I have documented below where the judge asked some pretty hard questions to the government's lawyer.
In a nut shell, this exchange is about the government saying that we can have abortion information all we need to do is ask. But as the judge points out, there is no guarantee that one can get the information. There are no policies or guidelines to get this information, and if we are refused the information, our only recourse is to take the government to court. In other words we can't appeal to the information and privacy commissioner (like before), We have to go to court and incur costs. How's that for accessible open and transparent government?
As we know, accessing information through FIPPA (as used to be the case), there were all kinds or rules that guided what could and couldn't be divulged. This ensured that any privacy concerns would be properly dealt with.
But if this clause is allowed to stay in place, we are left with access to abortion information being given based solely on the whim of government bureaucrats (maybe today I'll give it to you and maybe tomorrow I won't), and not protected anymore by law (FIPPA).
This exchange began with the Attorney General's lawyer Dan Guttman saying that abortion data would be made available on a case by case basis.
J: How does the court rely on your assertion that the data is available on a case by case basis?
L: We did release information during the first litigation, so there is a past history of doing it and we've done it again in this case. And we are saying in a publicly filed document not only is it our position but these are the numbers.
J: So then in order to get the information, people who are seeking the information have to start court proceedings?
L: No. So far that has been the extent of our disclosure outside of FIPPA, but today we are saying publicly both in our factum and in court here today before you that if we are asked, our position will if we are asked, we will give generalized abortion statistics out.
J: What does that mean?
L: ...if there is an exclusion you are entitled to ask government and when you ask government for that information, the government has to weigh the decision just like in any other decision...you make the request and if the request is denied you have the decision by the court. And we are saying we are going to give out this information.
J: Where are you saying that? You're saying that here today to me, that doesn't mean anything, you haven't made a public statement, you haven't put into place a policy that will allow me as a court to be reassured that information that is outside the stated intent of the legislation is going to be made available. The only two examples I have is where litigation has been started...The government has no policy, no guidelines, no rules and no laws regarding divulging abortion information when we ask for it. We just have to believe they will.