E. (Mrs.) v. Eve

E. (Mrs.) v. Eve
Collection
Supreme Court Judgments
Date
1986-10-23
Report
[1986] 2 SCR 388
Case number
16654
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Prince Edward Island
Subjects
Constitutional law
Courts
Family law
Notes
SCC Case Information: 16654
Decision Content
E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388
Eve, by her Guardian ad litem, Milton B. Fitzpatrick, Official Trustee Appellant
v.
Mrs. E. Respondent
and
Canadian Mental Health Association, Consumer Advisory Committee of the Canadian Association for the Mentally Retarded, The Public Trustee of Manitoba and Attorney General of Canada Interveners
indexed as: e. (mrs.) v. eve
File No.: 16654.
1985: June 4, 5; 1986: October 23.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for prince edward island
Courts ‑‑ Jurisdiction ‑‑ Parens patriae ‑‑ Scope of doctrine and discretion required for its exercise ‑‑ Whether or not encompassing consent for non‑therapeutic sterilization of mentally incompetent person ‑‑ Chancery Act, R.S.P.E.I. 1951, c. 21, s. 3 ‑‑ Chancery Jurisdiction Transfer Act, S.P.E.I. 1974, c. 65, s. 2.
Family law ‑‑ Mentally incompetent person ‑‑ Application made for non‑therapeutic sterilization of adult daughter by parent ‑‑ Whether or not court authorized to grant consent ‑‑ Whether or not authority to be found in statutes ‑‑ Whether or not authority flowing from parens patriae power ‑‑ Mental Health Act, R.S.P.E.I. 1974, c. M‑9, am. S.P.E.I. 1976, c. 65, ss. 2(n), 30A(1), (2), 30B, 30L ‑‑ Hospitals Act, "Hospital Management Regulations", R.R.P.E.I., c. H‑11, s. 48.
Human rights ‑‑ Disabled persons ‑‑ Mentally incompetent person ‑‑ Application made for non‑therapeutic sterilization of adult daughter by parent ‑‑ Whether or not court authorized to grant consent ‑‑ Whether or not authority to be found in statutes ‑‑ Whether or not authority flowing from parens patriae power.
"Mrs. E." applied to the Supreme Court of Prince Edward Island for permission to give consent to the sterilization of "Eve", her adult daughter who was mentally retarded and suffered from a condition making it extremely difficult to communicate with others. Mrs. E. feared Eve might innocently become pregnant and consequently force Mrs. E., who was widowed and approaching sixty, to assume responsibility for the child. The application sought: (1) a declaration that Eve was mentally incompetent pursuant to the Mental Health Act; (2) the appointment of Mrs. E. as committee of Eve; and (3) an authorization for Eve's undergoing a tubal ligation. The application for authorization to sterilize was denied, and an appeal to the Supreme Court of Prince Edward Island, in banco, was launched. An order was then made appointing the Official Trustee as Guardian ad litem for Eve. The appeal was allowed. The Court ordered that Eve be made a ward of the Court pursuant to the Medical Health Act solely to permit the exercise of the parens patriae jurisdiction to authorize the sterilization, and that the method of sterilization be determined by the Court following further submissions. A hysterectomy was later authorized. Eve's Guardian ad litem appealed.
Held: The appeal should be allowed.
The Mental Health Act did not advance respondent's case. This Act provides a procedure for declaring mental incompetency, at least for property owners. Its ambit is unclear and it would take much stronger language to empower a committee to authorize the sterilization of a person for non‑therapeutic purposes. The Hospital Management Regulations were equally inapplicable. They are not aimed at defining the rights of individuals.
The parens patriae jurisdiction for the care of the mentally incompetent is vested in the provincial superior courts. Its exercise is founded on necessity‑‑the need to act for the protection of those who cannot care for themselves. The jurisdiction is broad. Its scope cannot be defined. It applies to many and varied situations, and a court can act not only if injury has occurred but also if it is apprehended. The jurisdiction is carefully guarded and the courts will not assume that it has been removed by legislation.
While the scope of the parens patriae jurisdiction is unlimited, the jurisdiction must nonetheless be exercised in accordance with its underlying principle. The discretion given under this jurisdiction is to be exercised for the benefit of the person in need of protection and not for the benefit of others. It must at all times be exercised with great caution, a caution that must increase with the seriousness of the matter. This is particularly so in cases where a court might be tempted to act because failure to act would risk imposing an obviously heavy burden on another person.
Sterilization should never be authorized for non‑therapeutic purposes under the parens patriae jurisdiction. In the absence of the affected person's consent, it can never be safely determined that it is for the benefit of that person. The grave intrusion on a person's rights and the ensuing physical damage outweigh the highly questionable advantages that can result from it. The court, therefore, lacks jurisdiction in such a case.
The court's function to protect those unable to take care of themselves must not be transformed so as to create a duty obliging the Court, at the behest of a third party, to make a choice between two alleged constitutional rights‑‑that to procreate and that not to procreate‑‑simply because the individual is unable to make that choice. There was no evidence to indicate that failure to perform the operation would have any detrimental effect on Eve's physical or mental health. Further, since the parens patria jurisdiction is confined to doing what is for the benefit and protection of the disabled person, it cannot be used for Mrs. E.'s benefit.
Cases involving applications for sterilization for therapeutic reasons may give rise to the issues of the burden of proof required to warrant an order for sterilization and of the precautions judges should take with these applications in the interests of justice. Since, barring emergency situations, a surgical procedure without consent constitutes battery, the onus of proving the need for the procedure lies on those seeking to have it performed. The burden of proof, though a civil one, must be commensurate with the seriousness of the measure proposed. A court in conducting these procedures must proceed with extreme caution and the mentally incompetent person must have independent representation.
Cases Cited
Considered: X (a minor), Re, [1975] 1 All E.R. 697; D (a minor), Re, [1976] 1 All E.R. 326; Eberhardy, Matter of, 307 N.W.2d 881 (Wis. 1981); Grady, In re, 426 A.2d 467 (N.J. 1981); Hayes’ Guardianship, Matter of, 608 P.2d 635 (Wash. 1980); referred to: Cary v. Bertie (1696), 2 Vern. 333, 23 E.R. 814; Morgan v. Dillon (Ire.) (1724), 9 Mod. R. 135, 88 E.R. 361; Beall v. Smith (1873), L.R. 9 Ch. 85; Beverley's Case (1603), 4 Co. Rep. 123 b, 76 E.R. 1118; Wellesley v. Duke of Beaufort (1827), 2 Russ. 1, 38 E.R. 236; Wellesley v. Wellesley (1828), 2 Bli. N.S. 124, 4 E.R. 1078; Beson v. Director of Child Welfare (Nfld.), [1982] 2 S.C.R. 716; Re S. v. McC (orse. S.) and M; W. v. W., [1972] A.C. 24; P (a Minor), In re (1981), 80 L.G.R. 301; B (a minor), Re (1982), 3 F.L.R. 117; K and Public Trustee, Re (1985), 19 D.L.R. (4th) 255; Buck v. Bell, 274 U.S. 200 (1927); Tulley, Guardianship of, App., 146 Cal.Rptr. 266 (1978); Hudson v. Hudson, 373 So.2d 310 (Ala. 1979); Eberhardy's Guardianship, Matter of, 294 N.W.2d 540 (Wis. 1980); Stump v. Sparkman, 435 U.S. 349 (1978); C.D.M., Matter of, 627 P.2d 607 (Alaska 1981); A. W., Matter of, 637 P.2d 366 (Colo. 1981); Terwilliger, Matter of, 450 A.2d 1376 (Pa. 1982); Wentzel v. Montgomery General Hospital, Inc., 447 A.2d 1244 (Md. 1982); Moe, Matter of, 432 N.E.2d 712 (Mass. 1982); P.S. by Harbin v. W.S., 452 N.E.2d 969 (Ind. 1983); Sallmaier, Matter of, 378 N.Y.S.2d 989 (1976); A. D., Application of, 394 N.Y.S.2d 139 (1977); Penny N., In re, 414 A.2d 541 (N.H. 1980); Quinlan, Matter of, 355 A.2d 647 (N.J. 1976); J. v. C., [1970] A.C. 668; Strunk v. Strunk, 445 S.W.2d 145 (Ky. 1969).
Statutes and Regulations Cited
Act for the Relief of the Suitors of the High Court of Chancery, 15 & 16 Vict., c. 87, s. 15 (U.K.)
Act to authorize the appointment of a Master of the Rolls to the Court of Chancery, and an Assistant Judge of the Supreme Court of Judicature in this Island, 11 Vict., c. 6 (P.E.I.)
Act to provide for the care and maintenance of idiots, lunatics and persons of unsound mind, 15 Vict., c. 36 (P.E.I.)
Canadian Charter of Rights and Freedoms, ss. 7 , 15(1) .
Chancery Act, R.S.P.E.I. 1951, c. 21, s. 3.
Chancery Jurisdiction Transfer Act, S.P.E.I. 1974, c. 65, s. 2
Hospitals Act, R.S.P.E.I. 1974, c. H‑11, s. 16.
Hospitals Act, "Hospital Management Regulations", R.R.P.E.I., c. H‑11, s. 48.
Mental Health Act, R.S.P.E.I. 1974, c. M‑9, as amended by S.P.E.I. 1974, c. 65, ss. 2(n), 30A(1), (2), 30B, 30L.
Sexual Sterilization Act, R.S.A. 1970, c. 341, rep. S.A. 1972, c. 87.
Sexual Sterilization Act, R.S.B.C. 1960, c. 353, s. 5(1), rep. S.B.C. 1973, c. 79.
Authors Cited
Burgdorf, Robert L., Jr., and Marcia Pearce Burgdorf. "The Wicked Witch is Almost Dead: Buck v. Bell and the Sterilization of Handicapped Persons," 50 Temp. L.Q. 995 (1977).
Canada. Law Reform Commission. Sterilization: Implications for Mentally Retarded and Mentally Ill Persons (Working Paper 24). Ottawa: 1979.
Fitzherbert, Sir Anthony. The new Natura brevium of the most reverend judge, Mr. Anthony Fitz‑Herbert. London: A Strahan and W. Woodfall, law printers to the King, for J. Butterworth, 1794.
Lachance, Denise. "In re Grady: The Mentally Retarded Individual's Right to Choose Sterilization," 6 Am. J.L. & Med. 559 (1981).
McIvor, Craig L. "Equitable Jurisdiction to Order Sterilizations," 57 Wash. L.R. 373 (1982).
McLaughlin, Paul. Guardianship of the Person. Downsview, Ont.: National Institute on Mental Retardation, 1979.
Norris, Christina Norton. "Recent Developments‑‑Courts‑‑Scope of Authority‑‑Sterilization of Mental Incompetents," 44 Tenn. L. Rev. 879 (1977).
Ross, Deborah Hardin. "Sterilization of the Developmentally Disabled: Shedding Some Myth‑Conceptions," 9 Fla. St. U.L. Rev. 599 (1981).
Sherlock, Richard K. and Robert D. Sherlock. "Sterilizing the Retarded: Constitutional, Statutory and Policy Alternatives," 60 N.C.L.Rev. 943 (1982).
Theobald, Sir Henry Studdy. The Law Relating to Lunacy. London: Stevens and Sons Ltd., 1924.
APPEAL from a judgment of the Prince Edward Island Court of Appeal (1980), 27 Nfld. & P.E.I.R. 97, 74 A.P.R. 97, with addendum (1981), 28 Nfld. & P.E.I.R. 359, 97 A.P.R. 359, 115 D.L.R. (3d) 283, allowing an appeal from a judgment of McQuaid J. dismissing an application for consent to the sterilization of a mentally incompetent person. Appeal allowed.
Eugene P. Rossiter, for the appellant.
Walter McEwen, for the respondent.
B. A. Crane, Q.C., for the intervener the Canadian Mental Health Association.
David H. Vickers, Harvey Savage and S. D. McCallum, for the intervener the Consumer Advisory Committee of the Canadian Association for the Mentally Retarded.
M. Anne Bolton, for the intervener The Public Trustee of Manitoba.
E. A. Bowie, Q.C., and B. Starkman, for the intervener the Attorney General of Canada.
The judgment of the Court was delivered by
1. 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 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".
Background
2. When Eve was a child, she lived with her mother and attended various local schools. When she became twenty‑one, her mother sent her to a school for retarted adults in another community. There she stayed with relatives during the week, returning to her mother's home on weekends. At this school, Eve struck up a close friendship with a male student: in fact, they talked of marriage. He too is retarded, though somewhat less so than Eve. However, the situation was identified by the school authorities who talked to the male student and brought the matter to an end.
3. The situation naturally troubled Mrs. E. Eve was usually under her supervision or that of someone else, but this was not always the case. She was attracted and attractive to men and Mrs. E. feared she might quite possibly and innocently become pregnant. Mrs. E. was concerned about the emotional effect that a pregnancy and subsequent birth might have on her daughter. Eve, she felt, could not adequately cope with the duties of a mother and the responsibility would fall on Mrs. E. This would understandably cause her great difficulty; she is a widow and was then approaching sixty. That is why she decided Eve should be sterilized.
4. Eve's condition is more fully described by McQuaid J. as follows:
The evidence established that Eve is 24 years of age, and suffers what is described as extreme expressive aphasia. She is unquestionably at least mildly to moderately retarded. She has some learning skills, but only to a limited level. She is described as being a pleasant and affectionate person who, physically, is an adult person, quite capable of being attracted to, as well as attractive to, the opposite sex. While she might be able to carry out the mechanical duties of a mother, under supervision, she is incapable of being a mother in any other sense. Apart from being able to recognize the fact of a family unit, as consisting of a father, a mother, and children residing in the same home, she would have no concept of the idea of marriage, or indeed, the consequential relationship between, intercourse, pregnancy and birth.
Expressive aphasia was described as a condition in which the patient is unable to communicate outwardly thoughts or concepts which she might have perceived. Particularly in the case of a person suffering from any degree of retardation, the result is that even an expert such as a psychiatrist is unable to determine with any degree of certainty if, in fact, those thoughts or concepts have actually been perceived, or whether understanding of them does exist. Little appears to be known of the cause of this condition, and even less of its remedy. In the case of Eve, this condition has been diagnosed as extreme.
From the evidence, he further concluded:
[t]hat 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
5. 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:
(a) that Eve be declared a mentally incompetent pursuant to the provisions of the Mental Health Act;
(b) that Mrs. E. be appointed the committee of the person of Eve;
(c) that Mrs. E. be authorized to consent to a tubal ligation operation being performed on Eve.
6. 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 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. 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.
7. 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 other 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.
8. An appeal to the Supreme Court of Prince Edward Island, in banco, was launched, and an order was then made appointing the Official Trustee as Guardian ad litem for Eve. The appeal was allowed. The general view of the court is set forth in an addendum to its notes of judgment as follows:
In rendering judgment in this matter, we are unanimously of the opinion that the Court has, in proper circumstances, the authority and jurisdiction to authorize the sterilization of a mentally incompetent person for non‑therapeutic reasons. The jurisdiction of the Court originates from its parens patriae powers towards individuals who are unable to look after themselves and gives the Court authority to make the individual a ward of the Court.
9. The court, however, differed on the evidence. A majority (Large and Campbell JJ.) was of the view, MacDonald J. dissenting, that there was sufficient evidence to warrant the sterilization of Eve. The court, therefore, ordered that:
(a) "Eve" be appointed a ward of the Court pursuant to the parens patriae jurisdiction for the sole purpose of facilitating and authorizing her sterilization;
(b) the Court authorizes the sterilization of "Eve" by a competent medical practitioner;
(c) the Court reserves its approval of the method of sterilization to be followed pending further submissions of counsel as to the medically preferred surgical procedure.
10. Though the members of the court shared the general view already set forth, there were nonetheless significant differences in their approaches, particularly between that of MacDonald J. and those of the other two judges. To begin with, MacDonald J. took the position that since McQuaid J. had not dealt with the first two grounds in the application, the appeal was only as to the third ground. MacDonald J. expressed considerable doubt about the application of the Mental Health Act, and he added that if it did not apply, this raised questions about the burden and standard of proof the court should place on those seeking substituted consent. He, therefore, felt it would be improper for the court to address any other issue than the one strictly before it, especially when that issue was as fundamental as informed consent.
11. In particular, MacDonald J. was concerned with the fact that no one had appeared on behalf of Eve at the hearing of the application although the judge had requested that a department of the government do so. Counsel for the provincial Department of Justice had been present, it is true, but his role was unclear, and MacDonald J. felt that McQuaid J. would not have readily reached some of his conclusions had Eve been represented. He thus felt the sole question the court could deal with was whether the court appealed from had authority or jurisdiction to authorize a contraceptive sterilization on a mentally retarded person.
12. To that question, we saw, he replied in the affirmative, but only on a very narrow basis. In his view, the court's jurisdiction was limited to protecting those who are unable to protect themselves. In the case of therapeutic treatment, a parent or guardian could give the required consent and in default the court could intervene under its power as parens patriae. But when a non‑therapeutic operation was involved, the court must determine whether allowing or disallowing it would best protect the individual.
13. In MacDonald J.'s view, a court has authority to authorize the contraceptive sterilization of a mentally retarded person but only in exceptional cases. While he found it extremely difficult to conceive of sterilization as protective rather than violative, he felt it would be inappropriate to state as a binding rule that the court would never authorize sterilization for non‑therapeutic purposes. If a court did so, however, it must act with extreme caution lest it open the way to abuse. Accordingly he set forth a number of criteria that must be followed in dealing with an application for the purpose. Some of these, he concluded, (in particular, the requirement that the individual proposed to be sterilized must be represented by counsel competent to deal with the medical, social, legal and ethical issues involved) had not been followed in the present case.
14. Campbell J. took a broader view of the court's powers. The court, he thought, could exercise its parental jurisdiction by making the individual in question its ward. It was possible that the court had implied authority to bring a person within the ambit of the parens patriae jurisdiction by its own order, but the Mental Health Act provided an adequate statutory base.
15. The parens patriae jurisdiction must, he stated, be exercised solely for the benefit of the mentally retarded person. Each case demanded an objective but compassionate assessment of all relevant facts and circumstances. It could not, in his view, be stated as a rule of law that the inviolability of the person supersedes the right to be protected from pregnancy. That conclusion, he felt, could only be reached by a consideration of the particular circumstances.
16. In Eve's case, Campbell J. held, the real and genuine object of the proposed sterilization was her protection. There was no overriding public interest against it. And there was a likelihood of substantial injury to her if the operation was not performed. In his view, that injury must be assessed in its social, mental, physical and economic contexts. In the absence of permanent sterilization, the protected environment Eve enjoyed would become a guarded environment. This would deprive her of social options and relative freedom.
17. Large J. agreed with Campbell J. that the court could exercise its parental jurisdiction through a committee appointed under the Mental Health Act. He also agreed with him on the substituted consent issue, but appears to have gone further. After reviewing the record, he commented:
In this unfortunate case I am unable to see how a choice between a chance pregnancy and the tubal ligation which is recommended by "Eve's" medical advisers poses any problem. I believe that the decision is first to be made by the doctor and then by the committee. I do not consider that the Courts should be concerned in each case of medical treatment or surgery which may arise in the future and would direct that "Eve's" doctor and her committee, when appointed, should be free to make a choice of whatever medical or surgical intervention is considered best for "Eve's" welfare.
18. The court, it will be remembered, had in its original order reserved its approval of the method of sterilization to be followed. After further representations, it later ordered that the method of sterilization be by way of a hysterectomy.
19. Leave to appeal to this Court was then granted to Eve's Guardian ad litem by the Prince Edward Island Supreme Court, Appeal Division. Subsequently this Court granted intervener status to the Consumer Advisory Committee of the Canadian Association for the Mentally Retarded, The Public Trustee of Manitoba, the Canadian Mental Health Association, and the Attorney General of Canada.
The Issues on this Appeal
20. The major issues raised in this appeal are substantially as follows:
1.Is there relevant provincial legislation that gives a court jurisdiction to appoint a committee vested with the power to consent to or authorize surgical procedures for contraceptive purposes on an adult who is mentally incompetent?
2. In the absence of statutory authority, does the court's parens patriae jurisdiction allow the court to consent to the sterilization of an adult who is mentally incompetent?
3. What is the appropriate standard of proof to be applied in a case where an application is made to the court for its substituted consent to a non‑therapeutic procedure on behalf of a mentally incompetent adult? Upon whom is the onus of proof?
4. If the court has jurisdiction to provide substituted consent for a non‑therapeutic procedure on behalf of a mentally incompetent adult, did the Supreme Court of Prince Edward Island, in banco, properly exercise its jurisdiction in granting an order authorizing the sterilization of Eve?
5. Does the Canadian Charter of Rights and Freedoms protect an individual against sterilization without that individual's consent?
6. If the Charter provides such protection, when will it permit the non‑therapeutic sterilization of a mentally incompetent who is incapable of giving consent?
7. Does the Charter give an individual the right to choose not to procreate, and if so does the court have jurisdiction to make that choice on behalf of an individual who is unable to do so?
General Considerations
21. Before entering into a consideration of the specific issues before this Court, it may be useful to restate the general issue briefly. The Court is asked to consent, on behalf of Eve, to sterilization since she, though an adult, is unable to do so herself. Sterilization by means of a tubal ligation is usually irreversible. And hysterectomy, the operation authorized by the Appeal Division, is not only irreversible; it is major surgery. Eve's sterilization is not being sought to treat any medical condition. Its purposes are admittedly non‑therapeutic. One such purpose is to deprive Eve of the capacity to become pregnant so as to save her from the possible trauma of giving birth and from the resultant obligations of a parent, a task the evidence indicates she is not capable of fulfilling. As to this, it should be noted that there is no evidence that giving birth would be more difficult for Eve than for any other woman. A second purpose of the sterilization is to relieve Mrs. E. of anxiety about the possibility of Eve's becoming pregnant and of having to care for any child Eve might bear.
Does the Court have Statutory Jurisdiction?
22. On the application and in the Appeal Division, reliance was placed on certain provisions of the Mental Health Act, R.S.P.E.I. 1974, c. M‑9, as amended by [the Chancery Jurisdiction Transfer Act] S.P.E.I. 1974, c. 65. These provisions read as follows:
2. (n) "person in need of guardianship" means a person
(i) in whom there is a condition of arrested or incomplete development of mind, whether arising from inherent causes or induced by disease or injury, or
(ii) who is suffering from such a disorder of the mind, that he requires care, supervision and control for his protection and the protection of his property.
30 A (1) When a person in need of guardianship is possessed of goods and chattels, lands and tenements or rights or credits, the Supreme Court may on petition, stating the name, age and residence of the person therein alleged to be a person in need of guardianship, setting forth generally the real and personal estate, rights and credits of and belonging to that person, so far as they are known to the petitioner and the value thereof, and verified by the affidavit of the petitioner or some other credible person or persons, order that person so alleged to be a person in need of guardianship to be examined by two competent medical men, to ascertain his state of mind and capability of managing his affairs, and the medical men shall certify their opinion thereon.
(2) If by the certificate of two medical men issued pursuant to subsection (1) it appears to the satisfaction of the Supreme Court that the person is a person in need of guardianship and incapable of managing his affairs, and that under the circumstances it would be for his benefit that the custody of his person and the management of his estate should be committed to some other person, the Supreme Court may make an order appointing some fit and proper person to be a committee of the person and estate of the person in need of guardianship and if necessary direct such allowance to be made out of the estate for the maintenance and medical treatment of the person in need of guardianship as it deems proper, and the committee shall give security by way of bond or recognizance with such sureties and in such form as the Supreme Court shall direct conditioned for the faithful performance of his duties as the committee.
30 B Every order made under subsection (2) of section 30A for the appointment of a committee has the effect of vesting the person and estate of the person in need of guardianship in the committee in the same manner as a grant to the committee of the person and estate of a lunatic made by and under the order and direction of the Lord Chancellor of England would have done at the time of the passing of the Act 15 Victoria, Chapter 36; but when the fact the person being a person in need of guardianship is doubtful, the Supreme Court, before making the order, hold an inquiry in order that the state of the person's mind may be ascertained and until the completion of the inquiry may make such provisional order respecting the person and estate of the alleged person in need of guardianship as may seem necessary.
30 L Every act done by the committee of the estate of a person in need of guardianship under and by virtue of this Act, and every order of the Supreme Court are as valid and binding against the person in need of guardianship and all persons claiming by, from or under him, as if the person so being a person in need of guardianship had been in his sound mind and had personally done such act.
23. The Act, as can be seen, provides a procedure for determining whether persons are in need of guardianship as defined in s. 2(n). It also gives certain powers over such persons, or at least their property, to a committee. However, it is by no means clear that the Act applies to Eve. The opening words of s. 30A(1), which provides for the psychiatric assessment of a person alleged to be in need of guardianship, at first sight at least, appear to be directed solely to persons in need of guardianship who are also possessed of property. Taken by itself, then, s. 30A(1) gives the impression that it is aimed at the management of an incompetent person's estate. Nothing in the evidence indicates that Eve has any property.
24. Section 30A(2), however, empowers the court to appoint a committee of the person as well as of the estate of a person in need of guardianship. It does not, however, expressly empower it to authorize any medical procedure, but only to make allowances from the person's estate for maintenance and medical treatment. It may impliedly empower the court to authorize medical treatment by its grant of custody, but any such implication would have to be read in light of the fact that the court's power to make an allowance for medical purposes does not extend to all medical procedures, but only to medical treatment. Eve, we have seen, is not being treated for any medical condition. The sole purpose for her proposed sterilization is non‑therapeutic.
25. Even assuming, therefore, that these provisions apply to a person who has no property, and that they confer powers beyond property management, including an implied power in a committee to authorize medical treatment, matters that are by no means free from doubt, it would take much stronger language to persuade me that they empower a committee to authorize the sterilization of an individual for non‑therapeutic purposes.
26. Finally, s. 30B provides that a committee appointed under s. 30A(2) has the effect of vesting the person and estate of the person in need of guardianship in the committee in the same manner as a grant to the committee of a person and estate of a lunatic by the Lord Chancellor of England at the time of the passing of the Island Act, (1852), 15 Vict., c. 36. That, however, does not dispel the doubts that a committee can only be appointed for a person who owns property, especially since the reference to the grant by the Lord Chancellor is to the person and estate of the incompetent, and (though this is less cogent) the Island Act of 1852 appears also to have been limited to incompetents who owned property. In any event, any relevant power the Lord Chancellor had at the time is related to the parens patriae jurisdiction, which I shall be discussing at length later.
27. In a word, I am unable to see how the Mental Health Act much advances the case of the applicants. It does provide a procedure for a declaration of mental incompetency, at least for those who own property, but its ambit is unclear. Certainly, power to obtain an authorization for sterilization, if it exists, must be found elsewhere. It is significant that in this Court the respondent did not rely on the Mental Health Act but on s. 48 of the Hospital Management Regulations, R.R.P.E.I., c. H‑11 adopted pursuant to s. 16 of the Hospitals Act, R.S.P.E.I. 1974, c. H‑11.
28. Section 48 of these Regulations reads as follows:
48. No surgical operation shall be performed on a patient unless a consent in writing for the performance of the operation has been signed by
(a) the patient;
(b) the spouse, one of the next of kin or parent of the patient, if the patient is unable to sign by reason of mental or physical disability; or
(c) the parent or guardian of the patient, if the patient is unmarried and under eighteen years of age,
but if the surgeon believes that delay caused by obtaining the consent would endanger the life of the patient
(d) the consent is not necessary; and
(e) the surgeon shall write and sign a statement that a delay would endanger the life of the patient.
Section 16 of the Act under which it was enacted reads as follows:
16. Upon the recommendation of the Commission, the Lieutenant Governor in Council may make such regulations with respect to hospitals as may be deemed necessary for
(a) their establishment, construction, alteration, equipment, safety, maintenance and repairs;
(b) their classification, grades, and standards;
(c) their inspection, control, government, management, conduct, operation and use;
(d) respecting the granting, refusing, suspending and revoking of approval of hospitals and of additions to or renovations in hospitals;
(e) prescribing the matters upon which bylaws are to be passed by hospitals;
(f) prescribing the powers and duties of inspectors;
(g) providing that certain persons shall be by virtue of their office members of the Board in addition to the members of the Board appointed or elected in accordance with the authority whereby the hospital is established;
(h) respecting their administrators, staffs, officers, servants, and employees and the powers and duties thereof;
(i) providing for the certification of chronically ill persons;
(j) defining residents of the province for the purposes of this Act and the regulations;
(k) respecting the admission, treatment, care, conduct, discipline and discharge of patients or any class of patients;
(l) respecting the classification of patients and the lengths of stay of and the rates and charges for patients;
(m) prescribing the manner in which hospital rates and charges shall be calculated;
(n) prescribing the facilities that hospitals shall provide for students;
(o) respecting the records, books, accounting systems, audits, reports and returns to be made and kept by hospitals;
(p) respecting the reports and returns to be submitted to the Commission by hospitals;
(q) prescribing the classes of grants by way of provincial aid and the methods of determining the amounts of grants and providing for the manner and times of payment and the suspension and withholding of grants and for the making of deductions from grants;
(r) respecting such other matters as the Lieutenant Governor in Council considers necessary or desirable for the more effective carrying out of this Act.
29. As will be evident from a reading of s. 16, the purpose of the regulations is to regulate the construction, management and operation of hospitals. They are not aimed at defining the rights of individuals as such. Section 48 of the regulations (which appears to have been enacted under s. 16(k)) does not so much authorize the performance of an operation as direct that none shall be performed in the absence of appropriate consents, except in cases of necessity. The enumerated consents and necessity are at law valid defences in certain circumstances to a suit for battery that might be brought as a result of an unauthorized operation. So, for the purposes of managing the workings of the hospital, the regulations require that these consents be signed. They do not purport to regulate the validity of the consents; this is otherwise governed by law. Indeed, I rather doubt that the Act empowers the making of regulations affecting the rights of the individual, particularly a basic right involving an individual's physical integrity. For in the absence of clear words, statutes are, of course, not to be read as depriving the individual of so basic a right. In a word, the intent of the regulations is to provide for the governance of hospitals, not human rights.
30. In summary, MacDonald J. appears to have been right in doubting that the trial judge had properly addressed the threshold question of whether Eve was incompetent. In truth, however, these questions of possible statutory power only amounted to a preliminary skirmish. Argument really centred on the question of whether a superior court, as successor to the powers of the English Court of Chancery could, in the exercise of its parental control as the repository of the Crown's jurisdiction as parens patriae, authorize the performance of the operation in question here. It is to that issue that I now turn.
Parens Patriae Jurisdiction‑‑Its Genesis
31. There appears to have been some uncertainty in the courts below and in the arguments presented to us regarding the courts' wardship jurisdiction over children and the parens patriae jurisdiction generally. For that reason, it may be useful to give an account of the parens patriae jurisdiction and to examine its relationship with wardship.
32. The origin of the Crown's parens patriae jurisdiction over the mentally incompetent, Sir Henry Theobald tells us, is lost in the mists of antiquity; see H. Theobald, The Law Re