Intervener - Attorney General of British Columbia

'
\--if - .
File Number 311955
IN THE SUPREME COURT OF CAiVADA
(ON APPEAL FROM THE COURT OF APPEAL OF MANITOBA)
BETWEEN:
A.C., A.C. and A.C.
Appellants (Appellants)
- and DIRECTOR OF CHILD AND FAMIL,Y SERVICES
Respondent (Respondent)
- andATTORNEY GENERAL OF MANITOBA, ATTORNEY GENERAL OF
NOVA SCOTIA, ATTORNEY GENERAL OF ALBERTA, and
ATTORNEY GENERAL OF BRITISH COLUMBIA
Interveners
FACTUM OF THE INTERVENER ATTORNEY
GENERAL OF BRITISH COLUMBIA
(Pursuant to Rule 61 of the Rules of the Supreme Court of Canada)
Neena Sharma and Karrie Wolfe
Robert E. Eouston, Q.C.
MINISTRY OF ATTORNEY GENERAL
LEGAL SERVICES BRANCH
1301-865 Hornby Street
Vancouver, BC V6Z 2G3
Tel: (604) 660-0224
Fax: (604) 660-3365
Email: neena.shama@,gov.bg
BURKE-ROBERTSON
70 Gloucester Street
Ottawa, ON K2P OA2
Tel: (613) 236-9665
Fax: (613) 235-4430
Email: rhouston@burkerobertson.com
Counsel for the Attorney General of
the Province of British Columbia
Ottawa Agent for the Attorney General of
the Province of British Columbia
David C. Day, Q.C.
LEWIS, DAY
Suite 600, TD Place
140 Water Street
St. John's, NL A1C 6H6
Tel.: (709) 753-2545
Fax: (709) 753-2266
Email: &dqc@,le,lewisday .ca
A.C.
Counsel for the Appellant, A.C.
Eugene Meehan, Q.C.
Marie-France Major
LANG MICKENER LLP
300 - 50 OYConnorStreet
Ottawa, ON KIP 6L2
Tel.: (613) 232-7171
Fax: (613) 231-3191
Email: enieehan(i$langgnichener.ca
mrnavor@langinichener.ca
A.C.
Ottawa Agent for the Appellant, A.C.
Allan Ludkiewicz
LUDKIEWICZ, BORTOLUZZI
B 1 - 1921 Pembina Highway
Winnipeg, MB R3T 2G7
Tel.: (204) 262-4200
Fax: (204) 262-4201
Email: allan@,allaw.ca
A.C.
Co-Counsel for the Appellant, A.C.
ShaneBrady
Eugene Meehan, Q.C.
W. GLEN HOW & ASSOCIATES LLP
P.O. Box 40
Georgetown, ON L7G 4T1
Tel.: (905) 873-4545
Fax: (905) 873-4522
E-mail: sbraddv@,~~gl~ow.ca
LANG MICHENER LLP
300 - 50 O'Connor St
Ottawa, ON KIP 6L2
Telephone: (613) 232-7171
Fax: (613) 231-3191
E-mail: emeehan(i3lan1,gnicl1ener.ca
A.C.
Counsel for the Appellants Mr.
A.C. and Ottawa Agent for the Appellants Mr.A.C.
A.C.
Mrs.A.C.
A.C.
Mrs.A.C.A.C.
Norm A CuddyIAlfred Thiessen
Robert E. Houston, Q.C.
TAPPER CUDDY LLP
1000 - 330 St. Mary Avenue
Winnipeg, MB R3C 325
Tel.: (204) 944-8777
Fax: (204) 947-2593
BURKE-ROBERTSON
70 Gloucester Street
Ottawa, ON K2P OA2
Tel.: (613) 236-9665
Fax: (6 13) 235-4430
Counsel for the Respondent Director CFS
Ottawa Agent for the Respondent Director CFS
Deborah L. Carlson
Henry S. Brown, Q.C.
ATTORNEY GENERAL OF MANITOBA
GOWLING LAFLEUR HENDERSON LLP
and
1205 - 405 Broadway Ave
Winnipeg, MB R3C 3L6
Tel.: (204) 945-0679
Fax: (204) 945-0053
E-mail: dcarlsoii@~ov.inb.ca
2600 - 160 Elgin St
P.O. Box 466, Stn "Dl1
Ottawa, ON KIP 1C3
Tel.: (613) 233-1781
Fax: (613) 563-9869
E-mail: he~nrv~brown@,~owlinns.coin
Counsel for the Intervener, Attorney General of
Agent for the Intervener, Attorney General of
Manitoba
Manitoba
Attorney General of Nova Scotia
Henry S. Brown, Q.C.
GOWLING LAFLEUR HENDERSON LLP
2600 - 160 Elgin St
P.O. Box 466, Stn "Dl1
Ottawa, ON KIP 1C3
Tel.: (613) 233-1781
Fax: (613) 563-9869
E-mail: hen~-y.brownOgowlin~s.com
Ottawa Agent for the Intervener Attorney General of
Nova Scotia
Attorney General of Alberta
Brian A. Crane, Q.C.
GOWLING LAFLEUR HENDERSON LLP
2600 - 160 Elgin St
Box 466 Station D
Ottawa, ON KIP 1C3
Tel.: (613) 786-0107
Fax: (613) 788-3500
E-mail: Brian.Craile@,),aowlinrrs.corn
Ottawa Agent for the Intervener Attorney General of
Alberta
TABLE OF CONTENTS
PART
PAGE
PART 1: STATEMENT OF FACTS........................................................................ 1
A. Overview.................................. . .. ...... ... . . . ... . . .. . .... ... .. . .. . .
.. 1
B. Facts .................................................................................................................. 2
PART I1 - POINTS IN ISSUE.................................................................................... 4
PART ILT - ARGUMENT .....................................................
.-
PART IV - SUBMISSIONS AS TO COSTS .........................................
PART V - ORDER SOUGHT ..............................................
-5
16
-17
..
18
PART VII - STATUTES .............................................................................................19
PART VI - TABLE OF AUTHORITIES ........................... .......................
(Appendix A)
Alberta, Child, Youth and Family Enhancement Act, R.S.A. 2000, c. -12, ..................... 24
ss. 22.1(1) and (2)
Newfoundland and Labrador, Child, Youth and Family Services Act ,-------------27
S.N.L. 1998, c. C-12.1, ss. 14(g),27(2), 32
32
Northwest Territories, Child and Family Services Act, S.N.W.T., 1997,----------------------c. 13, ss. 7(3)(n),30-32
Nova Scotia, Children and Family Sewices Act, S.N.5. 1990, c. 5 ,------------------38
s. 61
Nunavut, Child and Family Sewices Act fiunavut), R.S.N.W.T. 1997, ......................... 40
C. 13, S S . 7(3)(g),30-32
Ontario, Child and Family Services Act, R.S.O. 1990, c. C. 11, .......................................
ss. 57(1) and (2), 62
46
Prince Edward Island, Child Protection Act, R.S .P.E.I. 1988, .........................................
c. C-5.1, ss. l(p), 23,28(1)
49
Saskatchewan, Child and Family Services Act, S.S. 1989-90,
C.C-7.2, S. 52
53
(Appendix B)
Table of Summary of Appellants' Case Law and Relevance
to the Matter at Bar
---------------------------------*----------
57
PART 1: STATEMENT OF FACTS
A.
Overview
1.
The Attorney General of British Columbia ("Attorney General") intervenes in this
case to support the constitutionality of Manitoba's child protection legislation. Although
British Columbia's child protection legislation differs in some important respects fiom
Manitoba's, the Attorney General of British Columbia has an interest in this Court's
affirmation of the validity of the legal policies underlying Manitoba's legislation.
2.
The Attorney General also submits that the arguments of the Appellants about the
significance of the "mature minor" doctrine, if accepted, would have ramifications beyond
the area of child protection legislation. Such an approach would elevate the common law
above statute law, thus thwarting parliamentary sovereignty; it is therefore inconsistent with
constitutional principles.
3.
.
As to the more specific submissions of the Appellants under ss. 7 and 15 of the
Charter, the Attorney General submits that the law in this area is well settled and no new
principle has been raised in this case that calls into question the correctness of that
jurisprudence.
4.
The Attorney ~enerz-takes
no.position and makes no submissions on any other
issue in this case.
B.
Facts
5.
The Attorney General of British Columbia accepts and relies upon the statement of
facts contained at paras. 3 - 5 of the factum of the Intervener the Attorney General of
6.
The Attorney General takes no position on the evidentiary and factual disagreements
between the parties that may still be at issue at the hearing of this case.
7.
The Attorney General submits that the following legislative facts about child
protection legislation are relevant to the constitutional issues raised in this case:
In addition to British Columbia and Manitoba, six provinces and three
a.
territories have legislation that authorizes a court to order medical treatment of
children in emergency situations despite a lack of consent (with appropriate
limitations).
1.
..
11.
...
111.
Alberta, Child, Youth and Family Enhancement Act, R.S.A. 2000, c. 12, ss. 22.1(1) and (2).
New Brunswick, Family Services Act, S.N.B. 1980, c. F-2.2, ss.
3 l(l)(d)Y 3 1(l)(g),32(2)(b11
Newfoundand and Labrador, Child, Youth and Family Services Act,
S.N.L. 1998, c. C-12.1, ss. 14(g), 27(2), 32
'~lthoughnot child protection legislation, it is noteworthy that New Brunswick has specificalIy codified the
mature minor principle into legislation: see Medical Consent ofMinors Act as discussed in Walker v. Region 2
Hospital Corp. (1994), 116 D.L.R (4") 477 W C A ) , as discussed at Appendix B to this Facturn.
iv.
Northwest Territories, Child and Family Services Act, S.N.W.T.,
1997, c. 13, ss. 7(3)(n), 30-32
v.
Nova Scotia, Children and Family Sewices Act, S.N.S. 1990, c. 5, s.
61
vi.
Nunavut, Child and Family Sewices Act (Nunavut), R.S.N.W.T.
1997, C. 13, SS. 7(3)(g), 30-32
vii.
Ontario, Child and Family Sewices Act, R-S.O. 1990, c. C.11, ss.
57(1) and (2), 62
-..
~111.
ix.
b.
.
Quebec, Youth Protection Act, R.S.Q., c. P-34.1, s. 48
Yukon Territory, Children 's Act, R.S.Y. 2002, c. 3 1, 134(1)
In the two remaining provinces, the same power to order medical treatment is
implicit because the authority that administers child protection legislation is given
the rights of the parent of the child who is apprehended.
1.
..
11.
Prince Edward Island, Child Protection Act, R.S.P.E.I. 1988, c. C-5.1,
ss. l b ) , 23,28(1)
Saskatchewan, Child and Family Sewices Act, S.S. 1989-90, c. C-7.2,
s. 52
PART I1 - POINTS IN ISSUE
8.
The Attorney General of British Columbia will address only the following
constitutional questions as stated on December 3, 2007 by the Chief Justice:
9.
a.
Doss.25(8)and25(9)oftheChildandFamilyServicesAct,S.M.1985-86,
c. 8, infkinge s. 7 of the Canadian Charter of Rights and Freedoms?
b.
Do ss. 25(8) and 25(9) of the Child and Family Services Act, S.M. 1985-86,
c. 8, infkinge s. 15 of the Canadian Charter of Rights and Freedoms?
The Attorney General will make no submissions with regard to, and takes no
position on, ss. 2(a) and 1 of the Charter
PART I11 - ARGUMENT
INTRODUCTION
10.
The Attorney General submits the Appellants have been unable to point to any
principle of law - whether arising fiom the common law or the Constitution - that seriously
questions the validity and reasonableness of the legislature of Manitoba enacting a statute to
confer on the Court, the authority - in extreme cjrcumstances - of forcing life-saving
medical treatment upon a child. There can be no question that power should be exercised
with care, sensitivity and respect for the circumstances of the child and her family. There
can also be no question that the power is consistent with the Canadian tradition expressed in
both the common law and constitutional principles.
11.
For those reasons, the Attorney General submits that the Appellants' arguments that
Manitoba's legislation was applied incorrectly cannot succeed for the simple reason that the
common law cannot override provincial legislation. With regard to ss. 7 and 15 of the
Charter, the Attorney General adopts and supports the submissions of the Attorney General
of Manitoba.
12.
At paras. 38 to 61, the Appellants submit that the Manitoba legislation is superseded
by a common law "right". They submit that, once the Child appellant in this case was found
to be a "mature minorm2,the legislation ought to have been found inapplicable to her, or
unconstitutional because it applied to her.
13.
The Appellants rely on a wide range of cases fkom different jurisdictions in support
.
..
of their assertion that the "mature minor" doctrine is recognized ct ccommn law iii C m ~ d a .
The Attorney General does not disagree that the principle exists. As a review of that case
law reveals, however, the general existence of the doctrine does not support the Appellants'
assertion that the doctrine should govern in the legislative context of this case. On the
contrary, most of the cases to which the Appellants refer can be distinguished on a factual
basis: they either do not involve a legislative scheme (i.e. child protection) which creates a
test for capacity to consent that differs from the common law3 or they do not concern urgent
or emergency medical decisions where a child is rehsing proposed treatment '. Of the
remaining cases referred to by the Appellants, several directly contradict the assertion that a
mature minor's wishes are dispositive of medical treatment decisions where legislative
provisions provide otherwise5. A table summarizing the cases referred to by the Appellants
2
The Respondent and Attorney General for Manitoba do not accept that the Court made a finding but state
merely that it was prepared to accept the child Appellant had capacity (see AR at 4, lines 27-32 (Oral Reasons
of Kaufman J., April 16); Respondent's Factum, para. 13; Attorney General of Manitoba's Factum, para. 5).
B e Attorney General kkes no position on this issue.
See Van Mol (Guardian a d litem) v. Ashmore, (1990), 158 D.L.R. (4th)637 at para. 84 (BCCA) and Walker
v. Region 2 Hospital COT. (1994), 116 D.L.R. (4') 477 (NBCA) both discussed at Appendix B to this Factum.
4
See Gillick v. West Nofolk and Wisbech Area Health Authority, [I9861 1 A.C. 112 (H.L.) which was relied
upon in C. (AT) v. Wren (1986), 76 A.R 115 (CA). See also E. (Mrs.) v. Eve, [I9861 2 S.C.R. 388 and
Fleming v. Reid (1991) 4 O.R. (3d) 74 (CA) which involved adults with mental health competency issues and
not mature minors. AU four cases are described in more detail at Appendix B to this Factum.
5
See especially U. (C.)(Nexttfi-iend of) v. Alberta (Director of Child Welfare), (2003), 327 A.R. 25 (CA), infia
paras. 18, 26 and 27; H: 0.)(Next Friend O J v. (Alberta (Director of Child Welfare) (2002), 302 A.R. 201
(QB); B. (S.J.) (Litigation Guardian of) v. British Columbia (Director of Child, Family & Community
Services) (2005), 42 B.C.L.R. (4*) 321 (SC), infia, para. 25.
and their relevance to the matter at bar is attached as Appendix "B"to the Attorney
General's Facturn.
14.
In any event, the methodology of the Appellants' legal analysis challenges the
established interplay of the common law, statute law and constitutionai principies in
Canada; they argue that the common law must trump clear legislative language when
tackling controversies arising in the medical treatment of mature minors. More specifically,
they submit that the common law recognition that mature minors have capacity to consent to
(or withhold consent regarding) their own medical treatment over the objections of their
parents9 ought to supersede legislation that grants a Court authority to settle a dispute when
parentslguardians disagree with professional medical advice. The Attorney General submits
that not only is the Appellants' proposition wrong, it is contrary to constitutional principles:
15.
It is beyond question that the Constitution is the supreme law of Canada, and it is
equally clear that the Charter may apply to the common law. But these truisms co-exist
Because at common law, an infant (generally under age of 18 or 19 in Canada) is considered incompetent to
make medical decisions, the consent of the parent or guardian is sought. The only time litigation would be
necessary is when there is a dispute either between the parent(s) and child, or between those two and the
medical staff.
with the ability of legislatures to enact laws in any area they see fit, regardless of the preexisting common law (subject only to division of powers, which is not at issue here). While
both the manner and the substance of laws and government actions are subject to the
Charter, the Charter does not place any restriction on the matters that can be addressed in
legislation.
Hogg, Constitutional Law of Canada, 5" Edition Supplemented, Vol. 1,
Thomson Carswell, 1.4 (p. 1-10), 12.2 (pp. 12-4 to 12-7) and 15.2 (p.
15-3)
Hill v. Church of Scientology, [I9951 2 S.C.R. 1130 at paras. 83-98
RWDSUv. DoEphin Delivery Ltd., [I9861 2 S.C.R. 573 at pp. 592 - 593
R. v. Salituro, [I9911 3 S.C.R. 654 at pp. 665,666 and 670
16.
These canons eliminate a crucial under-pinning of the Appellants' submission that
mature minors, like adults, have absolute control over their medical treatment. The
Manitoba Legislature has said otherwise. It has put in place an exhaustive scheme
addressing situations in which a medical professional thinks there is a danger to the life or
health of a child (defined by age) and the child's guardians are refbsing the recommended
treatment. Subject only to a successful challenge under the Charter (not common law), that
statute is valid.
17.
=e Appellats' mistz?teis to st& with the propcsitio~thzt the child Af?mellmthas
an absolute right at common law to be considered competent to make medical decisions
about herself. With respect, this simply re-states the common law without addressing the
real issue - the Province's ability to legislate on that same matter. It is the terms of the
legislation and not the common law which provides the correct starting point.
18.
Indeed, the Attorney General of British Columbia submits the law was correctly
applied by the Alberta Court of Appeal when it rejected an argument that neither the state
nor the common lawparenspatriae jurisdiction of the court could intervene in medical
decisions of mature minors contrary to the Appellants' assertion (see their Facturn footnote
69, p. 14). That Court correctly held that Alberta's child protection legislation is a complete
code, ousts the common law, and reflects society's historical interest in preserving minors'
lives and well-being.
U (C.) (Next Friend 03v.Alberta (Director of Child Welfare) (2003), 327
A.R. 25 (C.A.) at paras. 28-40
See also H.(B.) (Next Friend 03v.Alberta (Director of Child Welfare)
(2002), 302 A.R. 201 at paras. 38-43 and B. (SY) (Litigation
Guardian ofl v. British Columbia (Director of Child, Family &
Community Sewice) (2005), 42 B.C.L.R. (4fh)321 at paras. 56-72
19.
The Attorney General submits that a legislature could, if it chose to do so, pass a law
mandating the same process for adults refusing medical treatment. That no such law has
been passed only reflects political and policy choices of government; it does not demarcate
the legal authority or constitutional competence of the legislature. The balancing under s. 7
of the Charter that is implicit in assessing a law's accordance with the principles of
fundamentaljustice would be different in the case of adults than of children, but there
cannot be any doubt that the legislature could pass such a law. Put another way, there is no
Charter guarantee of "non-interference" with the common law.
20.
Had the statute referenced the capacity or competence of the child rather than her
calendar age, the Appellants' argument may have had some validity because they might
have argued that those references signalled an intent to incorporate the mature minor
doctrine. But, given the clear difference between calendar age and capacity, there is no legal
principle that could conflate the two.
illustrated in many different areas of the law, a few examples of which are listed here:
a.
the requirements of natural justice and procedural fairness;
Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor
Control and Licensing Branch), [2001] 2 S.C.R. 781,2001
SCC 52 at paras. 18-31
Brosseau v. Alberta Securities Commission, [I 9891 1 S.C.R. 30 1 at pp.
309-3 10
2 747-3174 Que'bec Inc. v. Que'bec (Re'gie des permis d 'alcool), [I9961
3 S.C.R. 919 at paras. 76-81; 95-101 (per L'Heureux Dub6 J.)
b.
the Crown's prerogative law relating to the law of contract;
Delivery Drugs Ltd. (c.0. b. Gastown Pharmacy) v. British Columbia
(Deputy Minister ofHealth), 2007 BCCA.550 at paras. 53-59
c.
remedies available for the breach of the common law duty of fair
representation a union owes to its members, and;
Gendron v. Supply & Services Union of the Public Service Alliance of
Canada,Local5007, [I9901 1 S.C.R. 1298 at pp. 1315-1316
d.
the principles of civil procedure for civil litigation (sought by the parties to
be characterized as embodying the unwritten constitution principle of the rule of law,
among other things).
British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49 at
paras. 44-68 and 73-77
Babcock v. Canada (Attorney General), 2002 SCC 57 at paras. 53-57
22.
Thus, only where a specific constitutional challenge can be established can a court
ignore clear words in a statute. The rules of statutory interpretation state that, where
ambiguity exists, a court ought to prefer an interpretation consistent with other existing
rights or that silence on a matter addressed by the common law may indicate the statute
adopts it. Neither situation applies in this case.
Rizzo & Rizzo Shoes Ltd. (Re), [I9981 1 S.C.R. 27 at paras. 20-23
23.
As submitted by the Respondent (Facturn, para. 43) and the Attorney General of
Manitoba (Facturn, para. 14), no ambiguity exists here and therefore there is no avenue to
insert the common law.
24.
Indeed, the "life and death" backdrop of this case is significant because it highlights
the striking preference our law has to preserve life. Courts (whether acting at common law
or under the Charter) and legislatures zre predisposed to prefer life over the fieedom of a
person to control his or her medical treatment in cases where that person's choice would
likely end their life. This tendency is not recent in the law and, the Attorney General
submits this, it is neither outdated nor in need of re-assessment.
25.
Charter jurisprudence is consistent with this historical tendency. The Court has, on
pain or suffering supersedes the constitutional protection of one's liberty or security of the
person.
a.
Rodriwez v. British Columbia (Attorney General),[I9931 3 S.C.R. 519
In this case, the majority upheld the Criminal Code prohibition against assisting
someone to commit suicide stating that the person's liberty and security of the
person could not be divorced £?om the third value protected by section 7,
namely, the sanctity of life. Despite the fact that the prohibition deprived Ms.
Rodriguez of h a personal autonomy in a manner which impinged on her
security of the person, the majority concluded it did not constitute a violation of
her rights because the prohibition is grounded in both the government's
objective of protecting the vulnerable and the state's interest in protecting and
respecting human life.
b.
B. (R,) v. Children's Aid Society o f Metropolitan Toronto, [I9951 1 S.C.R. 315
at paras. 71-102, 125 and 208
With respect to section 7, the majority of the Court found that although
parents have a right to exercise decisions on behalf of their children,
including decisions about medical treatment, legislation which infihges that
parental liberty in order to protect the child's right to life q d to health will be
in accordance with the principles of fundamental justice provided it meets the
requirements of fair procedure. The result in the case supports the principle
that the law will prefer to protect the life of the child, rather than prioritize
the parents' rights to choose treatment.
c.
S J B . (Zitiaation Guardian o f ) v. British Columbia Director o f Child,
Family and Community Service), 2005 BCSC 573, r20051 B.C.J. No. 836
0
In a similar situation in British Columbia, the Supreme Court held that,
regardless of a particular child's status as a mature minor at common law, the
legislature had the power to protect the lives of children endangered by their
own refusal to accept necessary medical treatment. The Court found that the
pith and substance of the Child, Family and Community Services Act was to
preserve life and protect the health of children, and that rather than infringing
the child's right to freedom of religion, it ensured that her beliefs did not
override her Charter right to life and security of the person.
26.
The case most similar to the present appeal is U. (C.) (Next Friend 08v. Alberta
(Director of Child Welfare) (2003), 327 A.R. 25 (C.A). Although no Charter issues were
analyzed at the Court of Appeal level (they were raised in the lower courts), the reasoning of
the Court of Appeal is entirely consistent with the preceding cases. A 16 year-old was
found to be "in need of protection" under the Alberta Child Welfare Act, and transfusions
were ordered to be administered over her objections to that aspect of her medical treatment
(she had consented to elective surgery). At the Court of Appeal, she argued theparens
patriae jurisdiction of the courts ended once she was found to be a mature minor; thus, she
should be allowed to refuse the necessary transfusions regardless of the consequences to her
life.
27.
The Court of Appeal disagreed concluding that the legislation supplanted the concept
of a mature minor's right td consent to or refuse treatment where that treatment is essential
and recommended by a physician. The Court confirmed that unlike theparenspatriae
jurisdiction of the courts, the Legislature's jurisdiction over children is subject only to
constitutional limitations: a "mature minor's wishes respecting medical treatment will not
be dispositive of the issue, but rather will be one factor to be considered in determination of
their best interests" (at para. 39). The Court reached this conclusion in part by noting that
the position is consistent with society's historical interest in preserving the life and wellbeing of minors (at para. 3 8).
28.
It is also noteworthy that the over-riding principle of child protection legislation is
the best interests of the child. This test is ir,c.nqm-"te'liztc the Mmitnha !egis!SLti011, zs it is,
virtually, across the country. This Court has stated that this test as incorporated into
legislation is consistent the Charter. The Attorney General that submits that the judicial
history is compelling and sound. It provides invaluable guidance in this case.
Young v. Young, [I9931 4 S.C.R. 3 at pp. 35-38'51-53,63-77 and 109-120
B. (R.) v. Children's Aid Society of Metropolitan Toronto, supra
29.
It must be emphasized that the state and the courts are only required to interfere in
these questions in cases of conflict. Medical treatment and options are primarily private
matters between patients and doctors. Only where there is an unresolved disagreement
between a patient and her doctor, or between a patient and the patient's guardian, is the state
or court called upon to exercise its authority with respect to those decisions. This conflict
often takes place in an understandably emotional atmosphere when a child needs medical
attention. In every jurisdiction in this country, legislation permits an independent, impartial
authority (with judicial oversight) to ensure the child's right to life is being protected (see
the legislation cited above at para. 7).
30.
To suggest this design of regulation is unavailable in cases where the child is
"mature" ignores the legitimate imperative upon which governments act to ensure that a
third party can intervene when a doctor's recommendations are not being followed and a
child's health and/or life is threatened as a result. To insist upon a determination of capacity
is a complication insensitive to the fact that these cases almost always occur when time is of
the essence.
3 1.
The Attorney General submits that, apart fiom questions that may arise unique to the
factual matrix of this case [such as whether notice given to the Appellants was adequate or
whether the statutory conditions were complied with, issues upon which the Attorney
General takes no position], no persuasive challenge has been raised by the Appellants to the
case-law cited above.
The Manitoba Legislation Does Not Infringe ss. 7 or 15 of the Charter
32.
After urging this Court conclude that the common law supersedes the Manitoba
legislation, the Appellants argue that the legislation (if applicable to the child Appellant)
infringes ss. 2(a), 7 and 15 of the Charter, and cannot be saved by s. 1.
33.
The Attorney General takes no position and makes no submissions on ss. 1 and 2(a)
of the Charter.
34.
'With respect to ss. 7 and 15, the Attorney Generai supports and adopts the
submissions of the Attorney General of Manitoba contained at paras. 18-45 of the Facturn.
PART IV - SUBMISSIONS AS TO COSTS
35.
The Attorney General seeks no order as to costs and asks that no costs order be made
against him.
PART V - ORDER SOUGHT
36.
The Attorney General requests permission to present oral argument at the hearing of
this czse. The Attcrr,ey S-e~erz!fi~rthei~'~ibmits
that the const:ltiit;ionzl q~es:ions with regzrd
to whether the legislation infiinges ss. 7 or 15 should all be answered in the negative.
ALL OF WHICH IS RESPECTFULLY SUBMITTED this 6th day of May, 2008.
NEENA sEl.A&+Uy
Counsel for the Intervener
Attorney General of British Columbia
Counsel for the Intervener
British Columbia
PART VI: TABLE OF AUTHORITIES
1 2747-31 74 Quebec Inc. v. QuPbec (Regie des permis d'alcool),
[I99613 S.C.R. 919
B. (R.) v. Children's Aid Society of Metropolitan Toronto, [ I 9951 1
1 S.C.R. 315
Babcock v. Canada (Attorney General),2002 SCC 57
British Columbia v. Im~erialTobacco Canada Ltd.. 2005 SCC 49
Brosseau v. Alberta Securities Commission, [I9891 1 S.C.R. 301
Delivery Drugs Ltd. (c.o.b. Gastown Pharmacy) v.British Columbia
(DeputyMinister of Health), 2007 BCCA 550
Gendron v. Supply & Services Union of the Public Service Alliance of
Canada, Local 5007, [1990] 1 S.C.R. 1298
H.(B.) (Next Friend o f ) v. Alberta (Director of Child Feelfare), 2002
ABOB 371.302 A.R. 201
Hill v. Church of Scientology, [1 9951 2 S.C.R. 1 1 30
Ocean Port Hotel Ltd. v. British Columbia (General Manager,
~
2001 SCC 52, [2001]2
Liquor Control and ~ i c e n s i snranch),
S.C.R. 781
R. v. Salituro, [1991]3 S.C.R. 654
Rizzo & Rizzo Shoes Ltd. (Re), [I9981 1 S.C.R. 27
Rodriguez v. British Columbia (Attorney General),[I99313 S.C.R. 519
R Ta,SUv. Dolphin Delivery Ltd., [I98612 S.C.R. 573
S.JB. (Litigation Guardian oJ3v. British Columbia (Director of
l ~ Community Service), 2005 BCSC 573, [2005]
Child, ~ a m irrnd
B.C.J. No. 836 (QL)
U. (C.) (Next Friend 08v. Alberta (Director of Child Welfare)
(2003),327 A.X. 25 paras. 33 (C.A.)
Van Mol (Guardian ad litem of) v. Ashmore, 1999 BCCA 0006,
(1999), 168 D.L.R. (4th) 637 (B.C.C.A.)
Young v. Young, [I99314 S.C.R. 3
Text
Hogg, Constitutional Law of Canada, 5th Edition Supplemented,
Thomson Carswell
1 10
12, 14
I
11
11
10
10
10
6,9
8
11
12
8
6,9, 12
6,9, 12
6
14
8
1
PART VII: LEGISLATION
Alberta: Child. Youth and Family Enhancement-Acti _R_,S,-A_2000, c. -12
Canadian Charter of Rights and Freedoms, ss. 7, 15
New Brunswick, Family Services Act, S.N.B. 1980, c. F-2.2
Newfoundland and Labrador, Child, Youth and Family Services Act,
S.N.L. 1998, C. C-12.1
Northwest Territories, Child and Family Services Act, S.N. W.T., 1997, c. 13
Nova Scotia, Children and Family Services Act, S.N.S. 1990, c. 5
Nunavut, Child and Family Sewices Act (Nunavut), R.S.N.W.T. 1997, c. 13
Ontario, Child and Family Services Act, R-S.O. 1990, c. C.1 1
Prince Edward Island, Child Protection Act, R.S.P.E.I. 1988, c. C-5.1
Quebec, Youth Protection Act, R.S.Q., c. P-34.1
Saskatchewan, Child and Family Services Act, S.S. 1989-90, c. C-7.2
Yukon Territory, Children's Act, R.S.Y. 2002, c. 3 1
1,4, 5,9,
15
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NBCA
Appellant's Factum,
paras. 40,45,47,63,
80,104
Fleming v. Reid
(1991), 4 O.R. (3d)
74 at paras. 45,4749 (C.A.)
Appellant's Facturn,
paras. 40,45,47,80,
83,104
E. (Mrs.) v. Eve,
[I9861 2 S.C.R. 388
at 426, (sub nom. Re
Eve) 31 D.L.R. (4th)
I
0nt.CA
SCC
p
p
Appellant's Facturn,
paras. 40,47, 80,
104
Walker v. Region 2
Hospital Cop.
(1994), 116 D.L.R.
(4th) 477 (N.B.C.A.)
15 year old cancer patient objected
to use of blood products (on
religious grounds). Medical team
sought an order confirming child's
capacity to consent and dispensing
with parental consent, or, in the
alternative, an order allowing
medical team not to administer
blood products unless child
consents. Order granted but court
also states if doctors of opinion
child would die or be likely to die
without transfusions, they "must be
given". Order I decision appealed
*child.
Mother of mentally disabled adult
woman applied for order, among
other things, authorizing her to
subject her daughter to nontherapeutic sterilization.
Application initially denied, but on
appeal, daughter made a ward of
the court under Mental Health Act,
to allow court to exercise parens
patriae jurisdiction to authorize
non-therapeutic sterilization.
Daughter's guardian ad litem
appealed.
Patients were involuntary
psychiatric patients. Physician
wished to treat them with particular
drugs which, when previously
competent, they had expressed
desire not to take. Official
Guardian was substitute decisionmaker under Mental Health Act
Appeal allowed. Court
does not have
jurisdiction, under parens
pafraie powers, to
authorize nontherapeutic sterilization.
Absent the person's
consent, it cannot be
determined to be in their
best interests, and the
physical and
psychological intrusion
are too severe.
Appeal allowed.
Competent adults have
right to be free from'
unwanted medical
treatment. Physicians
cannot ignore
instructions given when
patient was competent.
Mature minor doctrine not engaged because Court held that when
competent, clear medical direction was given. Parens patriae jurisdiction
cannot be used to overrule a treatment decision made by a competent
patient, even if decision is medically unsound or contrary to the patient's
best interests.
Common law right of bodily self-determination and constitutional right of
security of the person held to be co-extensive. Right to be free from
unwanted medical treatment deeply rooted in common law and underlies
The SCC commented on the high value placed on the physical integrity of
a person, especially where it relates to the privilege of giving life.
of parens pafriae jurisdiction. Court held scope of parens pafriae
jurisdictiop may be unlirnited, but discretion to exercise it is not. Must
only invoke it do what i:; necessary for the protection of the person for
whose benefit it is exercised. Parens patriae jurisdiction cannot be
exercised for the benefit of a third party, which was essential what was
being requested in this case.
Order overturned by CA
Statutory context is very different because in this case the relevant statute
as unnecessary. Medical (Medical Consenf of Mi~lorsAct) explicitly codifies the common law
advisors' findings and
"mature minor" rule. (para. 25). This is why the Court could find that once
parents' consent
a child found to be a mature minor, there was no room for the exercise of
confirmed child's
the parents' consent or the court's parens pafriae jurisdiction. (para. 25)
S
maturity. Medical team
could treat child
.
according to his wishes
without need for an
order.
Cn
co
Appellant's Fadum,
paras. 12,44, 47,48,
57,63179,80, 83,
104 .
Sfarson Y. Swayze,
1200311 S.C.R. 722
Appellant's Factum,
paras. 41,45,46,47
Gillick Y. Wesf
Norfolk and Wisbech
Area Health
AufhorifyI [I9861 .I
A.C. 112 (H.L.)
SCC
HL
and refused treatment. Physician
System that allows
applied to review board for orders
competent wishes of a
authorizing treatment, which were
patient to be overridden
granted and upheld on appeal.
without affording a
Orders deprived patients of
hearing is not in
security of.the person, but were
accordance with PFJ.
made in accordance with PFJ.
Appeal of that decision.
Mother of teenaged daughters
Appeal allowed.
argued that she had absolute right
to be informed of and veto medical
advice I treatment re:
contraceptives, where govt
Memorandum of Guidance
provided parents need not be
informed. Mother sought
. declarations that government
notice was unlawful. Initially
denied, but declaration granted by
Court of Appeal. Department of
Health and Social Security
appealed.
Appeal dismissed.
Respondentwas a patient in a
mental institution who refused
proposed treatment. His physician
found him not capable of
consenting or refusing medical
treatment. Respondent applied to
Ontario Consent and Capacity
Board for review of physician's
determination. Board found patient
lacked capacity, but Board
overturned on judicial review.
Court of Appeal upheld outcome of
judicial review. Appeal from that
decision.
,
Reviewingjudge was'carrect in determining that Board decision that the
patient lacked capacity was unreasonable. There was no basis for
Board's findings in support of its decision. Also, Board misapplied
statutory test for capacity, which is a question of law and subject to a
correctness standard of review. Board allo\rjed its conception of
respondent's best interests to influence its decision on capacity.
Under Ontario Health Care Consent Act, 1996, patients, including those
with mental disorders, presumed to have capacity to make their own
treatment decisions, absent'evidence of lack of capacity. Capacity
involves understanding of relevant information and appreciation of
reasonably foreseeable consequences.
Context involved a statutory scheme that created a presumption of
capacity, and mature minor doctrine not engaged.
Parents' rightfo determine whether or not child undergoes certain
medical procedure terminates if and when child receives sufficient
understanding and intelligence to enable him or her to understand fully
what is proposed. It will be a question of fact whether a particular child
has sufficient understanding of what is involved to give a valid consent.
Not dealing with a situation where there was an applicable statute that set
a different test than the common law 0.e. no child protection legislation).
doctrine of informed consent. Risk of serious consequences from refusal
of treatment does not vitiate right of medical self-determination.
01
CD
Appellant's Factum,
paras. 47,80
Winnipeg Child and
Family Services
(Northwest Area) v.
G.(D.F,), [ I 99713
S.C.R. 925
Appellant's Facturn,
para. 46
Hospital (1970), 17
D.L.R. (3d) 139 (Ont.
S.C.) .
Appellant's Facturn,
para. 46
Kenneff Esfafe v.
Manitoba (A. G.)
(1998), 42 R.F.L.
(4th) 27 at paras. 28,
48 (Man. C.A.)
SCC
Man. CA
*Age of majority was 21*
Pregnant mother addicted to glue
sniffinn. .Two older children born
disabled as a result and were
made permanent wards of the
state. Child and Family Services
applied to have mother placed in
custody and detained in treatment
facility until birth of child. Superior
court granted the order, relying on
parens patriae jurisdiction. Court
of Appeal overturned order.
Appeal by Child and Family
Services.
20 year old patient* went to
outpatient department of hospital
for cosmetic, elective treatment of
acne scarring. Procedure resulted
in further scarring and pain.
Patient sues doctor and hospital
for negligence and damages.
Appeal by estate and parents of
deceased child. Child admitted to
hospital but parents and child
refused transfusion required for
surgery needed to treat condition
as a result of religious views.
Ministry apprehend child for
purpose of consenting to
treatment, but child died. Issue
was constitutionality of legislative
scheme,
I
Appeal dismissed.
The court's parens patriae power over born children permits the courts to
override the liberty of the parents to make decisions on behalf of their
children where a parental choice may result in harm to a child (reference
made to B.R. case); however, it does not extend as far as sought in this
case.
Parenspafriae jurisdiction does not grant courts jurisdiction over unborn
children, and therefore did not support order for the detention and
treatment of a pregnant:woman for the purpose of preventing harm to the
unborn child. To allow orders to be made on behalf'of unborn children
would seriously infringe on the fundamental liberties of the mother.
No discussion of mature minor doctrine.
This decision is very specific to the relevant statutory scheme -which
clearly combines consideration of both capacity and best interests of the
child, and enshrines due process safeguards (para. 45)
There is plenty of jurisprudence to support the position that where a child
has sufficient intelligence and understanding of the nature of proposed
health care, he or she i!; capable of consent at common law and parents'
consent is not required.
Court'holds that parenspafnae jurisdiction continues to apply and has not
been ousted by legislation. Doctor still entitled to rely on directions of
minor whom doctor determines is capable of making mature decisions in
his or her best interest only when parents refuse and doctor not prepared
to rely on or accept child's instructions that legislation engaged and Act
mandates a role for the court. Court to consider both capacity and child's
best interests.
Action dismissed against Court relies on Lord Nathan's "Medical Negligencentext for proposition
both doctor and hospital. that "an infant who is capable of appreciating fully the nature and
consequences of a particular operation or of particular treatment can give
Patient was capable.at
law of consenting.
an effective consent thereto, and in such cases the consent of the
(para. 18). However, court also recognized
guardian is ~nnecessary.~
that this was not a situation involving any kind of emergency where action
was necessary to preserve life or to prevent a serious impairment of the
patient's health (para. 15)
Appeal dismissed. .
Governing principle is
best interests of the
child.
.
0
rn
'
Appellant's Factum,
para. 62
of) v. Alberta
(Director of Child
Welfare) (2002), 302
A.R. 202 (Q.B.)
H. (B.) (Next Friend
Appellant's ~actum,
para. 62
Re D. (T.T.)
(1999),
171 D.L.R. (4th) 761
. (Sask. ,Q.B.)
Appellant's Factum,
para. 62
H. (T.) v. Children's
Aid Society of
Mefropolifan
Toronto (1996), 138
D.L.R. (4th) 144 (Ont.
Gen. Div.)
ABQB
Saslr. QB .
Ont. CJ
(Gen. Div.)
'
13 year-old Jehovah's Witness girl
required transfusions for treatment
of aplastic anaemia - a lifethreatening condition. Pursuant to
an emergency hearing, child made
a temporary ward of the Children's
Aid Society,.to ensure treatment
with transfusions. Child applied for
declaration that section 2(a) and 7
rights were infringed.
13 year old boy with cancer under
temporary supervisionlcustody of
the Ministry as parents refused
treatment. Child underwent
several rounds of chemo and then
refused further treatment. Child
had been advised by parents that
he could be treated with alternative
,
therapies which parents
represented to have an 85-90%
chance of curing him (vs. the 65%
chance with treatment consented
to by the Ministry). Application to
vary supervisory order.
16 % yr, old girl with leukemia
refusing blood transfusions on
religious grounds. Director of Child
Welfare sought apprehension and
medical treatment orders. Father
eventually consented to
~ansfusions,but child still refusing,
so doctors would not treat.
Director renewed applications and
was granted orders. Child
appealed orders.
Appeal dismissed.
Supervisory order
extended for another I D
months. Child not able
to give informed consent
as was being denied
accurate information
about treatment options
and chances. Could not
be a mature minor given
overbearing influence of
his father.
Application denied.
Rights were not violated.
Child found to be a mature minor in the common law sense - mature
minor status requires capacity to understand and do the analysis, but
does not require that the analysis of the circumstances actually have
been done (para. 36)
Statutory requirement to "take into considerationnthe wishes of the child
is not equivalent to obligation to "follow" child's wishes. Ultimately, best
interests of the child test must govern (para. 44)
Upholds finding in U.C. case that Child Welfare Act is a complete code replaces the common law "mature minor" doctrine by occupying the field
(para. 43)
Legislation still applied lo allow supervisory order even though child had
capacity to give consent, because court found that due to child's
dependence on father, child did not have capacity to give informed
consent (no opportunity to obtain medical information without his father
screening it first). Court comments that, if child were found to be a
mature minor, consent of Ministry would no longer be required, since
Ministry standing in the place of the parents, whose consent is not
required where minor is mature (para. 5). Status as a mature, minor to be
determined on a case-by-case basis (para. 7), looking at: (i) age and
maturity; (ii) nature and extent of child's dependence on family, and
impact of that on child's ability to understand and appreciate consent to a
specific treatment, and; (iii) complexity of treatment.
Section 7 does not provide additional rights or protections to a child
asserting capacity as a mature minor other than those afforded by the
relevant child protectior~statute.
The statute had previously been held to be constitutional and its
proceduralrequirements were complied with in this. case.
There was no breach of principles of fundamental justice, therefore it was
not necessary to engage in an analysis of liberty or security offhe person
interests. Child had previously been found not to be a mature minor.
2
Appellant's Facturn,
para. 62
Guardian of)v. British
Columbia (~irecforof
Child, Family &
Community
'Service) (2005), 42
B.C.L.R. (4th) 321
(S.C.)
6. (S.J.) (Lifigafion
BCSC
14 year old Jehovah's Witness girl Appeal dismissed.
refused blood transfusions.
Director of Child Protection
obtained provincial court order
authorizing transfusions and
prohibiting parents and child from
obstructing treatment. On appeal,
child argued legislation could not
authorize treatment against mature
minor's wishes, and violation of .
section 7 and 2(a) rights.
Even for mature minors;,legislature has the power to protect the lives of
children where they are endangered by their own refusal to accept
necessary medical treatment. Pith and substance of the relevant child
protection statute was to preserve life and protect the health of children.
The child's right to freedom of religion was not infringed;rather, the
legislation ensured that her Charter rights to life and security of the
person were not oveniclden by her beliefs. There was no breach of the
principles of fundamental justice.