D. Marie Marchand, a self-represented applicant in Infant Number 10968 v. The Queen in Right of Ontario has filed leave to appeal to the Supreme Court of Canada. Marchand is a lawyer who articled with the Attorney General’s office in Toronto and has spent the better part of the last decade arguing for the right of all human beings to accurate biological information and a transparent road to their ancestors. She states: “Secrets, lies and shame are not the basis to develop any genuine relationships. Like any healthy human being, children can deal with the truth - it’s the unknown that scares them”.

Working with Swadron Associates at the application level, the constitutional challenge was dismissed. What was significant about the case was that the government released to Marchand her unsealed records on May 31, 2005 the day the government was to respond to the Notice of Constitutional Question. Counsel for the government would later argue at the application hearing, 8 months later that Marchand had no standing to challenge sealed records because her records weren’t sealed. Marchand asked for these documents in 1983, 1987, 1988, 1999, 2000, 2002, 2003 and 2005. Marchand believes this is an indication that the current government inherited an already diseased and dysfunctional system of disclosure in which the bureaucrats and paper-pushers of the ADR are unable, among other things, to distinguish between sealed and unsealed records

The Court at the application level found for the government concluding Marchand had no standing and that she should exhaust her administrative law remedies and seek a review of the registrar’s decision from the divisional court under the health, safety welfare section of the legislation. Marchand did this (for the fifth time), providing the ADR registrar with a 15 page document accompanied by medical reports and letters from friends and associates. On August 30, 2007, 9 months after the HSW search was submitted, it was again denied. Marchand believes it is significant that the government had already planned to repeal the HSW sections in place on September 1, thus even denying her this remedy. Marchand feels that she is being treated as a whistle-blower by the ADR. She states: “the ultimate outcome of this case if I win, and I believe the Charter itself is on trial in this case, is that the ADR will become redundant and unnecessary and lot of taxpayers’ money will be saved by eliminating these positions. I’m 52 years old now, this is emotional stuff and it’s precisely because it is emotional stuff that it offensive that total strangers are involved with my life and the lives of adopted people”.

It is also addresses Mr. Justice Killen’s concerns from the Ferguson case in 1983, that the system is impenetrable and is itself a source of frustration creating a lack of faith in a system that is supposedly designed to allow people their true identifying information. At the heart of “withholding of the unsealed records” is the very fact that 40% of the records are not sealed. This is counterintuitive to there being any reasonable expectation of procreative anonymity – a term the Tennessee Supreme Court used to describe the “right” people who have sex and create children are expecting, and which no other people have, noting that adoption is a last resort in the best interest of the child when there are legitimate reasons for an adoption. Marchand suggests: “Surely, we are more progressive about basic human rights than Tennessee (and Alabama where the records have been sealed only once for 1 year), where they still execute people, have no human rights code or Charter rights”.

Marchand is asking the Supreme Court of Canada to send a message: “Women who conceived through rape and/or had few choices but to carry a child to term should not bare society’s shame any longer”. On the flip-side, she is asking the Supreme Court of Canada to send a message to adopted people that “Your existence is not something to be ashamed of - no matter how or why a person was born, the recognition of their true carnal existence is not something to be ashamed of and that all children are a gift of God and deserve the right, like all others, to information about their ancestors and a place in the river of life”. Marchand states further that: “It’s about double standards - no one would argue that being an orphan is a good thing but for adopted people we are genetic orphans, and we’re expected to be grateful about it. It has nothing to do with how we feel about our adoptive parents”.

Marchand believes that legislation denying people truth in biological ancestry is symptomatic of society’s disrespect for nature. “This is exactly the thing that Aldous Huxley warned us about in Brave New World. Adopted people are the first generation of brave new children and we should be opening the records and learning from the experiences of adopted people who have pierced the veil of false-consciousness and refused to accept false ancestry.

Some points Marchand has made on The Adoption Show: Voices Ending the Myth: “The saddest thing for me, after healing enough to understand the dysfunctional dynamics in my adoptive family, was that my adoptive father was a really great guy and I really never got to develop a relationship with him. He had no idea my adoptive mother had created an atmosphere of terror around the issue so that when he raised it I’d just clam up… I can also understand the fears my adoptive mother had, but those fears were not based on reality but myths. She was always concerned about our relationship saying “Why can’t we have a normal mother-daughter relationship?”- like it was my fault. It’s no wonder it wasn’t working - it wasn’t “natural”, it was created by the state and the Catholic Children’s Aid Society and founded on lies, secrets, and shame. I shouldn’t have been given a message that my need to know who I am and where I came from was something to be ashamed of; I shouldn’t have been led to believe that I was being disloyal to my adoptive parents by wanting answers to these fundamental human questions. Our relationship was poor because there was this taboo and like anyone who is told they know a secret about you and they’re not going to tell you, you’re going to want to know even more. That’s crazy making and that’s what a lot of people refuse to acknowledge…. Killean J., in Ferguson 1983, understood the frustration created by the ADR’s impenetrable system and the waiting adopted people had to do. Unlike 1983, however, the Charter’s section 15(1) equality clause is now in force and effect and if the Charter is purposive and has real force and meaning it should mean adopted people’s lives should be dignified by acknowledging the truth of our very existence”.

It has taken over 25 years for an adopted person to come forward and bring this challenge – “It’s a really difficult position to be in and I haven’t had the family support that most constitutional litigants have – that’s the nature of this beast”