B. (R.) v. Children's Aid Society of Metropolitan Toronto

B. (R.) v. Children's Aid Society of Metropolitan Toronto
Collection
Supreme Court Judgments
Date
1995-01-27
Report
[1995] 1 SCR 315
Case number
23298
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Civil procedure
Constitutional law
Notes
SCC Case Information: 23298
Decision Content
[1995] 1 S.C.R. B. (R.) v. Children's Aid Society of Metropolitan Toronto 315
Version with page numbers (details) Richard B. and Beena B. Appellants
v.
Children's Aid Society of Metropolitan Toronto,
the Official Guardian for Sheena B., an Infant,
and the Attorney General for Ontario Respondents
and
The Attorney General of Canada and
the Attorney General of Quebec Interveners
Indexed as: B. (R.) v. Children's Aid Society of Metropolitan Toronto
File No.: 23298.
Hearing and judgment on appeal: March 17, 1994.
Reasons and judgment on cross-appeal delivered: January 27, 1995.
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Right to liberty -- Fundamental justice -- Parents objecting to blood transfusion for their infant for religious reasons -- Children's Aid Society granted temporary wardship of infant under Child Welfare Act -- Infant receiving blood transfusion -- Whether provisions of Child Welfare Act infringe parents' right to choose medical treatment for their infant contrary to s. 7 of Canadian Charter of Rights and Freedoms -- Child Welfare Act, R.S.O. 1980, c. 66, ss. 19(1)(b)(ix), 21, 27, 28(1), (10), (12), 30(1)2, 41.
Constitutional law -- Charter of Rights -- Freedom of religion -- Parents objecting to blood transfusion for their infant for religious reasons -- Children's Aid Society granted temporary wardship of infant under Child Welfare Act -- Infant receiving blood transfusion -- Whether provisions of Child Welfare Act infringe parents' freedom of religion -- If so, whether infringement
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justified as reasonable limit -- Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b) -- Child Welfare Act, R.S.O. 1980, c. 66, ss. 19(1)(b)(ix), 21, 27, 28(1), (10), (12), 30(1)2, 41.
Costs -- Judicial discretion -- Parents objecting to blood transfusion for their infant for religious reasons -- Children's Aid Society granted temporary wardship of infant under Child Welfare Act -- District Court judge dismissing parents' appeal and awarding costs against intervening Attorney General -- Whether costs order should be overturned.
S.B. was born four weeks prematurely. Within the first few weeks of her life she exhibited many physical ailments and received a number of medical treatments, to which her parents, the appellants, consented. At their request the attending physicians avoided the use of a blood transfusion because, as Jehovah's Witnesses, the appellants objected to it for religious reasons; they also claimed it was unnecessary. When S.B. was a month old, her haemoglobin level had dropped to such an extent that the attending physicians believed that her life was in danger and that she might require a blood transfusion to treat potentially life-threatening congestive heart failure. Following a hearing on short notice to the appellants, the Provincial Court (Family Division) granted the respondent Children's Aid Society a 72-hour wardship. At a status review two doctors testified that although the child's condition had improved, it was still marginal, and they wished to maintain the ability to transfuse in case of an emergency. The head of ophthalmology at the hospital testified that he suspected the child had infantile glaucoma and needed to undergo exploratory surgery within the following week to confirm the diagnosis. This procedure had to be performed under general anaesthetic, and another doctor testified that a blood transfusion would be necessary. The wardship order was extended for a period of 21 days. S.B. received a blood transfusion as part of the examination and operation for the suspected glaucoma. A second Provincial Court order then terminated the respondent's wardship, and the child was returned to her parents. The appellants appealed both orders to the District Court, which dismissed the appeal and awarded costs against the Attorney General of Ontario, who had intervened in the proceedings. The Court of Appeal dismissed the appellants' appeal and the Attorney General of Ontario's cross-appeal on the issue of costs. This appeal is to determine whether s. 19(1)(b)(ix) of the Ontario
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Child Welfare Act, which defines "child in need of protection", together with the powers in ss. 30(1)2 and 41 and the procedures in ss. 21, 27, 28(1), (10) and (12), deny parents a right to choose medical treatment for their infants, contrary to s. 7 of the Canadian Charter of Rights and Freedoms , or infringe the appellants' freedom of religion as guaranteed under s. 2 (a) of the Charter , and, if so, whether the infringement is justifiable under s. 1 of the Charter . The issue raised in the cross-appeal is whether the District Court erred in awarding costs against the Attorney General of Ontario.
Held (L'Heureux-Dubé J. dissenting on the cross-appeal): The appeal and the cross-appeal should be dismissed.
1. Appeal
Section 7
Per La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ.: The liberty protected by s. 7 of the Charter does not mean unconstrained freedom. Freedom of the individual to do what he or she wishes must, in any organized society, be subjected to numerous constraints for the common good. The state undoubtedly has the right to impose many types of restraints on individual behaviour, and not all limitations will attract Charter scrutiny. On the other hand, liberty does not mean mere freedom from physical restraint. In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance.
The right to nurture a child, to care for its development, and to make decisions for it in fundamental matters such as medical care, are part of the liberty interest of a parent. The common law has long recognized that parents are in the best position to take care of their children and make all the decisions necessary to ensure their well-being. This recognition was based on the presumption that parents act in the best interest of their child. Although the philosophy underlying state intervention has changed over time, most contemporary statutes
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dealing with child protection matters, and in particular the Ontario Act, while focusing on the best interest of the child, favour minimal intervention. In recent years, courts have expressed some reluctance to interfere with parental rights, and state intervention has been tolerated only when necessity was demonstrated, thereby confirming that the parental interest in bringing up, nurturing and caring for a child, including medical care and moral upbringing, is an individual interest of fundamental importance to our society.
While parents bear responsibilities toward their children, they must enjoy correlative rights to exercise them, given the fundamental importance of choice and personal autonomy in our society. Although this liberty interest is not a parental right tantamount to a right of property in children, our society is far from having repudiated the privileged role parents exercise in the upbringing of their children. This role translates into a protected sphere of parental decision-making which is rooted in the presumption that parents should make important decisions affecting their children both because parents are more likely to appreciate the best interests of their children and because the state is ill-equipped to make such decisions itself. While the state may intervene when it considers it necessary to safeguard the child's autonomy or health, such intervention must be justified.
While children undeniably benefit from the Charter , most notably in its protection of their rights to life and to the security of their person, they are unable to assert these rights, and our society accordingly presumes that parents will exercise their freedom of choice in a manner that does not offend the rights of their children. If one considers the multitude of decisions parents make daily, it is clear that in practice, state interference in order to balance the rights of parents and children will arise only in exceptional cases. The state can properly intervene in situations where parental conduct falls below the socially acceptable threshold, but in doing so it is limiting the constitutional rights of parents rather then vindicating the constitutional rights of children.
In the present case the application of the Act deprived the appellants of their right to decide which medical treatment should be administered to their infant and in so doing has infringed upon the parental "liberty" protected in s. 7 of the Charter . This deprivation, however,
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was made in accordance with the principles of fundamental justice. The common law has long recognized the power of the state to intervene to protect children whose lives are in jeopardy and to promote their well-being, basing such intervention on its parens patriae jurisdiction. The protection of a child's right to life and to health is a basic tenet of our legal system, and legislation to that end accords with the principles of fundamental justice, so long as it also meets the requirements of fair procedure. Section 19(1)(b)(ix) of the Act, although broad in scope, is compatible with a modern conception of life that embodies the notion of quality of life. The general procedure under the Act also accords with the principles of fundamental justice. The parents must receive reasonable notice of the hearing in which their rights might be affected. Further, the wardship order depriving the parents of the right to refuse medical treatment for their infant is granted by a judge following an adversarial process where conflicting evidence may be presented. The onus of proof is on the Children's Aid Society, and it has been recognized by the courts that it must present a strong case. Finally, the initial order granting wardship to the Children's Aid Society must be reviewed before its expiry.
The notice the parents received of the wardship hearing in this case was reasonable in the circumstances, and the initial wardship order was limited to 72 hours, to enable the parties to come back with further evidence. As well, although the appellants were not able to present conflicting medical evidence at the initial hearing, they were nonetheless represented by counsel, who cross-examined the witnesses summoned by the Children's Aid Society and presented submissions.
Per Cory, Iacobucci and Major JJ.: An exercise of parental liberty which seriously endangers the survival of the child should be viewed as falling outside s. 7 of the Charter . While the right to liberty embedded in s. 7 may encompass the right of parents to have input into the education of their child, and in fact may very well permit parents to choose among equally effective types of medical treatment for their children, it does not include a parents' right to deny a child medical treatment that has been adjudged necessary by a medical professional and for which there is no legitimate alternative. The child's right to life must not be so completely subsumed to the parental liberty to make decisions regarding that child. Although an individual may refuse any medical procedures upon her own person, it is quite another matter to speak for another separate individual,
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especially when that individual cannot speak for herself. Parental duties are to be discharged according to the "best interests" of the child. The exercise of parental beliefs that grossly invades those best interests is not activity protected by the right to liberty in s. 7 . There is simply no room within s. 7 for parents to override the child's right to life and security of the person. To hold otherwise would be to risk undermining the ability of the state to exercise its legitimate parens patriae jurisdiction and jeopardize the Charter 's goal of protecting the most vulnerable members of society.
Per Lamer C.J.: The liberty interest protected by s. 7 of the Charter has not been infringed in this case because it includes neither the right of parents to choose (or refuse) medical treatment for their children nor, more generally, the right to bring up or educate their children without undue interference by the state. While this type of parental liberty is important and fundamental within the more general concept of the autonomy or integrity of the family unit, it does not fall within the ambit of s. 7 . By including the expression "right to liberty" in s. 7 , the framers of the Charter did not intend to protect "liberty" in its broadest sense or in all its dimensions. The right to liberty protected by s. 7 is not, within the meaning of the Charter , a fundamental freedom of the individual; rather it is a fundamental right which may be limited only in accordance with the principles of fundamental justice. The wording of the provision, its structure, the context in which it is found, the relationship there may be between it and the other provisions, as well as the historical context in which the Charter was adopted, are all factors that must be taken into consideration in seeking to identify the purpose of a protected right or freedom, in order to preserve the coherence of the entire constitutional text and maintain the integrity of the intention of Parliament. The principles of fundamental justice are a qualifier of the right not to be deprived of life, liberty and security of the person, and thus serve to establish the parameters of the interests. Since the principles of fundamental justice are elements that are essentially within the domain of the justice system, the type of liberty to which s. 7 refers must be the liberty that may be taken away or limited by a court or by another agency on which the state confers a coercive power by which it may enforce the laws that it enacts. Accordingly, the subject matter of s. 7 must be the conduct of the state when the state calls on law enforcement officials to enforce and secure obedience to the law, or
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invokes the law to deprive a person of liberty through judges, magistrates, ministers, board members, etc.
The nature of the rights guaranteed by s. 7, taken as a whole, and the close connection established between those rights and the principles of fundamental justice, necessarily mean that this constitutional protection is connected with the physical dimension of the word "liberty", which can be lost through the operation of the legal system. In a majority of cases this protection is therefore specific to our criminal or penal justice system and is triggered primarily by the operation of that system. The freedoms that the Charter expressly recognizes and identifies as fundamental are found in s. 2 . If s. 7 were to include any type of freedom whatever, provided that it could be described as fundamental, the need for and purpose of s. 2 might be seriously questioned. The nature of the other rights set out in s. 7 is another element of interpretation that militates in favour of a distinction between the scope of the words "freedom" and "liberty" as they are used in ss. 2 and 7 . Since the right to life, liberty and security of the person are three distinct rights which the framers deliberately placed, in sequence, in a single provision, there must be a connection or linkage among them. This connection is found in the person himself or herself, as a corporeal entity, as opposed to the person's spirit, aspirations, conscience, beliefs, personality or, more generally, the expression or realization of what makes up the person's non-corporeal identity. The right to liberty, in this context, must therefore be set up against imprisonment, detention or any form of control or of constraint on freedom of movement. Moreover, extending the scope of the word "liberty" in s. 7 to include any type of freedom might mean that a large proportion of the legislative provisions in force could be challenged on the ground that they infringe this liberty interest. It would then be for the courts, in each case, to decide whether or not the freedom invoked was a fundamental freedom in our free and democratic society, whether the limit complied with the principles of fundamental justice, or whether the limit was reasonable and could be justified in a free and democratic society. In so doing the judiciary would inevitably be legislating, when this is not its function.
Per Sopinka J.: It is unnecessary to determine whether a liberty interest is engaged in this case because the threshold requirement of a breach of the principles
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of fundamental justice is not met. In all other respects La Forest J.'s reasons were agreed with.
Section 2 (a)
Per La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ.: The right of parents to rear their children according to their religious beliefs, including that of choosing medical and other treatments, is a fundamental aspect of freedom of religion, guaranteed by s. 2 (a) of the Charter . While the purpose of the Act, the protection of children, does not infringe on the appellants' freedom of religion, the legislative scheme it implements, culminating in a wardship order depriving the parents of the custody of their child, seriously infringed on the appellants' freedom to choose medical treatment for their child in accordance with the tenets of their faith. This infringement was justified, however, under s. 1 of the Charter . The state interest in protecting children at risk is a pressing and substantial objective. The Act allows the state to assume parental rights when a judge has determined that a child is in need of treatment that his parents will not consent to. The process contemplated by the Act is carefully crafted, adaptable to a myriad of different situations, and far from arbitrary. The Act makes provision for notice to be given, for evidence to be called, for time limits to be imposed upon Crown wardship and other orders, as well as for procedural protections to be afforded to parents.
Per Lamer C.J. and Cory, Iacobucci and Major JJ.: A parent's freedom of religion, guaranteed under s. 2 (a) of the Charter , does not include the imposition of religious practices which threaten the safety, health or life of the child. Although the freedom of belief may be broad, the freedom to act upon those beliefs is considerably narrower, as it is subject to such limitations as are necessary to protect the fundamental rights and freedoms of others. Since S.B. has never expressed any agreement with the Jehovah's Witness faith or any religion, there is an impingement on her freedom of conscience, which arguably includes the right to live long enough to make one's own reasoned choice about the religion one wishes to follow as well as the right not to hold a religious belief. "Freedom of religion" should not encompass activity that so categorically negates the "freedom of conscience" of another. While s. 1 of the Charter may be the appropriate forum for balancing the interests of the state against the rights violation of the aggrieved individual, such a balance is not required here, since the nexus of the balancing operates between the child's
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right to life and security of the person and her parents' right to freedom of religion.
2. Cross-appeal
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: While the awarding of costs against an intervening Attorney General acting in the public interest in favour of a party who raises the constitutionality of a statute appears highly unusual, this case appears to have raised special and peculiar problems. The District Court's exercise of discretion, which was supported by the Court of Appeal, should thus not be interfered with.
Per L'Heureux-Dubé J. (dissenting): The cross-appeal with respect to costs should be allowed. While it is true that appellate courts should not in general interfere with a trial court's exercise of discretion, a court of appeal can interfere where that discretion has not been exercised judicially and judiciously. Section 42(1) of the Supreme Court Act is aimed solely at preventing parties from bringing an appeal from a purely discretionary decision, and does not prevent this Court from interfering with a trial judge's discretion if he or she erred in formulating the principles upon which the discretion was exercised. Awards of costs, while within judicial discretion, can be reviewed by an appellate court on the basis that they were made, inter alia, on wrong principles, on a misapprehension of significant facts or in a non-judicial manner. Moreover, s. 47 of the Supreme Court Act specifically grants this Court a wide discretion with respect to lower courts' costs orders.
The long-standing rule regarding costs is that they are generally awarded to a successful party, absent misconduct on his or her part. This rule, however, is not absolute. Rule 57.01 of the Ontario Rules of Civil Procedure provides a list of factors (the amount claimed and the amount recovered in the proceeding, the complexity of the proceeding, the importance of the issues, etc.) for a judge to consider in the exercise of his or her discretion with respect to an order for costs. According to Rule 57.01, costs can even be ordered against a successful party in a "proper case". This case, however, was not such a "proper case", given all of the circumstances and
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in spite of the fact that it was a constitutional challenge based on a fundamental freedom guaranteed by the Charter .
The resources available to the parties should not generally be a relevant factor in awarding costs. It is contrary to public policy that an Attorney General be, as a matter of course, treated as having an unlimited source of funds and for that sole reason be required, even if successful, to pay the other party's costs. Such a result could open the floodgates and encourage marginal applications for constitutional challenges. While there are clearly cases where the government will be required to pay the costs of a particular litigation regardless of its outcome, these cases remain very limited exceptions and are not based on the relative resources of the parties but rather on the importance for the government or the public of having a particular issue decided by the courts. As well, generally in such cases there is a prior understanding that the costs will be borne by the government, independently of the result. Thus, the District Court judge was correct in not basing his order for costs on the relative resources of the parties.
The District Court judge was also correct in finding that there was no misconduct on the part of the Attorney General of Ontario. However, misconduct is only one criterion among many which a judge is entitled to consider in determining how costs should be awarded. Consequently, even in the absence of misconduct, a costs order against a successful party could be justified. That being said, under Rule 57.01, the court's discretion to depart from the general rule of awarding costs to the successful party must be exercised judiciously and judicially. It cannot be exercised arbitrarily, capriciously or for improper reasons.
None of the factors considered by the District Court judge and the Court of Appeal in support of the impugned costs order, in and of themselves or considered in totality, justify the costs order against the successful Attorney General of Ontario in the case at hand. First, the District Court judge, in awarding costs against the Attorney General of Ontario, suggested that the "litigation was originally triggered by an act of the state". However, while the fact that a state action is the trigger for a particular litigation may warrant some
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consideration in determining how costs are allocated, it is not a factor which should be determinative with respect to the allocation of costs. Furthermore, in this case, it was the act of the appellant parents in refusing a blood transfusion for their daughter which originally triggered the litigation. The fact that the parents then challenged the constitutionality of the Child Welfare Act provides no basis for awarding costs against the Attorney General for Ontario, who intervened to defend the constitutionality of that statute. The fact that there was state action in answer to a constitutional challenge, whether as an intervener or a party to the litigation, absent any impropriety, as here, cannot be the basis for awarding costs against a successful party. Furthermore, there is a general rule that a party granted intervener status in the public interest is neither entitled to nor liable for the costs in the matter.
Second, the District Court judge erred when he stated that the particular importance of the case before him warranted the ordering of costs against the intervening Attorney General of Ontario. While Rule 57.01(1)(d) expressly states that "the importance of the issues" is a factor which can be considered by a court in awarding costs, this factor seems to be much more relevant with respect to whether costs should be awarded at all, rather than with respect to whether costs should be awarded against a successful party. Furthermore, it is not apparent that this case raises issues of sufficient national importance to justify awarding costs against a successful intervener. Moreover, it would not be in the interest of justice or in the interest of the administration of justice to hold that the fact that a case raises an issue of national importance is in and of itself sufficient to justify awarding costs against a successful party, in this case an intervener. Finally, the fact that the appellants raised a Charter issue does not in and of itself make their case one of particular importance.
Third, Tarnopolsky J.A.'s reasons at the Court of Appeal, suggesting that an award of costs against the Attorney General of Ontario might be justified by the fact that the appellants challenged the state on the basis of freedom of religion, a "fundamental freedom" guaranteed by s. 2 (a) of the Charter , were not agreed with. The fact that an individual alleges an infringement of a right or a freedom guaranteed by the Charter is not in and of itself sufficient to attract an exception to the general rule as to costs. To hold otherwise would mean that
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all accused or individuals challenging a statute on Charter grounds would be entitled to an award of costs against the state.
Fourth, the District Court judge noted that this case "proceeded in a most unusual fashion and laborious manner". However, the fact that the proceedings in the District Court constituted a lengthy re-trial where fresh evidence was adduced cannot be a source of reproach to the Attorney General of Ontario and cannot serve as a basis for the impugned costs order. Besides, it is not evident that the present case was actually unusual in its proceedings.
Finally, even taken together, the factors considered by the District Court judge and Tarnopolsky J.A. of the Court of Appeal could not make this case a proper one to allow a departure from the general rule as to costs.
Cases Cited
By La Forest J.
Referred to: R. v. Jones, [1986] 2 S.C.R. 284; R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. Lyons, [1987] 2 S.C.R. 309; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972); Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Beare, [1988] 2 S.C.R. 387; Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Prince v. Massachusetts, 321 U.S. 158 (1944); Stanley v. Illinois, 405 U.S. 645 (1972); Wisconsin v. Yoder, 406 U.S. 205 (1972); Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of South-Eastern Pennsylvania v. Casey, 112 S.Ct. 2791 (1992); Hepton v. Maat, [1957] S.C.R. 606; Re C.P.L. (1988), 70 Nfld. & P.E.I.R. 287; R. v. Keegstra, [1990] 3 S.C.R. 697; E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; Cantwell v. Connecticut, 310 U.S. 296 (1940); R. v. Dyment, [1988] 2 S.C.R. 417; Lavigne v. Ontario Public Service
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Employees Union, [1991] 2 S.C.R. 211; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326.
By Iacobucci and Major JJ.
Referred to: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Jones, [1986] 2 S.C.R. 284; Re R.K. (1987), 79 A.R. 140; Young v. Young, [1993] 4 S.C.R. 3; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; R. v. Zundel, [1992] 2 S.C.R. 731; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Tutton and Tutton (1985), 18 C.C.C. (3d) 328, aff'd [1989] 1 S.C.R. 1392; Re D. (1982), 30 R.F.L. (2d) 277; M. (R.E.D.) v. Director of Child Welfare (1986), 47 Alta. L.R. (2d) 380 (Q.B.), appeal quashed and application to reinstate refused (1988), 88 A.R. 346 (C.A.); R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Beare, [1988] 2 S.C.R. 387; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211.
By Lamer C.J.
Considered: R. v. Jones, [1986] 2 S.C.R. 284; R. v. Morgentaler, [1988] 1 S.C.R. 30; referred to: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972); Meyer v. Nebraska, 262 U.S. 390 (1923); R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357.
By Sopinka J.
Referred to: R. v. Jones, [1986] 2 S.C.R. 284.
By L'Heureux-Dubé J. (dissenting on the cross-appeal)
Canadian Newspapers Co. v. Attorney-General of Canada (1986), 56 O.R. (2d) 240; Pelech v. Pelech, [1987] 1 S.C.R. 801; R. v. Pringle, [1989] 1 S.C.R. 1645; Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042; Elsom v. Elsom, [1989] 1 S.C.R. 1367; Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326;
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R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Finta, [1994] 1 S.C.R. 701; Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; N.V. Bocimar S.A. v. Century Insurance Co. of Canada, [1987] 1 S.C.R. 1247; Lewis v. Todd and McClure, [1980] 2 S.C.R. 694; Jaegli Enterprises Ltd. v. Taylor, [1981] 2 S.C.R. 2; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Charles Osenton & Co. v. Johnston, [1942] A.C. 130; 539618 Ontario Ltd. v. Stathopoulos (1992), 11 O.R. (3d) 364; Prodon v. Vickrey (1988), 31 C.P.C. (2d) 264; Nolet v. Nolet (1985), 68 N.S.R. (2d) 370; Smov Industrie Ceramiche S.P.A. v. Sole Ceramic Importing Ltd. (1983), 141 D.L.R. (3d) 672; Andrews v. Andrews (1980), 120 D.L.R. (3d) 252; Kalesky v. Kalesky (1974), 51 D.L.R. (3d) 30; Donald Campbell and Co. v. Pollak, [1927] A.C. 732; Downey v. Roaf (1873), 6 P.R. 89; In Re Pattullo and The Corporation of the Town of Orangeville (1899), 31 O.R. 192; London & British North America Co. v. Haigh, [1922] 1 W.W.R. 172; Hudson's Bay Co. v. Sjostrom, [1924] 3 W.W.R. 271; Villeneuve v. Rur. Mun. Kelvington, [1929] 2 D.L.R. 919; Wawrzyniak v. Jagiellicz (1988), 9 A.C.W.S. (3d) 175; Attorney General of Quebec v. Labrecque, [1980] 2 S.C.R. 1057; Schachter v. Canada, [1992] 2 S.C.R. 679; Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Coronation Insurance Co. v. Taku Air Transport Ltd., [1991] 3 S.C.R. 622; Roberge v. Bolduc, [1991] 1 S.C.R. 374; Hartford v. Langdon Coach Lines Co. (1975), 10 O.R. (2d) 617; Wismer v. Javelin International Ltd. (1982), 38 O.R. (2d) 26; Attorney-General of Quebec v. Cronier (1981), 63 C.C.C. (2d) 437; R. v. Pawlowski (1993), 20 C.R. (4th) 233; Carey v. The Queen, Ont. H.C., No. 1954/76, September 13, 1988; B.C. (Govt.) v. Worthington (Can.) Inc. (1988), 29 B.C.L.R. (2d) 145; Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 (1990), 70 Man. R. (2d) 59; Hines v. Nova Scotia (Registrar of Motor Vehicles) (1990), 78 D.L.R. (4th) 162; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; John Doe v. Ontario (Information & Privacy Commissioner) (1992), 7 C.P.C. (3d) 33; Janigan v. Harris (1989), 70 O.R. (2d) 5; Poizer v. Ward, [1947] 4 D.L.R. 316.
Statutes and Regulations Cited
African Charter on Human and Peoples' Rights, art. 6.
American Convention on Human Rights, art. 7.
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American Declaration of the Rights and Duties of Man, arts. 1, 25.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), (b), 3 to 5 , 6 , 7 , 8 to 14 , 15 , 33 .
Child and Family Services Act, 1984, S.O. 1984, c. 55.
Child Welfare Act, R.S.O. 1980, c. 66 [rep. S.O. 1984, c. 55, s. 208], ss. 19(1)(b)(ix), 21, 27, 28(1), (6), (10), (11), (12), 30(1), 37, 41.
Children's Protection Act, R.S.O. 1927, c. 279.
Constitution Act, 1982, s. 52 .
Courts of Justice Act, 1984, S.O. 1984, c. 11, ss. 122, 141(1) [now Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 109, 131(1)].
Criminal Code, R.S.C., 1985, c. C-46, s. 126(1) .
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, art. 5(1).
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, arts. 6, 9(1).
Rules of Civil Procedure, O. Reg. 560/84, r. 57.01(1)(c), (d), (2).
Supreme Court Act, R.S.C., 1985, c. S-26, ss. 42(1) , 47 .
United States Constitution, Fourteenth Amendment.
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 3 .
Authors Cited
Bala, Nicholas, and J. Douglas Redfearn. "Family Law and the `Liberty Interest': Section 7 of the Canadian Charter of Rights" (1983), 15 Ottawa L. Rev. 274.
Colvin, Eric. "Section Seven of the Canadian Charter of Rights and Freedoms " (1989), 68 Can. Bar Rev. 560.
House of Commons Debates, 1st Sess., 32nd Parl., October 6, 1980, p. 3285.
Orkin, Mark M. The Law of Costs, 2nd ed. Aurora: Canada Law Book, 1993 (loose-leaf).
APPEAL and CROSS-APPEAL from a judgment of the Ontario Court of Appeal (1992), 10 O.R. (3d) 321, 96 D.L.R. (4th) 45, 43 R.F.L. (3d) 36, 58 O.A.C. 93, affirming a judgment of Whealy Dist. Ct. J. (1989), 14 A.C.W.S. (3d) 10, affirming an order of Main Prov. Ct. J. (1983), 36 R.F.L. (2d) 70, granting wardship of an infant to the Children's Aid Society and an order of Walmsley A.C. Prov. J. (1983), 36 R.F.L. (2d) 80, terminating the
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wardship. Appeal and cross-appeal dismissed, L'Heureux-Dubé J. dissenting on the cross-appeal.
John M. Burns, W. Glen How, Q.C., and David C. Day, Q.C., for the appellants.
Alexander Duncan, for the respondent the Children's Aid Society of Metropolitan Toronto.
Debra Paulseth, for the respondent the Official Guardian of Ontario.
Janet E. Minor and Robert E. Charney, for the respondent the Attorney General for Ontario.
Roslyn J. Levine, Q.C., for the intervener the Attorney General of Canada.
Isabelle Harnois, for the intervener the Attorney General of Quebec.
The following are the reasons delivered by
//Lamer C.J.//
LAMER C.J. -- I have had the benefit of reading the reasons of Justice La Forest and the joint reasons of Justices Iacobucci and Major. I am in agreement with them with respect to the result of this appeal. For the reasons stated by my colleagues Iacobucci and Major JJ., I agree that the impugned provisions of the Child Welfare Act, R.S.O. 1980, c. 66, now repealed, do not violate the freedom of religion guaranteed by s. 2 (a) of the Canadian Charter of Rights and Freedoms . With respect to the analysis under s. 7 of the Charter , however, I have arrived at this result for reasons that are different from those of my colleagues. More specifically, I am of the opinion that the liberty interest protected by s. 7 has not been infringed because it includes neither the right of parents to choose (or refuse) medical treatment for their children nor, more generally, the right to bring up or educate their children without undue interference by the state. While this type of liberty ("parental liberty") is important and fundamental within the more general concept of the autonomy or integrity of the family unit, it does not fall within the ambit of s. 7 .
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The Liberty Interest Protected by s. 7 of the Charter
In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 500, I clearly expressed my agreement with the opinion of Wilson J., who had said in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 205, that "it is incumbent upon the Court to give meaning to each of the elements, life, liberty and security of the person, which make up the `right' contained in s. 7 ". However, in analysing the rights protected by s. 7 of the Charter , this Court has often taken an exclusionary approach or has preferred to refrain from expressing an opinion as to the scope of the rights protected and has instead concluded that the impugned legislation complied with the principles of fundamental justice. Although the question in the case at bar could also be disposed of, as Tarnopolsky J.A. of the Court of Appeal did ((1992), 10 O.R. (3d) 321), by holding simply that, assuming that the type of liberty claimed by the appellants is protected by s. 7 of the Charter , the impugned statute does not violate the principles of fundamental justice, nevertheless I believe that it is necessary, having regard to the opinion expressed by my colleague La Forest J., to take time to consider the nature of the liberty interest which, in my view, is constitutionally protected in the context of s. 7 of the Charter .
With the exception of certain remarks by Wilson J., this Court has never really, up to this point, examined the concept of liberty in s. 7 except in close connection with the context of the criminal or penal law, by which the state takes action, through the courts or other agencies, to create or punish offences or, more generally, to exercise coercive power over certain human activities.
In R. v. Jones, [1986] 2 S.C.R. 284, the appellant, a pastor of a fundamentalist church, educated his children and others in a school program operating in the church basement. He had refused both to send his children to public school and to seek an exemption as required by the Alberta School Act. He was charged with several counts of truancy, an offence for which the Act provided for punishment
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by imprisonment in default of payment of the prescribed fine. The appellant ar