Cases

RE D.,
CCH DRS 1983 P21-881, A.
(1982) 22 Alta. L.R. (2d) 228
ALBERTA
(Prov. Ct.)
1982

Immediately following its birth the child developed a severe respiratory illness. Medical specialists agreed that its life was in danger and that a blood transfusion was immediately required. The parents, who were Jehovah's Witnesses, refused to consent to the blood transfusion. On the day following its birth the child was apprehended pursuant to s. 6 of the Child Welfare Act and a blood transfusion was administered under the authority of s. 9(1)(b) of the Act. The Director of Child Welfare applied to the Court for a declaration that the child was a neglected child. It was contended for the parents that ss. 6 and 9 of the Child Welfare Act contravened s. 2(a) of the Canadian Charter of Rights and Freedoms which guaranteed freedom of conscience and religion.

HELD: Sections 6 and 9 of the Child Welfare Act constituted legislation in relation to child welfare and public health, not legislation in relation to religion. Since the pith and substance of the legislation was not religion, it did not contravene the guarantee of religious freedom enshrined in the Canadian Charter of Rights and Freedoms, notwithstanding that it might affect Jehovah Witnesses in the exercise of their religious beliefs.

Children's Aid Society of Metropolitan Toronto v. S.H.
[1996] O.J. No. 2578
DRS 96-15720
Court File No. RE1/95 and Prov. Div. File No. C783/95
Ontario Court of Justice (General Division)
Wilson J.
July 15, 1996.
(53 pp.)

This was an application for a declaration that the constitutional rights of TH had been infringed by the manner in which a court hearing was conducted. TH was a 13-year-old Jehovah's Witness. Her mother was also a Jehovah's Witness. TH suffered from aplastic anaemia. TH and her mother refused to allow treatment of TH involving blood products. The judge made a temporary order under the Child and Family Services Act, making TH a temporary ward of the Children's Aid Society for a two-week period, to ensure that she was treated with blood products. TH claimed that her rights under sections 7 and 2(a) of the Canadian Charter of Rights and Freedoms had been violated.

HELD: TH's rights were not violated. TH's freedom of religion was infringed but the infringement was justified under section 1 of the Charter, as TH was not capable of making decisions and her mother would not consent to treatment. The ability of the state to protect a child requiring medical treatment, who was not capable of making a treatment decision, was a reasonable limit to TH's freedom of religion, that was demonstrably justified in a free and democratic society.

O'Sullivan v. The Queen
84 D.L.R. (4th) 124
Federal Court, Trial Division
Muldoon J.
August 12, 1991

A taxpayer remitted his taxes payable under the Income Tax Act, S.C. 1970-71-72, c. 63, less a sum of $50, which he withheld to protest government funding of abortions, claiming that payment of the sum would violate his right to freedom of conscience and religion contrary to s. 2(a) of the Canadian Charter of Rights and Freedoms. The Tax Court dismissed his appeal, and the prothonotary granted a motion by the Crown to strike out his statement of claim, which was his means of appeal from the Tax Court decision.

HELD: The taxpayer has standing to raise the constitutional issue. The preamble to the Charter, recognizing the supremacy of God, only prevents the Canadian state from becoming officially atheistic. It does notprevent Canada from being a secular state.

The taxpayer here is lawfully pursuing the resort to law as administered by the court. His counsel invokes s. 2(a) of the Charter, the constitutionally entrenched freedom of conscience and religion. He argues that the taxpayer's freedom of conscience and religion is infringed by being compelled by the government to pay over that portion of his taxes which proportionately represents financial support for abortions. It is correctly argued that the constitutional guaranty of that freedom means not only that the state must not infringe it, but also that the state must positively defend it from all infringement, or else there is no such guaranty. So, subject to the secular strictures expressed in s. 1 of the Charter, everyone is free to entertain, openly to declare, and to practise through worship or outward manifestation freely accepted or chosen religious beliefs without hindrance or reprisal: and the [page137] state is bound to defend this freedom along with the other rights and freedoms guaranteed by and in the Charter.

Does legal compulsion to pay taxes some of which support abortions mean state coercion which infringes freedom of religion and conscience? It probably does, but in any event, given the rights of legal opposition in a free and democratic society it is no doubt justified in terms of s. 1, which, as noted above imposes secular limitations on the freedom. After all, there are religions and religions. Some exact not only beliefs, but also manifestations or practices which are inimical to Canada's constitutional values and imperatives; for example, religions or sects which exact suppression of the equal rights of women, or which exact the taking of stupefying drugs as a sacrament, or which exact the involuntary servitude of some of their adherents, or which condone and incite their believers to the murder of an alleged blasphemer.

There are certain vociferous believers in Canada who believe that their Creator has done such a lamentably poor job in forming female humans that they arrogate to themselves the right to improve on their God's allegedly fumbled handiwork. The improvement under the euphemistically misleading appellation of female circumcision is nothing less than the mutilation of their dependant daughters by cutting off the clitoris and outer and inner labia of the vulva. Whether called a manifestation of religion, ethnicity or culture this cruel mutilation is practised presumably because God bungled and to leave these girls and women as they were created would be to pander to sexual immorality. The adherents of this belief say it is a parent's right to inflict such mutilation upon their daughters, and moreover, they ought to have access to the health care system to do it.

The court emphasizes the constitutional plane of approach, invoked by the taxpayer here, even although the practice of mutilation of daughters, which is nothing akin to the harmless male circumcision, causes irreversible bodily harm and should excite the attention of children's aid societies. The taxpayers counsel would not concede that this practice should be immunized and permitted by operation of s. 2(a) of the Charter. Indeed, he is correct, for if the state were to support that practice at the expense of the taxpaying public it would surely be infringing those unfortunate daughters' guaranteed rights to security of the person enunciated in s. 7 of the Charter. Section 28 emphasizes female persons' equal standing in all matters of rights and freedoms.

In R. v. Morgentaler, supra, a majority judgment of the Supreme Court of Canada held that s. 251 of the Criminal Code which criminalized abortions, but also permitted them to be authorized by therapeutic abortion committees violated the pregnant woman's right to the security of her person guaranteed by s. 7, and that such infringement was not justified pursuant to s. 1 of the Charter. Thus does the well-known tenet of the taxpayer's religion collide with another right. It is on the same constitutional footing as the less well-known tenet of those parents who have their daughters mutilated, for such daughters are surely guaranteed the right to security of their persons as much as pregnant women who seek to abort their pregnancies.

The court holds that this secular state of Canada simply leaves conscience and religion quite alone, with one exception, founded on pure reason. The exception requires the state to intervene to prevent the practice or expression of conscience and religion from causing harm to others physically or mentally, or from violating the constitutionally guaranteed rights of others.

When it comes to practices which harm others, obviously the state not only must not foster or promote them, but is justified pursuant to the Charter's s. 1, to enact reasonable limits in law in order to prevent or to eradicate such harm, despite the guaranty of freedom of conscience and religion. Since those perceptions depend upon whose ox is gored, the court must strive for fastidious objectivity. Here is how the taxpayer's counsel put the distinction between Mr. O'Sullivan and the daughter-mutilators: And in one case [the surgical procedure] destroys, terminates that particular young person, the child in utero and the case is what Mr. O'Sullivan wishes to prevent and not contribute towards. Whereas in the other case, I would imagine that female circumcision can in fact be harmful to the health and could even possibly be an assault on the child. It mutilates the child and that is what the religion is [standing] for and therefore I don't see why that should not be forbidden. In one case it's the harm that Mr. O'Sullivan is opposed to, in the other case in fact there is in fact there may be harm if the religious belief is fostered. I think that's the central distinction. So it is that sincere, conscientious religious beliefs can so often blind one to the sincerity of other conscientious religious beliefs. Thus, while the secular state is bound to defend, that is to guarantee, everyone's freedom of conscience and religion, it is not bound or even permitted, to promote every expression or manifestation of conscience and religion, just as it is not bound to promote every manifestation of freedom of opinion and expression, some of which are defamatory. Indeed, it is the constitutional entrenchment of these very disparate freedoms which demonstrates the inherent secularity of the Canadian state. The sorry story of human strife and savagery in the Name of God amply shows that the resolutely secular state is the sure foundation of everyone's security, even if it leaves something, or much, for sincere believers to desire.

PENTLAND v. PENTLAND ET AL.,
CCH DRS 1979 P22-083, O.
20 O.R. (2d) 27, 86 D.L.R. (3d) 585, 5 R.F.L.
ONTARIO
(H.C.J.)
1979

The decree nisi of divorce granted in 1969 gave custody of the child of the marriage, a boy, to the mother. The mother subsequently remarried and embraced the faith of her second husband, a Jehovah's Witness. In April 1978 the boy, then seventeen years old, was involved in a motor vehicle accident and suffered head injuries, eye damage, bruising of the heart and other injuries. He was admitted to the intensive care unit of Victoria Hospital where medical experts struggled to save his life.

A severe drop in his blood count convinced the doctors that blood transfusions were necessary. The mother and her husband refused their consent to the giving of blood transfusions or any blood substitutes to the boy. Their refusal was dictated by their religious faith. The boy, who was unable to speak but could write some notes, also refused to give his consent to the transfusions. His natural father and Victoria Hospital Corporation applied for a variation of the custody provision of the decree nisi. The boy's maternal grandmother gave evidence that she was prepared to accept custody of the boy and to give her consent to all necessary medical treatment, including blood transfusions.

HELD: The decree nisi was varied and custody of the infant granted to his maternal grandmother. The Court accepted the medical evidence that it might be absolutely necessary to transfuse in order to attempt to save the boy's life. The concerns of the mother were real, genuine and honest beliefs. Her love for the boy was obvious and her decision attested to the strength of the faith in the Jehovah's Witnesses. However, the paramount consideration in the determination of custody was the best interests of the child. Every child had the right to the continuation of life so long as was humanly possible, as well as the fundamental right to the best medical care available in his community. If the boy had been under the age of sixteen years he could- in the circumstances of this case, have been made a ward of the Court by virtue of subparagraph 20(1) (b) (x) of the Child Welfare Act. It was the duty of the Court to give custody of the boy to a person who would not deny him his fundamental rights. The boy's refusal of treatment was not, in the opinion of the Court, based on a rational, reasoned thought process: Of this he was incapable because of his condition.

RE S.E.M.; M. AND M. v. DIRECTOR OF CHILD WELFARE AND
CHILDREN'S GUARDIAN,
CCH DRS 1987 P21-799, A.
1987] 1 W.W.R. 327, 74 A.R. 23, 4 R.F.L. (3d) 363, 32 D.L.R.
(4th) 394
ALBERTA
(Q.B.)
October 16, 1986

Fourteen weeks premature, the child S weighed less than one pound at birth. In the opinion of the specialists at the neonatal intensive care unit to which she was transferred, blood transfusions were essential, if the child was to have any chance of survival. The parents, who were Jehovah's Witnesses, refused to consent to transfusions. Following apprehension of the child, blood transfusions were authorized by the Provincial Court on a series of applications made pursuant to s. 20(2) of the Child Welfare Act. Finally, an order was made appointing the Children's Guardian temporary guardian of S for a period of 6 weeks. The parents appealed from all the court orders, relying on several grounds of appeal. They challenged the sufficiency of the evidence and legality of the relevant provision of the Child Welfare Act, and relied on several provisions of the Canadian Charter of Rightsand Freedoms.

HELD: The appeal was dismissed. Section 83 of the Child Welfare Act did not give the court an independent discretion to review the evidence and make whatever order it deemed appropriate. The evidence supported the conclusions reached by the Provincial Court judge who made the temporary guardianship order. He acted properly in proceeding on the principle that the welfare of the child was paramount. Nor did any provision infringe rights guaranteed by the Canadian Charter of Rights and Freedoms. With regard to s. 7 of the Charter, the Act did not deprive the child S of the right to life: it protected that right. Assuming that the parents had a right under the same Charter provision to be free from state intervention, there had to be a balancing of protected but competing rights. The child's right to life took precedence over any competing right of the parents. The right to freedom of religion guaranteed by s. 2 of the Charter was not without qualification, despite its fundamental nature. It would be contrary to the purpose of the Charter if religious freedom were allowed to be exercised in such a way as to deprive an infant of a realistic chance to live.

Stevenson v. Florant

[1925] S.C.R. 532
[1925] 4 D.L.R. 530
affirming
(1924), 38 Que. K.B. 314
[1925] 3 D.L.R. 1189
Can. Abr. (2nd) R17C.20310

S.C.C.
affirmed
[1927] A.C. 211
46 C.C.C. 362
[1926] 4 D.L.R. 897
June 18, 1925

In cases involving the custody of children the judges of the common law courts have exercised a larger jurisdiction in granting writs of habeas corpus than in other cases. They have exercised powers somewhat analogous to those which the Court of Chancery has always exercised in its character of parens patriae.

If an infant, brought before the Court on habeas corpus, is old enough to exercise a choice as to where he wishes to live, the Court will not constrain him, but will leave him to select. If, however, he is too young to make this choice, the Court will then look to the principles of law [in Quebec, to the Civil Code] to see who is entitled to custody, because there is a presumption that where the child is in legal custody, there is no restraint. The capacity to choose must be determined on the basis of the child's age, rather than of its mental capacity. The age at which a child should be deemed to have sufficient discretion was fourteen in the case of a boy, and sixteen in the case of a girl.

Fleming v. Reid by his litigation guardian, the Public Trustee;
Fleming v. Gallagher (a.k.a. Gallacher) by his litigation guardian, the Public Trustee

Indexed as: Fleming v. Reid (C.A.)

4 O.R. (3d) 74
[1991] O.J. No. 1083
Action Nos. 357/90 and 356/90

ONTARIO
Court of Appeal for Ontario
Robins, Grange and Carthy JJ.A.
June 28, 1991

The appellants were involuntary psychiatric patients who suffered from schizophrenia. The respondent, their attending physician, determined that they were not competent to consent to psychiatric treatment and proposed to treat them with neuroleptic drugs (which control or minimize psychotic episodes or symptoms associated with schizophrenia for many, but not all, patients and which have significant and unpredictable harmful side effects). While competent, the appellants had expressed the desire not to take the drugs. The Official Guardian was appointed pursuant to s. 1a(1) of the Mental Health Act as the appellants' substitute decision-maker. An incompetent patient's substitute decision-maker is obliged by s. 1a(6) of the Act to give or refuse consent to psychiatric treatment in accordance with the wishes of the patient where those wishes have been expressed while the patient was competent. The Official Guardian, pursuant to s. 1a(6), refused to consent to the proposed treatment. The respondent applied under s. 35a(1) of the Act to the review board for an order authorizing the treatment (only the decisions of substitutes of involuntary incompetent patients were subject to such review; voluntary incompetent patients could never be ordered to take drugs contrary to the their previously expressed wishes). The review board granted orders authorizing the administration of neuroleptic drugs to the appellants on the basis that such treatment was in the appellants' best interests. (A patient's prior competent wish is not one of the factors listed in s. 35(5) of the Act as governing the determination of what is in the patient's best interests.) The orders were affirmed on appeal. Although the statutory scheme was found to deprive the appellants of their security of the person contrary to s. 7 of the Canadian Charter of Rights and Freedoms, the deprivation was held not to violate the principles of fundamental justice since the scheme was in accord with the common law principles that underlie the parens patriae jurisdiction of the court. The appellants appealed.

HELD: the appeal should be allowed.

At common law, every competent adult has the right to be free from unwanted medical treatment. A patient, in anticipation of circumstances wherein he or she may be unconscious or otherwise incapacitated and thus unable to contemporaneously express his or her wishes about a particular form of medical treatment, may specify in advance his or her refusal to consent to treatment. A doctor is not free to disregard such advance instructions, even in an emergency.

The common law right to determine what shall be done with one's own body and the constitutional right to security of the person can be treated as co-extensive.

The impugned provisions of the Act manifestly operated so as to deprive the appellants of their right to security of the person as guaranteed by s. 7 of the Charter. Few medical procedures are more intrusive than the forcible injection of powerful mind-altering drugs which are often accompanied by severe and sometimes irreversible adverse side effects.

The impugned legislative scheme was not saved by s. 1 of the Charter. The violation of the principles of fundamental justice worked by the scheme could be neither reasonable nor demonstrably justified in a free and democratic The fundamental right to personal security should not be infringed any more than is clearly necessary. Although the right to be free from non-consensual psychiatric treatment is not an absolute one, the state had not demonstrated any compelling reason for entirely eliminating the right, without any hearing or review, in order to further the best interests of involuntary incompetent psychiatric patients in contravention of their competent wishes. To completely strip those patients of the freedom to determine for themselves what shall be done with their bodies could not be considered a minimal impairment of their Charter right.

Section 7 guarantees everyone the right to life, liberty and security of the person and the right not to be deprived of that right except in accordance with the principles of fundamental justice. In determining whether the legislation is in breach of this section of the Charter, I adopt the approach set out by the Supreme Court of Canada in R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387, 45 C.C.C. (3d) 57, at p. 401 S.C.R., p. 69 C.C.C.:

The analysis of s. 7 of the Charter involves two steps. To trigger its operation there must first be a finding that there has been a deprivation of the right to life, liberty and security of the person and, secondly, that that deprivation is contrary to the principles of fundamental justice.

On the first branch of the analysis, it is manifest that the impugned provisions of the Act operate so as to deprive the appellants of their right to security of the person as guaranteed by s. 7. The common law right to bodily integrity and personal autonomy is so entrenched in the traditions of our law as to be order of protection. This right forms an essential part of an individual's security of the person and must be included in the liberty interests protected by s. 7. Indeed, in my view, the common law right to determine what shall be done with one's own body and the constitutional right to security of the person, both of which are founded on the belief in the dignity and autonomy of each individual, can be treated as co-extensive.

Chan v. Canada (Minister of Employment and Immigration)

Kwong Hung Chan, appellant;
The Minister of Employment and Immigration, respondent, and Immigration
and Refugee Board and Canadian Council for Refugees, interveners.

[1995] 3 S.C.R. 593
[1995] S.C.J. No. 78
File No.: 23813.

Supreme Court of Canada
1995: January 31 / 1995: October 19.
Present: La Forest, L'Heureux-Dubé, Sopinka, Gonthier,
Cory, Iacobucci and Major JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Appellant sought Convention refugee status because of his fear of being forcibly sterilized for a violation of China's one-child birth control laws. To be classified a Convention refugee, the appellant had to establish that he had a well-founded fear of persecution for reasons of membership in a particular social group (his family) or political opinion.

Held: appeal should be dismissed.

Per La Forest, l'Heureux-Dubé, and Gonthier (Dissenting):

Basic human rights transcend subjective and parochial perspectives and extend beyond national boundaries. Recourse can be had to the municipal law of the admitting nation, nevertheless, because that law may well animate a consideration of whether the alleged feared conduct fundamentally violates basic human rights. Forced sterilization constitutes a gross infringement of the security of the person and readily qualifies as the type of fundamental violation of basic human rights that constitutes persecution. Notwithstanding the technique, forced sterilization is in essence an inhuman, degrading and irreversible treatment.

Federal Court of Appeal (1993) – Mahoney (Dissenting):

The forced sterilization of a woman is a fundamental violation of basic human rights. It violates Articles 3 [life, liberty and security of the person] and 5 [cruel, inhuman or degrading treatment or punishment] of the United Nations Universal Declaration of Human Rights. [para35] Mahoney J.A. then referred, at p. 704, to E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, in which this Court found, in the case of a female incompetent, that non-therapeutic sterilization without consent was a grave intrusion on a person's rights and an irreversible and serious intrusion on the basic rights of the individual. He found no distinction between the sexes that would alter this characterization. Mahoney J.A. stated, at p. 704, that [w]hatever view may be taken of the other sanctions by which the population control policy is enforced, involuntary sterilization -- physical abuse that is an irreversible and serious intrusion on the basic rights of the individual – is persecution.

[para72] In Eve, at pp. 431 and 432, this Court affirmed that forced sterilization constitutes a grave intrusion on a person's rights and as an irreversible and serious intrusion on the basic rights of the individual. Certainly this is true in this kind of context. Two of the justices below followed this reasoning, citing Eve directly, while the other acknowledged that he found this particular penalty abhorrent. In my opinion, the sanction of forced sterilization against the appellant in the present case would constitute a gross infringement of the security of the person and readily qualify as the type of fundamental violation of basic human rights that constitutes persecution as discussed in the mentioned authorities and the UNHCR Handbook.

RE EVE

31 D.L.R. (4th) 1
Reversing 115 D.L.R. (3d) 283

Supreme Court of Canada
Dickson C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.
October 23, 1986

APPEAL by the guardian ad litem of a mentally retarded woman from a judgment of the Prince Edward Island Supreme Court, in [page3] banco, 115 D.L.R. (3d) 283, 27 Nfld. & P.E.I.R. 97 and 28 Nfld. & P.E.I.R. 359 (addendum), allowing an appeal by the mother of the incompetent from a judgment of C.R. McQuaid J., dismissing her application for authorization to consent to a sterilization operation being performed on her daughter.

The judgment of the court was delivered by LA FOREST J.: – These proceedings began with an application by a mother for permission to consent to the sterilization of her mentally retarded daughter who also suffered from a condition that makes it extremely difficult for her to communicate with others. The application was heard by McQuaid (C.R.) J. of the Supreme Court of Prince Edward Island, Family Division. In the interests of privacy, he called the daughter Eve, and her mother Mrs. E.

From the evidence, he further concluded that Eve is not capable of informed consent, that her moderate retardation is generally stable, that her condition is probably non-inheritable, that she is incapable of effective alternative means of contraception, that the psychological or emotional effect of the proposed operation would probably be minimal, and that the probable incidence of pregnancy is impossible to predict.

The courts below Mrs. E. wanted to be sure she had a right to consent to the sterilization of Eve, so she applied to McQuaid J. for the following remedies:

that Eve be declared a mentally incompetent pursuant to the provisions of the Mental Health Act;

that Mrs. E. be appointed the committee of the person of Eve;

that Mrs. E. be authorized to consent to a tubal ligation operation being performed on Eve.

McQuaid J. saw no problem regarding the first two remedies. These, in his view, were simply a prelude to the third, on which he concentrated, i.e., the authorization to consent to a tubal ligation operation on Eve. He noted that every surgical procedure requires the prior consent of the patient or someone lawfully [page5] authorized on her behalf; otherwise it constitutes battery. Though he thought a parent or a committee could give a valid consent for any strictly therapeutic procedure on behalf of a retarded person, in his view deeper issues arose where the procedure was only marginally therapeutic or, as in the present case, strictly contraceptive and specifically one of sterilization. For it would deprive Eve of the possible fulfilment of the great privilege of giving birth, a result that should cause a court to act with scrupulous caution even though Eve might not be able to understand or fully appreciate this.

Having reviewed the Canadian and English case-law and found no governing authorities, McQuaid J. considered whether the court should, in the exercise of its parens patriae jurisdiction, intervene on behalf of Eve. He had no doubt that the court could authorize a surgical procedure necessary to health even though a side-effect might be sterilization, and he postulated that it could also do so where the public interest clearly required it, though he found it difficult to come up with an example. However, McQuaid J. was of the view that Eve, like other individuals, was entitled to the inviolability of her person, a right that superseded her right to be protected from pregnancy. That this might result in inconvenience and even hardship to others was irrelevant. The law must protect those who are unable to protect themselves; it must ensure the protection of the higher right. He, therefore, concluded that the court had no authority or jurisdiction to authorize a surgical procedure on a mentally retarded person, the intent and purpose of which was solely contraceptive. It followed that, except for clinically therapeutic reasons, parents or others similarly situated could not give a valid consent to such a surgical procedure either, at least in the absence of clear and unequivocal statutory authority. He, therefore, denied the application.

In its decision the Supreme Court [La Forest] stated the following:

The parens patriae jurisdiction is, as I have said, founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the best interest of the protected person, or again, for his or her benefit or welfare.

The situations under which it can be exercised are legion; the jurisdiction cannot be defined in that sense. As Lord MacDermott put it in J. v. C., [1970] A.C. 668 at p. 703, the authorities are not consistent and there are many twists and turns, but they have inexorably moved towards a broader discretion, under the impact of changing social conditions and the weight of opinion. In other words, the categories under which the jurisdiction can be exercised are never closed. Thus I agree with Latey J. in Re X, supra, at p. 699, that the jurisdiction is of a very broad nature, and that it can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations. This list, as he notes, is not exhaustive.

But I can find nothing in the authorities to which I have been referred by counsel or in my own researches to suggest that there is any limitation in the theoretical scope of this jurisdiction; or, to put it another way, that the jurisdiction can only be invoked in the categories of cases in which it has hitherto been invoked, such as custody, care and control, protection of property, health problems, religious upbringing, and protection against harmful associations. That list is not exhaustive. On the contrary, the powers of the court in this particular jurisdiction have always been described as being of the widest nature. That the courts are available to protect children from injury whenever they properly can is no modern development.

The court's discretion under its parens patriae jurisdiction must be exercised for the benefit of the retarded person, not for the benefit of others. Thus courts should never authorize a non-therapeutic sterilization of a mentally retarded person under its parens patriae jurisdiction. The grave intrusion on the retarded person's rights and the certain physical damage that ensues from non-therapeutic sterilization without consent, when compared to the highly questionable advantages that can result from it, lead to the conclusion that it can never safely be determined that such a procedure is for the benefit of that person. Judges are generally ill-informed about many of the factors relevant to a wise decision in this difficult area. They generally know little of mental illness, of techniques of contraception or their efficacy. And, however well-presented a case may be, it can only partially inform. If sterilization of the mentally incompetent is to be adopted as desirable for general social purposes, the legislature is the appropriate body to do so. It is in a position to inform itself and is attuned to the feelings of the public in making policy in this sensitive area. The actions of the legislature will then be subject to the scrutiny of the courts under the Canadian Charter of Rights and Freedoms and otherwise.

Though the scope or sphere of operation of the parens patriae jurisdiction may be unlimited, it by no means follows that the discretion to exercise it is unlimited. It must be exercised in accordance with its underlying principle. Simply put, the discretion is to do what is necessary for the protection of the person for whose benefit it is exercised: see the passages from the reasons of Sir John Pennycuick in Re X, at pp. 706-7, and Heilbron J. in Re D, at p. 332, cited earlier. The discretion is to be exercised for the benefit of that person, not for that of others. It is a discretion, too, that must at all times be exercised with great caution, a caution that must be redoubled as the seriousness of the matter increases. This is particularly so in cases where a court might be tempted to act because failure to do so would risk imposing an obviously heavy burden on some other individual.

Moreover, the implications of sterilization are always serious. As we have been reminded, it removes from a person the great privilege of giving birth, and is for practical purposes irreversible. If achieved by means of a hysterectomy, the procedure approved by the Appeal Division, it is not only irreversible; it is major [page30] surgery. Here, it is well to recall Lord Eldon's admonition in Wellesley's case, supra, at 2 Russ p. 18, 38 E.R.p. 242, that it has always been the principle of this Court, not to risk the incurring of damage to children which it cannot repair, but rather to prevent the damage being done. Though this comment was addressed to children, who were the subject-matter of the application, it aptly describes the attitude that should always be present in exercising a right on behalf of a person who is unable to do so.

One may sympathize with Mrs. E. To use Heilbron J.'s phrase, it is easy to understand the natural feelings of a parent's heart. But the parens patriae jurisdiction cannot be used for her benefit. Its exercise is confined to doing what is necessary for the benefit and protection of persons under disability like Eve. And a court, as I previously mentioned, must exercise great caution to avoid being misled by this all too human mixture of emotions and motives. So we are left to consider whether the purposes underlying the operation are necessarily for Eve's benefit and protection.

Strong (Re)
IN THE MATTER OF an Application of the Registrar of the Supreme Court of Newfoundland as Guardian ad litem of Annie Mae Strong, a mentally disabled person,

AND IN THE MATTER OF the Parens patriae Jurisdiction of the Supreme Court of Newfoundland pursuant to the Judicature Act, R.S.N., 1990, c. J-4, s. 3(1) [1993] N.J. No. 83 DRS 93-12580 1993 G.B. No. 42

Newfoundland Supreme Court – Trial Division Green J. Heard: March 18, 1993. Judgment: filed March 19, 1993.

APPLICATION by a guardian ad litem for an order authorizing certain surgery and medical treatment on a mentally disabled adult. The applicant was the Registrar of the Supreme Court who by virtue of his position and in the absence of a public trustee or official guardian was appointed as guardian of the Estate and Effects of S, an 88-year-old woman who suffered from chronic organic brain syndrome with marked impairment in her cognition and judgment.

HELD: Application allowed. The Registrar of the court, as officer of the court was to execute such consents and authorizations in writing as were required by the physicians to facilitate and ensure the provision of the treatment of the incompetent.

In Re Eve, LaForest, J., described the parens patriae jurisdiction of the court in general terms as follows at p. 295: The parens patriae jurisdiction is, as I have said, founded on necessity namely, the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the best interest of the protected person, or again, for his or her benefit or welfare.

The jurisdiction is of a very broad nature, and it can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations. This list is not exhaustive. A court may act not only on the ground that injury to person or property has occurred, but also on the ground that such injury is apprehended.

K. v. K. (Guardian ad litem of)

Between
Mrs. K, appellant, petitioner, and
The Public Trustee, Guardian ad litem of infant K.,
respondent, respondent, and
The Honourable the Attorney General for the Province of
British Columbia, intervenor, respondent

[1985] B.C.J. No. 2285
Vancouver Registry No. CA003640
British Columbia Court of Appeal
Vancouver, British Columbia
Craig, Aikins and Anderson JJ.A.
Heard: April 18 & 19, 1985.
Judgment: April 26, 1985. Filed: May 16, 1985.

Separate reasons for judgment were delivered by Craig, Aikins and Anderson JJ.A.

[para1] CRAIG J.A.: – On April 26th, we allowed the appeal of the appellant, the mother of Infant K ordering that a surgeon could perform a hysterectomy on Infant K (who is, physically, ten and a half years of age, but is, mentally, only two years or so old and will never achieve a greater mental age than three and a half) with the consent of her parents and stating that, subsequently, we would deliver reasons for our decision.

[para14] At the outset of his judgment, Mr. Justice Wood said there were two substantial issues to be resolved, stating:

While there are a number of social, ethical and legal questions that must be addressed before the ultimate answer to this petition can be determined, there are really two substantial issues to be resolved. The first is raised by the question: who can legally consent to the sterilization of one who, through age and/or disability, is incapable of providing the required personal consent? The second concerns the standards to be met before such substituted consent can be given.

[para15] Mr. Justice Wood rejected the submission by counsel for the petitioner that the parents have the absolute right to decide what is best for their children stating that the rights of parents ... must yield to the parens patriae jurisdiction of the court ... to determine what would be in the best interests of the child but stating, also, that the exercise of such jurisdiction against the will of wise and caring parents was an exceptional step and should be taken only where the well-being of the infant was clearly at issue or the need for such interference was clearly demonstrated. He concluded that the exercise of the parens patriae jurisdiction involved three questions: (1) the legal rights of , (2) the nature of the proposed surgery, (3) the social and policy questions which surround the sterilization of the mentally handicapped.

[para16] I will summarize his views on each of these issues and comment on them.

Legal Rights of K

[para17] He said that the mentally disabled, regardless of age, have (1) the right to personal security under s. 7 of the Charter of Rights, (2) the right to equal protection under the law (now guaranteed by s. 15 of the Charter), and (3) the right of a woman to reproduce. He asked if the fact that K would probably never enjoy the right to reproduce made the right any less important to her and concluded that it did not. Relying on the evidence of Dr. Carter, he stated that K's uterus was of no more or less significance to her than it was to any normal woman of child bearing age who has made the conscious decision not to have any, or any more, children, and that while the right to reproduce may not be exercised ... it nonetheless remains as an important part of her identityas a woman (her gender identity).

[para18] He went on to say:

Thus any utilitarian approach to the question of consent in this case, which assumes that the operation will be of less significance to K than to a normal woman, and that consent should therefore be more readily given, must of necessity be founded on the belief that the mentally handicapped in our society are not entitled to the same rights of either sexual identity or childbearing that those of us, who are not so disabled, enjoy. I do not accept such a proposition as having any place in our law.

[para21] He commenced his discussion on this aspect of his judgment with a statement that the history of the non-therapeutic sterilization of the mentally handicapped is chequered with evidence of much abuse. He stated that generally speaking a parent's decision to give a substituted consent for the performance of a therapeutic medical or surgical procedure on a child would not be the subject of review by a court in the exercise of its parens patriae jurisdiction and that probably a court would not interfere with a parent's substituted consent in the case of a non-therapeutic procedure where the benefits obviously far outweigh the risks. He then said: But what of those cases where the risks and benefits are closely divided, or where the risks outweigh the benefits? In such cases, and I believe this to be one, the court, in my view, must exercise its inherent jurisdiction to review and regulate the decision of the parents in order to ensure that the best interests of the child are met with the decision which has been made.

The best interests of K will be met by a decision which, inter alia, takes into account and preserves the full panoply of her legal rights. The surgery proposed in this case puts at risk important personal rights which she enjoys equally with all others in this community, notwithstanding either her age or her mental disability. The benefits to her of the non-therapeutic surgery which threatens those rights are at best anticipatory and perhaps non-existent. In such a case, the exclusive judgment of the parents, even loving, caring, exemplary parents such as K is privileged to have, cannot be presumed to be free from subjective considerations which may be at odds with the legal rights of the child.

[para22] I infer that when he speaks of the cases where the risks and benefits are closely divided, or where the risks outweigh the benefits he does not mean the physical risks which may be incidental to the surgical procedure, but the risk of interference with what he terms her important personal rights. In stating that this procedure would result in a non-therapeutic sterilization of K and that the benefits did not far outweigh the risks, the judge concluded that the court could review the decision of the parents to ensure that the parents' decision was in the best interests of the child, and that in reviewing the parents' decision, the court must consider three factors: (a) who should bear the onus of establishing that K will benefit from the proposed hysterectomy, (b) what standard of proof must be met, and (c) what factors must be considered by a court when reviewing such decisions.

[para23] He concluded that a person seeking to give substituted consent to a non-therapeutic sterilization has the onus of demonstrating that the procedure is in the best interests of the incompetent because society regards the right to security of the person to be of such fundamental importance to the well-being of all its members that the law must necessarily raise it as a presumption against anyone who would seek to give substituted authority for non-therapeutic medical treatment or surgery.

[para24] Pointing out that our law recognized only two standards of proof - proof beyond a reasonable doubt in criminal matters and a preponderance of evidence in civil matters-Wood, J. opined that neither test was satisfactory in cases where the imposition of involuntary measures for remedial, as opposed to punitive, purposes, clashes with the important personal rights described in s. 7 of the Charter of Rights and Freedoms and concluded that the court should adopt a third or middle standard of proof in such cases, relying on the decision of the Supreme Court of the United States in Addington v. The State of Texas (1979) 441 U.S. 418, which requires a parent not only to demonstrate that his decision is in the best interests of the child, but to demonstrate this conclusion by clear and convincing evidence.

I do, however, think that he erred in concluding that if the decision of the parents related to a non-therapeutic matter they had the onus of establishing to the satisfaction of the court that their decision was in the best interests of the child and that they only could discharge this onus by establishing this fact by clear and convincing evidence. In setting this test, he rejected the views of Cartwright, J. in Smith v. Smith and Smedman, [1952] 2 S.C.R. 312 at 331 that in a civil proceeding the tribunal must be reasonably satisfied of the proof of the fact in issue and whether it will be so satisfied must depend on the totality of the circumstances on which its judgment is formed including the gravity of the consequences of the finding. This Court has referred to this judgment on other occasions, e.g. see Adolph v. Adolph (1964), 51 W.W.R. 42; Warnock v. Garrigan (1978), 8 B.C.L.R. 26. In Smith v. Smith and Smedman, Cartwright, J. said at page 331-2:

It is usual to say that civil cases may be proved by a preponderance of evidence or that a finding in such cases may be made upon the basis of a preponderance of probability and I do not propose to attempt a more precise statement of the rule. I wish, however, to emphasize that in every civil action before the tribunal can safely find the affirmative of an issue of fact required to be proved it must be reasonably satisfied, and that whether or not it will be so satisfied must depend upon the totality of the circumstances on which its judgment is formed including the gravity ofthe consequences of the finding.

[para34] After hearing submissions from all counsel, we pointed out that members of this Court on previous occasions had expressed doubts about the power of the Court to grant a stay pending an appeal to the Supreme Court of Canada but stated that, even assuming that we had the power, we would not grant a stay because having concluded that it was in the best interests of the child to allow the parents to have the operation done we could not justify any further delay. We expressed the view that any further delay would be tantamount to dismissing the appeal.

[para35] AIKINS J.A.: – I have read the reasons for judgment prepared by Mr. Justice Craig and those prepared by Mr. Justice Anderson. I, like Mr. Justice Anderson, am in full agreement with Mr. Justice Craig's reasons for allowing the appeal. I agree generally with the reasonsprepared by Mr. Justice Anderson.

[para38] ANDERSON J.A.: – I am in full agreement with the reasons for judgment of Craig J.A. but I wish to give additional reasons of my own. As the facts have been fully set out by Craig J.A. it is not necessary to repeat them here.

[para73] I wish to emphasize that the rights of children under our constitution include the right to be protected against unnecessary pain and suffering and the right to forego other constitutional rights in order to avoid unnecessary pain and suffering.

MALETTE v. SHULMAN,
CCH DRS 1990 P91-175, O.
72 O.R. (2d) 417
2 C.C.L.T. (2d) 1
ONTARIO
(C.A. – Robins, Catzman, Carthy JJ.A.)
March 30, 1990

In Malette v. Shulman (1990), 67 D.L.R. (4th) 321 (Ont. C.A.), Robins, J.A. stated at p. 327: The doctrine [of informed consent] presupposes the patient's capacity to make a subjective treatment decision based on her understanding of the necessary medical facts provided by the doctor and on her assessment of her own personal circumstances.

The Test for Determining How the Jurisdiction Should be Exercised. In Re Eve, LaForest, J. commented at p. 295:

and again at p. 301 he emphasized that because of the importance of maintaining the physical integrity of a human being, the person advocating that the court should authorize a consent to medical treatment would have to justify that approach:

Since, barring emergency situations, a surgical procedure without consent ordinary constitutes battery, it would be obvious that the onus of proving the need for the procedure is on those who seek to have it performed. And that burden, though a civil one, must be commensurate with the seriousness of the measure proposed. In conducting these procedures, it is obvious that a court must proceed with extreme caution...

Hogarth et al. v. Hall et al.
Hogarth et al. v. Perry
Hogarth et al. v. Perry et al.
Grail v. Ordon et al.; Attorney General of Quebec,
Intervener

166 D.L.R. (4th) 193

Supreme Court of Canada
Court File No. 25702.
L'Heureux-Dubé, Gonthier, Cory, McLachlin,
Iacobucci, Major and Bastarache JJ.
Heard: June 22, 1998. Judgment rendered: November 26, 1998

Claims for personal injury and wrongful death arising out of boating accident in inland waters.

Although international law is not binding upon Parliament or the provincial legislatures, a court must presume that legislation is intended to comply with Canada's obligations under international instruments and as a member of the international community. In choosing among possible interpretations of a statute, the court should avoid interpretations that would put Canada in breach of such obligations: See Driedger on the Construction of Statutes, 3rd ed. (1994), at p. 330.

Re Corporation of the Canadian Civil Liberties Association et al. and Minister of Education et al.

50 D.L.R. (4th) 193
Reversed 65 D.L.R. (4th) 1

Ontario High Court of Justice, Divisional Court
Watt, Austin and McKeown JJ.
March 28, 1988

In considering s. 2 of the Charter one must keep in mind that the fundamental freedoms therein guaranteed have been somewhat more elaborately expressed than were the corresponding freedoms in the Canadian Bill of Rights. Both a textual comparison and a review of the evidence before the Special Joint Committee of the Senate and House of Commons on the Constitution, 1981-82, confirm that the International Covenant on Civil and Political Rights was an important source of the terms chosen. Since Canada ratified that covenant in 1976, with the unanimous consent of the federal and provincial governments, the covenant constitutes an obligation upon Canada under international law, by art. 2 thereof, to implement its provisions within this country. Although our constitutional tradition is not that a ratified treaty is self-executing within our territory, but must be implemented by the domestic constitutional process (A.-G. Can. v. A.-G. Ont., [1937] 1 D.L.R. 673, [1937] A.C. 326, [1937] 1 W.W.R. 299 (Labour Conventions Case)), nevertheless, unless the domestic law is clearly to the contrary, it should be interpreted in conformity with our international obligations.

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