Pratten v. British Columbia (Attorney General) et al., 2012 BCCA 480

• Judge: Saunders, Levine and Frankel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 27, 2012
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 480;(2012), 330 B.C.A.C. 229 (CA)

Pratten v. B.C. (A.G.) (2012), 330 B.C.A.C. 229 (CA);

    562 W.A.C. 229

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. NO.047

Olivia Pratten (respondent/appellant on cross-appeal/plaintiff) v. Attorney General of British Columbia (appellant/respondent on cross-appeal/defendant) and College of Physicians and Surgeons of British Columbia (defendant)

(CA039124; 2012 BCCA 480)

Indexed As: Pratten v. British Columbia (Attorney General) et al.

British Columbia Court of Appeal

Saunders, Levine and Frankel, JJ.A.

November 27, 2012.

Summary:

At issue was whether provincial legislation (Adoption Act) that provided mechanisms by which adult adopted children (adoptee(s)) could obtain information about their biological parents was discriminatory and violated the provisions of the Canadian Charter of Rights and Freedoms, because similar provisions had not been enacted for the benefit of adults conceived using sperm from an anonymous donor (donor offspring). Also at issue was whether the Legislature's failure to enact legislation to facilitate donor offspring obtaining information about their biological origins violated a free-standing positive right guaranteed by s. 7 of the Charter (life, liberty and security of the person).

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 656, declared various provisions of the Adoption Act and the Adoption Regulation invalid on the basis that they violated s. 15(1) of the Charter. The court dismissed the claim for a positive-rights declaration under s. 7 of the Charter. The court granted a permanent injunction prohibiting the destruction, disposal, redaction, or transfer out of British Columbia of records containing information regarding artificial insemination procedures, including information regarding the identity and medical and/or social history of sperm donors. The court suspended the declaration of invalidity for 15 months. The Attorney General of British Columbia appealed, contending that the court erred in finding a violation of s. 15(1) of the Charter. By way of cross-appeal, Pratten contended that the court erred in not declaring positive rights under s. 7.

The British Columbia Court of Appeal allowed the appeal and dismissed the cross-appeal.

Civil Rights - Topic 790

Liberty - Particular rights - Artificial insemination (incl. anonymous sperm donors) - At issue in this appeal was whether the provincial Legislature's failure to enact legislation to facilitate donor offspring obtaining information about their biological origins violated a free-standing positive right guaranteed by s. 7 of the Charter (life, liberty and security of the person) - The British Columbia Court of Appeal affirmed that s. 7 of the Charter did not guarantee a positive right "to know one's past" - However desirable it might be that persons have access to information about their biological origins, it had not been established that such access had been recognized as so "fundamental" that it was entitled to independent constitutionally protected status under the Charter - See paragraphs 44 to 62.

Civil Rights - Topic 939

Discrimination - Government programs - Affirmative action or ameliorative programs - At issue in this appeal was whether provincial legislation (Adoption Act) that provided mechanisms by which adult adopted children (adoptee(s)) could obtain information about their biological parents was discriminatory and violated the provisions of the Canadian Charter of Rights and Freedoms, because similar provisions had not been enacted for the benefit of adults conceived using sperm from an anonymous donor (donor offspring) - The British Columbia Court of Appeal held that the impugned provisions of the Adoption Act qualified as an ameliorative program within the meaning of s. 15(2) of the Charter - The purpose of the impugned provisions was to remedy the disadvantages created by the state-sanctioned dissociation of adoptees from their biological parents - The Legislature had made a decision to recognize and regulate adoption to provide adoptees with new and permanent family ties - That process involved changing the legal status of an adoptee - A consequence of that change was that adoptees were alienated from their biological origins and faced barriers in accessing information about their origins - The purpose of the impugned provisions was to reduce those barriers while maintaining the essentially socially beneficial stance of the legislation - Given that purpose, it could not be said that excluding persons whose legal status had never changed went "further than is justified by the object of the ameliorative program" - It was open to the Legislature to provide adoptees with the means of accessing information about their biological origins without being obligated to provide comparable benefits to other persons seeking such information - See paragraphs 34 to 43.

Civil Rights - Topic 1206.8

Security of the person - General - Artificial insemination (incl. anonymous sperm donors) - [See Civil Rights - Topic 790 ].

Civil Rights - Topic 5586

Equality and protection of the law - Affirmative action or ameliorative programs - Particular programs - [See Civil Rights - Topic 939 ].

Civil Rights - Topic 5659

Equality and protection of the law - Particular cases - Adoption - [See Civil Rights - Topic 939 ].

Civil Rights - Topic 5659.2

Equality and protection of the law - Particular cases - Artificial insemination (incl. anonymous sperm donors) - [See Civil Rights - Topic 939 ].

Cases Noticed:

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 19].

Gosselin v. Quebec (Procureur général) (2002), 298 N.R. 1; 2002 SCC 84, refd to. [para. 20].

R. v. Kapp (J.M.) et al. (2008), 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, consd. [para. 34].

Marshall Estate, Re (2009), 275 N.S.R.(2d) 383; 877 A.P.R. 383; 309 D.L.R.(4th) 459; 2009 NSCA 25, refd to. [para. 38].

Alberta (Aboriginal Affairs and Northern Development) v. Cunningham - see Peavine Métis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al.

Peavine Métis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al., [2011] 2 S.C.R. 670; 418 N.R. 101; 505 A.R. 1; 522 W.A.C. 1; 2011 SCC 37, refd to. [para. 39].

Dunmore et al. v. Ontario (Attorney General) et al., [2001] 3 S.C.R. 1016; 279 N.R. 201; 154 O.A.C. 201; 2001 SCC 94, refd to. [para. 44].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 46].

Marchand v. Ontario - see Infant Number 10968 v. Children's Aid Society of Toronto.

Infant Number 10968 v. Children's Aid Society of Toronto (2006), 81 O.R.(3d) 172 (Sup. Ct.), affd. [2007] O.A.C. Uned. 464; 288 D.L.R.(4th) 762; 2007 ONCA 787, consd. [para. 52].

Cheskes et al. v. Canada (Attorney General) et al., [2007] O.T.C. Uned. I90; 288 D.L.R.(4th) 449 (S.C.), refd to. [para. 52].

Rose v. Secretary of State for Health, [2002] EWHC 1593; [2002] 3 F.C.R. 731, dist. [para. 53].

Statutes Noticed:

Adoption Act, R.S.B.C. 1996, c. 5, sect. 6, sect. 8, sect. 9, sect. 32, sect. 48(1), sect. 56, sect. 59, sect. 60, sect. 61, sect. 62, sect. 63, sect. 64, sect. 65, sect. 66, sect. 67, sect. 68, sect. 69, sect. 70, sect. 70.1, sect. 71 [Appendix].

Adoption Regulation, B.C. Reg. 291/96, sect. 4, sect. 19, sect. 20, sect. 21, sect. 22, sect. 23, sect. 24 [Appendix].

Authors and Works Noticed:

Summary Record of the 54th Meeting of the Commission on Human Rights, U.N. Document E/CN.4/1985/SR.54, generally [para. 58].

Counsel:

L. Greathead and B.A. Mackey, for the appellant;

J.J. Arvay, Q.C., A.M. Latimer and S. Hern, for the respondent.

This appeal and cross-appeal were heard at Vancouver, British Columbia, on February 14 and 15, 2012, by Saunders, Levine and Frankel, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Frankel, J.A., on November 27, 2012.