Genealogy and the Law in Canada. Margaret Ann Wilkinson
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to remain free and democratic. The organs of the law (legislatures and the judiciary) are becoming involved in striking a balance between these two impulses. Because genealogists are intimately involved with information, a number of these changes in the legal environment have a direct impact on your work.
Since most of the population of North America reflects the immigrant experience, either in this or previous centuries, doing genealogical research, for most people, is a fascinating exercise in local, regional, national, and international information-gathering. The development of digital records and broad access to the web has revolutionized the ways in which genealogists approach their investigations — and has made it much easier to locate information relevant to any particular genealogical inquiry from sources often separated by vast distances.
The law, on the other hand, remains very connected to particular geographic locations. The legislatures and governments of any particular country can only create law that affects their own geographic territory. Strictly speaking, countries can claim jurisdiction over their citizens, wherever situated, but, for the purpose of the laws discussed in this book, it will be understood that the provinces, territories, and federal government in Canada have legislated with intent to affect those situated within their respective borders. Thus, in undertaking genealogical research that involves materials located beyond Canada’s borders, you will have to consult other sources about the applicable laws. This book will discuss the relevant laws applicable to those working within Canada with materials that are located, at the time you are doing the work, in Canada.
In the first chapter, I discuss material located in particular organizations in Canada. In the second chapter, the focus is on genealogists in Canada who are doing genealogical investigations for pay. In the third chapter, I describe the law relating to information found in cemeteries located in Canada. The fourth chapter contains an exploration of Canadian copyright law, which applies to the handling, in Canada, of any materials, no matter where they were written or published or are currently housed. The fifth and final chapter is the law of libel in Canada and how it may become connected with genealogy. The fifth chapter will be helpful to any genealogist, professional or amateur, who publishes material in Canada.
If you are reading this book and are situated outside Canada, the discussions in Chapters 1 and 3 may be directly relevant to your research. The discussions in Chapters 2 and 4 will not be directly relevant to your own activities but may explain the attitudes of your acquaintances located in Canada. The discussions in Chapter 5 probably will not be relevant to you, but, again, may help inform you of the Canadian environment. If you are reading this book anywhere in Canada, and are involved in genealogy as a hobby only, Chapters 1, 3, 4, and 5 will be relevant to your activities. On the other hand, if you are in the business of genealogy in Canada, your work will involve you in Chapters 1, 2, 3, 4, and 5 — in other words, the whole book!
This book is based upon the law in Canada as of June 2009. Finally, it remains only to repeat that this book cannot substitute for legal advice. Please consult a lawyer qualified to practise in your province or territory to obtain specific legal opinions about specific situations that concern you.
CHAPTER 1 Privacy and Personal Data Protection
Why might a genealogist be interested in questions of privacy and personal data protection? The answer to this lies in the changing environment in Canada, at least over the past quarter century, that has resulted in many of our jurisdictions passing laws related to the protection of privacy and personal data.
Vocabulary in this area is confusing. Many of the statutes, like the federal Privacy Act, contain the word “privacy” in their titles for legislation involving personal data protection — and many noted authorities and spokespeople also use “privacy” when discussing personal data protection. In five of our provinces, there are other statutes that deal directly with privacy in terms of being able to sue to force others to leave us alone in certain respects. In Newfoundland and Labrador, Manitoba, Saskatchewan, and British Columbia, these are called Privacy Acts. In Quebec, privacy protection is found in the provincial Charter of Rights and Freedoms as well as under the Civil Code. For this reason, among others, I will continue to refer to the laws with which we are concerned in this book as personal data protection statutes.
Privacy and Access to Information
Two different thrusts of legal activity have moved across Canada since 1977 and both of these affect the activity of genealogical research. First, there has been a movement toward making government-held information available to those who request it. Access-to-information laws mean that records held by government bodies have increasingly become available to genealogists requesting information.
There has been a parallel movement to protect individual privacy by protecting information that individuals provide about themselves to organizations. This second movement is potentially frustrating for genealogists because the information they seek is about other individuals. From the perspective of this area of the law, information about you is your information and information about other people is their information. Even information about other members of your family is considered private. Therefore, if personal data protection law is in effect in a particular situation, you will not be able to gain access to information about the other members of your family, never mind information about members of another family!
Barbara Turner Kinsella wrote in 2008 about her decades long search for her father. For much of that period, she was frustrated in every inquiry of government departments for information about the father she considered “missing” because the agencies would not answer her questions, citing data protection legislation. These agencies did not give her any information they may have held about her father because she was not her father. Finally, she did receive information about her father from a health provider (although this health provider presumably should have been bound by the same type of personal data protection legislation as others had cited) and, eventually, tracked him down. Unfortunately, the article had a bittersweet ending, from its author’s perspective, because her father had died shortly before she located him and there was information about him that she still was barred from accessing because of personal data protection law. On the other hand, her father had abandoned the family in her early childhood and had lived and died without apparently ever wishing to seek her out and his privacy was protected by the agencies with which he had come in contact during the many years prior to his death. 1
Evolution of Personal Data Protection
Exactly what information will be considered personal to an individual is defined in each personal data protection law in Canada. For example, under the Personal Information Protection and Electronic Documents Act [PIPEDA] of the federal government, in the case of private sector businesses, personal information is defined to mean any information about an identifiable individual but does not include the name, title, or business address or telephone number of any employee of any organization. By contrast, in Ontario, under the Public Sector Salary Disclosure Act, you can find the name, organization, and salary of any person working in the public sector and making a salary of over $100,000 because organizations are required to publish this list annually.
Records Held by Government
Various government organizations are now regulated by either access-to-information legislation or personal data protection legislation (often called “privacy” legislation) or both. The government organizations included in such legislation generally include government departments or ministries, frequently include municipal governments, and often include Crown corporations such as the Liquor Control Board of Ontario.
Personal