We Need A Law campaign director Mike Schouten and media relations assistant Niki Pennings on the lawn of Queen’s Park, where the campaign arranged a display of 100,000 pink and blue flags to represent abortions performed in Canada each year. Photo by Michael Swan

Civil liberties association says withholding abortion stats an affront to democracy

  • April 29, 2015

TORONTO - Ontario is violating basic principles of democracy and Canada’s international treaty obligations by keeping abortion statistics secret, according to the Ontario Civil Liberties Association.

In a position paper posted to the its web site (ocla.ca), the civil liberty advocates claim a legal loophole that allows the Ontario Ministry of Health to exclude abortion statistics from freedom of information requests “is contrary to the principle of transparency and accountability in a free and democratic society, and is a violation of Canada’s obligations under the International Covenant on Civil and Political Rights.”

The association posted its official position condemning the abortion exception to freedom of information law and university policies that deny official status to campus pro-life clubs to its web site April 29.

“The exclusion effectively prohibits expression on the excluded records, and thereby violates the Charter right to free expression of the requesters of the information,” said the OCLA position paper. “The OCLA seeks to raise the concern that there is palpable institutional bias against pro-life advocates in Ontario and that this is harmful to society and substantively unjust towards members of the community.”

The OCLA was not alone in supporting an application launched April 23 by the Association for Reformed Political Action on behalf of blogger Patricia Maloney asking the Ontario Superior Court to quash a clause of the Freedom of Information and Protection of Privacy Act which excludes all abortion-related information from freedom of information requests. Canadian Journalists for Free Expression has forwarded the issue to its issues committee for consideration and executive director Tom Henheffer told The Catholic Register it found the issue troubling.

Just because the abortion debate is messy, loud and often uncivil doesn’t mean the government should keep abortion statistics secret, said a number of supporters of the ARPA challenge to the 2010 FIPPA abortion exception.

“The Ontario Civil Liberties Association certainly supports their challenge to have that section of the act struck down as unconstitutional,” said executive director Joe Hickey. “Democracy is founded on the basis that individuals can participate in how society is organized, how society is run. For that to happen there has to be access to information about how public institutions are functioning. You have to have access to this kind of information to have an informed debate and to have a free and democratic society in the true sense.”

Henheffer understands why the government might shy away from releasing abortion statistics to a pro-life blogger.

“It certainly has in the past been an ugly debate,” Henheffer said.

But that doesn’t justify withholding information from citizens, he said.

“If people don’t have the information they can make up whatever sort of statistics they want. People need to be well informed in order to have any kind of robust debate,” said Henheffer. “Otherwise it’s too easy for incorrect facts to take precedence.

That’s why we need this robust access to information provincially, federally, municipally, every which way.”

Henheffer believes genuine national security concerns may justify withholding some information, but doesn’t think of the abortion debate as a national security issue.

Neither the Ontario Ministry of Health nor the Information and Privacy Commission of Ontario would tell The Catholic Register why all abortion-related information was exempted from FIPPA when the act was revised in 2010. Even if the province doesn’t have to respond to specific requests for abortion information, that doesn’t mean the information is secret, according to the Ministry of Health and Long-Term Care.

“The exclusion, however, does not prohibit the disclosure of such records. The Ministry of Health and Long-Term Care has in fact released statistical information about the provision of abortion services in Ontario in recent years,” wrote a ministry spokesperson in an e-mail. “The FIPPA amendment was made to give institutions with abortion-related records the ability to make balanced decisions about what information to disclose based on multiple considerations including the safety and security of facilities, health care providers and patients.”

In 1999 the Ministry of Health told the Freedom of Information and Protection of Privacy Commission that releases of even the most general statistical information could be linked to pro-life violence, including the 1992 firebombing of the Morgentaler clinic, the 1998 murder of Dr. Bernard Slepian in Buffalo, N.Y., and other incidents.

“The fear generated by opponents of abortion extends to the families of providers, as well as to their patients, their staff and co-workers,” said the Ministry of Health submission refusing a request for abortion statistics. “Hospitals and free-standing clinics themselves are under threat, requiring constant security measures to be in place.”

Rumbles between pro- and anti-abortion demonstrators on the front lawn of Queen’s Park and trespassing on abortion clinic property to accost patients have contributed to an atmosphere of fear, said the 1999 Ministry of Health submission.

“In Canada, three abortion providers have been wounded since 1995,” said the MOH. “The Ministry is now facing up to an inescapable reality — even minimal statistics on abortion pour fuel on the flames of searing disagreement in this area of public debate.”

Despite these concerns, the Freedom of Information and Protection of Privacy Commission ruled in favour of releasing all general statistical information which could not lead to identifying individual abortion providers, patients or clinics.

“To deny access to generalized, non-identifying statistics regarding an important public policy issue such as the provision of abortion services would have the effect of hindering citizens’ accountability to the public,” wrote senior adjudicator David Goodis in his Jan. 26, 2000 decision.

Goodis found no clear cause-and-effect link between general abortion statistics and violent incidents.

Despite the 2000 decision, the same commission refused to review the constitutionality of the abortion exception to FIPPA when Run-With-Life blogger Maloney asked for OHIP billing information about abortions in 2012. That led to a two-year court battle between Maloney and the Ministry of Health. But before the case could go before a judge the Ministry gave Maloney the information she requested, then argued her case should not be reviewed by the court because she already had the information.

“They did this after I incurred $30,000 in legal fees and after opposing me for two-and-a-half years,” Maloney said.

“This case is about transparency and democracy,” said André Schutten, lawyer for Association for Reformed Political Action Canada.

Maloney is being supported by ARPA and its We Need A Law campaign.

“Without information about abortion, such as complication rates, total numbers and the age of women having the abortions, it’s impossible to know what impact public policy or social programs are having,” said We Need A Law spokesperson Niki Pennings. “How can we know if abortion is rare or safe if the government refuses to let the residents of Ontario know how many abortions are occurring and whether or not women are being hurt in the process?”

“If the government can do this with abortion information, the government can do it with anything,” said Maloney. “We can’t let the government of Ontario continue to hide information that Ontarians and all Canadians have a right to access.”

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