Case Report – Court says consensual disclosure a principle of fundamental justice

Yesterday, the Ontario Superior Court of Justice invalidated Ontario’s new adoption disclosure regime, which opened past and future adoption records to searching adult adoptees and birth parents notwithstanding individual consent. The judgement contains a significant discussion of how section 7 of the Canadian Charter of Rights and Freedoms restricts government disclosure of personal information.

The applicants, three adopted persons and a father who was recorded as a birth parent in government records despite some uncertainty about his paternity, objected the the adoption disclosure regime brought in by the provinces Adoption Information Disclosure Act. In short, the Act allowed adult adopted persons to obtain information that could be used to identify their birth parents and allowed birth parents to obtain similar information in respect of their children who had reached 19 years of age. These disclosures could be made without consent, but the regime did feature two protections. Adopted individuals and birth parents could file a “no contact” notice, in which case thier searching parents and adoptees would be restricted from contacting them despite receiving information that would allow for contact. Adopted individuals and birth parents could also apply for a non-disclosure order, to be granted in exceptional circumstances to protect against “sexual harm” or “significant physical or emotional harm.”

Mr. Justice Belobaba held that the regime violated the applicants’ section 7 rights. His key factual determination was that the applicants had established a reasonable expectation of privacy in their adoption records based on the history of the adoption regime: “Since 1927, the statutory framework in Ontario has been predicated on confidentiality.” Based on this finding and the principles articulated by the Supreme Court of Canada in R. v. O’Connor, Belobaba J. found that the applicants’ liberty interest was engaged by the propsetive dislcosure of their identifying information. He then went on to find that the applicants’ had been deprived of this interest in a manner inconsistent with the following newly-articulated principle of fundamental justice:

Where an individual has a reasonable expectation of privacy in personal and confidential information, that information may not be disclosed to third parties without his or her consent.

Addressing the seeming strictness of this principle, Belobaba J. suggested that governmental interests in disclosure may be partly managed based on the “reasonable expectation of privacy” qualifier, which he characterized as a manageable and predictable legal principle. Beyond this, he suggested that governments should be responsible for justifying non-consensual disclosures under the Charter‘s saving provision.

Counsel for the Attorney-General raised some concerns about the need to balance interests in the process of formulating a principle of fundamental justice. It wasn’t clear to me if the submissions on this point were directed at the broadly stated “right to privacy” principle or at the more refined Suggested Principle [as quoted above]. In any event, let me set out my understanding of balancing at the section 7 stage of the analysis.

The balancing of individual and societal interests within section 7 is only relevant when elucidating a particular principle of fundamental justice – and here the relevant intersts were balanced using language such as “reasonable expectation of privacy.” Once the principle of fundamental justice has been elucidated, however, it is not within the ambit of section 7 to bring into account further societal interests, such as the rights of the searching adoptee or birth parent or the implications for government record-keeping etc. These considerations will be looked at, if at all, under section 1, where the Crown has the burden of proving that the impugned law is demonstrably justified in a free and democratic society.

On the facts and despite the two protections in the Act, Belobaba J. held that the government had not met its section 1 onus and issued a declaration of invalidity.

Cheskes v. Ontario (Attorney-General) (19 September 2007, Ont. S.C.J.).

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