Supreme Court to rule on rights of “mature minors”

Janice Tibbetts , Canwest News Service

Published: Monday, May 19

OTTAWA — When she was almost 15, a hospitalized teen from Winnipeg was apprehended by child welfare authorities and forced against her religious beliefs to undergo a blood transfusion that she compared to “being raped and violated.”

The surgery kicked off an intense legal dispute that reaches the Supreme Court of Canada Tuesday in a test of the rights of “mature minors” to make their own decisions when stacked against the competing interest of the state in protecting children.

Legal clashes over court-ordered blood transfusions and other medical treatments have played out nationwide and the Supreme Court’s judgment in the case is expected to set a standard on when children are considered capable of making their own calls.

The girl, a Jehovah’s Witness identified as A.C., is now almost 17 years old, has moved to Ontario and plans to attend Tuesday’s hearing.

She is described in a court document as a top, award-winning student who is bilingual, loves to read Jane Austen and John Grisham, and suffers from Crohn’s disease, a chronic, incurable disease that inflames the intestinal tract.

“The central issue on this appeal is whether A.C. has the legal right to make autonomous medical treatment decisions,” says a written court brief from her legal team.

Two years ago, A.C. was admitted to hospital to be treated for bleeding of her bowel. After she refused a transfusion because it is forbidden in her religion, her doctor tipped off Winnipeg Child and Family Services, who immediately apprehended her from her parents, who are also Jehovah’s Witnesses.

Child welfare authorities obtained a judge’s approval for a transfusion after satisfying him that A.C. was in immediate danger of death or serious injury.

A.C. contends that children’s services did not have the “right or obligation ” to interfere, just as her parents did not have the right because she had the capacity to make her own decision.

“Having someone else’s blood pumping through my veins, stressing my body, caused me to reflect on how my rights over my body had been taken away by a judge who did not care enough to talk with me,” she wrote in a 2006 affidavit filed in the Supreme Court.

“That day, my tears flowed non-stop. Nothing can properly describe how I was feeling and still feel today. I could liken it to being raped and violated but even those words do not express my feelings strong enough.”

A.C. says she had the right to pursue other medical treatment that respected her religious conscience, including iron pumped into her body intravenously to help it produce red blood cells.

She wants the Supreme Court to rule that the government violated her charter rights to equality, religious freedom, and life, liberty and security of the person and that Manitoba’s child welfare law, applying to all children under age 16, is therefore, unconstitutional. The case no longer affects A.C. personally because she is no longer a minor.

Unlike some provinces, Manitoba does not make exceptions for “mature minors” — older children who are deemed capable of understanding the nature and consequences of their medical decisions.

A.C.’s lawyers say that Ontario, Nova Scotia, Prince Edward Island, Newfoundland and Labrador and the Yukon all permit capable persons of any age to decided their own medical treatment without state interference.

The Manitoba government and Child and Family Services want the Supreme Court to view the case through the lens of the “best interests of the child” and reinforce a 1995 benchmark ruling that ordered a blood transfusion for a Toronto toddler, against the wishes of her Jehovah’s Witness parents.

“Age as a prerequisite for the ability to make important decisions is a pervasive feature of the law throughout Canada,” government lawyers wrote in a court submission.

“These distinctions are based on the common sense appreciation that there is a correlation between age and maturity in decision making, particularly where decisions may have irreversible consequences.”

Alberta, British Columbia and Nova Scotia are intervening in the case on Manitoba’s side.

A.C. is bringing the case to the Supreme Court after losing in the Manitoba Court of Appeal.

One of her lawyers, Shane Brady, also represented the parents of four Vancouver infants – the survivors of a set of sextuplets – in a failed court challenge two years ago against them receiving blood transfusions.

There have been other high-profile cases of Jehovah’s Witness teens who have unsuccessfully challenged blood transfusions, but this is the first time the Supreme Court has decided to weigh in on the issue.

In 2001, 16-year-old Bethany Hughes of Calgary refused to undergo blood transfusions because of her faith. After receiving 38 transfusion, she died of leukemia in September 2002, sparking a court battle between her father and the Jehovah’s Witnesses.

Three years ago, a B.C. Supreme Court judge ruled against a 14-year-old Jehovah’s Witness decision to refuse life-saving blood transfusions. The teen suffered from a potentially fatal form of bone cancer and the court said that the rights of a mature minor to make her own medical decisions did not trump the court’s authority to protect her life and safety.

In another more recent case, an 11-year-old boy from Hamilton, Ont., was apprehended by the Children’s Aid Society this month and is being forced to undergo chemotherapy against him and his family’s wishes, after a judge ruled that the child is not capable of understanding the implications of his refusal.


Children, transfusions and religious rights: Wading back into the debate

February 25th, 2008

by Jon Bricker

To what extent can sincerely held religious belief justify the denial of medically necessary treatment to a sick child? The question has dogged the legal and healthcare communities for years. Canadian courts have issued dozens of rulings. Legislatures have responded with rules that attempt to balance religious rights with child protection. Even the medical community has responded with new, less invasive treatments that purport to reduce the likelihood for such conflicts.

And yet, the debate continues. In January, a British Columbia court heard Charter arguments from the parents of sextuplets, four of whom received blood transfusions over their parents’ objections after the children were born prematurely last year. And last summer, the Alberta Court of Appeal gave a Calgary father the go-ahead to pursue a civil claim against lawyers for the society that represents Jehovah’s Witnesses in Canada. The suit alleges that the lawyers advised Bethany Hughes to refuse blood transfusions, and thus contributed to the death of the leukemia-stricken 16-year-old. (Ed. note: Bethany Hughes ultimately received several court-ordered transfusions. She died in spite of these.)

Now, the Supreme Court has decided to wade in, as well. The SCC has recently granted a Winnipeg teen’s request for leave to appeal a Manitoba Court of Appeal decision, which upheld a blood transfusion order issued over the teen’s objections. The SCC is scheduled to hear A.C., et al. v. Director of Child and Family Services (Manitoba) on May 20.

Facts & Trial Decision

The appeal involves A.C., a 14-year-old when the case began. After severe gastrointestinal bleeding linked to Crohn’s Disease, A.C. was admitted to the hospital in April, 2006. Following a second bleed, and a determination that her hemoglobin count was dangerously low, doctors sought consent to administer a blood transfusion. A.C. and her parents refused consent on grounds they were Jehovah’s Witnesses, and subscribed to an interpretation of the bible which forbade the ingestion of blood. Doctors subsequently contacted the Director of Child and Family Services, who apprehended A.C. and promptly sought a court order for a transfusion.

At the hearing, the court heard testimony from A.C.’s father, her doctor, and a social worker. It also heard evidence related to A.C.’s own wishes, including an advance medical directive executed by A.C., in which she indicated that she would not consent to a transfusion. The court nonetheless ordered a transfusion, concluding that this would be in A.C.’s “best interests”; the standard established by s. 25(8) of Manitoba’s Child and Family Services Act, which governs non-consensual treatment of children under 16. (By contrast, the legislation provided that children 16 and over should have their treatment decisions respected.) Following the ruling, A.C. received a blood transfusion. Her temporary wardship also eventually expired. Nonetheless, she appealed to the Manitoba Court of Appeal, which issued its ruling in February, 2007.

Court of Appeal

The Court of Appeal unanimously upheld the trial court’s decision. First, it rejected arguments that the Manitoba’s legislation did not apply, and that A.C.’s case should have instead been decided under the common-law “mature minor” rule.

Next, the court considered A.C.’s principal Charter argument &mdash: that Manitoba’s legislation infringed ss. 2(a) (freedom of conscience and religion) and 7 (life, liberty and security of the person) of the Charter. Although the court dealt with each provision separately, the two analyses closely resemble one another.

The court readily acknowledged that the legislation engaged A.C.’s s. 7 interest in security of the person, and that it infringed her section 2(a) rights. It proceeded to find, however, that the imposition of medical treatment in this case was both in accordance with the principles of fundamental justice, and justified as a reasonable limit on A.C.’s rights. According to the court, the legislation reflected the state’s interest in child-protection and the sanctity of life. And while the legislation no doubt interfered with personal autonomy, it was carefully crafted to minimize this interference. While the legislature had not guaranteed that the wishes of children under 16 would be respected, it nonetheless took their wishes into account, and in so doing, turned its mind to the question of the “mature minor.” Further, the legislative scheme provided children and their parents with ample procedural protections, and ample opportunity to have their concerns heard.

The court similarly dismissed suggestions that the legislative scheme discriminated on the basis of age, contrary to s. 15 of the Charter. Although the scheme clearly provided for differential treatment, and did so on the basis of an enumerated ground, A.C. failed to demonstrate that the scheme had the purpose or effect of denying human dignity. On the contrary, the court likened the case to Gosselin v. Quebec, [2002] 4 S.C.R. 429 and Canadian Foundation for Children, Youth and the Law, [2004] 1 S.C.R. 76, in which the impugned schemes were found to correspond to the unique “needs and circumstances” of young people.


This is not the Supreme Court’s first foray into this debate. In B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 (aka “Sheena B.”), the SCC dismissed arguments from a Toronto couple who claimed their Charter rights were violated when their infant daughter received a court-ordered blood transfusion over their religious objections.

However, A.C. is distinguished from Sheena B. in several respects. Most important among these differences, while the focus in Sheena B. was on the rights of parents, the focus in A.C. is squarely on the child’s own right to refuse treatment to which she herself objects.

the real action at the Supreme Court will almost certainly be at the justification phase of the justices’ analysis.
In turn, this distinction has several implications. First, it means the real action at the Supreme Court will almost certainly be at the justification phase of the justices’ analysis. In Sheena B., although they unanimously dismissed the parents’ claim, the justices were divided as to reasons for doing so. The justices split 5-4 over whether the parents’ s. 2(a) rights had been violated, and 4-4 over whether their s. 7 liberty interests were engaged. On both issues, four justices found no violation, and thus, no need to proceed to justification. Their opinions make clear, however, that these justices were solely concerned with whether parents could assert Charter rights so as to jeopardize the health of a child too young to make her own treatment decisions. But given a child old enough to make such decisions and assert her own Charter rights, the Sheena B. justices all seem to suggest that they would have found a Charter violation, and proceeded directly to justification. Indeed, this may help to explain why, in A.C., Manitoba’s Director of Child and Family Services conceded both a s. 2(a) violation, and that A.C.’s liberty interest was engaged.

Second, the presences of a child claimant means the justices can consider something not considered in Sheena B. — namely, whether the impugned legislative scheme infringed s. 15 of the Charter. At first glance, a dismissal of A.C.’s equality arguments would seemingly be consistent with Gosselin and Canadian Foundation, in which the SCC suggested that differentiation based on age (and in particular, youth) was less likely than differentiation based on other grounds to compromise human dignity. However, A.C. could arguably be distinguished from those cases — for example, on grounds it involves additional Charter violations, which are not present in those cases, and which have significant potential to influence the human dignity analysis. If the Supreme Court does find a way to distinguish A.C., the ruling would likely be welcomed by youth advocates, some of whom have expressed concern about the implications of Gosselin and Canadian Foundation for the future of age-based discrimination claims.

[filed: Constitutional law Children Charter of Rights and Freedoms A.C. (2008)]

© Osgoode Hall Law School


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