Blogger has been fighting for access to accurate information since 2012
By Deborah Gyapong
Photo: Blogger Patricia Maloney shares why she believes the ban on releasing abortion statistics in Ontario should be lifted in a video by We Need A Law. (Screencapture)
A pro-life blogger has finally had her day in court over an Ontario government law that censors the release of abortion statistics.
“It’s our information. We paid for it. This is a publicly funded health service,” said Patricia Maloney after her Feb. 1 court date.
Maloney has used Freedom of Information Requests to fight for access to accurate abortion statistics since 2012, when she found out the information was being intentionally censored.
“We can talk about abortion, but when you don’t have the numbers, it’s difficult, as we have argued, to have a meaningful conversation without accurate facts.”
Five years later, Maloney was finally heard in court. Lawyers representing her asked an Ontario Superior Court judge Feb. 1 to strike down section 65 (5.7) of the Ontario Freedom of Information and Protection of Privacy Act (FIPPA).
This provision, added in January 2012 with no recorded debate, states: “This Act does not apply to records relating to the provision of abortion services.”
Justice Marc Labrosse reserved decision in the case brought by Maloney and the Association for Reformed Political Action.
Constitutional lawyers Albertos Polizogopoulos and ARPA Canada in-house counsel John Sikkema argued in court that the prohibition impairs the Charter rights of free expression, including freedom of the press, of those who wish to engage in a meaningful discussion of an important public policy issue.
It is key to the debate to have accurate information, Polizogopoulos said.
Maloney said one of the arguments on the opposing side was that she can get the statistics elsewhere or debate abortion without them.
She noted that the government, in its factum information, informed the court that 45,471 abortions were performed in Ontario in 2014/2015.
“This is the second time the Ontario Government has given me abortion data in the past five years,” she said. “Both times it was litigation that made them release it, yet they tell us that I can ask for abortion information outside of FIPPA, and I will get it.”
Another source for abortion data in Ontario is the Canadian Institute of Health Information (CIHI), which reported 23,746 abortions in 2014.
Maloney noted almost twice as many abortions are performed in Ontario as are officially reported, which “goes to shows how important open, transparent and accountable government is.”
The information Maloney is seeking has to do with the total number of abortions in Ontario; what the cost is to the health care system; whether the abortions take place in a hospital, private clinic or doctor’s office; how many abortions take place at differing gestational stages; and the age of women obtaining abortions, among other data.
Sikkema told the court: “We want to get the truth, and this provision is preventing us from doing so.” The debate is not only about presenting moral arguments, but on how “public policy is being implemented.”
Polizogopoulos noted this information is important to people on all sides of the abortion debate. “Why is this information so sensitive?” he asked.
The Ontario government’s lawyer, Daniel Guttman, contended meaningful discussion on abortion is not impaired, since ARPA and Maloney are continuing to discuss abortion. Guttman also argued the information Maloney seeks is available through avenues than FOI requests, such as the CIHI.
But Polizogopoulos pointed out CIHI’s information is incomplete, especially since the reporting of clinics is only voluntary.
Maloney fought the new limitation with a judicial review and then in Divisional Court, incurring $30,000 in legal fees. Eventually the Ontario government released some of the information she was seeking, but only after litigation, Polizogopoulos said.
Initially the Ontario government gave no reason for the ban, and then it argued releasing the information would “jeopardize the safety and security of hospitals, their patients and their staff,” he said. But FIPPA already has exemptions that would protect any individual’s private health information, or specific information identifying doctors or facilities performing abortions, he said.
Lawyer Lawren Murray, representing the Information and Privacy Commissioner, told the Court that striking down Section 65 (5.7) would not affect the exemptions already in place to protect private information or specifics related to individual doctors, clinics or hospitals.
British Columbia has also been criticized for its incomplete abortion reporting since CIHI uses numbers voluntarily submitted by hospitals and clinics.
Justice Labrosse’s decision could come in three to six months.
With files from Agnieszka Krawczynski.