Privacy commissioner calls decision a victory for liberty

Steve Rennie
THE CANADIAN PRESS

A court decision striking down a controversial Ontario adoption law was trumpeted by the province's privacy czar as a victory for liberty today, despite critics who say the ruling "plays with the feelings" of adoptees looking to learn the identity of their birth parents.

Superior Court Justice Edward Belobaba ruled that Ontario's Adoption Information Disclosure Act, which came into effect Monday, breaches the guarantee to individual privacy enshrined in the federal Charter of Rights and Freedoms.

"I have come to this conclusion after much deliberation," Belobaba wrote in his 68-page ruling. "No judge takes lightly his or her responsibility as a `constitutional umpire."'

Toronto lawyer Clayton Ruby launched a constitutional challenge to the law last year, filing a challenge on behalf of four Ontario residents – three adoptees and one parent who gave up a child for adoption.

At a news conference in the basement library of his downtown Toronto office, Ruby said privacy is an individual right and it is not the role of government to decide "this you'll give up, this you won't."

"What is not good is to take someone who was promised privacy and then unilaterally say, 'Ah, too bad. We've changed our mind, you live with the consequences,"' he said.

The ruling "respects the wishes of virtually everybody" by allowing birth parents to keep their adoption records sealed if they choose to remain anonymous, Ontario Information and Privacy Commissioner Ann Cavoukian said in an interview.

"What is wrong with that? You can't just say it's got to be one way or another. Nothing in this world is black and white," Cavoukian said.

Times have changed, and birth parents who gave their children up for adoption years ago could have had their privacy rights violated under the province's Adoption Information Disclosure Act, she said.

Later, at the news conference, both Ruby and Cavoukian said they had urged the government to amend the law to allow birth parents and adoptees to file a "disclosure veto" that would allow them the option of blocking access to birth registration information.

However, Cavoukian said only a "small minority" of people would likely opt for such a veto.

Ruby said Attorney General Michael Bryant "was playing chicken" with the judge by refusing to amend the law to include the provision for a veto.

"He made it an all-or-nothing case, and he's got nothing," Ruby said.

Greg Crone, a spokesman for Bryant, said the ministry is reviewing the judge's decision and "considering all our options."

"We remain confident that the legislation is constitutional," Crone said.

Former Ontario New Democrat member Marilyn Churley, often referred to as the "mother" of the now-quashed law, was present at the news conference until Ruby asked her to leave. She later said Ruby and Cavoukian were distorting the law's intent.

"This is a right to information, not a right to a relationship," she said. "This is not about opening up records to the public. It's opening up records to the parties involved."

Churley, who found the son she had given up as a teenager nine years ago, said the ruling is a "partial victory" because some people – including adoptees looking for their birth parents – will still be discriminated against.

Michael Grand, a spokesman for the Coalition for Open Adoption Records, an umbrella group endorsed by adoption groups, said Wednesday's Superior Court ruling has dashed the hopes of adoptees who supported the law.

"To have this bitter effect of the law blocking them one more time as the court just plays with their feelings . . . you have no idea what kind of pain and anguish this has caused," he said.

"It's a very, very sad day for adoption practice in this province."