There are a number of things that governments can do to help resolve some matters with regards to these human rights abuses of personal records, especially for adoptees.
Provincial governments
Provincial governments can pass legislation to allow the Registrar Generals in each province to allow the correction of the original birth registrations of adoptees.
In the case of Ontario, Section 28 (6) of the Vital Statistics Act of Ontario needs to be repealed.
Provinces should allow fathers to have their names put on the original birth registration with the consent of both original parents. In the case of deceased fathers, DNA and notarised statements can be used as supporting evidence.
There should be no time limit for this.
Provinces should also extend access to the adoption records to the descendants of deceased adoptees/parents so that relatives such as siblings can reunite. In the case of Ontario, this means passing Bill 87.
Provinces should pass legislation to allow adoptees and their original families the same right to information for adoptees whose adoptions and birth have taken place in different provinces as for those whose birth and adoption have taken place in the same provinces. Information must be shared from both provinces as if the adoption and birth had taken place in the one province.
What the Canadian Federal Government can Do
If provinces refuse to do this, there are a number of actions that the Federal government can take. The provincial laws as they stand now violate the UN Convention on the Rights of the Child, so that makes it a Federal matter too.
It is the duty of the Federal government to uphold this legally binding international treaty at all levels of government – federal, provincial and municipal. Indigenous people come under the remit of the Federal government, so the Federal government has a legal obligation to protect the heritage and ancestry of 60’s Scoop adoptees, especially in light of the 60’s Scoop lawsuit which upheld this obligation in its ruling.
The first thing that the Federal Canadian government can do is ask the provinces to pass legislation to correct the original birth registrations and educate them as to why they need to do this (to stop violating the UN Convention on the Rights of the Child and the Federal laws on discrimination under the Canadian Charter of Rights).
Failing that, the Canadian Federal government must consider other options.
The Federal government has the legal power of Federal Paramountcy to over-ride any provincial laws that conflict with Federal law and operations. It can also be applied when provincial law conflicts with international treaties that the Canadian Federal government has agreed to.
In this case, both UN Conventions and the Canadian Charter of Rights have been breached.
Federal Paramountcy
“What is the Doctrine of Paramountcy?
“In Canada, the doctrine of paramountcy is a constitutional tool that helps resolve conflicts between federal and provincial laws. Under this doctrine, a provincial law that conflicts with a federal law will be inoperative to the extent of the conflict. This means the federal legislation takes precedence over the provincial. While the provincial law will remain valid, the portion of it that conflicts with federal law will cease to apply for as long as the conflict exists. …
In Canadian constitutional law, federal and provincial laws can conflict in several different ways. For example, in some cases, federal and provincial laws will be in operational conflict, where dual compliance — following both laws — is impossible. This is known as an “express contradiction.”
In other cases, a conflict will exist because the provincial law frustrates the purpose of the federal law. For example, in Law Society of BC v Mangat, a provincial law prohibited people from obtaining non-lawyers as their counsel, while a federal law allowed parties to be represented by non-lawyers. Although dual compliance with both laws was possible, the provincial legislation defeated the purpose of the federal legislation: to allow for inexpensive and accessible counsel. The provincial law was accordingly held to be inoperative.” (from the Centre for Constitutional Studies, University of Alberta)
https://www.constitutionalstudies.ca/2019/07/doctrine-of-paramountcy/
The Conflict between Canadian Federal Law and Ontario Provincial Law
The Canadian Federal government web site says that Indigenous adoptees can add the father’s name to their original birth registration to help with their claim for Status Rights. However, Ontario law makes this impossible as Ontario law states that the Registrar General of Ontario is forbidden from making any corrections or amendments to the original birth registrations of adoptees. Therefore, Ontario law – Section 28(6) of the Vital Statistics Act (of Ontario) – is in direct conflict with Federal operational procedures.
From the Canadian Government web site;
“Are you entitled to be registered through a parent not listed on your proof of birth document
A proof of birth document listing the names of the parents is the main document needed to support entitlement to registration.
If one of the biological parents isn’t listed on the proof of birth document but is registered or entitled to be registered, you can submit:
- an original amended proof of birth document listing the unstated parent’s name“
How can the Indigenous adoptee give the Federal government an amended original birth registration that has lists the unstated parent’s name after amendment when Ontario law will not allow this to happen?
https://www.sac-isc.gc.ca/eng/1462808207464/1572460627149#sec5
Other Federal Options
Another option is prosecuting the provinces for falsification of records which is a federal offense – there is clear evidence that this happened in Ontario including the forgery of parent’s signatures on the original birth registration.
The Canadian Federal government has the power to enforce human rights in the provinces if it really wanted to and if it cares enough to do it.
The Canadian Federal government also has the power to appoint an independent Federal Children’s Commissioner to oversee the rights of adoptees and their original families, and to standardise provincial laws.
The provincials laws vary greatly from province to provinces, with adoptees and their families having more rights in one province than other provinces.
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