Marchand2007onca787

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CITATION: Infant Number 10968 v. Her Majesty the Queen in right of Ontario, 2007

ONCA 787

DATE: 20071116

DOCKET: C45673

COURT OF APPEAL FOR ONTARIO

MACPHERSON, BLAIR and LAFORME JJ.A.

BETWEEN:

INFANT NUMBER 10968, also known as

D. MARIE MARCHAND

Applicant/Appellant

and

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO,

CATHOLIC CHILDRENS AID SOCIETY OF TORONTO

Respondents/Respondents

Application under Canadian Charter of Rights and Freedoms, Part I of the ConstitutionAct, 1982, being Schedule B to the Canada Act1982 (U.K.), 1982, C.11

D. Marie Marchand, appellant acting in person

Janet E. Minor and S. Zachary Green for the respondents

Heard: November 13-14, 2007

On appeal from the judgment of Justice E. Eva Frank of the Superior Court of Justice

dated June 7, 2006.

BY THE COURT:


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[1] The appellant, who was adopted as a baby, wants to know the identity of her birthfather. She has tried to obtain this information through the disclosure provisions under

the Child and Family Services Act, R.S.O. 1990, c. C11 (the CFSA) but with no

success. The man named by her birth mother as her birth father denies paternity andrefuses to consent to the disclosure of his name.

[2] The appellant challenges the constitutional validity of the CFSAs adoptiondisclosure provisions. She also takes issue with s. 28 of the Vital Statistics Act(VSA),

which allows for an adopted persons original birth registration to be sealed and replaced

with a new birth registration in accordance with the adoption order. She submits that

these provisions, which thwart her right to know who she is and where she came from,

violate s. 7 and s. 15 of the Charterand should be declared of no force and effect. She

also seeks an order allowing her access to information about her birth father.

[3] The respondent defends the regime as the legislatures attempt to balance twocompeting demands: a demand for access to information and a demand for protection of

privacy. Even among members of the adoption triad (i.e., adopted persons, adoptive

parents, and birth parents) there is a broad divergence of views on how the balance

should be struck. The application judge was correct, submits the respondent, in holding

that the CFSAs disclosure regime appropriately balances the competing demands and

does not infringe the Charterrights of adopted persons.

[4] The application judge held that Ms. Marchand only had standing to challenge ss.162-168 of the CFSA (and not ss. 161 and 170 174 of the CFSA or s. 28 of the VSA)

and dismissed her application. Frank J. held that there is no liberty right to obtainidentifying information about a person who has expressly refused to consent to its

disclosure. She also held that the applicant had not been deprived of her security of

person rights. Even if her rights were infringed, the applicant had not identified any

principle of fundamental justice implicated by the impugned provisions. Finally, she

concluded that there was no breach of the applicants s. 15 Charterrights.

Preliminary matter

[5] In November 2005, theAdoption Information Disclosure Act, 2005, S.O. 2005, c.25 (AIDA), received royal assent. The key provisions ofAIDA were proclaimed into

force on September 17, 2007. AIDA amends the VSA and the CFSA by permitting adultadoptees to obtain uncertified copies of their original birth registrations and registered

adoption orders and any original and substituted birth registrations of their adult birth

children, subject to certain conditions. An adopted adult or birth parent may file a

contact preference form or a no contact form. Birth parents and adopted adults may

also apply to the Child and Family Services Review Board for an order prohibiting


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disclosure where, because of exceptional circumstances, the order is appropriate to

prevent sexual harm or significant physical or emotional harm.

[6] AIDA repeals every section of the CFSA challenged by the appellant with theexception of s. 161 [parent to be informed of adoption order], s. 162(1) and (3)(a) and (c) (d) [persons who receive adoption order] and s. 165(5) [Freedom of Information and

Privacy Act does not apply]. According to the official Table of Proclamations, all of

AIDAs provisions have now been proclaimed into force, with the exception of one

(which has no relevance to this appeal). The new regime has already been subject to

constitutional challenge in the Superior Court. In a decision released on September 19,

2007 Belobaba J. held that amendments to the VSA violated s. 7 of the Charterand were

not saved by s. 1 and so were of no force and effect: Cheskes v. Ontario (Attorney

General), [2007] O.J. No. 3515. AIDAs amendments to the CFSA were not challenged

in Cheskes.

[7] At the commencement of the hearing of this appeal, the panel raised the issue ofwhether the appeal was moot in light of the proclamation ofAIDA. The appellants

position was that the appeal was not moot. Counsel for the respondent agreed on the

basis that at least some of the relief sought by the appellant in her application e.g.

damages required a determination of the validity of the CFSA when it was still in force.

We accepted this joint submission and agreed to hear the appeal on the merits. As it turns

out, later on the first day of the appeal hearing, the Ontario Government announced that it

would not appeal the Cheskes decision. Instead, it would introduce new legislation that

would let parents and children involved in past adoptions veto disclosure of

information. (Globe and Mail, 14 November 2007, p. A8). Since this announcement

probably presages a return to something like the repealed CFSA scheme, it provides

another reason for hearing this appeal on the merits.

The appeal

Section 15

[8] The appellants principal argument, developed comprehensively, was that theCFSA violated her equality right under s. 15 of the Charter.

[9] The application judge held that the CFSA scheme does not make stereotypicalassumptions about the applicant or adopted persons generally. The scheme regulates and

limits the circumstances in which family information is made available to adopted

persons based on the legislatures assessment of how best to balance their needs against

the competing needs of birth parents. The scheme allows for access on an individualized

basis against the backdrop of an assessment of the adoptees health, safety and welfare.

The application judge stated:


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The challenged provisions are tailored to the needs of all

members of the adoption triad and are a product of an attempt

to balance those divergent needs with an individualized

scheme. I find that there is reasonable correspondence

between the challenged provisions and the needs, capacitiesand circumstances of adopted persons.

The evidence does not support a finding that a reasonable

person in the position of the applicant would conclude that

the challenged disclosure provisions are demeaning to the

claimants dignity. This finding is inconsistent with a finding

of discrimination.

[10] In our view, this analysis is sound. The application judges review of theevidentiary record, including the positions of various experts in the adoption field,

supports her analysis. Moreover, her legal analysis is a fair application of the leading

equality cases, especially Law v. Canada (Minister of Employment and Immigration),

[1999] 1 S.C.R. 497, whose framework she faithfully followed.

Section 7

[11] The appellants second substantive argument is that the CFSA provisions violateher Charters. 7 rights to liberty and security of the person. The application judge held

that the provisions did not infringe either of these rights.

[12] In our view, it is not necessary to pass judgment on the liberty and security ofthe person aspects of the application judges reasons. That is because we agree with the

application judges analysis and conclusion on the principles of fundamental justice

component of the s. 7 analysis:

A principle of fundamental justice must fulfil the following

criteria:

1. It must be a legal principle that provides meaningfulcontent for the s. 7 guarantee while avoiding

adjudication of public policy matters;

2. There must be a significant societal consensus that theprinciple is vital or fundamental to our societal notion

of justice; and


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3. The principle must be capable of being identified withprecision and applied to situations in a manner that

yields predictable results.

(See: Canadian Foundation for Children at paras. 8-11 andR.

v. Malmo-Levine, [2003] 3 S.C.R. 571 at para. 113.)

The unconditional disclosure of identifying personal

information of third parties, even if they are birth parents of

the claimant, without regard to the privacy and confidentiality

interests of the persons identified and without regard to any

serious harm that might result from disclosure, fails to meet

the above criteria. It is not a principle that is vital or

fundamental to our societal notion of justice. It is instead a

proposition of public policy that continues to be vigorously

debated.

[13] The appellant also contends that the application judge erred by concluding that theappellant did not have standing to challenge s. 28 of the VSA and ss. 161 and 170-174 of

the CFSA.

[14] The appellant was not affected by the re-registration provisions of the VSAbecause her birth was not re-registered after her adoption. As a result, her birth

registration was not sealed and, in fact, she received a copy of it approximately eight

months before the application hearing. Accordingly, we can see no basis for interferingwith the application judges assessment that the proper person to challenge s. 28 of the

VSA would be someone directly affected by it. Similarly, the appellant has not been

denied information pursuant to several of the provisions of the CFSA and, therefore, we

would not overturn the application judges exercise of discretion in not granting the

appellant standing to challenge those provisions.

[15] Finally, the appellant raises two issues for the first time on this appeal: the CFSAand VSA violate her freedom of conscience under s. 2(a) of the Charterand conflict with

ss. 377 and 378 of the Criminal Code. We see no merit in either submission.


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Disposition

[16] The appeal is dismissed. The respondent does not seek costs; accordingly, therewill be no costs order.

RELEASED: November 16, 2007 (JCM)

J.C. MacPherson J.A.

I agree R.A. Blair J.A.

I agree H.S. LaForme J.A.

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