A.C. v. Manitoba (Director of Child and Family Services)

A.C. v. Manitoba (Director of Child and Family Services)
Collection
Supreme Court Judgments
Date
2009-06-26
Neutral citation
2009 SCC 30
Report
[2009] 2 SCR 181
Case number
31955
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Manitoba
Subjects
Civil law
Constitutional law
Notes
SCC Case Information: 31955
Decision Content
SUPREME COURT OF CANADA
Citation: A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181
Date: 20090626
Docket: 31955
Between:
A.C., A.C. and A.C.
Appellants
and
Director of Child and Family Services
Respondent
‑ and ‑
Attorney General of Manitoba, Attorney General of
British Columbia, Attorney General of Alberta
and Justice for Children and Youth
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 122)
Concurring Reasons:
(paras. 123 to 161)
Dissenting Reasons:
(paras. 162 to 239)
Abella J. (LeBel, Deschamps and Charron JJ. concurring)
McLachlin C.J. (Rothstein J. concurring)
Binnie J.
______________________________
A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181
A.C. et al. Appellants
v.
Director of Child and Family Services Respondent
and
Attorney General of Manitoba, Attorney General of
British Columbia, Attorney General of Alberta
and Justice for Children and Youth Interveners
Indexed as: A.C. v. Manitoba (Director of Child and Family Services)
Neutral citation: 2009 SCC 30.
File No.: 31955.
2008: May 20; 2009: June 26.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for manitoba
Constitutional law — Charter of Rights — Liberty and security of person — Fundamental justice — Medical treatment — Child under 16 years of age refusing blood transfusions because her religion requires that she abstain from receiving blood — Transfusion necessary to avoid severe consequences to child’s health — For child under 16, provincial child and family services legislation authorizing court to order treatment that it considers in best interests of child — For child 16 and over, no medical treatment can be ordered by court without child’s consent unless court satisfied that child lacks ability to understand relevant information or consequences of treatment decision — Whether legislation arbitrary because it deprives children under 16 of opportunity to demonstrate capacity — Whether legislation infringes child’s liberty and security interests in manner contrary to principles of fundamental justice — Canadian Charter of Rights and Freedoms, s. 7 — Child and Family Services Act, C.C.S.M. c. C80, s. 25(8), (9).
Constitutional law — Charter of Rights — Equality rights — Discrimination on basis of age — Child under 16 years of age refusing blood transfusions because her religion requires that she abstain from receiving blood — Transfusion necessary to avoid severe consequences to child’s health — For child under 16, provincial child and family services legislation authorizing court to order treatment that it considers in best interests of child — For child 16 and over, no medical treatment can be ordered by court without child’s consent unless court satisfied that child lacks ability to understand relevant information or consequences of treatment decision — Whether legislation infringes child’s equality rights — Canadian Charter of Rights and Freedoms, s. 15 — Child and Family Services Act, C.C.S.M. c. C80, s. 25(8), (9).
Constitutional law — Charter of Rights — Freedom of religion — Child under 16 years of age refusing blood transfusions because her religion requires that she abstain from receiving blood — Transfusion necessary to avoid severe consequences to child’s health — For child under 16, provincial child and family services legislation authorizing court to order treatment that it considers in best interests of child — For child 16 and over, no medical treatment can be ordered by court without child’s consent unless court satisfied that child lacks ability to understand relevant information or consequences of treatment decision — Whether legislation infringes child’s freedom of religion — If so, whether infringement justifiable — Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a) — Child and Family Services Act, C.C.S.M. c. C80, s. 25(8), (9).
Status of persons — Child protection — Care while under apprehension — Maturity — Court order authorizing treatment — For child under 16, provincial child and family services legislation authorizing court to order treatment that it considers in “best interests” of child — For child 16 and over, no medical treatment can be ordered by court without child’s consent unless court satisfied that child lacks ability to understand relevant information or consequences of treatment decision — Whether young person under 16 entitled to demonstrate sufficiency of maturity in medical treatment decisions — Interpretation of “best interests” standard — Child and Family Services Act, C.C.S.M. c. C80, s. 25(8), (9).
C was admitted to hospital when she was 14 years, 10 months old, suffering from lower gastrointestinal bleeding caused by Crohn’s disease. She is a devout Jehovah’s Witness and, some months before, had signed an advance medical directive containing her written instructions not to be given blood under any circumstances. Her doctor believed that internal bleeding created an imminent, serious risk to her health and perhaps her life. She refused to consent to the receipt of blood. A brief psychiatric assessment took place at the hospital on the night after her admission. The Director of Child and Family Services apprehended her as a child in need of protection, and sought a treatment order from the court under s. 25(8) of the Manitoba Child and Family Services Act, by which the court may authorize treatment that it considers to be in the child’s best interests. Section 25(9) of the Act presumes that the best interests of a child 16 or over will be most effectively promoted by allowing the child’s views to be determinative, unless it can be shown that the child does not understand the decision or appreciate its consequences. Where the child is under 16, however, no such presumption exists. The applications judge ordered that C receive blood transfusions, concluding that when a child is under 16, there are no legislated restrictions of authority on the court’s ability to order medical treatment in the child’s “best interests”. C and her parents appealed the order arguing that the legislative scheme was unconstitutional because it unjustifiably infringed C’s rights under ss. 2 (a), 7 and 15 of the Canadian Charter of Rights and Freedoms . The Court of Appeal upheld the constitutional validity of the impugned provisions and the treatment order.
Held (Binnie J. dissenting): The appeal should be dismissed. Sections 25(8) and 25(9) of the Child and Family Services Act are constitutional.
Per LeBel, Deschamps, Abella and Charron JJ.: When the young person’s best interests are interpreted in a way that sufficiently respects his or her capacity for mature, independent judgment in a particular medical decision‑making context, the constitutionality of the legislation is preserved. Properly construed to take an adolescent’s maturity into account, the statutory scheme strikes a constitutional balance between what the law has consistently seen as an individual’s fundamental right to autonomous decision making in connection with his or her body, and the law’s equally persistent attempts to protect vulnerable children from harm. The “best interests” standard in s. 25(8) operates as a sliding scale of scrutiny, with the child’s views becoming increasingly determinative depending on his or her maturity. The more serious the nature of the decision and the more severe its potential impact on life or health, the greater the degree of scrutiny required. The result of this interpretation of s. 25(8) is that young people under 16 will have the right to demonstrate mature medical decisional capacity. This protects both the integrity of the statute and of the adolescent. [3] [22] [30] [115]
Mature adolescents have strong claims to autonomy, but these claims exist in tension with a protective duty on the part of the state that is justified by the difficulty of defining and identifying “maturity”. Any solution to this tension must be responsive to its complexity. Where a child under 16 comes before the court under s. 25 of the Child and Family Services Act, it is the ineffability inherent in the concept of “maturity” that justifies the state’s retaining an overarching power to determine whether allowing the child to exercise his or her autonomy in a given situation actually accords with his or her best interests. But “best interests” must in turn be interpreted so as to reflect and respect the adolescent’s developing autonomy interest. The more a court is satisfied that a child is capable of making a truly mature and independent decision on his or her own behalf, the greater the weight that must be given to his or her views when a court is exercising its discretion under s. 25(8). If, after a careful analysis of the young person’s ability to exercise mature and independent judgment, the court is persuaded that the necessary level of maturity exists, the young person’s views ought to be respected. [82] [84] [86-88]
In assessing an adolescent’s maturity in a s. 25(8) “best interests” analysis, a judge should take into account the nature, purpose and utility of the recommended medical treatment and its risks and benefits; the adolescent’s intellectual capacity and the degree of sophistication to understand the information relevant to making the decision and to appreciate the potential consequences; the stability of the adolescent’s views and whether they are a true reflection of his or her core values and beliefs; the potential impact of the adolescent’s lifestyle, family relationships and broader social affiliations on his or her ability to exercise independent judgment; the existence of any emotional or psychiatric vulnerabilities and the impact of the adolescent’s illness on his or her decision‑making ability. Any relevant information from adults who know the adolescent may also factor into the assessment. [96]
When the “best interests” standard is properly interpreted, the legislative scheme created by ss. 25(8) and 25(9) of the Child and Family Services Act does not infringe ss. 7 , 15 or 2 (a) of the Charter because it is neither arbitrary, discriminatory, nor violative of religious freedom. Under s. 7 of the Charter , while it may be arbitrary to assume that no one under the age of 16 has capacity to make medical treatment decisions, it is not arbitrary to give them the opportunity to prove that they have sufficient maturity to do so. [98] [107]
With respect to s. 15 , in permitting adolescents under 16 to lead evidence of sufficient maturity to determine their medical choices, their ability to make treatment decisions is ultimately calibrated in accordance with maturity, not age, and no disadvantaging prejudice or stereotype based on age can be said to be engaged. [111]
Similarly, since a young person is entitled to lead evidence of sufficient maturity, the impugned provisions do not violate a child’s religious convictions under s. 2 (a). Consideration of a child’s “religious heritage” is one of the statutory factors which a judge must consider in determining the “best interests” of a child under s. 25(8), and expanding the deference to a young person’s religious wishes as his or her maturity increases is a proportionate response both to the young person’s religious rights and the protective goals of s. 25(8). [28] [112] [113]
Interpreting the best interests standard so that a young person is afforded a degree of bodily autonomy and integrity commensurate with his or her ability to exercise mature, independent judgment navigates the tension between an adolescent’s increasing entitlement to autonomy as he or she matures and society’s interest in ensuring that young people who are vulnerable are protected from harm. This brings the “best interests” standard in s. 25(8) in line with the evolution of the common law and with international principles, and strikes an appropriate balance between achieving the protective legislative goal while at the same time respecting the right of mature adolescents to participate meaningfully in decisions relating to their medical treatment. [108]
Per McLachlin C.J. and Rothstein J.: The Child and Family Services Act is a complete code for medical decision making for or by apprehended minors. It requires the judge to be satisfied that a treatment order is in the child’s best interests by undertaking an independent analysis of all relevant circumstances and the factors in s. 2(1) of the Act, including the child’s needs, mental and emotional maturity and preferences. This multi‑factored “best interests of the child” approach required by s. 25(8) does not operate unconstitutionally in the case of a child under 16 who possesses capacity to make a treatment decision and understands the nature and consequences of the treatment. [123] [126] [132-135]
Section 25(8) of the Child and Family Services Act does not violate s. 7 of the Charter . This provision, although it deprives a child under 16 of the “liberty” to decide her medical treatment and may impinge on her “security of the person”, does not function in a manner that is contrary to the principles of fundamental justice. The s. 7 liberty or autonomy right is not absolute, even for adults, nor does it trump all other values. Limits on personal autonomy that advance a genuine state interest do not violate s. 7 if they are shown to be based on rational, rather than arbitrary grounds. Here, when the relationship between s. 25(8) and the state interest at stake are considered, the statutory provision is not arbitrary in the substantive sense. The statutory scheme successfully balances society’s interest in ensuring that children receive necessary medical care on the one hand, with the protection of their autonomy interest, to the extent this can be done, on the other. The legislative decision to vest treatment authority regarding under‑16 minors in the courts is a legitimate response to heightened concerns about younger adolescents’ maturity and vulnerability to subtle and overt coercion and influence. This concern with free and informed decision making animates the legislative scheme and expresses the state’s interest in ensuring that the momentous decision to refuse medical treatment by persons under 16 are truly free, informed and voluntary. Age, in this context, is a reasonable proxy for independence. The Act requires the judge to take account of the treatment preference of a minor under 16 as a factor in assessing the child’s “best interests”, while refusing to give it the presumptive weight it would carry with a child over 16. This distinction reflects the societal reality of how children mature, and the dependence of children under 16 on their parents, as well as the difficulty of carrying out a robust and comprehensive analysis of maturity and voluntariness in the exigent circumstances of crucial treatment decisions in cases such as C’s. Further, the s. 7 requirement that the limitation be carried out in a procedurally fair manner is satisfied by the notice and participation requirements in the Child and Family Services Act. [136-138] [141] [143-149] [160]
Section 25(8) does not violate s. 15 of the Charter . The distinction drawn by the Act between children under 16 and those 16 and over is ameliorative and not invidious. First, it aims at protecting the interests of minors as a vulnerable group. Second, it protects the targeted group — children under 16 — in a way that gives the individual child a degree of input into the ultimate decision on treatment. This is sufficient to demonstrate that the distinction drawn by the Act, while based on an enumerated ground, is not discriminatory within the meaning of s. 15 . [152]
Finally, while the legislative authorization of treatment over C’s sincere religious objections constitutes an infringement of her right to religious freedom guaranteed by s. 2 (a) of the Charter , the infringement is justifiable under s. 1 . The fact that C’s aversion to receiving a blood transfusion springs from religious conviction does nothing to alter the essential nature of the claim as one for absolute personal autonomy in medical decision making. If s. 25(8) is viewed through the lens of s. 2 (a), the limit on religious practice imposed by the legislation emerges as justified under s. 1 , because the objective of ensuring the health and safety and of preserving the lives of vulnerable young people children is pressing and substantial, and the means chosen — giving discretion to the court to order treatment after a consideration of all relevant circumstances — is a proportionate limit on the right. [153-156]
The applications judge assumed that C had “capacity” to make the treatment decision but, after considering the relevant factors set out in s. 2(1) of the Child and Family Services Act including her maturity and including her wish not to have the treatment, concluded that treatment was in the child’s best interests. This decision conformed to the provisions of the Act. While, if time and circumstances permit, it is optimal for a judge to fully consider and give reasoned judgment on all the factors he or she takes into account, proceeding on the assumption of “capacity” — an assumption that favoured C’s autonomy interest — was reasonable in these circumstances where a child’s life hung in the balance and the need for a decision was urgent. [158-159]
Per Binnie J. (dissenting): Forced medical procedures must be one of the most egregious violations of a person’s physical and psychological integrity. The state’s interest in ensuring judicial control over the medical treatment of “immature” minors ceases to exist where a “mature” minor under 16 demonstrates the lack of need for any such overriding state control. In such cases, the legitimate object and basis of state intervention in the life of the young person has, by reason of the judge’s finding of maturity, disappeared. Whether judges, doctors and hospital authorities agree or disagree with C’s objection, the decision belongs to her, as the Charter is not just about the freedom to make the wise and correct choice; it also gives her the individual autonomy and the religious freedom to refuse forced medical treatment, even where her life or death hangs in the balance, regardless of what the judge thinks is in her best interest. The state would be justified in taking the decision away from C if there was any doubt about her capacity, as in a situation of urgency, or whether she was acting under the influence of her parents (who are Jehovah’s Witnesses). However, these matters were looked into by three psychiatrists at the Winnipeg hospital where the blood transfusion was to be administered, and the psychiatrists concluded, and the applications judge accepted, that C — though 14 months short of reaching 16 years of age — was nevertheless at the material time an individual “with capacity to give or refuse consent to her own medical care”. [163-167] [176] [237]
Children may generally be assumed to lack the requisite degree of capacity and maturity to make potentially life‑defining decisions. This lack of capacity and maturity provides the state with a legitimate interest in taking the decision‑making power away from the young person and vesting it in a judge under the Child and Family Services Act. At common law, proof of capacity entitles the “mature minor” to exercise personal autonomy in making medical treatment decisions free of parental or judicial control. While it may be very difficult to persuade a judge that a young person who refuses potentially life‑saving medical treatment is a person of full capacity, nonetheless, the Charter requires such an opportunity to be given in the case of an adolescent of C’s age and maturity. The Act mandates an individualized assessment on a patient‑by‑patient basis, and courts routinely handle capacity as a live issue under the Child and Family Services Act in the case of minors between the ages of 16 and 18. Section 25(8) is unconstitutional because it prevents a person under 16 from establishing that she or he understands the medical condition and the consequences of refusing treatment, and should therefore have the right to refuse treatment whether or not the applications judge considers such refusal to be in the young person’s best interests. [175-178]
While it is understandable that judges would instinctively give priority to the sanctity of life, the rejection of the potentially lifesaving effects of blood transfusions by Jehovah’s Witnesses is fundamental to their religious convictions. The rights under ss. 2 (a) and 7 of the Charter are given to everyone, including individuals under 16 years old. If a mature minor does in fact understand the nature and seriousness of her medical condition and is mature enough to appreciate the consequences of refusing consent to treatment, then the state’s only justification for taking away the autonomy of that young person in such important matters disappears. The young person with capacity is entitled to make the treatment decision, not just to have “input” into a judge’s consideration of what the judge believes to be the young person’s best interests. [191-192] [202] [207] [214]
The irrebuttable presumption of incapacity to consent to or refuse medical treatment therefore violates C’s freedom of religion and her right not to be deprived of her liberty or security of the person except in accordance with the principles of fundamental justice. It was rightly conceded that s. 25 violated s. 2 (a), subject to the s. 1 defence advanced by the government. [211] [215]
With respect to s. 7 , C’s liberty interest is directly engaged because it is obvious that anyone who refuses a potentially life‑saving blood transfusion on religious grounds does so out of a deeply personal and fundamental belief about how they wish to live, or cease to live, in obedience to what they interpret to be God’s commandment. Her security interest is also engaged because an unwanted blood transfusion violates the fundamental value of protecting bodily integrity from state interference. The principles of fundamental justice that are breached in this case are both procedural and substantive. In terms of substantive justice, the irrebuttable presumption takes away the personal autonomy of C and other “mature minors” for no valid state purpose. The purpose of the Child and Family Services Act is to defend the “best interest” of children who are “in need of protection” — this means, in this context, children who do not have the capacity to make their own decisions about medical treatment. When applied to young persons who possess the requisite capacity, the irrebuttable presumption has “no real relation” to the legislative goal of protecting children who do not possess such capacity. The deprivation in the case of mature minors is thus arbitrary and violates s. 7 . In terms of procedural justice, the procedures in the Act are also deficient because they do not afford a young person the opportunity to rebut the very presumption upon which the court’s authority to act in the best interests of the young person rests, namely lack of capacity. Where (as in this case) a young person’s capacity can fairly be determined in a timely way, s. 25(8)’s failure to leave room for the young person to rebut the presumption of incapacity violates fundamental procedural fairness. [219-225]
The limit imposed by the irrebuttable presumption on C’s ss. 2 (a) and 7 rights is not justifiable under s. 1 of the Charter . The care and protection of children is a pressing and substantial legislative objective that is of sufficient importance to justify limiting a Charter right. However, the impugned procedure under s. 25 of the Act is not rationally connected to that objective. Since the Act itself acknowledges in s. 25(9) that mature minors 16 and over are presumed to be of sufficient capacity to make their own treatment decisions, it is “arbitrarily unfair or based on irrational considerations” to deny mature minors under 16 the opportunity of demonstrating what in the case of the older mature minors is presumed in their favour. Furthermore, the irrebuttable presumption of incapacity does not impair “as little as possible” the right or freedom in question as shown by the fact that the Manitoba legislature has enacted a rebuttable presumption in other health care statutes. Such a rebuttable presumption provides an available legislative solution that both protects the state interest in looking out for those who lack the capacity to look out for themselves and the need to impair minimally the rights of mature minors under 16 years of age who do not lack that capacity. Finally, the irrebuttable presumption has a disproportionately severe effect on the rights of mature minors under 16 because they do not suffer from the lack of capacity or maturity that justifies the state intervention in relation to immature minors. Moreover, the government has not shown that the irrebuttable presumption in the Act produces “proportionality between the deleterious and the salutary effects” because while the mature minor’s Charter rights are harmed, the state’s interest in protecting the health of immature minors is not advanced. [233-237]
Cases Cited
By Abella J.
Applied: Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Malette v. Shulman (1990), 72 O.R. (2d) 417; Fleming v. Reid (1991), 4 O.R. (3d) 74; Gillick v. West Norfolk and Wisbech Area Health Authority, [1985] 3 All E.R. 402; Re W (a minor) (medical treatment), [1992] 4 All E.R. 627; Re R (a minor) (wardship: medical treatment), [1991] 4 All E.R. 177; J.S.C. v. Wren (1986), 76 A.R. 115; Alberta (Director of Child Welfare) v. H. (B.), 2002 ABPC 39, [2002] 11 W.W.R. 752, aff’d 2002 ABQB 371, [2002] 7 W.W.R. 616, aff’d 2002 ABCA 109, [2002] 7 W.W.R. 644, leave to appeal refused, [2002] 3 S.C.R. vi; Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; considered: Young v. Young, [1993] 4 S.C.R. 3; King v. Low, [1985] 1 S.C.R. 87; Ciarlariello v. Schacter, [1993] 2 S.C.R. 119; referred to: R. v. Oakes, [1986] 1 S.C.R. 103; Re T (adult: refusal of medical treatment), [1992] 4 All E.R. 649; R. v. Morgentaler, [1988] 1 S.C.R. 30; Re E (a minor) (wardship: medical treatment), [1993] 1 F.L.R. 386; Re S (a minor) (consent to medical treatment), [1994] 2 F.L.R. 1065; Re L (medical treatment: Gillick competency), [1998] 2 F.L.R. 810; Re M (medical treatment: consent), [1999] 2 F.L.R. 1097; Van Mol (Guardian ad Litem of) v. Ashmore, 1999 BCCA 6, 168 D.L.R. (4th) 637; H. (T.) v. Children’s Aid Society of Metropolitan Toronto (1996), 138 D.L.R. (4th) 144; Dueck (Re) (1999), 171 D.L.R. (4th) 761; Hôpital Ste-Justine v. Giron, 2002 CanLII 34269; U. (C.) (Next friend of) v. Alberta (Director of Child Welfare), 2003 ABCA 66, 13 Alta. L.R. (4th) 1; Re L.D.K. (1985), 48 R.F.L. (2d) 164; Re A.Y. (1993), 111 Nfld. & P.E.I.R. 91; Region 2 Hospital Corp. v. Walker (1994), 150 N.B.R. (2d) 366; Planned Parenthood of Central Missouri v. Danforth, Attorney General of Missouri, 428 U.S. 52 (1976); Bellotti, Attorney General of Massachusetts v. Baird, 443 U.S. 622 (1979); Parham, Commissioner, Department of Human Resources of Georgia v. J. R., 442 U.S. 584 (1979); Cardwell v. Bechtol, 724 S.W.2d 739 (1987); Belcher v. Charleston Area Medical Center, 422 S.E.2d 827 (1992); In re E.G., 549 N.E.2d 322 (1989); In the Matter of Long Island Jewish Medical Center, 557 N.Y.S.2d 239 (1990); Novak v. Cobb County-Kennestone Hospital Authority, 849 F. Supp. 1559 (1994), aff’d 74 F.3d 1173 (1996); In the Matter of Rena, 705 N.E.2d 1155 (1999); Commonwealth v. Nixon, 761 A.2d 1151 (2000); Secretary, Department of Health and Community Services v. J.W.B. (Marion’s Case) (1992), 175 C.L.R. 218; Director General, New South Wales Department of Community Services v. Y., [1999] NSWSC 644 (AustLII); Minister for Health v. A.S., [2004] WASC 286, 33 Fam. L.R. 223; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R. 519; Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Harrison v. University of British Columbia, [1990] 3 S.C.R. 451; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22.
By McLachlin C.J.
Referred to: B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Re A.Y. (1993), 111 Nfld. & P.E.I.R. 91; R. v. Morgentaler, [1988] 1 S.C.R. 30; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76; Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Oakes, [1986] 1 S.C.R. 103; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.
By Binnie J. (dissenting)
Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Hopp v. Lepp, [1980] 2 S.C.R. 192; Reibl v. Hughes, [1980] 2 S.C.R. 880; Malette v. Shulman (1990), 72 O.R. (2d) 417; Fleming v. Reid (1991), 4 O.R. (3d) 74; Ciarlariello v. Schacter, [1993] 2 S.C.R. 119; Airedale NHS Trust v. Bland, [1993] 1 All E.R. 821; Re C (adult: refusal of medical treatment), [1994] 1 All E.R. 819; Re T (adult: refusal of medical treatment), [1992] 4 All E.R. 649; Re B (adult: refusal of medical treatment), [2002] EWHC 429, [2002] 2 All E.R. 449; Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990); Auckland Area Health Board v. Attorney‑General, [1993] 1 N.Z.L.R. 235; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Nancy B. v. Hôtel‑Dieu de Québec (1992), 69 C.C.C. (3d) 450; Van Mol (Guardian ad Litem of) v. Ashmore, 1999 BCCA 6, 168 D.L.R. (4th) 637; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256; R. v. Morgentaler, [1988] 1 S.C.R. 30; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429; R. v. Oakes, [1986] 1 S.C.R. 103; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.
Statutes and Regulations Cited
Age of Majority Act, C.C.S.M. c. A7, s. 1.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), 7 , 15 .
Child and Family Services Act, C.C.S.M. c. C80, ss. 1(1) “child”, 2, 17, 21(1), 25, 25(8), 25(9), 27(1).
Health Care Directives Act, C.C.S.M. c. H27, s. 4(2).
Mental Health Act, C.C.S.M. c. M110, s. 2.
Treaties and Other International Instruments
Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, Eur. T.S. No. 164, c. II, art. 6.
Convention on the Rights of the Child, Can. T.S. 1992 No. 3, arts. 3, 5, 12, 14.
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APPEAL from a judgment of the Manitoba Court of Appeal (Huband, Steel and Hamilton JJ.A.), 2007 MBCA 9, 212 Man. R. (2d) 163, 389 W.A.C. 163, 276 D.L.R. (4th) 41, [2007] 4 W.W.R. 62, 151 C.R.R. (2d) 191, [2007] M.J. No. 26 (QL), 2007 CarswellMan 28, affirming an order of Kaufman J. Appeal dismissed, Binnie J. dissenting.
David C. Day, Q.C., and Allan Ludkiewicz, for the appellant A.C. (child).
Shane H. Brady, for the appellants A.C. and A.C. (parents).
Norm Cuddy, Alfred Thiessen and Kristian J. Janovcik, for the respondent.
Deborah L. Carlson and Nathaniel Carnegie, for the intervener the Attorney General of Manitoba.
Neena Sharma and Karrie Wolfe, for the intervener the Attorney General of British Columbia.
Margaret Unsworth, Q.C., and Lillian Riczu, for the intervener the Attorney General of Alberta.
Cheryl Milne and Mary Birdsell, for the intervener Justice for Children and Youth.
The judgment of LeBel, Deschamps, Abella and Charron JJ. was delivered by
[1] Abella J. — One of the most sensitive decisions a judge can make in family law is in connection with the authorization of medical treatment for children. It engages the most intensely complicated constellation of considerations and its consequences are inevitably profound.
[2] When a child under 16 is apprehended in Manitoba