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.49I've stuck the footnotes for the footnotey amongst you down below. Here are my initial observations:[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
- 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".
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 CharterMy 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
Comments
ry - September 27, 2007 1:07 am
So, you find a situation where you might, might I said, agree that there's some 'Judicial Activism' being used then?
Yes, it does sound like a 'poof, there it is' situation to me based on what you quoted. A bit of slight of hand, not egreigous, but enough to be annoying.
Alan - September 27, 2007 8:08 am
I actually think this is likely more judicial not-showing-your-work as much as activism. I once sat in a small town court room when the lawyer in question arrived for a simple plea. Some local had spent a portion of his retirement to have the famous lawyer show for a five minute matter. He had a stack of cases on every point and was very pleasant. It would be very instructive to get a hand on his written submissions in this matter to see the case he made.
Michelle - September 27, 2007 8:31 am
As an adopted person, I would like to hear from the government why my birth certificate is sealed. It's not written in the legislation, but what I'm told is that mothers need protection form their daughters and sons, hence her right to privacy.
"Protected:" adopted people are deemed potential criminals capable of causing harm to another human being - and that's why birth certificates are sealed. Birth certificates were sealed in ONatio in 1928, the justification for this was that children born out of wedlock would be debastardized. What does this have to do with privacy and protection?
Adoptees are classified as a group of individuals with the potential to shatter lives, cause harm, make a mother suicide (Cavoukian 2005). Adoption is supposed to be about what's in best interest of the child, not the mother - the mother did not ask for her child's birth certificate to be sealed - the government sealed it. The government has implied that adoptees are potential criminals, to the point that presumed potential victims (mothers and other family members) require anonymity. This is discrimination and character defmation.
Who else in society must abide by a law that presumes one is a potential criminal when no law has been broken, and no harm has been committed against the person to whom the law is protecting? And, even if one adopted person did cause harm - was it because they were adopted? Where is the documented proof that adopted people, given access to their parents' names will cause harm, therefore, identities changed and birth certificates sealed to protect potential victims.
Privacy and confidentiality in adoption are myths created and perpetuated by the adoption industry and the government to keep fear and the risk of harm alive in adoption.
Alan - September 27, 2007 8:42 am
That is what I do not get. I do not understand in this day and age an assertion that the circumstances of adoption are comparable to the other circumstances justifying state controlled secrecy - in the O'Connor case sexual assault and defamation, both serious wrongdoings. Would it not be better to have a hearing about particular releases than a blanket ban based on the odd principle that all adoptees are the source of harm?<p>But I am not surprised in that I have been left unsatisfied with a number of aspects of the Privacy Commissioner Cavoukian's approach to privacy in a number of contexts and note also that across those cases the Commission appears to be an intervenor by times and at other sources of authority though the court receiving it's reports as evidence. The fact that the Commission spent the day of the issuance of this ruling issuing press releases, even to the point of overshadowing Clayton Ruby, was somewhat odd as well.
ry - September 27, 2007 11:59 am
Well, from where I sit it is the 'not showing your work' that kind of makes it activism. If it was above board they'd show their work. It's that they aren't that really makes it look like they're trying something along the lines of 'Trust us, it's there. Look, there's a monkey. Ooop, now it's precedent.' THe people who decided Marbury showed their work.(ow, no beatings.)
Jim Kelly - September 27, 2007 12:54 pm
This is a flawed judgement and should be appealed;
1. As noted in your analysis - privacy is not an acknowledged part of the constitutional rights Canadians have enjoyed. The judgement solely considered Section 7 of the Charter and in doing so it failed to consider the numerated Equality provisions of the Charter. The judgement also failed to consider the Federal Court of Appeal decision in the McKenna Citizenship case in which three Justices acknowledge that those who are adopted can not be treated different than those who are not adopted. The 5% of the population who are adopted have an equality right to access their personal information the same as the 95% of the population who are not adopted.
2. The judgement also failed to consider the United Nations Convention on the Rights of the Child, which guarantees every child, without discrimination of any kind, the right to his or her biological identity. Please see the Supreme Court of Canada decision, June 2007, in the
Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27
http://scc.lexum.umontreal.ca/en/2007/2007scc27/2007scc27.html
> "The Charter should be presumed to provide at least as great
a level of protection as is found in the international human
rights documents that Canada has ratified."
This international Human Rights agreement which Ontario endorsed and then Canada has ratified in Dec. 1991, was ignored in this decision.
3. This judgement also chose the wrong comparator groups; adopted people v. birth parents . The correct comparator groups are those who are not adopted (the 95% who already have access) v. those who are adopted (the 5% who do not have access). In doing so this judgement is using past practices of discrimination in public service based on family status in order to justify continuing the discrimination. This judgement failed to consider settled Human Rights case law about using wrong comparator groups.
Teri - September 27, 2007 3:49 pm
As a reunited birth mother I can only add that I firmly believe in open adoption records. I have never feared my birth child and from all the birth mothers I've met in various groups, they, as I did, all yearn to meet and know the child we gave up and mourn, and have a need to know that this child was raised in a loving home and is living a happy life. The idea that an adopted child would be any more violent a person than any other criminal on the streets is ludicrous and until proven otherwise, the government should have no right to interfere in a person's basic human right to access their birth records.
David Janes - September 27, 2007 6:04 pm
It's interesting, Al, how this issue is exemplified on both sides by people making up new rights (or as I'd prefer to say, "rights").
On another note, I find it odd that the society has re-adopted the basic premise of racism, that your bloodline defines who you are.
Alan - September 27, 2007 7:34 pm
Racism and family - that is quite a stretch but you clearly don't mean it. Your biological relationship to your daughter and, more importantly, hers to you are clearly related to identity and identity is a building block of human dignity and autonomy.
Cath - September 27, 2007 9:44 pm
There are a few problems with the judges ruling.
First of all, mothers are NOT anonymous!!!
The judge is WRONG on that!
ALL adoptions before 1970 have her surname on the adoption order!!
Even after 1970, many do, depending on the caregiver prior the adoption and the mood of the judge!
ALL adopted adults are entitled to the adoption order on request WITHOUT the consent of the birth parents.
The birth father in this case is kidding himself if he thinks he is anonymous.
The agency promised he was - but did the mother make the same promise?
If the adoptee finds her first (which is the ususal route), there is NOTHING to stop her from naming him! Chances are good that the adoptee has the mother's surname.
Furthermore, THOUSANDS of Canadians were adopted by Americans. They are also allowed the names of the birth parents under the US Freedom of Information Act. This even applies to those at birth! The information is found on the immigration papers and is given to the adoptee WITHOUT the consent of any party. Many mothers who may have been promised privacy will NOT be covered as they cannot prevent the leak of information.
Many are unaware that their children went to the States, so that even if their name does not appear on the Ontario adoption order, it WILL appear on the US immigration papers because of a longing standing border agreement to do so.
I would like the judge - or anyone else for that matter - to tell me how a disclosure veto in Ontario could possibly stop this information that is legally obtained in another country.
One other point - privacy laws in Ontario says that if someone hold personal information on you, you have the LEGAL right to know who that person is.
So if an adoptee has personal information (many have the surname of the mother, her age at the time of birth, her occupation, religion, composition of her family, other family member occupations, etc. etc.),
then the Privacy law says that the other person (in this case, the mother) has a right to know.
And despite Denbigh Patton saying he knows nothing about his birth parents, he in fact DOES know the age of BOTH birth parents at the time of his birth, the marital status of his mother at the time and he HAS access to her surname by virtue of the fact that he was adopted before 1970. He only has to ask for his adoption order to get it. It is irrelevant that he chooses not to look at it - the fact is that he can have it if he wants to.
Why has ALL of the above been ignored?
I think the Ontario government will appeal because the judge got some fundamental facts wrong!
David Janes - September 27, 2007 9:47 pm
My non-biological relationship to my daughter is infinitely more important than my biological one. If I was wisked away tomorrow, I don't think she'd be less of "who she is" at age 20, or 30, or 60 than otherwise. I'm planning on the otherwise though, just to be sure ;-)
Michelle - September 27, 2007 10:46 pm
If you have a biological daughter, then there is no non-biological relationship. Just as an adopted person can not have a biological relationship with adoptive parents. The dynamics are different - the conversations are different - the expectations are different than that of a biologial family.
If you were wisked away, your daughter would not be able to continue a relationship with her biological father at certain ages in her life. If she were to have children, she, nor her children would be able to share biological similarities/differences with you - biological connections and relationships effect all humans throughout their lives. I don't think the statement "less than who she is" is the point - her life would be different, it would be less one biological parent in her life.
Adopted people have no biological connections - that is why they want their birth certificates - to have the ability (just like the non-adopted) to understand what it means and feels like to be biologically connected to other humans.
karen - September 27, 2007 11:01 pm
"The dynamics are different - the conversations are different - the expectations are different than that of a biologial family"...."Adopted people have no biological connections - that is why they want their birth certificates - to have the ability (just like the non-adopted) to understand what it means and feels like to be biologically connected to other humans." Michelle - do you speak for all adopted people? Of course not. There are many adopted people who do not feel as you do. Obviously, you feel this way. Please acknowledge that there are others who don't. And please do not use your usual answer that we've been brainwashed and that we have been sucked into the "myth".
Alan - September 27, 2007 11:39 pm
Ahem. Private site, folks - not a bulletin board. So...
Just to be clear, Karen (and perhaps Michelle.) I have no interest in you or anyone continuing something of a private disagreement you bring from elsewhere. If you have something to add, fine. Focus on the law. Otherwise, your comments will be deleted if they continue in that vein. And know off the all caps and exclamation marks, Cath. You may have a good point but you are not helping it. Up your game.
And, David, it's your daughter who gets whisked away, not you. You decided not to be her Dad. How does she do now?
David Janes - September 28, 2007 6:40 am
An excellent point Al - adoption whisks daughters away from their biological dads all the time, often without their knowledge or consent.
Just to frame the discussion a little, I'll say there are competing values here (and I'm using values in place of the more contentious "rights"):
(i) knowing who your biological parents are
(ii) knowing who your biological children are
(iii) privacy
(iv) family integrity
(v) implicit contractual holdingupnessthingie
Am I correct in saying that you value (i) the most? I'm more of a (iii)(v) guy.
(part 2 of this to come).
Alan - September 28, 2007 7:54 am
"<i>...adoption whisks daughters away from their biological dads all the time, often without their knowledge or consent...</i>"<p>
I know you hate to admit things, David, but from the kids point of view later in life how is this not true? You aren't suggesting the perception (at least) of abandonment is at the core of this. Because you are missing that (i) and (iv) are also related to the entire construct of the larger family - ancestry, stories, grandparents, etc. From the kid's point of view, not being party to the contract, (v) experientially speaking is less important. And it isn't a contract anyway. It's a statutory scheme and one that changes.<p>One other thing - what other Charter right gets retroactive effect to before 1982?
Michelle - September 28, 2007 9:00 am
Karen, I don't have a clue who you are - and my commenting here was not to take on or continue a personal issue from another message board.
No, I do not speak for all adoptees.
I was at the committee & social policy hearings in 2005 re bill 183. D. Patton was there with C. Ruby. Not once did I hear Mr. Patton express a desire for his birth certificate to remain sealed, or that he was concerned with how others need protection from him. How many adoptees are there who wish to have their identifying information sealed by law, and agree that their mothers need to be protected from them, therfore allowing the govcerment to control their information?
Alan - September 28, 2007 9:35 am
Here are some questions I have:<ul><li>Was there any indication that a hearing to open specific sealed file could be used?</li><p><li>Are the files unsealed on the death of the birth parent? If not, are they any other Charter rights that extend beyond the grave?</li><p><li>As mentioed above, how is it that actions and court decisions pre-1982 are cloaked with the Charter? Is that present in other Charter cases relating to other topics?</li></ul>
David Janes - September 28, 2007 10:24 am
Just to put my position clearly on this -- I think either biological parents or children should be able to opt out of this program, even if it's just a "positive opt out" -- i.e. they actually have to take an action to opt out. The reason for this, as hinted above (iii) & (v) with a touch of (iv).
Yes the kid's not a party to the contract to (v) but that's the life of a kid: their guardians get to make lots of decisions that will permanently affect their lives.
Now to get to what I was really driving at -- if you think that (i) [knowing your parents] is so important that overrides the rights/values of parents ... really, mothers ... who signed up for a (v) [I did this under with the understanding that this was private] then it _should_ have a broader effect.
_In particular_, if we are to follow the supremacy of (i) rule, then <i>kids should have the right to know who their fathers are</i>. This is not just an adoption matter: apparently 1 in 7 or 1 in 10 or something like that of thought-of legitimate children are actually little bastards (begging your pardon for using the vernacular). Does not their right to "know who they are" include the right to know that the poor slob who's been schlepping them to the ice rink at 5:30 AM in the morning for hockey practice, setting aside money for their RESP, etc. is actually a pathetic cuckold who's raising the child of a cocksure Club Med windsurfing instructor? Why not?
Note that this is fairly easily done: when we're sending the 12 year old girls to the nurses office for HPV vaccinations, we could take DNA samples from the boys "just in case".
Note that I'm not arguing for this, I just think it's a reasonable lemma from what you're arguing.
Alan - September 28, 2007 10:33 am
I am not suggesting this is anything but frought with aspects (as you are, too, to be sure) but how does a pre-Charter expectation of almost-privacy (as the case explains a Court could open the file in circumstances) become a post-Charter constitutional guarantee of total secrecy? Usually there is a discussion of a reasonable expectation of privacy in cases relating to such matters. If the birth parents in the past never had an expectation of total secrecy of the record, I do not understand the elevation of the position - especially in the face of an interest in another.<p>My answer would be a court hearing on the status of the record with the parties having anonymity protected by separate evidence giving or even written submissions through counsel only.
David Janes - September 28, 2007 10:48 am
I can't speak to the constitutional aspects very well, though if I understand the judgment correctly, elements can be read into the living charter (or words to that effect). It could be this is nonsense, in which case the Supremes will straighten them out, no?
I disagree with your latter point, for two reasons.
Firstly, it strikes me as symptomatic of lawyerism, as in "nothing in society can't be improved by adding more lawyers". As we are aware, lawyers are not affordable except by a thin slice of society.
Secondly, it's paternalistic, in the same way the requiring a woman to get a doctor's permission to have an abortion was. If I gave up a child for adoption, by reasons were my own: why should doors I closed in 1982 [1] suddenly by reopened because I can't satisfy a committee of lawyers that my life should be left alone as it. Note the Section 7 argument used in the 1988 abortion ruling (emphasis added):
<blockquote>
"Forcing a woman, by threat of criminal sanction to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and <b>aspirations</b>, is a profound interference with a woman's body and thus a violation of her security of the person."
</blockquote>
Aspirations is a very forward looking word, more than implying this is more than about the 9 month term of pregnancy.
[1] a purely hypothetic example!
Alan - September 28, 2007 11:03 am
Paternalistic? Is there any other aspect of society where a duty (that of parenthood) is so utterly absolved that there is an expectation of total anonymity? Is there any other where the powers of the state are used to positively prefer the interests of one living adult entirely to those of others? I think this has more to do with taboo as much as anything else. What about the aspirations of the adopted to know their own lives, their birth siblings, birth cousins, their birth grandparents? In the entire matrix of relationships, how is it that absolute secrecy in the interests of (potentially) one person governs - especially when the court can order the divulgence of parentage in other contexts like paternal blood testing. And that it outlives the death of the unwilling birth parent? Would you have an issue with a tribual releasing records after confirming the death of a birth parent?
Frankly, my point is not really in relation to adoption but the use of state power.
David Janes - September 28, 2007 11:10 am
I think the aspirations argument is very strong. It's made by the Supreme Court, it directly addresses the issue of power between society and all that (and who) it represents and the mother, and it directly speaks to the future: that a mother can sever herself permanently from a child because that child may affect her <i>aspirations</i>.
On the other hand, the aspirations of a person toward others, even their own mother, is not a Section 7 issue.
Alan - September 28, 2007 11:20 am
But it is an aspiration towards themselves, not the parent. Identity is all about informational data. If the parent wants no relationship, fine, but what if others do? It does not change the parent's experience, does it?
Plus section 7 security rights are different and diffently developed (sadly) thatn the liberty rights. Not a direct cross over, though persuasive to be sure. You may claim this to be lawyering but without lawyering, you live in Burma...so there.
David Janes - September 28, 2007 11:36 am
Burma? Surely there's a happy medium somewhere between a police state and a policy state.
Alan - September 28, 2007 11:45 am
If there was, you would have an example.
David Janes - September 28, 2007 12:57 pm
Easy: Canada, with respect to abortion laws. Here we are in a virtual state of anarchy, neither a judge lawyer or policeman in sight, and yet things are moving along sweetly.
Rob - September 28, 2007 1:26 pm
Glad that someone mentioned the legality of abortion procedures in Canada. In my opinion, any information collected about a foetus should not be treated as information collected about a legal person. Does not Belobaba's ruling somehow imply that information pertaining to a foetus is information about a person ?
Alan - September 28, 2007 3:21 pm
That is nuts. Any further commments down that path will be deleted.
Rob - September 30, 2007 1:45 am
I am sorry for introjecting with my nutty notion(s). I have no legal education - formal or otherwise - but what I was attempting to "get at" was that adoption language and terminology might be profitably reviewed in the light of this decision. In an attempt at explaining further [and this I would have preferred to have sent to you in private though I am unable to locate the link on your site ... ]. Please do consider reading my notions before deleting this post. And, even after you have read them, please delete the/all ridiculous parts contained herein. I have included my contact Email address should you wish you excoriate me privately.
So then, it's a fact that my birth mother had information collected about her BEFORE my birth. This information would not necessarily be "post adoption" birth information. As well, my adoptive parents had information collected about them, both in general (as prospective adoptive parents) and in particular [after they "brought me home" but before my adoption was legally finalized]. At that time the period between bringing the prospective (i.e. not-yet-officially-adopted) infant/child to live with (still-technically-prospective) adoptive parents before an adoption said infant could be legally finalized was six(6) months].
The Childrens' Aid Society that collected all of this information about both my adoptive parents AND my birth parents did so before I was born [and while I cannot be sure of this right now (though I can find this out) is that the information collected from my adoptive parents as applicants for adopting any child was collected by the Childrens' Aid Society even before I was conceived]. As such, it might be possible to argue that the information collected before my adoption was officially finalized (that is, all of the information about my until-then-prospective adoptive parents, coupled with the information collected about my birth parents) would not be any type of "Post-Adoption Birth" information.
Given that there was identifying information given to the Childrens' Aid Society from my adoptive parents (along with identifying information given, in large part, by my birth mother) it might not necessarily be the case that that information would be exempt from being divulged [though only that identifying information that my adoptive parents gave to the CAS prior to my conception (as applicants for adopting a child), or perhaps even some while I was still 'in embryo' (so to speak)] to my biological parents.
As well, given that the Childrens' Aid Society had collected information about my adoptive parents before I was born, there is not necessarily a legal reason (given the status of the not-yet-born under Canadian law) to with-hold information about my adoptive parents from my biological parents. That is, I do not believe that before I was conceived that I had a right to privacy. Furthermore, even after I was conceived (though before I was born) I do not think that "I" could have had a legal right to privacy [given my status as a foetus (or if that is too cold, during the time that the medical community agrees when a person is not yet 'a legal person' ]
Apologies for expanding further (hell, even for beginning to write this "to-be-deleted-but-at-least-one-person-read- it " post) but I should get to the part where I think that as an adoptee [ ... you yourself have noted that the adoptees are the ones most given the least choice] I could/should be able to receive identifying information. That would be between the time that I was "brought (to my adoptive parents) home" and the mandatory six(6) months before I was legally adopted. During that six month period I was an infant (not a foetus) and, as such, was a legal person. And as a person during those six months before I was legally the child of my adoptive parents I was (as a legal person nonetheless) entitled to information about myself [please do correct me if I am wrong but I assume that information about one's self cannot be held under privacy protection from one's self (?)].
I do believe furthermore, as A. Cavoukian has herself stated on more than one occasion (though not necessarily 'ver batim'), that an individual has a right to see/examine any private information that the government holds pertaining to said person. In short, my birth name should be available to me. My birth name was not changed until after I had spent over six(6) months with my adoptive family. Given that the CAS collected general information about my adoptive parents as "prospective" adoptive parents (of any child) then that information should be available [perhaps to anyone (it is, after all, information collected by a public agency (one which, again to pseudo-reference A. Cavoukian might be information to which "the public" is entitled))(?) ... albeit I would hope, in anonymous form (and only in general)]
And finally, my biological parents should be able to collect any identifying information about me while I was still 'in embryo' ... the first time, when I was still "an" embryo [and as such had no privacy rights, nor did not necessarily any prospective adoptive parent] and, perhaps moreso, while I was still "in" embryo [that is, during the six(6) months that elapsed between the time I was "brought home" by my adoptive parents before I was officially adopted (let alone Post-Adopted)].
Alan - September 30, 2007 11:57 am
You saved the day: I thought you were going on an abortion debate parallel because you were using the word foetus.
Michelle - September 30, 2007 4:45 pm
Rob, you make a good point. There were no signed contracts (not that any adoption contract in the world states privacy and confidentiality - it's all about "implied promises")in the pre and in-between periods.
Something else you might find interesting is that in Ontario, forty percent of adopted people's birth certificates are not sealed. It was the repsonsibility of the adopting parents to have the amended birth certificate officially stamped and sealed by the registrar - if they did not do this then it was never sealed. Many adopting parents did not relaizse this was the last step in changing the name, or they did know and thought it wouldn't matter. D. Marchand sued the government two years ago and lost the case because the judge said she already knew her mother's name, therefore her argument was not valid. She appealed and the hearing is in November. Why would matter whether she knew her mother's name or not? Her birth certificate is not sealed. It's amazing how many people don't want these records unsealed, and how adoption has its own system of justice (injustice).
Natalie - September 30, 2007 10:52 pm
Here's something that's been puzzling me about this case. The information on D.S., indicates that he denied paternity. Wouldn't he have to have affirmed his paternity in order to be named on the birth certificate that is now sealed? And if his name isn't on the birth certificate that would be released under this law would he even be entitled to be in this lawsuit?
It sounded to me like he might have been contacted because he was listed as the putative father in some Children's Aid Society's files rather than being listed on the original birth certificate.