On November 13th and 14th 2007, I had the privilege of observing Ms. D. Marie Marchand appeal the dismissal of the Constitutional Challenge against closed adoption records in Ontario and Canada by Madame Justice Frank. Ms. Marchand clearly and strongly presented her case to Mister Justice MacPherson, Mister Justice LaForme and Mister Justice Blair who were listening with intent, respect and a formidable level of insight and intelligence as evidenced by their clarifying questions of both Ms. Marchand and the opposing lawyer Ms. Janet Minor representing the crown. Even though some of the 'legal-eese' language, protocol and references went over my head I feel safe in saying that, thanks to Ms. Marchand, the judges definitely 'got' all the issues those of us in the fight for open records and human rights recognition for adoptees and natural families have been arguing for years.
Ms. Marchand had 5 hours to present; on the 13th she presented 4 hours, finishing up with her summary and final hour on the morning of the 14th - an exhausting, complex, comprehensive and well orchestrated performance. It is hard for me to imagine any one else in Ontario, or even all of Canada, who has the combination of life experience, education and legal analytic insight to pull this off. It was said the work she did to prepare this case was the equivalent of a PhD thesis (I don't doubt that for a second).
Afterwards the crown lawyer had 3 hours to argue their side but took less than an hour to complete their case. It was almost as though they just wanted to do the minimum. They did just enough to say they 'showed up and did their job' without really putting up that much of a fight. One might think that they in fact wanted to lose. Perhaps they too have come to see the merit in our arguments for open records as legally presented so well by Ms. Marchand?
Ms. Marchand made a short rebuttal of the crown's arguments - clear, clean, concise and appropriately passionate given the context and setting. The whole 2 days were surprisingly (for me anyways) non-adversarial, quite human in the interactions and even somewhat friendly. There were little to no feelings of animosity or negativity that I could detect from any of the court officials and opposition. In fact, on the contrary; I felt a deep sense of compassion, respect and cooperation from all.
The most moving part of the proceedings came at the end when all 3 judges made a point of addressing Ms. Marchand's presentation, skills and professional conduct. They were all impressed that this was in fact her first court case. She received congratulations all around, even receiving hugs and handshakes from the opposing lawyers and the court clerks. The judges' final decision in favour of the crown certainly came as a surprise considering their questions and responses to both Ms. Marchand and Ms. Minor. Their questions and responses seemingly supported and helped Ms. Marchand clarify and strengthen her points even further while weakening the arguments of the crown. Were they reluctant to take on the responsibility of enacting such a controversial Constitutional legislative change? And thus, were they in fact supporting and strengthening Ms. Marchand's position in order to aid her in taking the next step in this battle, i.e., to the Supreme Court?
There is no doubt 110% was given here and, despite the judges' decision, this was no less than a triumph - a true Heroes Journey. Our position has been well presented and argued and is now formally on record. I couldn't agree more with those who say a round of applause and appreciation is in order. Thank you Donna Marie Marchand and may you find the strength and support you need to take our fight to the Supreme Court of Canada.
