From left to right: constitutional lawyer Albertos Polizogopoulos, blogger Patricia Maloney, ARPA lawyers John Sikkema and Andre Schutten at the Ottawa courthouse in February 2017 after arguing their case in Ontario Superior Court. Photo by Deborah Gyapong

Ontario judge opens access to abortion statistics

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  • June 12, 2017

OTTAWA – An Ontario Superior Court judge has struck down a section of an Ontario law censoring the release of abortion statistics.

"This is a huge victory for freedom of expression," said André Schutten, the Association of Reformed Political Action (ARPA) Canada's director of law and policy, the organization that brought the Charter challenge along with Ottawa pro-life blogger Patricia Maloney. "It's historic. There has never been a decision granting access to information from the executive branch based on the freedom of expression provision of the Charter.”

“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,” wrote Justice Marc L. Labrosse in his decision released June 9.

Labrosse suspended his decision for 12 months to give the Ontario legislature time to adjust their freedom of information legislation to meet the requirements of the Charter.

According to court documents released in February for this case, the number of abortion services billed to OHIP totalled 45,471 in the fiscal year 2014-15.

"This decision strengthens democracy," said Schutten in a statement. "The question at the heart of this case was whether governments can avoid accountability on a particular matter simply by excluding information related to that matter from the access to information law. We are very pleased that the court has struck this censorship provision down."

“I was truly surprised but very pleased to learn we had won our charter challenge,” said Maloney. “I always knew our case was very strong, much stronger than any of the government's counter arguments in defence of their position.”

The government contended disclosure of abortion statistics could endanger hospitals, clinics and health care providers who provide abortion services.

“One of the government's main arguments was the danger to health and safety,” Maloney said. “This was nonsense. How could health and safety be an issue when I never asked for any private or identifying information of patients, hospitals, doctors or abortion facilities? And the Information and Privacy Commissioner —who was an intervenor in our case — agreed with us on that point.”

Maloney sought information such as how many abortions were being performed in Ontario, at what cost, at what stage of gestation, at what age of the mother, and whether the abortion occurred in a hospital or a clinic.

The government also contended there already is meaningful public debate on abortion and that statistics were available through other sources.

ARPA Canada and Maloney challenged Section 65(5.7) of Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) after Maloney found her freedom of information requests for abortion statistics blocked by a 2012 change to the Act that read: “This Act does not apply to records relating to the provision of abortion services.”

“After our court date in February I felt positive that the judge grasped our case really well by the questions and comments he made that day,” Maloney said. “Of course, we had a very strong legal team with Albertos Polizogopoulos and John Sikkema, and all the folks at ARPA, and others.”

“Justice has been accomplished and I couldn't be happier about the outcome,” said Maloney.

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