Because the Freedom of Information and Protection of Privacy Act for Ontario does not apply to childrens aid societies across the province, we decided to file an application in Superior Court (Yeager v. Chatham-Kent Childrens Services and Her Majesty the Queen) in 2009. ubcpress.ca/search/title_book.asp?BookID=299173819 (from pg. 186/7 of the 2012 book Brokering Access [note: there appear to be a grammatical error or two in this passage; i transferred it from the book verbatim not correcting what are perhaps errors]): I was recently involved in a request for historical childrens aid documents while researching the history of a Canadian bank robber who had a seventy-year criminal career. With the permission of my subject (who was then eighty-seven years old), we requested access to his Childrens Aid Society (CAS) records in Canada, which dated to 1928, and received a two-page letter outlining his legal history in cursory form. Because the Freedom of Information and Protection of Privacy Act for Ontario does not apply to childrens aid societies across the province, we decided to file an application in Superior Court (Yeager v. Chatham-Kent Childrens Services and Her Majesty the Queen) in 2009. We presented three arguments to the court. First, there was a public interest by a scholar in these CAS records based on the study of a criminal career, which was clearly a statistical outlier. Second, we asserted the privilege to proceed inasmuch as we had the permission of the subject as well as case law that enabled us to argue that we had a free-standing right to discovery where the object was to do with justice. In Canadian law, this free-standing right actually dates to before Confederation and has been recognized by the Ontario Court of Appeal. After we waited several months to obtain a hearing date on the motion, to which the respondents never filed a single objection, authority, or submission, Mr. Joseph Donohue ruled that I was entitled to both the CAS records and the official family court files. He ruled from the bench (Transcript, 26 January 2010): Well, I have had some considerable time to consider this given that I was sitting on an earlier date when these materials were first being put forward by Professor Yeager, and I have had an opportunity to consider the materials prior to today that are now before me. My impression is that Professor Yeager is engaged in a scholarly inquiry of a historical nature. His expertise is in the area of criminology. It is obviously in the public interest that [a] criminologist have an opportunity to explore background factors which lead to a life of crime. In my view then the public interest is served by Professor Yeager having this access to historical files. I do not see that a private interest is being offended. These matters are so historic in nature and given that the subject himself and his executor has both been consented to this inquiry. I have come to the conclusion that the public interest is paramount in allowing this scholarship to go forward and so I [am] going to grant the order as drafted. Of note, legal counsel for the Childrens Aid Society had officially taken no position either in favour of or against the application. When it came time to address His Honour in open court, however, counsel raised objections concerning privacy, standing to make the request as a third party, as well as some concern as to what I might publish about the file. Even in historical cases, agencies of the Crown often engage in a political “litmus test” concerning requesters, preferring their own agency-sanctioned researchers and running sub rosa interference on everyone else. In this rare instance, we challenged agency discretion and won a court order for access to the documents. So, it can be done. As to practical matters, I actually handled the matter myself (filing, motion, service, etc.) until it became obvious that counsels presence was needed since a pre-trial judge had raised questions of my legal standing to make the application. I was graciously represented by Hassan Law Office of London, Ontario, who reduced their usual legal fees in this matter.
Posted on: Fri, 14 Nov 2014 16:55:24 +0000
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