## Facts

- Ontario adoption law long treated identifying adoption records as confidential, generally permitting disclosure only with mutual consent or in limited emergency situations.
- Legislative reforms before 2005 expanded access mechanisms but continued to rely on consent-based or mediated disclosure.
- Ontario enacted the Adoption Information Disclosure Act, 2005, enabling adult adoptees and birth parents to obtain documents (original birth registrations and adoption orders) containing identifying information.
- The regime applied retroactively to adoptions completed under the earlier confidentiality framework.
- The statute provided (1) “no contact” notices that restricted contact but not disclosure and (2) discretionary “non-disclosure” orders limited to preventing sexual harm or significant physical or emotional harm.
- Four applicants (three adult adoptees and one birth parent), representing “non-searchers” who wanted continued confidentiality, challenged the retroactive disclosure provisions.
- Evidence suggested a small minority of adoptees and birth parents did not want contact or disclosure and that a disclosure-veto model could protect privacy while still permitting access for others.

## Issues

1. Whether retroactive disclosure of identifying adoption information without an effective disclosure veto infringed liberty and privacy interests protected by Charter s. 7.
2. Whether any s. 7 deprivation was consistent with principles of fundamental justice, including respect for reasonable expectations of privacy in personal confidential information.
3. If s. 7 was infringed, whether the infringement was justified under Charter s. 1.

## Decision

- The Ontario Superior Court of Justice held the impugned retroactive disclosure provisions violated Charter s. 7.
- The court found the loss of control over deeply personal identifying adoption information engaged liberty and privacy interests for persons who reasonably expected confidentiality.
- The infringement was not in accordance with principles of fundamental justice because the statute failed to respect reasonable expectations of privacy in confidential information.
- The infringement was not justified under s. 1 because less impairing alternatives (including a disclosure veto) were available.
- The court struck down the unconstitutional provisions, preventing automatic disclosure of historic adoption records without a meaningful mechanism to bar disclosure.

## Legal Principles

- Informational privacy in deeply personal, historically confidential records can fall within the liberty interest protected by Charter s. 7.
- A principle of fundamental justice may require that where an individual has a reasonable expectation of privacy in personal and confidential information, the state may not disclose it to third parties without consent absent a sufficiently justified and carefully limited scheme.
- A “no contact” restriction does not protect the core privacy interest where the law still compels disclosure of identifying information.
- Under Charter s. 1, even a pressing objective (greater access to adoption information) fails if the legislative means are not minimally impairing, especially where workable alternatives would substantially reduce the rights infringement.
- Access to identifying adoption information (“the right to know one’s past”) is not, by itself, a Charter-protected right that displaces protected privacy interests.

## Conclusion

The court invalidated Ontario’s retroactive open-records adoption disclosure provisions because they compelled disclosure of identifying information in circumstances where adoptees and birth parents reasonably relied on confidentiality, infringing Charter s. 7 in a manner not consistent with fundamental justice and not justified under s. 1.


Cheskes v. Ontario (Att’y Gen.), 87 O.R. 3d 581 (Ont. S.C.J. 2007)