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Trial on Adoption Disclosure

June 22, 2007 permalink

The challenge to the Adoption Information Disclosure Act will be heard next week. Below is the announcement from COAR.



June 22, 2007

Dear friends,

The Constitutional challenge to Bill 183, The Adoption Information Disclosure Act (AIDA) is about to begin! It will begin at 10:00 AM on next Monday June 25th, in Toronto at Osgoode Hall (attached to 361 University) in courtroom #6, and then again on Tuesday June 26th and Wednesday June 27th.

The bad news is, we have just heard, that the courtroom is very small. It could probably accommodate only five or six supporters. For that reason, if you were planning to attend, we have to advise you that there is seating only on a first-come-first-serve basis.

The COAR Co-ordinating Committee - Wendy, Michael and Karen - will be there to monitor the entire proceedings.

Given that the great majority of you won't be there, we will do our best to keep you informed about the proceedings.

In solidarity,

The COAR Co-ordinating Committee

Michael Grand

Karen Lynn

Wendy Rowney

Source: email from COAR

Addendum: The arguments in the challenge to the Adoption Information Disclosure Act have been completed. A decision can be expected in August.




June 27, 2007

Dear friends,

The arguments are all over. Yesterday afternoon the arguments challenging the Adoption Information Disclosure Act (AIDA) and its defence by the Government of Ontario and COAR, the intervenors, concluded.

The arguments essentially focused on section 7 of the Charter of Rights and Freedoms. There were very lengthy debates about whether or not privacy is a "principle of fundamental justice". Judge Edward Belobaba said that under section 7, everyone has a right to "life, liberty and security of the person", but the government can take 'a right' away as long as they do it in accordance with the principles of fundamental justice. Hence, the issue at hand is, "Does AIDA violate a principle of fundamental justice?" While many of the questions posed over the two days of the hearing may appear to have common-sense answers, our lawyers reminded us that this is a legal battle and all points must be legally sound rather then simply common sense.

The applicants' lawyer, Clayton Ruby, cited many cases to support his thesis that privacy is a principle of fundamental justice and that it was violated. Janet Minor, arguing for the government of Ontario, made many excellent clear points. For example, she said that everyone would agree that "the best interests of the child" is a legal principle, but it is not a principal of fundamental justice because it may be subordinated if necessary. So, for example, a parent may be sent to jail for robbery even though it may not be in the best interests of the child for the parent to be away for years. There are many legal principles that we all support, but they are not necessarily elevated to principles of fundamental justice

When talking about the adoption order, Ms. Minor made the point that it contains the name of the adopted person at birth. As you know, the surname of the adopted person at birth is usually the mother's surname. Therefore, the adoption order contains the name of two people: the adopted person and his or her mother. Ms. Minor argued that the difficulty is, you don't even know to whom it applies because the information is about two people.

COAR's lawyer, Ivan Whitehall, was accompanied by two junior lawyers and a law student. Showing his very considerable expertise in constitutional law, he gave a robust challenge to Ruby's views on privacy as a principle of fundamental justice. His critique focused on how Ruby had failed to come up to the mark. He also challenged Mr. Ruby over the notion that AIDA is retroactive saying that it is not retroactive, it is retrospective legislation because, although it deals with past events, the legal effect is in the future.

Mr. Whitehall delivered a stirring presentation in defence of "unwed mothers and bastards" in which he claimed that we were discriminated against historically - for centuries. In so doing he was invoking section 15 of the Charter, the famous "equality clause". It was a very emotional moment for many of us in the courtroom, to say the least. It really felt, for the first time, that there was recognition for the historical and discriminatory affects of adoption laws in Canada on those of us who have always had the fewest choices.

Now we wait and see what Justice Belobaba has to say. He had said at the being of the trial that this would be a difficult case to make and that the applicants had the toughest job. He seemed to be a very fair man, but he may not personally support openness unless both sides agree to it. Despite his feelings, he said that he will make his decision based on the arguments presented and not on his own views. He said that he planned to report his decision by the end of August.

Michael Grand,
Karen Lynn,
Wendy Rowney,

The COAR Coordinating Committee

Source: email from COAR