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The trial decision in the case Cheskes v. Ontario (Attorney General) of Ontario’s recently struck down access to adoption records case is now available on the internet. You can find a copy here. For present purposes, even though I’ve yapped about it before, have an interest in adoption and have, and in the past represented people involved with the system, I am not so much interested in the implications on the case for the parties or those similarly situated as just the court’s statement about the meaning and basis for privacy as a constitutional right.

With the ever over-riding caveat that I am not suggesting I am right, but to get right into it, here is the entire passage in the case setting out how the court says one sort of privacy has come to be a protected right:

[79]Unlike other bills of rights, there is no freestanding right to privacy in the Charter.⁴⁸ If a right to privacy exists under the Charter, it has to be found in the provisions that touch on matters of individual autonomy. For example, the case law is clear that there is a constitutional basis for the protection of privacy in situations involving unreasonable search and seizure. The Supreme Court has recognized that the primary purpose behind the right set out in s. 8 of the Charter – the right to be secure against unreasonable search and seizure – is the protection of the privacy of the individual.⁴⁹

[80] The Supreme Court has also indicated in several cases that “certain privacy interests may also inhere in the s. 7 right to life, liberty and security of the person.”⁵⁰ The Ontario Court of Appeal referred to some of this case law in a recent decision and pronounced what should now be beyond dispute – that the protection of privacy as a fundamental value is “enshrined” not only in s. 8 but also in s. 7 of the Charter.⁵¹ In other words, privacy interests are not only protected in search and seizure cases under s. 8, but also in certain circumstances under s. 7. The question, however, is whether any s. 7 privacy interest has been infringed in this case.

[81] The Supreme Court has tended to find the protection of privacy within the s. 7 liberty interest more often than within the security of the person guarantee. There are cases that suggest the latter, but most of the Court’s jurisprudence focuses on the liberty interest. The Court has noted that these privacy interests are at their strongest where aspects of one’s individual identity are at stake.⁵²

[82] The clearest statement that a privacy interest inheres in the right to liberty in s. 7 is probably found in R. v. O’Connor.⁵³ It was here that the Supreme Court stated that “respect for individual privacy is an essential component of what it means to be free” and, as a corollary, that “the infringement of this right undeniably impinges upon an individual’s ‘liberty’ in our free and democratic society.”⁵⁴ Even more pertinent to this litigation is what the Court said about the disclosure of private information and its impact on a person’s liberty under s. 7 of the Charter:

When a private document or record is revealed and the reasonable expectation of privacy therein is thereby displaced, the invasion is not with respect to the particular document or record in question. Rather, it is an invasion of the dignity and self-worth of the individual, who enjoys the right to privacy as an essential aspect of his or her liberty in a free and democratic society.⁵⁵

I’ve stuck the footnotes for the footnotey amongst you down below. Here are my initial observations:

• There is nothing worse for a good and careful lawyer as a judge who does not copy down your best bits in his ruling. I have no doubt that Clayton Ruby, counsel for the appealing parties, had a hundred cases on this point and maybe thirty pages of a factum. But this part of the ruling is both crucial and thin. Four paragraphs to prove what is admitted in the first section – privacy is not an acknowledged part of the constitutional rights Canadians have enjoyed.
• Further, while the court notes it is protected under section 8 (search and seizure), this case is about section 7. So the first paragraph is a bit of a write off if you were looking for a basis for privacy to be protected as part of the liberty right.
• One last thing about paragraph 79 – that reference to autonomy. This section of the case is about only one type of privacy – informational privacy. As we’ve discussed, that word “autonomy” has been used in Supreme Court of Canada cases since Godbout for another form of privacy – the right to autonomous decision making. That is also discussed in the case but not in this bit – and it is not the basis for the recognition of privacy the court relies upon.
• Moving to paragraph 80, the first two paragraph are a very rapid slippery slope moving from the Supreme Court of Canada stating certain privacy right may be protected to the Ontario Court of Appeal holding the principle “enshrined”. Way too fast. It may be the case, but the court has not shown its work.
• The court goes on to hang its hat in paragraphs 81 and 82 on one case, the twelve year old R. v. O’Connor, a criminal case from which can be read in full here. Check out the head note (the summary up front)and the many splits in this 6-3 ruling. Only two passages are mentioned from that case, paragraphs 114 and 120 (though the second one appears to really be quoted from 119) but the whole passage is about psychological trauma and privacy concerns arising from cases of sexual assault and defamation. The O’Connor ruling references an even earlier case when it states: “privacy, including informational privacy, is “(g)rounded in man’s physical and moral autonomy” and “is essential for the well-being of the individual”.

For me this is all not very satisfactory. Cases on the other class of privacy, autonomous decision making, out of the Supreme Court of Canada, after the date of the O’Connor ruling, take great pains to set out the test being use, displaying the formulation of preceding cases that justify the way the court is thinking. I just don’t think the court has pulled it off. Plus, it has not shown how the test in O’Connor is reasonably applicable – it may be but it is not stated. I do not doubt that all people who are sexually assaulted or defamed experience an attack on their personal psychology related to shame – but are all people to give children up for adoption in a similar position? The others classes include people who are wronged. Are they really comparable? You may think they are and that is fine but has the Court convinced you that it thought they were? If not, why was the O’Connor case picked as the most appropriate statement?

One other point – which may be worth another post. The question was raised as to the relative rights of adopted people and their birth parents. The court found at paragraph 115:

…this is not a case where we have competing Charter-protected rights. The applicants’ right to liberty under s. 7 has been breached. The rights of the searching adoptees or birth parents to the disclosure of confidential adoption information, although important and heart-felt, are not protected by s. 7 or any other provision of the Charter

My problem with this is that it is in this case where the court first accepts the right to privacy a birth parent enjoys in relation to adoption files. It does not go through similar analysis of the rights of the adopted to determine the state of adoptees to the same degree of rigor. In fact, the court goes on to primarily discuss the general relation of a constitutional right to privacy and the general right to information. That is unfortunate.

I don’t know the politics of whether this case will be appealed. It would be interesting to see the principles of informational privacy better enunciated with a more careful description of the grounds being relied upon and, especially, how it is that one record which references critical information in relation to two persons, the birth parent and the adoptee, must defer to the interests in one over the other, the voluntary party over the involuntary one.

But throw your two cents in. I am quite happy to be wrong as we all are most of the time. Just knowing you read a court ruling on a constitutional point is reward enough for me.

Here are the footnotes:

• [48] Euteneier v. Lee 2005 CanLII 33024 (ON C.A.), (2006), 77 O.R. (3d) 621 (C.A.) at para. 63. The intervener argues that if Parliament had wanted to protect privacy as a free-standing right in the Charter, it could have done so expressly. For example, section 5 of the Quebec Charter of Human Rights and Freedoms, R.S.Q. c. C-12, enacted in 1975, provides explicitly that “every person has a right to respect for his private life.”
• [49] Dyment, supra note 35 at para. 26; Duarte, supra note 36 at para. 33: “our right under s. 8 of the Charter extends to a right to be free from unreasonable invasions of our right to privacy.”
• [50] R. v. Hebert, 1990 CanLII 118 (S.C.C.), [1990] 2 S.C.R. 151 and R. v. Broyles, 1991 CanLII 15 (S.C.C.), [1991] 3 S.C.R. 595, cited in Dagg v. Canada (Minister of Finance), 1997 CanLII 358 (S.C.C.), [1997] 2 S.C.R. 403 at paras. 65-66. See also O’Connor, infra note 53 at para. 110 and M.(A).v.Ryan, 1997 CanLII 403 (S.C.C.), (1997) 4 C.R.(5th) 220 (S.C.C.)
• [51] Cash Converters Canada Inc. v Oshawa (City), 2007 ONCA 502 (CanLII), 2007 ONCA 502 at para. 29 – 30; also see Euteneier v. Lee, supra note 48.
• [52] Mills, supra note 34 at para 80.
• [53] 1995 CanLII 51 (S.C.C.), [1995] 4 S.C.R. 411.
• [54] Ibid. per L’Heureux-Dube J. at para. 114.
• [55] Ibid. at para. 120