Genealogy
and the Law
in Canada
GENEALOGIST ’ S REFERENCE SHELF
Genealogy
and the Law
in Canada
DR. MARGARET ANN WILKINSON
Copyright © Dr. Margaret Ann Wilkinson, 2010
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise (except for brief passages for purposes of review) without the prior permission of Dundurn Press and the Ontario Genealogical Society. Permission to photocopy should be requested from Access Copyright.
| Editor: Ruth Chernia | Proofreader: Cheryl Hawley |
| Design: Courtney Horner | Printer: Transcontinental |
Library and Archives Canada Cataloguing in Publication
Wilkinson, Margaret Ann
Genealogy and the law in Canada / Margaret Ann Wilkinson.
(Genealogist’s reference shelf)
Co-published by: Ontario Genealogical Society.
ISBN 978-1-55488-452-0
1. Genealogy--Law and legislation--Canada. 2. Freedom of information--Canada. I. Ontario Genealogical Society II. Title. III. Series: Genealogist’s reference shelf
KE4422.W54 2010 342.7108’53 C2009-907198-3
KF4774.W54 2010
1 2 3 4 5 14 13 12 11 10
We acknowledge the support of the Canada Council for the Arts and the Ontario Arts Council for our publishing program. We also acknowledge the financial support of the Government of Canada through the Book Publishing Industry Development Program and The Association for the Export of Canadian Books, and the Government of Ontario through the Ontario Book Publishers Tax Credit program, and the Ontario Media Development Corporation.
This book is based upon the law in Canada as of June 2009. 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.
Care has been taken to trace the ownership of copyright material used in this book. The author and the publisher welcome any information enabling them to rectify any references or credits in subsequent editions.
J. Kirk Howard, President
Printed and bound in Canada.
Ontario Genealogical Society
Suite 102, 40 Orchard View Boulevard
Toronto, Ontario, Canada M4R 1B9
tel. (416) 489-0734 fax. (416) 489-9803
[email protected] www.ogs.ca
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CONTENTS
Dedication and Acknowledgements
Chapter 1: Privacy and Personal Data Protection
Chapter 2: The Business of Genealogy
Chapter 3: Cemeteries as Sources of Genealogical Information
Chapter 4: Copyright in Genealogy
Chapter 5: Genealogy and Libel Law
Glossary
Statutes Cited
Cases Referred To
Notes
DEDICATION AND ACKNOWLEDGEMENTS
This book was inspired by the dedicated work in genealogy that my mother-in-law, Yvonne June (Ferguson) Crouch undertook before her untimely death, in order to provide a legacy for her three grandchildren (Nicole Amor Crouch-Diaz, Meredith Yvonne Crouch, and George Gregory Richard Crouch).Yvonne was a very active member of the Ontario Genealogical Society, Kingston Branch. My ongoing interest in genealogy is fuelled by the wonderful family archives amassed and organized by my own mother, Isobel Ellen (Althouse) Wilkinson, before her death.
The immediate impetus for the research leading to the series of articles and talks on which this book is based was an invitation to speak, facilitated by my cousin-in-law, once removed, Carolyn Croke, at The Ontario Genealogical Society in London. I would like to thank, as well, those who asked questions during the talks around the province of Ontario to which I was invited while working on this project.
I am indebted to former law student Leo Law and current law student Justin Vessair for assistance in the editing preparation of this manuscript, as well as to former law students Chad Matheson and Lovejeet Bajwa for research assistance on earlier versions of this work. I am also exceedingly grateful for the guidance, advice, and patience of my editor at the Ontario Genealogical Society, Ruth Chernia. All of this work investigating the interrelationships between intellectual property (including copyright) and privacy (and its derivative, personal data protection), as well as other aspects of information law and policy, has been funded over the years through grants received from the Social Sciences and Humanities Research Council of Canada.
As you know, genealogy is a fascinating study. Doing genealogical research is essentially an exercise in information-gathering. This may explain why genealogists are one of the most important (if not the most important) users of the services and resources of public libraries in Canada today. Increasingly, however, we are told that we are in the “information age” — and one result of this new state of affairs is that information is becoming an engine of our economy. As such, information is more and more viewed from the perspective of its commercial value.
On the other hand, democracies traditionally view access to information as