Canada’s New Statistics Act

By Wayne Smith,  January 14, 2018

On December 12th, 2017, the government’s bill to amend the Statistics Act (C-36) received Royal Assent and became law, having moved through both the House of Commons and the Senate without amendment. During this process, a number of concerns about the bill were raised by various stakeholders in the national statistical system but these did not garner any significant public attention, and were entirely ignored by Minister Bains.

There is much that is positive that can be said about the new amendments to the Statistics Act. They do, to a significant extent, insulate the Chief Statistician from political pressure that might cause him or her to act contrary to the interests of the statistical system. By vesting the operational powers of the Act directly in the Chief Statistician, the amendments give him or her firm control over decisions regarding statistical methods, operations, and dissemination, while accepting that the political level must have a significant role in deciding what statistics are collected.

The amendments impose a politically unpalatable process should any future government seek to direct the Chief Statistician to carry out any specific action. Under the Westminster parliamentary system, even though powers are assigned to the Chief Statistician under the Act, this does not preclude the Minister instructing the Chief Statistician to carry out actions on matters under the Chief Statistician’s authorities as summarized in the previous paragraph. The amended Statistics Act requires that the Minister seek the approval of the Governor in Council (Cabinet) to issue any such instruction, and further requires that “Within 15 days after the day on which an order is made, the Minister shall cause a copy of the order to be tabled in each House of Parliament.” Since such an order would imply the disagreement of the Chief Statistician with the proposed action, an intervention of this nature would likely be as controversial as attempting to amend the Statistics Act to achieve the same purpose.

Also in the new law is formal recognition of a statistics advisory council of statistical stakeholders to advise both the Minister and the Chief Statistician; another important bulwark in protecting the independence of Statistics Canada by creating a watchdog council.

Two other important measures were included in the amendments. The first responds to concerns raised by historians and genealogists by rendering individual census records public 92 years after collection. An anomaly will exist for the 2006, 2011 and 2016 Censuses where the consent of the individual will continue to be required for the disclosure to occur (this was the commitment made to respondents in those censuses).

The second measure eliminates jail terms as a penalty for persons who refuse to participate in Statistics Canada surveys identified as mandatory by the Chief Statistician. Financial penalties remain. Jail terms are now generally considered to be excessive for refusal to participate in a survey.

For all that is positive about the new legislation there are also some significant shortcomings. I will address three of them.

The first, and by far the most significant, is the failure to include in the amendments a transparent, merit-based selection process for the Chief Statistician driven by a search committee of non-political stakeholders in the statistical system. The government has argued that it has imposed on itself a new merit-based process for most Governor-in-Council appointments which it has decided will be used for selecting the Chief Statistician. The problem with this solution is that the government’s new process is not binding on the government for any specific future appointment and it is certainly not binding on any future government of whatever stripe. If the government can appoint a person selected primarily on the basis of their willingness to do the government’s bidding, not only is the objective of the legislation defeated, but the legislation is now perversely protecting someone who should not have been appointed.

It has been noted that, in the past, no government has made an overtly political appointment. It can be responded that the whole purpose of the Bill was to avoid reliance on convention by legislating. It is also true that, until the 2011 Census, no government had attempted to make a portion of the Census questions voluntary, but they could under law and they did. Again, this is why convention is not enough. It is also noteworthy that the government’s new appointment process is dysfunctional with a growing backlog of vacancies. It remains highly opaque and provides for no verification that appointments are in fact merit-based.

The second significant shortcoming is the failure of the amendments to prevent a future government from again making a portion of the Census of Population voluntary. The provisions governing the Census are essentially unchanged. It is still the Cabinet that ultimately decides what questions will be asked in the Census, whatever the recommendations of Statistics Canada. Nothing in the amendments attempts to define the required scope of a Census. Imagine that in 2021 the government of the day decides that the Census will consist of 10 basic questions and that any additional questions can be part of a survey piggy-backed on the Census, provided that those questions are asked on a voluntary basis. Statistics Canada can decide whether it will undertake such a survey, but the choice is between nothing or something statistically viable, but of much lower quality than a full mandatory census.

The third and final shortcoming is the failure of the government to deal with Statistics Canada’s forced and debilitating dependence on Shared Services Canada. The government is continuing on the informatics centralization path despite the sharp criticism of Shared Services Canada in the Gartner report commissioned by the government, despite the Phoenix catastrophe (covered in the recent report of the Auditor General among other documents and news stories) and the abandonment of a number other similar grand schemes, and despite strong concerns raised by a number of deputy ministers and agency heads. CBC reporter Alison Crawford of the CBC has been following this file. Her 2016 report regarding the relationship been Shared Services Canada and RCMP Commissioner Bob Paulson based on documents obtained through Access to Information is one example.

Since my resignation, the situation at Statistics Canada has scarcely improved. Service outages continue to be a feature of life. Full delivery of ready-to-operate key infrastructure that was already a year late at my resignation has still not occurred over a year later. And Statistics Canada has transferred almost $20 million to Shared Services Canada to supply infrastructure that was already funded in earlier transfers of budget. This money would have been better invested in new statistical programs. There is no lack of statistical gaps to fill.

While the government has opened the door somewhat to more flexible arrangements between Shared Services Canada and its clients, the current management of Statistics Canada appears to have no interest in pursuing them.

Minister Bains has suggested there may be another round of amendments to the Statistics Act to address other modernisation issues. Perhaps some of these concerns may yet be addressed. I would note that Standing Senate Committee on Social Affairs Science and Technology, charged with studying the government’s bill, did include the following observation in its report to the Senate: “…the committee urges the government to consider using tools including Executive Search Committees or Parliamentary approval to ensure the Chief Statistician is a non-partisan appointment who is independent from the government.”

Wayne Smith

Former Chief Statistician of Canada