The Association for Reformed Political Action (ARPA) Canada et al. v. Her Majesty the Queen in Right of
Ontario; Information and Privacy Commissioner of
Ontario, Intervenor
[Indexed as: Association for Reformed Political Action Canada v. Ontario]
2017 ONSC 3285
Superior Court of Justice, Labrosse J. June 9, 2017
Charter of Rights and Freedoms — Freedom of expression — Provision in Freedom of Information and Protection of Privacy Act (“FIPPA”) which excludes from FIPPA all records relating to provision of abortion services substantially impeding meaningful discussion and criticism on matter of public interest — Provision unjustifiably violating s. 2(b) of Charter and being of no force or effect — Canadian Charter of Rights and Freedoms, s. 2(b) — Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 65(5.7).
The applicants brought an application to strike down s. 65(5.7) of the Freedom of Information and Protection of Privacy Act (“FIPPA”), which excludes from the FIPPA all records relating to the provision of abortion services.
Held, the application should be allowed.
The impugned provision substantially impedes meaningful discussion and criticism about abortion, which is a matter of public interest. There are no countervailing considerations, at least in respect of non-identifying information. Accordingly, s. 65(5.7) of the FIPPA violates s. 2(b) of the Canadian Charter of Rights and Freedoms. The objective of the provision — protecting the privacy and safety of patients seeking abortion services and those involved in the provision of abortion services — is sufficiently pressing and substantial to warrant overriding a constitutionally protected right. However, the means adopted to achieve that objective are not rationally connected to the objective and are not minimally impairing of freedom of expression, and Ontario’s decision to exclude all records relating to the provision of abortion services, no matter how general and
non-identifying, is in no way proportional to protecting the privacy and safety of those involved. The violation of s. 2(b) is not justified under s. 1 of the Charter. Section 65(5.7) is of no force or effect. The declaration of invalidity is suspended for 12 months.
Ontario (Public Safety and Security) v. Criminal Lawyers’ Assn., [2010] 1 S.C.R. 815, [2010] S.C.J. No. 23, 2010 SCC 23, 212 C.R.R. (2d) 300, 84 C.P.R. (4th) 81, 255 C.C.C. (3d) 545, 76 C.R. (6th) 283, 402 N.R. 350, 319 D.L.R. (4th) 385, EYB 2010-175469, 2010EXP-1990, 262 O.A.C. 258, J.E. 2010-1089, 1 Admin. L.R. (5th) 235, 88 W.C.B. (2d) 628, 189 A.C.W.S. (3d) 675; R. v. Oakes, [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7, 26 D.L.R. (4th) 200, 65 N.R. 87, 14 O.A.C. 335, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 19 C.R.R. 308, 16 W.C.B. 73, apld
Other cases referred to
Canadian Broadcasting Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 19, [2011] S.C.J. No. 2, 2011 SCC 2, 2011EXP-346, 411 N.R. 23, J.E. 2011-189, 264 C.C.C. (3d) 1, 328 D.L.R. (4th) 128, 1 C.P.C. (7th) 1, 199 A.C.W.S. (3d) 1132, 93 W.C.B. (2d) 603; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, [1989] S.C.J. No. 36, 58 D.L.R. (4th) 577, 94 N.R. 167, J.E. 89-772, 24 Q.A.C. 2, 25 C.P.R. (3d) 417, 39 C.R.R. 193, 15 A.C.W.S. (3d) 121, 1989 CanLII 87; Ontario (Attorney General) v. Dieleman (1994), 20 O.R. (3d) 229, [1994] O.J. No. 1864, 117 D.L.R. (4th) 449, 49 A.C.W.S. (3d) 1059, 24 W.C.B. (2d) 302, 1994 CarswellOnt 151 (Gen. Div.); Order PO-3222; Ontario (Ministry of Health and Long-Term Care) (Re), [2013] O.I.P.C. No. 156, 2013 CanLII 38913 (I.P.C.)
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 1, 2(b)
Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52
Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 14(1) [as am.], Part V [as am.], s. 65 [as am.], (5.7)
Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A [as am.], s. 8(1) [as am.]
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 190, rule 4.01
Application for a declaration of invalidity.
Albertos Polizogopoulos and John Sikkema, for applicants.
Daniel Guttman and Yashoda Ranganathan, for respondent.
Lawren Murray, for intervenor.
[1] Labrosse J.: — The opening paragraphs of the Supreme Court of Canada’s decision in Ontario (Public Safety and Security) v. Criminal Lawyers’ Assn., [2010] 1 S.C.R. 815, [2010] S.C.J. No. 23 state:
Access to information in the hands of public institutions can increase transparency in government, contribute to an informed public, and enhance an open and democratic society. Some information in the hands of those institutions is, however, entitled to protection in order to prevent the impairment of those very principles and promote good governance.
Both openness and confidentiality are protected by Ontario’s freedom of information legislation, the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA” or the “Act”). The relationship between them under this scheme is at the heart of this appeal. At issue is the balance struck by the Ontario legislature in exempting certain categories of documents from disclosure.
[2] This application deals in large part with the same principles as in Criminal Lawyers’ Assn., being a determination of what constitutes a meaningful public discussion on a matter of public interest.
[3] The applicants seek to strike down s. 65(5.7) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990,
c. F.31 (“FIPPA”) which excludes from FIPPA all records “relating to the provision of abortion services”. The applicants rely on s. 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) which provides a derivative right to information where the applicant can demonstrate that a denial of access to information effectively precludes meaningful public discussion on a matter of public interest. The applicant must also show that there are no countervailing considerations inconsistent with disclosure that would negate the right of access under s. 2(b) of the Charter.
[4] The respondent, Ontario, takes the position that there already exists a meaningful public debate on the issue of abortion services and that this precludes the applicant from seeking specific information. Furthermore, there is concern that disclosure of such records by hospitals could pose risks to the safety and security of their patients, health care providers and other staff.
[5] The Information and Privacy Commissioner of Ontario (the “Commissioner”) intervenes in this Application as a friend of the court with leave. It made no submissions on the desired outcome of the Application.
[6] One could simplify the main question as being: does having less than 50 per cent of some of the statistical information on a matter of important public interest allow for a meaningful public discussion? For the reasons which follow and given the place the abortion debate takes in the Canadian political and social environment, I think the answer to the question is “no”.
Factual Background
[7] Prior to 2012, FIPPA governed all applications for records related to the provision of abortion services. There are a number of decisions of the Commissioner which govern the availability of records which are similar in nature to the records which have been referred to in these proceedings. In some instances, the records were released and in other instances they were withheld. Often, when access to a record was provided, it was because the content was statistical in nature and there was no identifying information associated with individuals or facilities.
[8] In 2010, the Ontario Provincial Government adopted Bill 122, being legislation which amended FIPPA and made hospitals subject to the provisions of FIPPA. Bill 122 came into force and effect on January 1, 2012. In doing so, Ontario adopted s. 65(5.7) of FIPPA which created an exclusion for all “records relating to the provision of abortion services”. Prior to this amendment, the applicant Patricia Maloney and others had made abortion services-related requests to the Commissioner which were at least granted in part.
[9] Since that date, the Commissioner has issued at least one decision whereby it has refused access to records which do not include identifying information associated with individuals or facilities by citing the exclusion created by s. 65(5.7) of FIPPA: see Order PO-3222; Ontario (Ministry of Health and Long-Term Care) (Re), [2013] O.I.P.C. No. 156, 2013 CanLII 38913 (I.P.C.). This was the request made by the applicant, Patricia Maloney. Her application was denied by the Commissioner and she appealed the matter to Divisional Court. Prior to the Divisional Court hearing, Ontario offered to provide the requested information “outside of the FIPPA framework”. Ontario then took the position that the application for judicial review was moot.
[10] The exact nature of the records relating to abortion services which are being sought by the applicants is unclear. The applicants’ Factum makes mention of general statistical information which is non-identifying. Also, it is unclear whether the applicants have made abortion services-related requests directly to health care institutions and what the outcome was. Ontario states that no such requests have been made beyond the March 2012 request by Ms. Maloney described above.
[11] In October 2016, the applicants commenced this Application seeking to strike down s. 65(5.7) of FIPPA as violating
s. 2(b) of the Charter. As part of Ontario’s responding materials in this Application, Ontario has voluntarily disclosed that the total number of abortions billed in Ontario in Fiscal Year 2014-15 was 45,471.
[12] The parties provided the court with the statistical information available through the Canadian Institute for Health Information (“CIHI”) relating to abortions performed in hospitals. CIHI also obtains the information from clinics who volunteer statistics related to abortion services. The CIHI data for 2014 identified that 23,746 abortions were performed in Ontario in that year. I thereby conclude that the information CIHI reports on represents less than 50 per cent of the total number of abortions in 2014 — 1015 — and thus less than 50 per cent of the statistics on abortions are publicly available at the moment.
Position of the Parties
Position of the applicant
[13] The applicants contend that prior to the enactment of Bill 122, FIPPA dealt with records related to abortion services. Applications were decided under the previous legislation by applying the various exemptions provided for under FIPPA and identifying information associated with individuals or facilities was properly withheld. The applicants also rely on existing legislative protections in place such as the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A (“PHIPA”) which protects personal health information.
[14] Following the adoption of Bill 122, the applicant Maloney made a request for information in March 2012 related to the provision of abortion services of a statistical nature and it was refused by the Commissioner, citing the s. 65(5.7) exclusion as the basis of the refusal. Ultimately, the information was disclosed by Ontario “outside of FIPPA”. The applicant relies on this refusal to provide a record and subsequent release as being illustrative of how the current legislative framework does not work and will lead to ongoing confusion and unfairness.
[15] The applicant relies on Criminal Lawyers’ Assn. in support of its position that the s. 65(5.7) exclusion effectively precludes meaningful public discussion on a matter of public interest and that thus a prima facie right of access under s. 2(b) of the Charter is established.
[16] The applicant further states that the prima facie freedom of expression claim is not negated by countervailing factors. There are no issues of privilege and there is no indication of any interference with the proper functioning of government institutions.
[17] When moving on to s. 1 of the Charter, the applicant contends that the violation cannot be saved. The complete prohibition against information concerning abortion services is not a limit “prescribed by law” and does not serve a pressing and substantial objective. Finally, a complete prohibition on access to records concerning abortion services is not minimally impairing and it is disproportionate to the objective.
Position of the respondent
[18] Ontario advances that the purpose of the amendment to exclude records relating to the provision of abortion services was to address the concern that to require the disclosure of such records by hospitals could pose risks to the safety and security of their patients, health care providers and staff. At the same time, Ontario states that, by excluding such records from FIPPA this would allow hospitals to voluntarily disclose information.
[19] Ontario relies on the fact that access to information is a derivative right under the s. 2(b) freedom of expression. Ontario states that the correct legal analysis requires a determination that: (a) without the desired access, meaningful public discussion and criticism on matters of public interest is not substantially impeded; and (b) there are countervailing considerations inconsistent with production.
[20] In response to the applicants’ contention that s. 65(5.7) substantially impedes the applicants’ ability to engage in meaningful debate, Ontario advances four main arguments:
(1) the records excluded from FIPPA can be disclosed by government outside FIPPA;
(2) s. 65(5.7) exclusion proposed to address safety and security concerns;
(3) some statistical information on abortions is already publicly available; and
(4) the impugned provision does not preclude meaningful
debate.
[21] As to the existence of countervailing considerations which are inconsistent with disclosure under FIPPA, Ontario cites the safety and security concerns of hospitals, health care providers, staff and patients. It is further stated that the disclosure of information related to abortion services is not compatible with the function of the institution concerned given that the objective
was to permit the flexibility to disclose the information outside of FIPPA.
[22] Finally, Ontario states that even if s. 2(b) of the Charter is breached, such a breach is justified under s. 1 of the Charter.
Position of the intervenor
[23] The Commissioner intervenes as a friend of the court with leave. It took no position on the outcome of the Application. Its intervention focused on the role of the Commission as a mechanism to provide access to information and to regulate the collection of personal information.
[24] The Commission reviewed the difference between exemptions and exclusions and highlighted the existence of mandatory and voluntary exemptions from FIPPA.
[25] The Commission specified that as previously drafted, access to information about abortion services prior to the passage of Bill 122 did not apply to personal health information as such information was already protected under PHIPA.
[26] The Commission highlighted that often, when broad exclusions from FIPPA were created, these would include additional criteria.
[27] The Commission could not point to any circumstance under the pre-Bill 122 version of FIPPA where people were concerned about too much information about abortions having been released.
[28] Finally, the Commission referred to the approach of Ontario under the assisted dying legislation in Bill 84 where information on medical assisted suicide was excluded. This exclusion was created by relating it to “identifying information” and not all information related to assisted suicide.
Analysis
[29] The test for infringement of the right to freedom of expression has been articulated by the Supreme Court of Canada in Canadian Broadcasting Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 19, [2011] S.C.J. No. 2, 2011 SCC 2, at para. 38. Three questions must be considered:
(1) whether the activity contains expressive content, thereby bringing it, prima facie, within the scope of s. 2(b) protection;
(2) whether it is excluded from protection by virtue either of its location or of its method of expression; and
(3) whether the protected expressive activity is infringed by either the purpose or the effect of government action.
[30] The above questions originated from the Supreme Court of Canada’s decision in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, [1989] S.C.J. No. 36, 1989 CanLII 87. This was identified by the Supreme Court in Criminal Lawyers’ Assn. where the court confirmed that the main question was to determine whether s. 2(b) is engaged at all when claiming a right to access to documents. This requires the claimant to demonstrate that there is expressive content in gaining access to documents. The criterion of demonstrating expressive content has been deemed to include situations where the denial of access effectively precludes meaningful commentary on a matter of public importance.
[31] The Supreme Court in Criminal Lawyers’ Assn. has commented on the meaning of “meaningful commentary” at para. 37:
In sum, there is a prima facie case that s. 2(b) may require disclosure of documents in government hands where it is shown that, without the desired access, meaningful public discussion and criticism on matters of public interest would be substantially impeded. As Louis D. Brandeis famously wrote in his 1913 article in Harper’s Weekly entitled “What Publicity Can Do”: “Sunlight is said to be the best of disinfectants. . . . “ Open government requires that the citizenry be granted access to government records when it is necessary to meaningful public debate on the conduct of government institutions.
[32] As an example of meaningful commentary, the Supreme Court refers [at para. 36] to its decision in Canadian Broadcasting Corp. and mentions the open court principle as being “inextricably tied to the rights guaranteed by s. 2(b)” because it “permits the public to discuss and put forward opinions and criticisms of court practices and proceedings”. Here, the court implied that court practices and proceedings are a matter of public interest. The importance of the practices and procedures of the justice system in a liberal and democratic society is a matter of public interest that does not require further explanation. Court practices and proceedings being matters of public interest is also reflected in the fact that the justice system is a publicly funded institution. In Canada, abortions are publicly funded, at least in part, and this speaks to why abortions are a matter of public interest.
[33] Where the claimant can show that the denial of access effectively precludes meaningful commentary, there is a prima facie case for the production of the documents in question. However, the claim for access can still be defeated if there are countervailing considerations inconsistent with production such as issues of privilege or if the production of the documents would interfere with the proper functioning of the governmental institution in question: see Criminal Lawyers’ Assn., at paras. 32 and 33. In the absence of countervailing considerations inconsistent with production, the right to access is made out and the analysis moves on to s. 1 of the Charter.
(i) Section 65(5.7) of the Freedom of Information and Protection of Privacy Act
[34] The impugned s. 65(5.7) is included in Part V — General of FIPPA and is found within s. 65 which is the section titled “Application of Act”. This section includes other exclusions such as notes prepared by Judges, adoption records and ecclesiastical records.
[35] Section 65(5.7) reads as follows:
65(5.7) This Act does not apply to records relating to the provision of abortion services.
[36] As noted by the Intervenor, there is no criteria which applies to the records relating to the provision of abortion services. There is no qualifier for records which contain identifying information or any other similar criteria for allowing the disclosure of certain records. The exclusion is absolute. It is a broad brushed exclusion which does not leave the door open for any exceptions. The Intervenor suggests that the exclusion in s. 65(5.7) appears to cover information fitting in the following categories: (1) statistical information; (2) funding; and (3) facilities and staff that perform abortions. I agree.
[37] An illustration of the change of approach at the IPCO as a result of the adoption of s. 65(5.7) is the request for information by the applicant Patricia Maloney in 2012 that was previously discussed. Prior to the adoption of s. 65(5.7) of FIPPA, one would have expected the decision of the Commissioner to be in line with previous decisions which provided limited access to records relating to adoption services where there was no identifying information associated with individuals or facilities. However, as set out in Order PO-3222; Ontario (Ministry of Health and Long-Term Care) (Re), supra, the basis for the refusal for access to the requested statistical information was s. 65(5.7) of FIPPA.
[38] As part of the evidentiary record in these proceedings, Ontario states that the purpose of the 2010 amendment to FIPPA in adopting s. 65(5.7) was to address the concern that disclosure of such records by hospitals could pose risks to the safety and security of their patients, health care providers and other staff. The evidence of Ontario indicates that in 2010, prior to the adoption of s. 65(5.7), Ontario considered how to best address the safety and security concerns if records about the provision of abortion services were disclosed. They reviewed both the options of using an exemption or exclusion and concluded that the exclusion option, by allowing each institution to control the disclosure of their information, best addressed these concerns.
[39] Ontario also relies on the objective that, by excluding records relating to abortion services, this opens the door for individual hospitals to release their own information about their abortion services. Ontario was not able to point to any circumstance where a hospital had voluntarily released information concerning its abortion services. In addition, there is no evidence that any hospital has adopted policies as to the release of any information about abortion services. Based on past decisions of the Commissioner, the release of information concerning abortion services which identifies specific institutions has been refused. The voluntary release of information by individual hospitals could also lead to inconsistencies in the nature of information which is made available and this could well engage security concerns. Ontario’s contention that the exclusion allows for voluntary disclosure of records is not supported by the evidence and viewed as highly unlikely by this court.
[40] Ontario also relies upon the notion that the Ministry of Health and Long-Term Care may be willing to provide information “outside of the FIPPA” as it did in 2013 prior to the judicial review proceedings brought by the applicant Ms. Maloney. It states that nothing prevents the applicants from simply requesting the records they are seeking on abortion services and they may well receive them. Ontario points to the fact that as part of their Factum in these proceedings, they provided the total number of abortion services related to specific OHIP billing codes for the fiscal year 2014-2015. These steps taken by Ontario do not allow this court to conclude that records allowing for a meaningful public discussion and criticism on abortion will be made available by Ontario. Ontario has not pointed to any policy or legislative provision which would allow interested parties to rely on voluntary disclosure by Ontario. I am unable to rely on this informal disclosure of information “outside of the FIPPA”. I specifically reject the statement by Ontario that it will continue to disclose, outside of FIPPA, additional information related to the provision of abortion services.
[41] Ontario points to several different sources of statistical information concerning abortion services. It relies upon the information provided by CIHI which provides information about the number of abortions performed in hospitals and as voluntarily reported by clinics in Canada on its website. Ontario also relies on survey data that was collected in 2012, which is published in journals as statistical information on abortion services already publicly available. Based on the 2014 statistics offered voluntarily by Ontario in its Factum there were 45,471 abortions billed during fiscal year 2014-2014. According to the CIHI data for 2014, there were 23,746 abortions performed in Ontario. The CIHI information on the total number of abortions in Ontario represents less than 50 per cent of the total number of abortions performed in 2014-2015. I acknowledge that the Ontario figures apply to the 2014-2015 fiscal period and may not apply to the same period as the CIHI statistics however, I believe that the comparison is still valid for the purposes of this analysis.
[42] The existing sources of statistical information do not persuade me that this meets the need to allow for a meaning public discussion and criticism on abortion. Having less than 50 per cent of some limited information concerning abortion services and requiring interested individuals to extrapolate that information on a provincial or national basis is not allowing for meaningful debate. In addition, requiring interested parties to project forward from dated statistical information published in journals does not either address the meaningful public discussion criteria.
[43] Notwithstanding the above, Ontario relies on the fact that there has been and continues to be meaningful debate on abortion since the adoption of s. 65(5.7). Reliance is placed on the 2015 federal election which engaged members of Parliament on abortion issues. Groups who are opposed to publicly funded abortions were able to estimate that there are between 30,000 and 50,000 abortions performed in Ontario each year. This information is based on the CIHI data at the low end and some 2010 historical data at the high end. To require the public debate to rely on projections, less than 50 per cent of some of the statistical data or dated 2010 historical data does not provide a right to access information which will allow for a meaningful debate now or in the years to come. The relevance of the 2010 statistical data obtained prior to the enactment of s. 65(5.7) diminishes with every year without any identified right to obtain current information.
[44] Having considered each of the arguments advanced by Ontario in these proceedings, I am left with the conclusion that s. 65(5.7) of FIPPA has substantially impeded meaningful public discussion and criticism about abortion services for the following reasons:
(i) the exclusion of all records related to abortion services is a broad brushed exclusion which leaves no room for discretion, even when dealing with non-identifiable general statistical information or historical statistical information which may no longer present any safety risks;
(ii) there is no evidence of any parliamentary debate on the adoption of a broad exclusion from FIPPA. The court is left to speculate as to why the government created such a broad exclusion in the first place.
(iii) the reliance on voluntary disclosure by hospitals or clinics or the Ministry does not constitute an identifiable and reliable path to access the information. Reliance on such voluntary disclosure would be dangerous in my view and would place interested parties at the mercy of inconsistent decisions made by various record holders. The risk of inconsistency would be alleviated through a centralized process like FIPPA which has in the past been able to protect the privacy interests of those who provide abortion services. I specifically reject Ontario’s position that documents may be obtainable on a case by case and voluntary basis from the Ministry and individual hospitals. There is no evidence that this suggestion can be relied upon as a proper source of disclosure of appropriate records and can only lead to unpredictability on the type of record which should be made available to interested parties;
(iv) there is insufficient reliable statistical data to allow for meaningful debate on abortion. Having less than 50 per cent of some of the available information through CIHI and other statistical data which pre-dates the adoption of
s. 65(5.7) of FIPPA or voluntary survey information published in medical journals do not allow for a meaningful debate. As the years go by and the interested parties are forced to rely on dated historical data, the ongoing debate is further eroded;
(v) while I accept that in recent years, there are examples of public debate on abortion issues, the issue is if this debate is meaningful based on the nature of the information available to interested parties. I believe that it is not. The mere fact that groups must rely on 2010 statistical information together with partial statistics that are projected based on historical trends does not provide for meaningful public debate; and
(vi) the issue of what information should be made available to the public is an exercise that does not seem to have been fully undertaken by Ontario. The evidence relied upon by Ontario in these proceedings focuses the rationale for exclusion on the concerns of the Ontario Hospital Association and the risks that disclosure could pose to the safety and security of patients, hospitals and their staff. However,
s. 65(5.7) provides for a total exclusion and now includes general statistical information which was once available from the Ministry. There is no evidence that consideration was given to the need for an exemption of records of a general statistical nature;
(vii) examples of voluntary disclosure focus on limited statistical information such as the total number of abortions in a year or the value of the OHIP billings related to abortion services. The evidence in these proceedings leads me to conclude that in order to have a meaningful public debate the available information to allow for a meaningful public debate certainly needs to go beyond some of the basic statistical information offered by Ontario in these proceedings. It is not for this court to enter into the debate of what information will allow for meaningful public debate. It may be that information from hospitals may need to be dealt with separately. However, I am able to conclude that the information provided to date is clearly insufficient.
[45] In the end, I conclude that s. 65(5.7) of FIPPA has precluded meaningful discussion and criticism on abortion which is a matter of public interest.
(ii) Countervailing considerations
[46] Ontario relies on the fact that the Ontario legislature determined that safety and security concerns of hospitals, health care providers, staff and patients were countervailing considerations inconsistent with disclosure of records relating to the provision of abortion services under FIPPA. I disagree.
[47] The evidence does not allow for a factual conclusion that this was a specific concern raised by the Ontario legislature. Evidence provided by the applicant suggests that there was no such specific debate in the Ontario legislature. Furthermore, Ontario’s reliance on one incident of violence in the Hamilton area in 1995 does not suggest a safety and security concern. The evidence of Ontario does not establish that there was any requirement to adopt the s. 65(5.7) exclusion at the time of the 2010 amendments which made hospitals subject to the provisions of FIPPA. To the contrary, I accept the evidence and submissions of the Commission that at the time of adoption of the 2010 amendments, there was no situation where people were concerned about too much information about abortions being released under FIPPA. I conclude that the previous legislative framework of dealing with information requests through the IPCO could have continued after hospitals became subject to FIPPA, although some amendments may have been required to deal with the records of specific hospitals or other institutions that perform abortion services
[48] Furthermore, Ontario has shown no rational link between general statistical information and safety concerns. The evidence leads me to conclude that the analysis of what information could be made available and the safety concerns specific to the different types of information is an analysis that has not been adequately undertaken by Ontario.
[49] Finally, Ontario proposes that in order to ensure the proper functioning of the affected institutions, they need to have the flexibility to disclose outside of FIPPA, or not to disclose based on different considerations.
[50] On this issue, I first conclude that there was no evidence of a hospital or other institution that has been willing to disclose records about abortion services. It is thus impossible to conclude that it is essential to permit the flexibility to disclose or not to disclose. Second, there is no evidence to allow me to conclude that it would be proper to allow the disclosure of records to be done on a case by case basis by the affected institutions. If there was to be voluntary disclosure, there is a risk that it would be done in a vacuum or on an ad hoc basis which could make these decisions arbitrary or specific to individual hospitals’ rules, raising the possibility of inconsistent disclosure of the same information. This risk would be contained were abortion related services to fall under FIPPA through centralized protocol for the release of this information.
[51] I am satisfied that the applicants have demonstrated that there are no countervailing considerations that would apply in these circumstances which would be inconsistent with production. Examples cited of such considerations in Criminal Lawyers’ Assn. are solicitor-client privilege, judicial prejudgment memos and notes and cabinet confidences: see Criminal Lawyers’ Assn., at paras. 39-40. These examples do not apply here.
[52] While I agree with the applicants that there are no apparent countervailing considerations to negate the derivative right to access non-identifying statistical information, I am not able to conclude that none possibly exist. It may depend on the nature of the record. Some non-identifying statistical information may raise countervailing considerations particularly when dealing with specific known institutions. It is not an exercise that seems to have ever been properly done and it would fall to Ontario to start the process.
[53] Having satisfied me on the absence of countervailing considerations at least for non-identifying statistical information, I conclude that s. 65(5.7) of FIPPA breaches the applicants’ derivative right to access to information provided under s. 2(b) of the Charter.
(iii) Section 1 of the Charter
[54] As I have concluded a breach of s. 2(b), I must move on to
s. 1 of the Charter to determine if the subject breach can be
justified as a reasonable limit imposed in a free and democratic society.
[55] Section 1 of the Charter provides:
[56] Any limit on a Charter right must meet the following two criteria set out in R. v. Oakes, [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7, at pp. 138-39 S.C.R. in order to be regarded as a reasonable limit:
(1) the objective which the limit is designed to serve must be of sufficient importance to warrant overriding a constitutionally protected right; and
(2) the means chosen to attain the objective are reasonably and demonstrably justified.
[57] The second criterion in the Oakes test has three components. First, the measure must be carefully designed to achieve the objective in question, in the sense of being rationally connected to the important objective that the limitation is designed to serve. Second, the measure should impair the right or freedom in question as little as possible. Finally, there must be proportionality between the effects of the limiting measure and its objective: see Oakes, at p. 139 S.C.R.
Importance
[58] I have little difficulty following authorities which identify the importance of protecting the privacy and safety of patients seeking an abortion and those involved in the provision of abortion services: see Ontario (Attorney General) v. Dieleman (1994), 20 O.R. (3d) 229, [1994] O.J. No. 1864, 1994 CarswellOnt 151 (Gen. Div.). This is on its own a limit which is of sufficient importance to warrant overriding a constitutionally protected right such as the access to records in circumstances such as these.
[59] Ontario has identified the purpose of the impugned provision was to address the concern that disclosure of records relating to the provision of abortion services could pose risks to the safety and security of their patients, health care providers and other staff. Ontario also identified the need to allow hospitals to decide if they wish to voluntarily disclose records relating to the provision of abortion services.
[60] When considering the latter of the stated objectives, I do not accept that it was realistically envisaged that hospitals or other institutions identified a need to be able to disclose records concerning abortion services voluntarily. No example was provided when this has been done since the adoption of s. 65(5.7) of FIPPA, and there is no policy framework in place to encourage that it be done.
[61] As for the main stated objective by Ontario, being to address the concern that disclosure of records relating to the provision of abortion services could pose risks to the safety and security of their patients, health care providers and other staff, this broadly stated objective must be considered within its proper context. First, personal health information was already protected in PHIPA. By virtue of s. 8(1) of PHIPA, specific patients’ abortion-related information was already excluded from the operation of FIPPA independent of s. 65(5.7).
[62] Second, I adopt the statement by the Commissioner that the s. 65(5.7) exclusion has the effect of removing from FIPPA records: (i) whose disclosure would pose no safety or security concern (general statistical information); and (ii) in the custody of institutions, other than hospitals, that were subject to FIPPA prior to the 2010 enactment of s. 65(5.7).
[63] As part of these proceedings, the Commissioner has referred to a number of orders which have denied or partially denied access to records relating to abortion services. Of particular significance is Order PO-2378 (2005) where a request was made for information relating to “overall funding for all independent health clinics that provide apportions from June 2003 to June 2004”. In that decision, the Commissioner partially upheld non-disclosure by finding that overall funding could be disclosed, but the disclosure of financial information when linked with names of each clinic could reasonably be expected to give rise to harms contemplated by s. 14(1) of FIPPA.
[64] While I question if the objective of s. 65(5.7) was to address an actual legislative gap in either PHIPA or FIPPA, it does not detract from the overall merit of protecting the privacy and safety of patients seeking abortion services and those involved in the provision of abortion services. I conclude that s. 65(5.7) meets the requirements of the first stage of the Oakes test.
Are the means reasonably and demonstrably justified?
[65] There is no evidence that the process leading up to the adoption of s. 65(5.7) was intended to carefully design the legislative provisions required to achieve the object in question. While the evidence of the Ontario’s affiant suggests that there was an assessment of the merits of using an exemption within FIPPA rather than an exclusion, there is little other evidence which suggests that a process was followed to assess the need and risk that existed to justify an additional protection prior to the adoption of s. 65(5.7) and how Ontario could best address the identified need and risk after having made hospitals subject to FIPPA.
[66] Furthermore, there is no evidence that any consideration was given to impairing the freedom of expression right to records relating to abortion services as minimally as possible. To the contrary, Ontario went ahead with a broad brushed exclusion which includes no criteria to allow for records which do not impact the objective of protecting the privacy and safety of patients seeking abortion services. As previously stated, s. 65(5.7) now excludes records which were previously being disclosed where there was no identifying information associated with individuals or facilities. I agree that hospitals or specific institutions may have warranted special treatment. I conclude that
s. 65(5.7) does not minimally impair the right to access to records relating to the provision of abortion services.
[67] Finally, the issue of proportionality is clearly missing. Ontario’s decision of excluding all records relating to the provision of abortion services no matter how general and how non-identifying is in no way proportional to protecting the privacy and safety of those involved. In addition, the arguments of Ontario that the information can be provided voluntarily are not supported by the evidence. The only two examples given were information provided by Ontario after requiring the applicant, Patricia Maloney, to embark in costly litigation to object to a refusal to provide records. There is no evidence in these proceedings of any policy framework in place for any institution that provides abortion services. The argument by Ontario that the applicants have not requested information directly fails in the absence of any evidence that such requests would be received favourably by individual institutions or the Ministry.
[68] In the end, I am unable to conclude that Ontario made any real attempt to address the components of the second criterion in the Oakes test. While this is not a requirement to effect legislative change, consideration must still be given to the type of issues which form part of the Oakes test. Ontario has thus failed to satisfy me on a balance of probabilities that s. 65(5.7) of FIPPA can be justified under s. 1 of the Charter.
[69] I therefore conclude that s. 65(5.7) of FIPPA infringes
s. 2(b) of the Charter and is not saved by s. 1 of the Charter.
Remedy
[70] The applicants have argued that in the event of a declaration of invalidity, the previous process of having request for documents relating to abortion services dealt with under FIPPA would be appropriate. Alternatively, they have not opposed a suspension of a declaration of invalidity. They suggest that six to 12 months would be sufficient.
[71] Ontario argues that 12 months is necessary and common to allow for the adoption of remedial legislation.
[72] I accept the position of Ontario on the appropriate remedy as a result of my finding that s. 65(5.7) infringes s. 2(b) of the Charter. Accordingly, s. 65(5.7) of FIPPA is declared to be of no force or effect by reason of s. 52 of the Constitution Act, 1982. The effect of the declaration of invalidity is suspended for a period of 12 months. The manner in which the legislation should be adjusted to meet the requirements of the Charter is left to the Ontario legislature.
Costs
[73] If the parties are unable to agree on the issue of costs, they may write to me. The applicant shall provide written costs submissions within 30 days of the date of release of this Endorsement. Thereafter, the respondent shall provide written costs submissions within 30 days of his receipt of the applicant’s costs submissions. Each costs submission shall be no longer than three pages in length, excluding the costs outline. The parties shall comply with rule 4.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 190.
Application allowed.