the National Archives. A striking example is the files of members of the First World War Expeditionary Force. As in the case of the census, draftees during the First World War were compelled to provide information about themselves. Their entire military files including documentation on their health and disciplinary matters, are now freely available to the general public. The far less intimate information about the same persons contained in the 1911, 1916 and 1921 census returns, it is argued, can never be made available to anyone but the individual himself. The Privacy Act, supra, provides in section 8 for the transfer of federal government documents to the National Archives where the personal information may be disclosed in accordance with the regulations to any person for research purposes. The regulations prescribe how old the documents or personal information must be before they can be released to the public. This is subject to any other Act of Parliament. It is submitted that the regulations setting out the instructions to the enumerators for the 1906, 1911 and 1916 census do not qualify as "any other Act of Parliament". Some statutes provide that its regulations shall be read as forming part of the statute. The Census and Statistics Act, 1905, which was in force for the 1906, 1911 and 1916 census provides that its regulations "shall have the force of law". According to the Supreme Court of Canada in R. v. Singer, [1941] S.C.R. 111, 75 C.C.C.1, [1941] 1 D.L.R. 753, this is insufficient to make such regulations fall within the definition of "Act". There is, therefore, no legal justification for having withheld the census returns from the 1906 census of the Western Provinces from release to the public after the prescribed 92 years. For the same reason, there is no legal justification not to release the individual census returns from the 1911 national census in 2003. In addition, articles 23 and 36 of the Orders in Council passed for the 1901, 1906, 1911 and 1916 census are identical. Article 23 provides for the secrecy of census information but also makes clear that the anticipated concern from the public was that the information not be used for taxation purposes. That article states in part: "The facts and statistics of the Census may not be used except for statistical compilations, and positive assurance should be given on this point if a fear is entertained by any person that they may be used for taxation or other object." It is submitted that this is a reference to other current governmental objectives such as taxation. The secrecy intended and required by this article was contemporary secrecy, not secrecy forever. This is confirmed by article 36 which provides: "The census is intended to be a permanent record and its schedules will be stored in the Archives of the Dominion." It is submitted that secrecy of the individual census returns forever is inconsistent with the census being reserved as a permanent record. It was intended at the time that the census returns would be available for study as historical documents once secrecy had been maintained for a reasonable period of time. There is no other reason to keep the individual returns once the statistics has been compiled. There is no other rational interpretation of article 36. In my opinion, an application in the Federal Court for a writ of mandamus compelling the National Archivist to release the individual returns from the 1906 census of the western provinces would have a good chance of success. Such a ruling should also cover the release of the individual returns from the 1911 and 1916 census in due course, as well. The Statistics Act, 1918 replaced the Census and Statistics Act, 1905. Section 15 of the Statistics Act is entitled "Secrecy" and provides that no individual census return may be published or shown to any one not working for the census. Does this prohibition last forever or should it be read as guaranteeing secrecy for a reasonable period of time? The Debates in the House of Commons and the Senate reveal no concern at all about the use of the census returns in the distant future for historical research. Secrecy, when discussed at all, was considered solely in the context of contemporary governmental activities, especially taxation. In other words, it was always intended that the census returns would be a studied as historical documents. The primary purpose was for statistical purposes but the value of the individual returns as historical records was also appreciated. It is submitted that the secondary or ancillary purpose of the census was to create a permanent record for historical research. The individual census returns were not destroyed once statistics had been compiled from then as has been done in Australia. Indeed, they were preserved on microfilm. This positive act of microfilming the census returns confirms that it was generally understood that they were to be looked at by somebody sometime. It is submitted that that the individual returns have continued to be preserved because until relatively recently, it was generally understood that the secrecy provision in section 15 (later section 16) meant that they would not be made available for research for a reasonable period of time. It is trite law that statutes are to be interpreted or construed so as to avoid absurdity or an unreasonable result. It is submitted that, having regard to the concerns the secrecy provision was meant to address and the practise of retaining and preserving the individual census returns, the requirement that no one besides the census takers and statisticians be allowed to see these records should be read as maintaining secrecy for a reasonable period of time. It is submitted that reading section 15 in its widest literal sense in the absence of a requirement that the returns be destroyed, leads to an absurdity. The real issue is how long secrecy should be preserved - 92 years, 100 years, 200 years, but surely not forever. It is submitted that a Court would "read in" a reasonable time limit, permitting census returns to be examined when they have become historical documents and the individuals' reasonable expectation of privacy have been met. Lois Sparling |
