On Monday they were in. By Wednesday they were out.
Such was the fate of Ontario’s new adoption law as a challenge to their constitutional validity got its verdict from the Superior Court. With the attorney general still undecided on whether to appeal, the legislature may have to consider what doors the judgment leaves open for automatic disclosure of personal information of adoptees and their birth parents.
The decision in the case of Cheskes, Patton, CM and DS v. The Attorney General of Ontario and the Coalition for Open Adoption Records (intervener), was rendered on Sept. 19.
The applicants, who were either birth parents or adoptees who did not wish to be identified, alleged that the Adoption Information Disclosure Act violates s. 7 of the Charter of Rights by retroactively allowing people to open confidential adoption records and have access to identifying information without the consent of the person being identified. For people who had made a commitment of confidentiality and wished to rely on it, this appeared to be a serious breach of trust and privacy.
Unlike those seeking greater openness in the process, these people had no organization to advocate on their behalf. “The applicants are people who really want their privacy,” says Clayton Ruby of Ruby & Edwardh in Toronto, who represented the applicants. “Their position is inherently unorganizable.”
The applicants did not object to the legislation on a going forward basis, just its retrospective aspect, but the attorney general made it clear that the whole purpose of the act was the opening of past adoption records. He contended that the legislation should stand or fall on this basis, and it fell. Justice Edward Belobaba found that the right to access confidential adoption information is not a Charter-protected right, but that the right to privacy is.
Belobaba quoted the Supreme Court in R v. W (DD) that a reasonable expectation of privacy exists with respect to adoption records. He also quoted Privacy Commissioner Jennifer Stoddart’s comments that, “We cannot with the stroke of a pen rewrite the history of the lives of the individuals who trusted government to keep their birth records and adoption arrangements secret. Confidentiality commitments do not expire like patent protection.”
The judge agreed by saying, “the searching adoptee’s or birth parents’ right to access identifying information - ‘the right to know one’s past’ - is not a constitutionally protected right under Canadian law.”
Adoption information has been confidential since 1927, and has only been released on the consent of both parties or for health, safety, and welfare reasons that constituted a true emergency. In 1978 a voluntary disclosure registry was established, and later, after the 1985 Garber Report, came an active search system that still required agreement to disclose.
There has been a trend around the world and across Canada to make adoption information more accessible, but other jurisdictions have all employed some sort of protective provision, usually in the form of a disclosure veto.
The Ontario government also tried to include protection in its legislation, but chose to endorse a “no contact” notice, the breach of which would result in criminal prosecution and a fine of up to $50,000. Very few jurisdictions have adopted this mechanism, apart from the state of New South Wales in Australia, which established a system of contact vetoes in 1990.
This was retained in the Adoption Act 2000, and a five-year parliamentary review in 2006 found that the contact veto system had been remarkably successful. Provisions that foreshadowed the closure of the system 10 years after assent were repealed.
The applicants stressed that no contact was different from non-disclosure, pointing out that with identifying information, someone can quickly use an internet search tool and locate personal details and addresses. While the criminal sanctions might prevent actual contact, they would not prevent someone from being watched or stalked, from receiving phony phone calls or front-door deliveries.
The Ontario government also established a “non-disclosure order,” which required an application to a board with the very narrow jurisdiction to only make the order in order to prevent sexual harm or significant physical or emotional harm.
The process for obtaining a non-disclosure order was slammed by the applicants as a heavy-handed bureaucratic process that pits birth parents and adoptees as adversaries. They found it offensive to have to plead for the right to privacy and the right to have some control over the disclosure of intensely personal information.
The proposed protections did not impress the judge either, who found that they did not reduce the harm to a minimal impairment of a Charter-protected right but amounted to a total obliteration of that right. He suggested that the legislature should have considered a less intrusive means to achieve the same objective.
Ruby believes the judgment gives the legislature room to move in two obvious ways: “Make the legislation prospective only, which is counter to what they wanted to do, or enact it as everyone else has with a disclosure veto.”
This echoes Belobaba’s comments that “improving access to adoption records for the purposes just stated may well be a pressing and substantial objective, but only to the extent that the legislation is not retroactive and does not, as they say, trample on the rights of other citizens to their own sense of identity, personal history and family.”
Ruby listened in amazement as the judge asked if the defendants wanted him to write the legislation down so it was constitutional and the government lawyers answered, “No.”
“It was a bullying tactic, to say if you want to take responsibility for knocking it down, do it,” he says. “The judge didn’t buy it. Now instead of having it written down, they have to go back to the legislature or appeal.”
On the question of the appeal, the attorney general is leaving everyone in suspense, first saying that he would make a decision after the election, and then seeking an extension of the time to appeal.
Judith Parisien of Heenan Blaikie LLP, who was co-counsel for the intervener, believes the government’s representatives are using the time to delve into the decision more seriously. “They need to look at their options, either to amend or appeal.” The Coalition for Open Adoption Records continues to support the legislation as it stood.
Ruby does not expect the government to drop the legislation altogether and feels doubtful that there will be an appeal. “Four newspapers in Toronto, the Hamilton Spectator, and the Ottawa Citizen all ran editorials saying it’s a wonderful decision. That tends to carry some weight with the attorney general.”
On Nov. 15, he will find out if he is right.