The Association for Reformed Political Action (ARPA)
Canada et al. v. Her Majesty the Queen in Right of
Ontario; Information and Privacy Commissioner of
[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., 
1 S.C.R. 815,  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, 
1 S.C.R. 103,  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),  1 S.C.R. 19,
 S.C.J. No. 2, 2011 SCC 2, 2011EXP-346, 411 N.R. 23, J.E. 2011-189,
* Vous trouverez la traduction française à la p. 270, post.