T-930-03
2004 FC 920
Mertie Anne Beatty (Applicant)
v.
The Attorney General of Canada, The Chief Statistician and The National Archivist (Respondents)
Indexed as: Beatty v. Canada (Attorney General) (F.C.)
Federal Court, Gibson J.--Calgary, June 8; Ottawa, June 25, 2004.
Administrative Law -- Judicial Review -- Mandamus -- Applicant, family historian, seeking order compelling Chief Statistician to transfer care and control of nominal returns and schedules for 1911 Census of Canada to National Archivist -- Also seeking order permitting, directing National Archivist to make information available to public for research purposes -- National Archivist requesting, Chief Statistician refusing, Statistics Canada transfer 1906, 1911 census records to National Archives of Canada -- Official such as Chief Statistician under no obligation to reach agreement (i.e. regarding transfer of records) where such agreement not respecting official's statutory functions -- Legitimate concern transfer could compromise efficacy of future censures -- Application dismissed.
Administrative Law -- Judicial Review -- Declarations -- Applicant, family historian, seeking declarations (1) National Archivist having care and control of 1911 Census of Canada records; (2) Chief Statistician having legal obligation to transfer care and control of records to National Archivist; (3) National Archivist having power to disclose records to members of public for research purposes -- National Archives of Canada Act, s. 6 providing for transfer to Archivist of care and control of records of government institutions of historic or archival importance -- Act also contemplating some public records of national significance, such as census records, not within care and control of National Archives of Canada -- Because tension between protection of privacy, access to information held by Government, policy question, and because resolution of issues arising out of that tension intended to be left to Governor in Council and eventually Parliament, Court declining to intervene -- Care and control of records resting with Chief Statistician -- National Archivist requesting, Chief Statistician refusing, Statistics Canada transfer 1906, 1911 census records to National Archives of Canada -- Official such as Chief Statistician under no obligation to reach agreement (i.e. regarding transfer of records) where such agreement not respecting official's statutory functions -- Application dismissed.
This was an application for judicial review in which the applicant, an amateur family historian, sought an order (1) compelling the Chief Statistician to transfer care and control of the nominal returns and schedules for the 1911 Census of Canada to the National Archivist; and (2) permitting or directing the National Archivist to make this information available to the public for research purposes. In the alternative, the applicant sought declarations that (1) the National Archivist has care and control of the 1911 census records; (2) or that the Chief Statistician has the legal obligation to transfer care and control of those records to the National Archivist; and (3) that the National Archivist has the power to disclose those records to members of the public for research purposes. It was not in dispute that the Chief Statistician does not have authority to release the census records to the public. The National Archivist, if he were in care and control of the census records, would have discretion to release those records to the public for research or statistical purposes.
On November 16, 1999, the National Archivist formally requested that the 1906 and 1911 individual census records be transferred from the care and control of Statistics Canada to the care and control of the National Archives of Canada. This request was denied by the Chief Statistician. In May 2002, the Chief Statistician and the National Archivist reached an understanding with respect to a proposed legislative solution on the transfer of census records and a bill was adopted by the Senate of Canada in 2003. It proceeded to the House of Commons but died on the Order Paper later that same year. Also in 2003, Statistics Canada and the National Archives of Canada signed a memorandum of understanding to permit the National Archives to physically restore and to make copies of the microfilmed census records for the period 1911 to 1941 and to transfer the information contained on those microfilms to a digitized format. That project was funded by Statistics Canada. On June 2, 2003, the applicant made an Access to Information request to Statistics Canada for access to the 1911 census records. That request was denied after this application for judicial review had been commenced.
Held, the application should be dismissed.
One of the primary roles of the National Archives of Canada is to conserve private and public records of national significance and to facilitate access to those records, and section 6 of the National Archives of Canada Act provides that "[t]he records of government institutions . . . that . . . are of historic or archival importance shall be transferred to the care and control of the Archivist". However, that Act, on its face in section 6, clearly contemplates that there will be "public records of national significance", and census records fit within that description, that will not be within the care and control of the National Archives of Canada. Because the tension between protection of privacy and access to information held by the Government of Canada for the purposes of research is a policy question, and as Parliament clearly indicated its intention to reserve to the Governor in Council and, eventually to itself, the resolution of issues arising out of that tension, the Court concluded that it had to be very cautious and declined to intervene on the facts of this matter, thus confirming that care and control of the 1911 census records rests with the Chief Statistician.
An official such as the Chief Statistician is under no legal obligation to reach an agreement in the nature contemplated by subsection 6(1) of the National Archives of Canada Act (i.e. agreement regarding the transfer of care and control of the records) where in that official's opinion, such an agreement cannot be achieved on terms that respect his or her statutory functions. In the present case, the Chief Statistician was concerned that the transfer of the census records would result in the disclosure of information that might well compromise the efficacy of future censuses. This appeared to be a legitimate concern. The Chief Statistician was under no legal obligation to transfer care and control of the 1911 census records to the National Archives of Canada.
In light of these conclusions, none of the reliefs sought by way of mandamus and declaration were appropriate.
statutes and regulations judicially
considered
Access to Information Act, R.S.C., 1985, c. A-1.
| Bill S-13, An Act to amend the Statistics Act, 2nd Sess., 37th Parl., 2003. |
| Census and Statistics Act, R.S.C. 1906, c. 68, ss. 2, 3, 4, 6, 10, 11, 16, 34. |
| Census and statistics Act (The), S.C. 1905, c. 5. |
| National Archives of Canada Act, R.S.C., 1985 (3rd Supp.), c. 1, ss. 4(1), (2), (3) (as am. by S.C. 1995, c. 29, s. 48), (4), 6. |
| Privacy Act, R.S.C., 1985, c. P-21, ss. 7, 8(1), (2)(a), (b), (i) (as am. by R.S.C., 1985 (3rd Supp.), c. 1, s. 12). |
| Privacy Regulations, SOR/83-508, s. 6. |
| Statistics Act, R.S.C., 1985, c. S-19, s. 5(2). |
cases judicially considered
considered:
Beatty v. Canada (Attorney General), 2003 FC 1029; [2003] F.C.J. No. 1303 (F.C.) (QL); President and Fellows of Harvard College v. Canada (Commissioner of Patents), [2000] 4 F.C. 528; (2000), 189 D.L.R. (4th) 385; 7 C.P.R. (4th) 1; 290 N.R. 320 (C.A.); revd [2002] 4 S.C.R. 45; (2002), 219 D.L.R. (4th) 577; 21 C.P.R. (4th) 417; 296 N.R. 1.
authors cited
Driedger, E. A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
APPLICATION for judicial review seeking an order (1) compelling the Chief Statistician to transfer care and control of the nominal returns and schedules for the 1911 Census of Canada to the National Archivist; and (2) permitting or directing the National Archivist to make this information available to the public for research purposes, or in the alternative, declarations that (1) the National Archivist has care and control of the 1911 census records; (2) the Chief Statistician has the legal obligation to transfer care and control of those records to the National Archivist; and (3) the National Archivist has the power to disclose those records to members of the public for research purposes. Application dismissed.
appearances:
Lois M. Sparling for applicant.
Patrick Bendin for respondents.
solicitors of record:
Lois Sparling, Calgary, for applicant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for order rendered in English by
Gibson J. :
INTRODUCTION
[1]This application for judicial review was the subject of a motion, on behalf of the respondents, whereby they sought to strike the notice of application and to have it dismissed on the ground that it is bereft of any chance of success and therefore clearly improper. My colleague Justice Layden-Stevenson allowed the motion only to the extent that the relief in the nature of an order directing that the Chief Statistician and the National Archivist make the nominal returns and schedules of the 1911 Census of Canada available to the public for research purposes was struck. In all other respects, the motion that was before Justice Layden-Stevenson was dismissed. I have had the benefit of access to Justice Layden-Stevenson's reasons for order [2003 FC 1029; [2003] F.C.J. No. 1303 (QL)]. Where I have deemed it appropriate, I have shamelessly plagiarized those reasons in what follows.
[2]Genealogy is the applicant's hobby. Put another way, the applicant is an amateur family historian. She wishes to see the nominal returns of the 1911 Census of Canada, more specifically of Alberta, to learn more about her grandfather and the circumstances in which he lived. In November 1999 and September 2000, the National Archivist requested that the Chief Statistician transfer care and control of the 1911 census records to the National Archives of Canada. The census records in issue have not been made available to the public. It was not in dispute before me that the Chief Statistician who claims to have care and control of those records does not have authority to release them to the public. By contrast, the National Archivist, if he were in care and control of the census records, would have discretion to release those records to the public for research or statistical purposes.1
RELIEFS SOUGHT
[3]In the application for judicial review that is before the Court, the applicant seeks an order compelling the Chief Statistician to transfer care and control of the nominal returns and schedules for the 1911 Census of Canada, or microfilm thereof, to the National Archivist, forthwith and without condition, and further, an order permitting or alternatively directing the National Archivist to make this information available to the public for research purposes. Finally, and in the alternative, the applicant seeks declarations that:
- first, the National Archivist, and not the Chief Statistician, has care and control of the records from the 1911 census;
- secondly, and in the alternative, if the Chief Statistician is found to have care and control of the records from the 1911 census, then that the Chief Statistician is under a legal obligation to transfer care and control of those records to the National Archivist; and
- thirdly, upon the National Archivist being declared to be in care and control of the records from the 1911 census or upon care and control of those records being transferred to him, that the National Archivist has the power to disclose those records to members of the public, upon request, for research purposes.
BACKGROUND
[4]The following paragraphs summarizing the background to this matter are derived in large part from the memorandum of fact and law of the respondents which, in this regard, is in turn largely derived from the affidavit of Pamela White, filed on this application for judicial review,2 on behalf of the respondents. Ms. White was, at all relevant times, an employee of Statistics Canada.
[5]The primary role of Statistics Canada, and indeed of its historical predecessors, is and was to establish and maintain a national statistical system for Canada. This objective is achieved by collecting, analysing and providing statistical information on the characteristics and behaviour of Canadian households, businesses, institutions, and governments for research, policy development, program administration, decision making and general informational purposes. The role or mandate of Statistics Canada is currently derived from the Statistics Act.3 Under the direction of the Minister, the Chief Statistician is responsible for the administration of Statistics Canada.
[6]The primary role of the National Archives of Canada is to conserve private and public records of national significance and to facilitate access to those records, to be the permanent repository of records of government institutions and of ministerial records, to facilitate the management of records of government institutions and of ministerial records, and to encourage archival activities and the archival community. That mandate is derived from the National Archives of Canada Act.4 Under the direction of the Minister, the National Archivist of Canada is responsible for the administration of the National Archives of Canada.
[7]There exists a degree of tension between the roles of Statistics Canada and the National Archives of Canada since, in order to facilitate the collection of information, Statistics Canada seeks to assure those from whom information is collected that their privacy will be protected. In contrast, the National Archives of Canada, pursuant to its mandate, seeks to make available to the public for research purposes, information in the hands of the Government of Canada.
[8]Canada's first census was initiated by Intendant Jean Talon in 1666. The census counted the colony's 3,215 inhabitants and recorded their age, sex, marital status and occupation.
[9]The first national census of Canada, post-Confederation, was taken in 1871. It was used to count the population of the four original provinces, Nova Scotia, New Brunswick, Quebec and Ontario. Its main goal was to determine appropriate representation by population in the new Parliament. The questionnaire for the census covered a variety of subjects and asked 211 questions on area, land holdings, vital statistics, religion, education, administration, the military, justice, agriculture, commerce, industry and finance.
[10]Since 1871, nation-wide censuses have been conducted in Canada every 10 years. In addition, starting in 1906, quinquennial censuses have been conducted. They were traditionally agricultural in nature and the area of the census was specified by the Dominion Statistician.
[11]From 1871 to current times, the census has been used to collect a variety of types of personal information about residents of Canada. This has included information such as marital status, religion, earnings, fertility, land holdings and education. Much of such information is currently regarded as personal information which, in the hands of government, is protected by the Privacy Act5 and related regulations. In the result, beginning as early as 1881, all census-takers have been required to take an oath of secrecy in relation to the information they collect.
[12]The 1911 Census of Canada, the census information to which access is by this application sought, was a decennial census conducted on June 1, 1911, in the then nine provinces and two territories of Canada. The then governing The Census and Statistics Act6 required that a decennial census of the population and agriculture be taken by the Census and Statistics Office, under the direction of the Minister of Agriculture, on a date in the month of June 1911, to be fixed by the Governor in Council, and every 10th year thereafter.
[13]The 1911 census was conducted by personal interview. Enumerators went to each household across Canada and obtained the required information from the "head of household". Data collection took place over many months. Census-takers carried out their mandate in accordance with census instructions, as set out in an Order in Council published in the Canada Gazette, which had the force of law pursuant to the Census and Statistics Act.7
[14]The 1911 census contained 39 personal questions about each person in the family, household or institution, including his or her name, place of habitation, gender, marital status, date of birth, citizenship, nationality, religion, profession, occupation, trade or means of living, wage earner or not, insurance held at date, education, language and infirmities. In the submission on behalf of the respondents, the 1911 census records have remained in the care and control of Statistics Canada, and its predecessors, since 1911. This is hotly disputed on behalf of the applicant. In 1955, a predecessor of Statistics Canada was given permission to destroy the paper schedules as a microfilm copy had been produced. In 1964, an archival microfilmed copy of the 1911 census records was stored in the Federal Records Centre controlled by the National Archives of Canada. The 1911 census records, once again in the submission on behalf of the respondents, nonetheless remained under the care and control of Statistics Canada or a predecessor.
[15]On November 16, 1999, the National Archivist formally requested that the 1906 and 1911 individual census records be transferred from the care and control of Statistics Canada to the care and control of the National Archives of Canada. On December 22, 1999, the Chief Statistician responded to the request, refusing to transfer care and control of the records on the basis of then existing legal advice interpreting the applicable legal framework.
[16]In May 2002, the Chief Statistician and the National Archivist of Canada reached an understanding with respect to a proposed legislative solution on the transfer of census records from the care and control of Statistics Canada to that of the National Archives of Canada. Legislation to implement the understanding was given First Reading in the Senate of Canada on February 5, 2003 (Bill S-13) [An Act to amend the Statistics Act].8 The "Summary" that formed part of Bill S-13 read as follows:
This enactment removes a legal ambiguity in relation to access to census records taken between 1910 and 2003. It allows genealogical and historical researchers access to these records under certain conditions for a 20-year period, beginning 92 years after the census took place. One hundred and twelve years after the census, anyone may examine the records without restriction.
[17]Bill S-13 was adopted by the Senate and proceeded to the House of Commons. It apparently received first and second reading in the House of Commons and was referred to Committee. When Parliament was prorogued on November 17, 2003, Bill S-13 "died on the Order Paper". It was not reintroduced in the following Session of Parliament which terminated when the election scheduled for June 28, 2004 was announced.
[18]Statistics Canada and the National Archives of Canada signed a memorandum of understanding on March 21, and 24, 2003, respectively, to permit the National Archives to physically restore and to make two duplicate copies of the microfilmed census records for the period 1911 to 1941 and to transfer the information contained on those microfilms to a digitized format. The restoration and duplication work was funded by Statistics Canada, was undertaken by a limited number of designated staff at the National Archives of Canada and those staff members were made "deemed employees" of Statistics Canada pursuant to subsection 5(2) of the Statistics Act.
[19]On June 2, 2003, the applicant made a request to Statistics Canada pursuant to the Access to Information Act9 for access to the 1911 census records. That request was denied on June 27, 2003, after this application for judicial review had been commenced.
RELEVANT STATUTORY AND RELATED PROVISIONS
[20]Relevant statutory and related provisions are reproduced and attached to these reasons as Schedule "A". Section 6 of the National Archives of Canada Act is pivotal to these reasons and to the related order. For ease of reference, that section is set out here.
6. (1) The records of government institutions and ministerial records that, in the opinion of the Archivist, are of historic or archival importance shall be transferred to the care and control of the Archivist in accordance with such schedules or other agreements for the transfer of records as may be agreed on between the Archivist and the government institution or person responsible for the records.
(2) The Governor in Council may, by regulation, prescribe terms and conditions governing the transfer of records under subsection (1).
(3) Except as otherwise directed by the Governor in Council, the Archivist shall have the care and control of all records of any government institution the functions of which have ceased. [Emphasis added.]
While there would appear to be a discrepancy in interpretation between the English version of subsection 6(3) which speaks to cessation of function and the French version which speaks only to cessation of activities of federal institutions, only the interpretation of the English version was argued before me and I will rely on that version.
THE ISSUES ON THIS APPLICATION FOR JUDICIAL REVIEW
[21]While framed differently by the parties, I am satisfied that the issues may be summarily described in the following terms:
(1) which of the Chief Statistician and the National Archivist currently has the care and control of the 1911 census records;
(2) if the 1911 census records are in the care and control of the Chief Statistician, does he have a legal obligation to transfer those records to the care and the control of the National Archivist; and,
(3) what relief, if any, is available to the applicant given the Court's conclusions with regard to issues 1 and 2.
It was not in dispute before me that the failure to provide the applicant the access that she sought is a matter reviewable in this Court.
POSITIONS OF THE PARTIES AND ANALYSIS
| (1) Care and Control |
[22]My colleague Justice Layden-Stevenson summarized, quite accurately I am satisfied based on the hearing of this application for judicial review before me, the applicant's submissions on this issue in the following terms, at paragraphs 12-14:
The applicant argues that the chief statistician is without legal authority and is in breach of federal law in purporting to retain custody and control of the nominal returns and schedules for the 1911 census and in refusing to transfer custody of them to the national archivist upon the demand of the latter. Reliance on subsection 6(1) of NACA [National Archives of Canada Act] is cited in partial support of this position. However, the applicant also submits that section 3 of the 1906 Act (pursuant to which the 1911 census was conducted) provided for the creation of a permanent office under the Minister of Agriculture and that section 3 of the 1918 Act created a new government department under the Minister of Trade and Commerce, the "Dominion Bureau of Statistics". "Statistics Canada" was not the government institution that collected the 1911 census information. Rather, it was a now-defunct office under the Minister of Agriculture known as the "Census and Statistics Office". By virtue of having ceased its functions, the applicant contends that the records of the "Census and Statistics Office" revert to the care and control of the national archivist pursuant to subsection 6(3) of NACA.
The applicant also refers to and relies upon the recommendation contained in the Order of the Privy Council dated November 30, 1903, creating the position of "Dominion Archivist", wherein it specifically states that ". . .everything in the archives branch of the Department of Agriculture" is to be "put into the custody" of the Dominion Archivist. At all relevant times, says the applicant, the "Census and Statistics Office" was part of the Department of Agriculture and there exists no legal authority, of which the applicant is aware, for "Statistics Canada" to have care and control of records from the 1911 census.
Moreover, contends the applicant, it must have been Parliament's intention, at the time of the 1911 census, that the federal archives would be the permanent storehouse for the census returns when regard is had to the 1911 Instructions to Commissioners and Enumerators, prescribed under section 6 of the 1906 Act, which specifically refer to the census as having value as a record for historical use (section 16) and as a permanent record with its schedules stored in the archives of the Dominion (section 36). There is no reference to "Statistics Canada", the chief statistician, or their predecessors holding the 1911 census records. It is NACA that delineates the objects and functions of the National Archives and conservation of the records with the National Archives as the repository. The applicant reiterates that the current secrecy provisions do not apply to the 1906 Act. The only reference to confidentiality in relation to the 1911 census is found in section 23 of the 1911 Instructions which, it is submitted, refers to concerns such as taxation, immigration status or business data. Perpetual confidentiality was neither assumed nor intended.10
[23]Justice Layden-Stevenson concluded [at paragraph 17] that, on the basis of the applicant's submissions as summarized above, it was not possible for her to conclude that "the applicant is, at this stage, `dead in the water'" on this issue.
[24]By contrast, counsel for the respondents urged that, despite reorganizations of government, redefinition of statutory mandates and changes to the responsible Minister, the functions of conducting of censuses, analysing the data collected, publication of statistical reports based on the data collected and preservation of the data collected have existed and continued without interruption since well before 1911. In the result, counsel urged, subsection 6(3) of the National Archives of Canada Act simply does not apply since, while successive "government institutions" may have ceased to exist, the functions of those institutions that underlie this application for judicial review have never ceased.
[25]Counsel for the respondents urged that it is worthy of note that the Chief Statistician and the National Archivist are not at odds on the question of care and control of the 1911 census records. They agree that the Chief Statistician has always had, since the creation of that office, and currently retains, care and control of those records. That agreement is borne out by the formal request on November 16, 1999 by the National Archivist of Canada to the Chief Statistician, pursuant to subsection 6(1) of the National Archives of Canada Act, for transfer of the care and control of the 1906 and 1911 census records from Statistics Canada to the National Archives of Canada. As noted earlier, that request was eventually denied since the Chief Statistician and the National Archivist of Canada could not reach agreement on the terms for any such transfer. Also as earlier noted, a legislated solution to the impasse between the Chief Statistician and the National Archivist of Canada was initiated but never came to fruition. The fact that such a legislated solution was initiated would, it is urged, support the view that, at all levels within government, there was consensus that care and control of the 1906 and 1911 census records rested and continues to rest with the Chief Statistician.
[26]Strangely, or at least strangely within the view of this Judge, while a legislated solution to the impasse was sought without success, it would appear that no resort to a solution by regulation prescribed by the Governor in Council, as contemplated in subsection 6(2) of the National Archives of Canada Act, was ever turned to, notwithstanding the inference that might be drawn from the proposed legislative solution that there was general agreement within government that care and control of the relevant census information should now vest in the National Archives of Canada or the National Archivist.
[27]I conclude that the position urged on behalf of the respondents must prevail. Notwithstanding the broadly stated objectives and functions of the National Archives of Canada as set out in subsection 4(1) of the National Archives of Canada Act, that Act, on its face in section 6, clearly contemplates that there will be "public records of national significance", and I am satisfied that census records fit within that description, that will not be within the care and control of the National Archives of Canada. It provides a mechanism to effect transfer of such records by agreement between those who have care and control and the National Archivist. It provides a mechanism to resolve differences between those having care and control and the National Archivist where agreement cannot be reached. As a last resort where agreement cannot be reached and resolution of the impasse either cannot or should not be achieved by regulation prescribing terms and conditions governing the transfer, as clearly demonstrated by the inconclusive efforts to legislate a solution to the impasse arising on the facts underlying this matter, any impasse such as that here demonstrated can be overcome.
[28]In President and Fellows of Harvard College v. Canada (Commissioner of Patents),11 Justice Rothstein, for the majority, wrote at paragraph 110 of his reasons:
There was considerable fanfare in this appeal that significant policy questions are at stake. The evidence is that the oncomouse has been patented in the United States and Europe. It is arguable on policy grounds that there is merit to uniformity and that Canada should follow suit. On the other side, there were arguments made against patenting the oncomouse based on human health, environmental and other concerns. However, all that is at issue in this appeal is the interpretation of the Patent Act and the determination of whether, on the basis of the evidence, the appellant's product is patentable in accordance with that interpretation. It is the duty of the Court to take the statute as it finds it, neither expanding its interpretation beyond Parliament's intention as expressed by the language in the statute, nor limiting that interpretation by reading words of limitation into the statute not placed there by Parliament. To the extent the appeal gives rise to policy questions, they are to be addressed by Parliament and not the Court.
[29]The decision of the Federal Court of Appeal in Harvard College was reversed on appeal to the Supreme Court of Canada.12 While the foregoing paragraph from the reasons of Justice Rothstein was not specifically cited in either the majority or minority reasons of the Supreme Court, it might be said to have been qualified by the following extract from paragraph 11 of the dissenting reasons of Justice Binnie which were concurred in by the Chief Justice and two other justices:
I accept, as does my colleague [writing for the majority], that the proper approach to interpretation of this statute [the Patent Act] is to read the words "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."
The quoted words cited by Mr. Justice Binnie are drawn from Construction of Statutes.13
[30]I am satisfied that the essence of the issue here before the Court, that is, the tension between protection of privacy and access to information held by the Government of Canada for the purposes of research, is a policy question and that Parliament clearly indicated its intention to reserve to the Governor in Council and, eventually to itself, the resolution of issues arising out of that tension. That intention is, I am satisfied, clear on the face of section 6 of the National Archives of Canada Act and is further supported by the legislative action in the form of Bill S-13 earlier referred to. Given this evidence of intention, by analogy to the words of Justice Rothstein quoted earlier, which I am satisfied are not qualified in this regard, I conclude that the issue here before the Court is of such a nature that the Court should be very cautious in intervening.
[31]In the exercise of such caution, I will decline to intervene on the facts of this matter. Care and control of the 1911 census records rests with the Chief Statistician and will remain there following this proceeding.
| (2) Is there a legal obligation on the Chief Statistician to achieve transfer of care and control to the National Archives of Canada? |
[32]As just indicated, I am satisfied that the answer to this issue question is in the negative. To reiterate, section 6 of the National Archives of Canada Act clearly contemplates transfer of care and control by agreement and, further, contemplates the possibility that, as on the facts of this matter, agreement might not be capable of achievement. It provides a way out of any such impasse and legislation is clearly an alternative way out of an impasse such as that reached here. I simply cannot conclude that an official such as the Chief Statistician faces an obligation to reach an agreement in the nature contemplated by subsection 6(1) of the National Archives of Canada Act where in his or her considered opinion, such an agreement cannot be achieved on terms that respect his or her mandate in the performance of his or her statutory functions. On the facts of this matter, it can be presumed that the Chief Statistician is concerned that transfer of care and control of census information to the National Archives of Canada will result in disclosure of such information in a manner that might well compromise the efficacy of future censuses and perhaps other data gathering activities of Statistics Canada. That this would appear to be a legitimate concern is demonstrated by the stringent terms of section 6 of the regulations enacted under the Privacy Act,14 as reproduced in Schedule "A" to these reasons.
[33]In summary, I conclude that no legal obligation exists that would compel the Chief Statistician to transfer care and control of the 1911 census records to the National Archives of Canada.
| (3) What relief, if any, is available to the applicant on this application for judicial review? |
[34]Given my conclusions to this point of these reasons that care and control of the 1911 census records rests with the Chief Statistician and that he is under no legal obligation to reach an agreement to transfer such care and control to the National Archives of Canada, none of the reliefs by way of mandamus and declaration that are sought by the applicant are appropriate. That being said, if I were found to be in error with regard to my foregoing conclusions, I am satisfied that the applicant, as a genealogist and amateur family historian, has standing to bring this application and would be entitled to relief, at least of a declaratory nature, and more particularly in the nature of the third form of declaratory relief set out in paragraph 3 of these reasons given the terms of paragraph 6(d) of the Privacy Regulations reproduced in Schedule A to these reasons.
CONCLUSION AND COSTS
[35]Based upon the foregoing brief analysis, this application for judicial review will be dismissed.
[36]Both the applicant and the respondents, in the case of the applicant in her application for judicial review and in the case of the respondents in their memorandum of fact and law, seek costs. Costs would normally go in favour of the successful party, that is to say on the facts of this matter, the respondents. That being said, I am not satisfied that, on the totality of the facts before the Court, the respondents should be entitled to costs. It is clear that at least one Government was sympathetic, at a level of principle, to an outcome favourable to the applicant. After due consideration, the Senate of Canada also favoured an outcome equivalent to that advocated by the applicant. Perhaps unfortunately, time ran out on the legislative process that the Government of the day chose to pursue to provide relief to the applicant. In the foregoing circumstances, in the exercise of my discretion, I determine not to grant costs in favour of the respondents. There will be no order as to costs.
SCHEDULE "A"
to the
Reasons for Order dated June 25, 2004
in
MERTIE ANNE BEATTY
- and -
THE ATTORNEY GENERAL OF CANADA,
THE CHIEF STATISTICIAN and
THE NATIONAL ARCHIVIST
T-930-03
Census and Statistics Act, R.S.C. 1906, c. 68
2. In this Act, unless the context otherwise requires,--
(a) `Minister' means the Minister of Agriculture;
(b) `Office' means the Census and Statistics Office.
3. There shall be a permanent office under the Minister of Agriculture, to be called the Census and Statistics Office, and the Governor in Council may appoint thereto a chief officer, a secretary, and such other officers, clerks and employees as are necessary for the proper conduct of the office, whose duties under the direction of the Minister shall be to carry out the provisions of this Act, and such other duties as are assigned to them by the Governor in Council.
4. The Governor in Council may also appoint such census officers, census commissioners and other employees as are necessary for the taking of each census, with such relative powers and duties and such emoluments as are laid down for each census by order in council.
. . .
6. The Minister may also employ from time to time such agents or persons as are necessary to collect for the Office statistics and information relating to such industries and affairs of the country as he deems useful and in the public interest, and the duties of such agents or persons shall be such as the Minister determines.
. . .
10. The details of information, and procedure to be followed for the obtaining thereof, the forms to be used, and the period at which, and the dates with reference to which, the census shall be taken or statistics and information collected, whether generally or for any specified localities requiring to be exceptionally dealt with in any of these respects, shall, subject to the provisions of this Act, be such as the Governor in Council by proclamation directs.
11. A census of Canada shall be taken by the Office, under the direction of the Minister, on a date in the month of June, in the year one thousand nine hundred and eleven, to be fixed by the Governor in Council, and every tenth year thereafter.
. . .
16. Every enumerator, by visiting every house and by careful personal inquiry, shall ascertain, in detail with the utmost possible accuracy, all the statistical information with which he is required to deal, and no other, and shall make an exact record thereof, and attest the same under oath, and shall see that such attested record is duly delivered to the census commissioner under whose superintendence he is placed.
2. The enumerator shall execute this section, in all respects, as required by the forms and instructions issued to him.
. . .
34. Every officer, census commissioner, enumerator, agent and other person employed in the execution of this Act, before entering on his duties, shall take and subscribe an oath binding him to the faithful and exact discharge of such duties and to the secrecy of statistics and information collected for the Office.
2. The oath shall be in such form, taken before such person and returned and recorded, in such manner, as the Governor in Council prescribes.
Fifth Census of Canada, 1911
Instructions to Officers, Commissioners
and Enumerators
16. If an unincorporated village is included in the enumerator's district he should take the Census of it separately from the rural portion proper, but on the same schedule. A short line drawn across the left hand margin above the number of the first family and another below the number of the last family of the village as entered on the schedule, will be a sufficient mark of separation. But if the village have a distinct name it should be written along the left hand margin of the schedule, between the upper and lower lines, on each page until the enumeration of such village is completed. . . .This separation will facilitate the tabulation of agricultural statistics, and it will have value as a record for historical use in tracing the origin and rise of future towns in the country. The Census of unincorporated villages however will be included as heretofore with the statistics of rural sections.
. . .
23. Every officer or other person employed in any capacity on Census work is required to keep inviolate the secrecy of the information gathered by the enumerators and entered on the schedules or forms. An enumerator is not permitted to show his schedules to any other person, nor to make or keep a copy of them, nor to answer any questions respecting their contents, directly or indirectly; and the same obligation of secrecy is imposed upon commissioners and other officers or employees of the outside service, as well as upon every officer, clerk, or other employee of the Census Office at Ottawa. 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 any other object.
. . .
36. The enumerator is required to make all entries on the schedules in ink of good quality, and every name, word, figure or mark should be clear and legible. If a schedule cannot be read, or if the entries are made with a poor quality of ink, or in pencil, or if they are blurred or blotted, the work of the enumerator may be wholly wasted. The Census is intended to be a permanent record, and its schedules will be stored in the Archives of the Dominion.
National Archives of Canada Act, R.S.C., 1985 (3rd Supp.), c. 1 [s. 4(3) (as am. by S.C. 1995, c. 29, s. 48)]
4. (1) The objects and functions of the National Archives of Canada are to conserve private and public records of national significance and facilitate access thereto, to be the permanent repository of records of government institutions and of ministerial records, to facilitate the management of records of government institutions and of ministerial records, and to encourage archival activities and the archival community.
(2) The Archivist may do such things as are incidental or conducive to the attainment of the objects and functions of the National Archives of Canada and, without limiting the generality of the foregoing, may
(a) acquire records or obtain the care, custody or control of records;
(b) take such measures as are necessary to classify, identify, preserve and restore records;
(c) subject to any lawful restriction that applies, provide access to records;
(d) provide information, consultation, research and other services related to archives;
(e) make known information concerning archives by means such as publications, exhibitions and the lending of records;
(f) advise government institutions concerning standards and procedures pertaining to the management of records;
(g) provide reproduction and other services to government institutions pertaining to the management of records;
(h) provide a central service for the care and control of records pertaining to former personnel of any government institution;
(i) provide record storage facilities to government institutions;
(j) provide training in archival techniques and the management of records;
(k) cooperate with and undertake activities in concert with organizations interested in archival matters or the management of records by means such as exchanges and joint projects;
(l) provide professional, technical and financial support in aid of archival activities and the archival community; and
(m) carry out such other functions as the Governor in Council may specify.
(3) Subject to the terms and conditions under which records have been acquired or obtained, the Archivist may destroy or dispose of any record under the control of the Archivist where the retention of the record is no longer deemed necessary.
(4) The Archivist shall not provide access to any record to which subsection 69(1) of the Access to Information Act applies without the consent of the Clerk of the Privy Council.
. . .
6. (1) The records of government institutions and ministerial records that, in the opinion of the Archivist, are of historic importance shall be transferred to the care and control of the Archivist in accordance with such schedules or other agreements for the transfer of records as may be agreed on between the Archivist and the government institution or person responsible for the records.
(2) The Governor in Council may, by regulation, prescribe terms and conditions governing the transfer of records under subsection (1).
(3) Except as otherwise directed by the Governor in Council, the Archivist shall have the care and control of all records of any government institution the functions of which have ceased.
Privacy Act, R.S.C., 1985, c. P-21 [s. 8(2)(i) (as am. by R.S.C., 1985 (3rd Supp.), c. 1, s. 12)]
7. Personal information under the control of a government institution shall not, without the consent of the individual shall to whom it relates, be used by the institution except
(a) for the purpose for which the information was obtained or compiled by the institution or for a use inconsistent with that purpose; or
(b) for a purpose for which the information may be disclosed to the institution under subsection 8(2).
8. (1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.
(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
(a) for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose;
(b) for any purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its disclosure;
. . .
(i) to the National Archives of Canada for archival purposes.
Privacy Regulations, SOR/83-508
6. Personal information that has been transferred to the control of the National Archives of Canada by a government institution for archival or historical purposes may be disclosed to any person or body for research or statistical purposes where
(a) the information is of such a nature that disclosure would not constitute an unwarranted invasion of the privacy of the individual to whom the information relates;
(b) the disclosure is in accordance with paragraph 8(2)(j) or (k) of the Act;
(c) 110 years have elapsed following the birth of the individual to whom the information relates; or
(d) in cases where the information was obtained through the taking of a census or survey, 92 years have elapsed following the census or survey containing the information.
1 See s. 6 of the Privacy Regulations, SOR/83-508 reproduced in Schedule A to these reasons.
2 Respondents' application record, Tab 2.
3 R.S.C., 1985, c. S-19.
4 R.S.C., 1985 (3rd Supp.), c. 1.
5 R.S.C., 1985, c. P-21.
6 S.C. 1905, c. 5 [R.S.C. 1906, c. 68].
7 Order of the Governor in Council made March 31, 1911, and published on April 22, of the same year in a Supplement to the Canada Gazette, exhibit "D" to the affidavit of Pamela White, pp. 0033 and 0036-0053 of the respondent's application record.
8 Respondents' application record, Tab 2, exhibit "P" to the affidavit of Pamela White, pp. 0107-0111.
9 R.S.C., 1985, c. A-1.
10 Beatty v. Canada (Attorney General), 2003 FC 1029; [2003] F.C.J. No. 1303 (F.C.) (QL), September 5, 2003.
11 [2000] 4 F.C. 528 (C.A.) (not cited before me).
12 Harvard College v. Canada (Commissioner of Patents), [2002] 4 S.C.R. 45 (not cited before me).
13 Driedger, Elmer A., 2nd ed. (Toronto: Butterworths, 1983).
14 R.S.C., 1985, c. P-21