Bethany Hughes appeal: The Judge's Reasoning (page 2)

Here is the judges report of the initial case.

Keep in mind that this one came before the report quoted above.

Expatbrit

Alberta (Director of Child Welfare) v. B.H., 2002 ABPC 39

Date: 20020315

File: N21619

IN THE PROVINCIAL COURT OF ALBERTA

BETWEEN:

(Alberta) The Director of Child Welfare

- and -

B.H.

JUDGMENT OF THE HONOURABLE JUDGE KAREN J. JORDAN

COUNSEL:

For the Director of Child Welfare: B. Bauer, Ms.

For the Child B.H.: D. Gnam, Esq.

For the Mother: D. Gnam, Esq.

For the Father: B. Calvert, Esq.

[1] On February 15, 2002 I attended at the Alberta Children=s Hospital and held a hearing pursuant to the Child Welfare Act, R.S.A. 2002, c. C-12 [the Act]. The Director was seeking an apprehension order and a medical treatment order in respect of B.H., age 16. After several hours of evidence the child=s father provided a consent to treatment. No order was granted. On February 18, 2002 I attended at the hospital again because the Director was renewing its application. Although the consent by the father was still in effect, the child was refusing recommended treatment which required a blood transfusion. The hospital and the physicians would not treat her in the face of that refusal. They were of the opinion that she was a mature minor, entitled to refuse treatment. A hearing was held and the requested orders were granted. I stated that reasons would follow. These are those reasons.

[2] B.H. is 16 years old. She is a baptized member of the Jehovah=s Witnesses church. On February 13, 2002 she was diagnosed with Acute Myeloid Leukemia (AML). With the support of her parents, she advised the medical professionals at the Alberta Children=s Hospital that she would not consent to a blood transfusion or the administration of blood products.

[3] Late on February 14, 2002, the diagnosis of leukemia was made more specific in that it was identified as Sub-Type M-1. The recommended course of treatment is four intensive courses of chemotherapy. The chemotherapy has to be supported by blood transfusions and the administration of blood products because the chemotherapy destroys all the healthy blood cells as well as the cancerous ones. The transfused blood and blood products replace the blood cells which have been destroyed until the patient begins producing her own blood cells again. Although some drugs can be used in the treatment of AML which do not destroy the healthy blood cells, those drugs are not curative. The only curative treatment is chemotherapy which destroys all or the vast majority of blood cells. That treatment has a success rate in paediatric patients of 40 to 50 percent and 50 to 65 percent if the treatment includes a bone marrow transplant.

[4] The treating physician is Dr. Max Coppes. He is the head of the Oncology Department at the Alberta Children=s Hospital and is a Professor of Oncology and Paediatrics at the University of Calgary Medical School. On February 15, 2002, Dr. Coppes consulted with various other physicians across North America about treatment for the child, including Drs. Arceci and Weinstein. They are the two leading experts in the field. Dr. Arceci is the leading authority in North America on the treatment of AML. He also consulted three other physicians at the request of the family. None was a specialist in the treatment of AML. Dr. Forman is a paediatric oncologist. Dr. Ford is an adult oncologist. Dr. Probe appears to be a haematologist or an oncologist.

[5] Dr. Coppes= purpose in consulting in these physicians was to have the following questions answered:

1. Is the treatment he has used in the recent past on other patients with the same diagnosis the best treatment available for B.H?

2. Is his information about survival rates accurate?

3. Can the proposed therapy be given without blood products?

4.Was he missing any alternative treatments?

[6] There was no dissent in the answers given: the proposed treatment was the best treatment option, the survival rates he relied on were accurate, the treatment could not be administered without blood products, and he was not missing any reasonable treatment options.

ISSUES (NON-CHARTER)

[7] The arguments presented by Counsel for B.H. centre on his assertion that she is a mature minor and that this Court does not have jurisdiction to interfere with the decision she has made to refuse treatment.

1.The Court has no jurisdiction to grant the requested apprehension and a medical treatment order because the father has provided his consent to the treatment. He cannot rely on the provisions of the Child Welfare Act to force his daughter to have medical treatment which she has refused.

2. B.H. is a mature minor who has made a decision to refuse treatment. She is, therefore, not a child in need of protection, and the Child Welfare Act is not applicable to this matter.

[8] The second issue as framed by Counsel for B.H. requires an examination of whether the child is a mature minor capable of refusing medical treatment.

CHARTER ISSUES

1. Does the granting of apprehension and medical treatment orders in these circumstances infringe B.H.=s rights as defined in ss. 2, 7, and 15 of the Canadian Charter of Rights and Freedoms?

2. If any of B.H.=s Charter rights have been infringed, I find that I must determine if such an infringement is a reasonable limit, demonstrably justifiable in a free and democratic society.

ANALYSIS

NON-CHARTER ISSUES

[9] Counsel for the child argues that the father has recourse other than proceedings pursuant to the Child Welfare Act. He can, for instance, challenge the designation of his daughter as a mature minor by the physicians in the Court of Queen=s Bench. He can bring applications to compel the physicians to act upon his direction and to hold them accountable if they do not. Counsel for the child is of the view that the father is using the processes of the Child Welfare Act to preserve his rights as a parent. All these issues can, Counsel asserts, be dealt with in the Court of Queen=s Bench of Alberta. I find that he implies that these matters should be dealt with in that Court. He goes on to argue that because these various remedies can be pursued in the Court of Queen=s Bench, the Provincial Court of Alberta has no jurisdiction to deal with the matter.

[10] This application was commenced pursuant to ss. 19 and 22 of the Child Welfare Act.

S. 1(1)(g) ACourt@means the Provincial Court

S. 1(2) For the purposes of this Act, a child is in need of protective services if there are reasonable and probable grounds to believe that the survival, security or development of the child is endangered because of any of the following (Emphasis Mine):

.....

(c) the guardian of the child is unable or unwilling to provide the child with the necessities of life, including failing to obtain for the child or to permit the child to receive essential medical, surgical or other remedial treatment that has been recommended by a physician.

S. 19(1) If a director has reasonable grounds and probable grounds to believe that a child is in need of protective services, the director may bring an ex parte application to a judge of the Court, or if no judge is reasonably available, to a justice of the peace, for an order

(a) authorizing the director to apprehend the child

S. 22(2) If the guardian of a child who has been apprehended refuses to consent to essential medical, surgical, dental or other remedial treatment for the child that has been recommended by a physician or dentist, the director shall apply to the Court for an order authorizing the treatment.

(5) If it is satisfied that the treatment is in the best interests of the child, the Court may authorize the treatment notwithstanding that the guardian of the child refuses to consent to the treatment. (Emphasis Mine)

[11] I am satisfied that the proceedings in this matter have been properly commenced under the Child Welfare Act by the Director of Child Welfare. They have not been commenced by the child=s father; indeed they cannot be commenced by anyone other than a Director of Child Welfare.

[12] Part 3 of theAct, under which this application was commenced, is a statutory scheme providing for the protection of children whose parents are unable or unwilling to protect them. It creates a cause of action which can be utilized by the state for the purposes defined in the Act. To suggest that this application is an attempt to preserve the rights of the child=s father is to ignore the purpose of the legislation.

[13] I cannot find anything in these circumstances which goes to the question of the jurisdiction of the Court.

[14] I am satisfied not just on the usual civil standard, but beyond a reasonable doubt, that this child is in grave danger. The recommended treatment is clearly essential medical treatment. Without it she will die, sooner rather than later. Her survival is endangered within the meaning of S. 1(2)(c). One guardian (her father) is unable to obtain essential medical treatment for the child and the other guardian (her mother) is unwilling to obtain that treatment.

[15] The Child Welfare Act is clearly applicable to the matter before the Court. There is no subterfuge. The fact that Mr. H. has tried to provide the medical treatment required for his daughter does not oust the jurisdiction of this Court.

[16] The jurisdiction of the Provincial Court of Alberta in this matter is beyond question. In by-gone days the superior courts of this country were empowered to deal with children by virtue of their Parens Patriae jurisdiction. Whether or not that jurisdiction would have included the exclusive power to make orders of the type applied for in this application was not argued but I note that at the time of Confederation when the British North America Act was passed, no one had envisaged medical treatment orders. Legislation dealing with the protection and welfare of children began to appear in this country in the early part of the 20 th century. When certain powers relating to theses issues were vested in the statutory courts they were, of course, challenged. The result was the Reference as to Constitutionality of the Adoption Act, The Children=s Protection Act, The Deserted Wives= & Children=s Maintenance Act, (1938) 71 C.C.C. 110 (S.C.C.) in which Duff, C.J.C. stated at p.131,

AComing to the Children=s Protection Act ... With great respect I am unable to perceive any ground upon which it can be validly affirmed that magistrates exercising jurisdiction under this statute are entering upon a sphere which, having regard to legal history, belongs to the Superior Courts rather than to Courts of summary jurisdiction; or that in exercising the functions attributed to them by this legislation they come within any fair intendment of S. 96.

[17] This Court takes strenuous objection to the suggestion that this matter is more properly dealt with in the superior courts when the Legislature of the Province of Alberta has clearly stated that matters of this nature are to be dealt with by the Provincial Court. It matters not that the Court of Queen=s Bench has the jurisdiction to deal with various other remedies which may be available to Mr. H. Jurisdiction in child protection matters in Alberta has been defined by the Legislature and it resides in this Court.

2. B.H. is a mature minor who has made a decision to refuse treatment. She is, therefore, not a child in need of protection, and the Child Welfare Act is not applicable to this matter.

[18] Counsel presupposes that B.H. is a mature minor. She is bright, articulate, and thoughtful. She is a good student. She attends church and church activities several times a week. She participates in the evangelical activities of the church. None of this controverted. At least two physicians, members of the Bio-Ethics Committee at the University of Calgary Medical School, have decided she is a mature minor with the capacity to refuse medical treatment.

[19] I am not bound by the findings of the members of the Committee or any other physicians. Such findings and opinions are evidence which I must consider but the question is a legal one - not a medical one. I find that B.H. is not a mature minor with the capacity to refuse medical treatment which is necessary to save her life.

[20] The evidence, above, as to B.H.=s maturity is not the only evidence on the issue nor is it the most compelling. B.H.=s father believes that B.H. is not mature enough to make the decision to die. I do not accept any other interpretation of her decision. It is not just a decision to refuse medical treatment; it is a decision to die.

[21] Mr. H. believes that B.H. does not understand what it is to die. He described her as child-like in some ways. Dr. Corrine Saunders agrees with Mr. H. Dr. Saunders is the paediatric support physician for B.H. It is her job to provide all the medical support services which will keep B.H. alive following chemotherapy. This includes the blood transfusions. She was qualified to give evidence as an expert in the field of paediatric medicine. She obtained her medical degree in 1982 and her paediatric speciality in 1986. She has worked in the field ever since, She is the physician who examined B.H. when she was admitted to the hospital and who has had the most contact with the child. Dr. Saunders gave the most detailed evidence of any of the witnesses concerning B.H.=s level of maturity. It was not an easy task for her and she struggled to express herself, to ensure that her descriptions were fair and accurate. I find that they were. It is her evidence which is most persuasive in this matter.

[22] Dr. Saunders described B.H. as having a sophisticated grasp of what she was facing. She had come to that level of understanding through the teachings of her church. She went on to say that she does not believe that B.H. understands on an experiential level what it is to die. She has never endured the death of a child she is close to or even a close family member. Dr. Saunders was clear in her description of the gulf between the dying process and watching death from the sidelines. She acknowledged that adults are caught in this same experiential gulf. She also described B.H.=s behaviour on the medical unit. (Pages 97-98 of the transcript.)

A...she=s fine. She doesn=t seem too scared though, which surprises me. You know, she=s quite jolly, I hear some laughing in there. But you know I can=t judge that. Everybody=s different and she has a lot of support from friends and family. I don=t think it=s sunk in, because it never does, it takes weeks, it=s a process of grief. Once you=ve sort of, had your life taken away from you because a doctor says you have leukemia and you could die. That sets in a process, a grief reaction that takes weeks to unfold. Months, years.@

At page 101, Dr. Saunders continued,

AI think she hasn=t had time or the disease has also not progressed to a frightening point where she feels physical vulnerability. I think she feels emotional vulnerability adds [sic] strength in her beliefs. So I think she=s quite supported by her beliefs and faith, but she struck me as a child who=s very nourished by her faith in God, in her religion, but I don=t think she is old enough or has experienced enough of ill health to experience the vulnerability and the moral questioning that goes along with not coming from a strong point of views. So I think that she hasn=t got close to death yet in her physical body, so I don=t think she would really know how she would react to that.@

At page 103-104 she states,

A... I think B.H. is an imaginative child who has a very developed intellectual capacity. But who strikes me as quite young and not immature, but more childlike than other adolescents of her age. Which is actually her most charming feature.

AAnd I would be concerned that her childlike beliefs that are not tempered by life=s experiences and the complexities of theological argument and investigation, would mean that she=s being guided by her faith that is appropriate for her development level.

AAnd if I gave 20 years of life in an instant, would she look back and question her belief. As most of us look back to our adolescence and question what we believed then and what we believe now.

AThe other thing that=s operative with B.H. is the almost universal adolescent belief in their own [im]mortality ...I mean, I think we all know about that and it=s expressed in different ways. But it would certainly come out in the belief that I can=t possibly die so I=m not worried about not accepting transfusions. I mean, that=s too simplistic, but I don=t think she knows what it=s like to die and that worries me ...she did tell me, she did not want to die. Spontaneously, when she was alone with me and she broke into tears ... she wanted me to treat her and to help her and to give her everything except blood transfusions.@

[23] I find that Dr. Saunders has serious reservations about whether B.H. is a minor of a sufficient level of maturity to make the decision to refuse medical treatment which is necessary to prevent her death (acknowledging that even the treatment may not cure her).

[24] I have also considered the milieu in which B.H. has been taught that she must not accept blood transfusions. She has been raised in the Fellowship of Jehovah=s Witnesses since she was an infant. She has never known anything else. She has participated actively in her religious community to such an extent that I find that she has lived a sheltered life. Her father described this. She has never been exposed to any other religious teachings. The evidence given by Mr. H. at pages 295-296 satisfies me that religious teachings provided to B.H. concerning blood transfusions have been dogmatic. Adherents to the faith do not question dogma or examine other points of view. (That form of dogmatic teaching is an integral part of most religious teaching; it is not unique to the teachings of the Jehovah=s Witnesses. Those other faiths are not, however, being examined here.)

[25] I find that B.H. has not had the life or developmental experience which would allow her to question her faith and/or its teachings and that such experience is an essential step in arriving at a personal level of development such that she can be considered to be a mature minor who has the capacity to refuse medical treatment which is necessary to save her life. Intelligence, thoughtfulness, exemplary behaviour and notable academic achievement are not sufficient when the magnitude of the decision faced by a 16 year-old involves a certain risk of death.

[26] Having considered the evidence of B.H., her mother, A.H., her father, L.H. and Dr. A.C. Saunders as well as hearing evidence as to the opinion of the Bio-Ethics Committee on this issue I find that B.H. is not a mature minor with the capacity to refuse medical treatment that is necessary to save her life.

[27] I have examined the issue of whether B.H. is a mature minor because that is important to her well-being but that finding is not essential to the disposition of this matter. It is not a central issue. In this decision I rely on the decisions of Ward, J. in Re E (A Minor), [1993] 1 F.L.R. 386. The facts were very similar to those in this case. He stated,

A I find that A. is a boy of sufficient intelligence to be able to take decisions about his own well-being, but I also find that there is a range of decisions of which some are outside his ability fully to grasp their implications. Impressed though I was by his obvious intelligence, by his calm discussion of the implications, by his assertion that he would refuse well knowing that he may die as a result, in my judgment A. does not have a full understanding of the whole implication of what the refusal of that treatment means.@

[28] He went on later to say,

AHe is of an age and understanding at least to appreciate the consequences if not the process of his decision, and by reason of the conviction of his religion, which I find to be deeply held and genuine, says NO to a medical intervention which may save his life. What weight do I place upon this refusal? I approach this case telling myself that the freedom of choice in adults is a fundamental human right. He is close to the time when he may be able to take those decisions. I should therefore be very slow to interfere. I have also to ask myself to what extent is that assertion AI will not have a blood transfusion@, the product of his full but his free informed thought? Without wishing to introduce into the cases the notions of undue influence, I find that the influence of the teachings of the Jehovah=s Witnesses is strong and powerful. The very fact that this family can contemplate the death of one of its members is the most eloquent testimony of the power of the faith. He is a boy who seeks and needs the love and respect of his parents whom he would wish to honour as the Bible exhorts him to honour them. I am far from satisfied that at the age of 15 his will is fully free. He may assert it, but his volition has been conditioned by the very powerful expressions of faith to which all members of the creed adhere. When making this decision, which is a decision of life or death, I have to take account of the fact that teenagers often express views with vehemence and conviction - all the vehemence and conviction of youth! Those of us who have passed beyond callow youth can all remember the convictions we have loudly proclaimed which now we find somewhat embarrassing. I respect this boy=s profession of faith, but I cannot discount at least the possibility that he may in later years suffer some diminution in his convictions. There is no settled certainty about matters of this kind.@

[29] As for the 2nd issue, supra, Counsel for the child is placing the cart before the horse. He wishes to establish first that his client is a mature minor who has decided to refuse treatment. His second step is to examine whether she is a child in need of protection. This application has, however been commenced pursuant to specific legislation. The correct method of proceeding is to determine if the child falls within the ambit of the legislation. If she doesn=t there are no further steps to be taken. If she does, then and only then, can there be an examination to determine whether she should be excused from the application of the legislation for some reason.

[30] I am satisfied that B.H. falls squarely within the definition of a child in need of protection as defined in the Child Welfare Act.

S. 1(1)(d) Achild@means a person under the age of 18 years

.....

[31] B.H. is under the age of 18. She will soon die if she does not receive the recommended medical treatment. One guardian is unable to provide her with essential medical treatment while the other guardian refuses to provide her with that treatment. In the Province of Alberta it is irrelevant that a child who comes within the definition of a child in need of protective services because her guardians cannot provide or refuse to provide essential medical treatment, may come within the definition of Amature minor@ as used in other circumstances. That concept has been superseded in Alberta by the Child Welfare Act in circumstances where that Act is applicable - circumstances such as the ones before the Court in this application.

[32] The case law governing this application is the decision of Clarke, J. in C.U. v. McGonigle, [2000] A.J. No.1067, Alberta Court of Queen=s Bench, Edmonton, September 8, 2000. That decision is binding on this Court.

[33] C.U. was a 16 year-old member of the Jehovah=s Witness Church. She required urgent medical treatment including a blood transfusion. When she was admitted to the hospital the admitting physician told her that she would die if she did not have a blood transfusion. When she refused the blood transfusion the hospital contacted the Director of Child Welfare. The Director obtained a judicial order for apprehension and medical treatment the same day. That order was appealed to the Court of Queen=s Bench of Alberta. The issues on appeal were twofold:

1. Is a Mature Minor entitled to refuse medical treatment without regard to the provisions of the Child Welfare Act?

2. If the Child Welfare Act applies should the Mature Minor=s decision govern?

In his decision Clarke, J. stated at paragraph 29,

A1. While the common law principle of a mature minor exists in Alberta it is superseded by the Child Welfare Act when treatment is refused in circumstances covered by the Child Welfare Act.

2. Where treatment is refused in circumstances covered by the Child Welfare Act, [the Act] is a complete code and occupies the whole field of law in that area.

3. A mature minor=s rights [sic] when refusing treatment are entitled to be considered as set out in s. 2(d) of the Child Welfare Act.

[34] Counsel for the child asserts that this case is no longer good law in Alberta because subsequent cases have held that the concept of mature minor still forms part of the common law of this province. His submission is undoubtedly true in situations which do not involve children in need of protective services, but I find that the cases he relies on do not support the proposition that the common law prevails over the Child Welfare Act.

[35] Chmiliar v. Chmiliar, [2000] A.J. No.838, Moen, J., Alberta Court of Queen=s Bench of Alberta, June 22, 2001 dealt with an application by a father for an order directing that his children be vaccinated. It was private litigation. Moen, J. found that the concept of a mature minor forms part of the law of this province. This case is not applicable to the matter before the Court. The Applicant was the father of the child. The Respondent was mother of the children whom the father sought to have vaccinated. No child protection concerns were involved. The Child Welfare Act was not invoked. The state was not involved in any way.

[36] Similarly Van Mol v. Ashmore, [1999] 6 W.W.R. 501 (B.C.C.A.) is not applicable to this matter. Van Mol was an action in negligence against a doctor who had treated the 16 year-old plaintiff. The discussion of mature minor in that case centered on the physician=s duty to obtain an informed consent from a child who had the capacity to give consent. It was not a child protection case.

[37] Walker (Litigation Guardian of) v. Region 2 Hospital Corp., (1994) 4 R.F.L.(4th) 321 (N.B.C.A.) does not assist in this manner advocated by Counsel for B.H. A 15 year-old boy was diagnosed with acute myeloid leukemia. He was a Jehovah=s Witness and refused to accept blood transfusions. The hospital applied for an order that the child be declared a mature minor capable of giving his own consent to have any blood transfusions or blood products form part of his medical treatment. The application was pursuant to the Medical Treatment of Minor=s Act , S.N.B. 1976, c.M-6.1.The Court of Queen=s Bench of New Brunswick, having heard that the doctors would not administer a blood transfusion or blood products unless the boy consented, considered the boy to be in danger and granted the Minister of Health parental rights in regard to the proper medical treatment of the child.

[38] On appeal, Hoyt, C.J.N.B. reiterated the common law position that a mature minor maintains the legal capacity to consent to his or her own medical treatment. He found that the Medical Treatment of Minors Act is determinative. If a child who refuses treatment is found to be a mature minor within the meaning of the legislation, the matter is closed. As such there is no room for a Court in New Brunswick to exercise its parens patriae jurisdiction in these situations. This case does not support Counsel=s position that B.H. as a mature minor, is entitled to make her own decision regardless of the application of a statute which says otherwise. It does, however, support the position of Clarke, J. in C.U. v. McGonigle that legislation which occupies the field supersedes the common law.

[39] The only case referred to by Counsel for B.H. which relates to the issue of whether the Child Welfare Act governs these proceedings is Walker. The other cases would assist if the issue was as framed by Counsel. As stated above I do not accept that as the issue to be determined in this matter.

[40] Counsel for the child asserts in support of his position that the Child Welfare Act does not govern these proceedings that there is a presumption against the implicit alteration of the common law. He relies on the Supreme Court of Canada decision in Goodyear Tire and Rubber Co. [1956] S.C.R. 610 at page 614:

AIn like circumstances, the construction of this subsequent enactment Section 57 is subject to the rule that a legislature is not presumed to depart from the general system of law without expressing its intention to do so with irresistible clearness, failing which the law remains undisturbed.@

[41] I do not accept the submission of Counsel that because there is no express language in the Child Welfare Act that specifically overrides the right of a person capable of making her own decision that the Act cannot be interpreted as having done exactly that. I find that the words of the Act are sufficiently clear to alter the common law.

[42] I agree with Clarke, J. that the Act is a complete code of procedure concerning matters which fall within its ambit. Lipton, J. arrived at the same conclusion in D.N. v. Alberta (Director of Child Welfare) A.J. No.935, Alberta Provincial Court, Family Division, Calgary, June 25, 2001. To find otherwise would be to create chaos. I do not normally subscribe to Afloodgates theories@but I find there is no other safe conclusion when I consider the Child Welfare Act.

[43] The Act addresses many child protection issues: support agreements; custody agreements; permanent guardianship agreements; termination of permanent guardianship agreements, access and maintenance agreements; apprehension orders; interim custody and access orders; supervision, temporary and permanent guardianship orders; secure treatment orders; joint guardianship orders and access orders following the granting of permanent guardianship orders; and maintenance orders in respect of children in the cate of the Director.

[44] Only the Director of Child Welfare may enter into an agreement or bring an application for an order as described above. If the Act is not a complete code of procedure as it relates to child protection what is to stop any member of the public from bringing an application for an order in the nature of mandamus to compel the Director to take a child into care or to enter into an agreement or to apply for a secure treatment order? The Legislature has clearly determined what falls within the ambit of the Act. There are certain parts of that legislative scheme which many people criticize. In particular B.H. feels ill-used and violated by her inclusion within that scheme. But it remains for the legislature to change it.

[45] The second step in this process is to examine whether there is any reason to exempt B.H. from the application of the Act.

[46] Counsel for the child relies on the decisions of the Supreme Court of Canada in Winnipeg Child and Family Services North West Area v. D.F.G., [1997] 3 S.C.R. 925 and the Alberta Court of Queen=s decision in Chmiliar v. Chmiliar, supra, to establish that the Director, once a child has been apprehended, merely steps into the shoes of the parents. The Director has no more rights than a parent would have. The Director cannot then override the decision of a child who is capable of making her own decision to accept or refuse medical treatment.

[47] I find that these decisions when read together, do not stand for the proposition that this Court, having apprehended the child, has no jurisdiction to override the decision of the child. The various cases which rely on the common law doctrine are not helpful in this analysis.

[48] Counsel for B.H. relied on two statements of law quoted with approval in Walker. He quoted the words of Cory, J. in Ciarlariello v. Schacter, [1993] 2 S.C.R. 119 at page 135:

AIt should not be forgotten that every patient has a right to bodily integrity. This encompasses the right to determine what medical procedures will be accepted and the extent to which they will be accepted. Everyone has the right to decide what is to be done to one=s own body. This includes the right to be free from medical treatment to which the individual does not consent.@

Cory, J. cited with approval the remarks of Robins, J.A. in Fleming v. Reid (1991), 82 D.L.R. (4 th 298 (Ont, C.A) at page 309-310:

AThe right to determine what shall, or shall not, be done with one=s own body, and to be free from non-consensual medical treatment, is a right deeply rooted in our common law. This right underlies the doctrine of informed consent. With every (sic) limited exceptions, every person=s body is considered inviolate, and, accordingly, every competent adult has the right to be free from unwanted medical treatment....@ (Emphasis mine).

[49] Ciarlariello was a tort action against a physician brought by the Estate of Giovanna Ciarlariello, Deceased. Mrs. Ciarlariello was a mature woman, not a child. The comments of Cory, J. must be read in the context of the factual background of the case. While the statements quoted are undoubtedly the law of the land as it relates to the issue of informed consent, I cannot find that Cory, J. had addressed his mind to the question of the medical treatment of minors when he described the law thus. Clearly Robins, J.A. was not considering that issue. Neither of the learned Justices was considering the issue of whether a child who has been apprehended pursuant to a child protection statute, can override the decisions of his Court-appointed guardian.

[50] The only requirement in the Child Welfare Act relating to this issue is as follows:

S. 2. A Court and all persons shall exercise any authority or make any decision relating to a child who is in need of protective services under this Act in the best interests of the child and in doing so shall consider the following as well as any other relevant matter:

(d) a child, if the child is capable of forming an opinion, is entitled to an opportunity to express that opinion on matters affecting the child and the child=s opinion should be considered by those making decisions that affect the child.

[51] The statute is clear: children shall be given an opportunity to be heard if they are capable of forming an opinion. It does not allow children to make decisions of this magnitude by themselves.

[52] Audi alter am parte is one of the requirements of fundamental justice. But neither the legislation nor the requirements of fundamental justice requires that the opinion of a child, once expressed, binds those who have a duty to make decisions affecting the child. It would be a difficult day for parents and guardians if their sixteen year-olds had an unfettered right to make every decision affecting them - curfew, going to the rave on Saturday night, not attending school.

[53] Applications for supervision orders, temporary guardianship orders, and permanent guardianship orders are part of the regular diet of this Court. Very often teenagers are opposed to those orders, on occasion certain of those teenagers has a level maturity which is notable - and he or she opposes the application. Their reasons vary, but they are genuine and heartfelt. The Courts have never considered that they are bound by the wishes of these children. Why should B.H. receive preferential treatment? Because she is ill? Because she is dying? Because she is a bright engaging thoughtful young lady? Because she has had the good fortune to be raised in an environment which fostered her development and maturity? I can see no reason why her opinion should be binding on the Court when the law that has been applied in child welfare proceedings in this province for almost twenty years is to the contrary. That is not to say that a child=s opinions never prevail - but it remains that the opinions are not binding.

[54] I find there is no reason, legal or otherwise, to exempt B.H. from the application of the Act. In making this finding I am satisfied that this is the standard of the Alberta and Canadian communities as enacted by the Legislature of the Province of Alberta regarding children in these circumstances.

CHARTER

1. Does the granting of apprehension and medical treatment orders in these circumstances infringe B.H.=s rights as defined in ss. 2, 7, and 15 of the Canadian Charter of Rights and Freedoms?

2. Does the refusal of the Court to be bound by B.H.=s decision to refuse medical treatment violate her rights as defined in ss. 2, 7, and 15(1) of the Canadian Charter of Rights and freedoms?

3. If any of B.H.=s Charter rights have been infringed, I find that I must determine if such an infringement is a reasonable limitation, demonstrably justifiable in a free and democratic society.

Canadian Charter of Rights and Freedoms

S. 2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion

S. 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

S. 15(1). Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular without discrimination based on ... age...@

[55] These same issues were considered by Clarke, J. in C.U. v. McGonigle, supra. He relied on the reasoning of Perras, J. in Harrison v. Vigeant et al, [1996] 7 W.W.R. 448. Perras, J. concluded that neither the religious rights of the parents nor their right to life, liberty and security of the person had been infringed.. He went on to say at paragraph 48, AAs well, on the material before me I am satisfied if there was an infringement of parental rights of the appellants under S. 2(a) such was justified.@

[56] These decisions are similar in their approach to the Charter issues as that taken by the Supreme Court of Canada in K.L.W. v. Winnipeg Child and Family Services [2000] 2 S.C.R. 519. I am not certain, however, that the finding that parental rights have not been infringed leads inexorably to the conclusion that a child=s rights have not been infringed. B.H.=s right to freedom of religion has been infringed but I find on the evidence before me that the infringement is justified in a free and democratic society. It is not necessary for evidence to be lead on the specific question. It can be answered by reviewing all the evidence. See, Harrison v. Vigeant, supra; and see, Director of Child Welfare (Alta.) v. K.B. (2000) 279 A.R. 328, Court of Queen=s Bench of Alberta, Calgary, Rooke, J.

[57] Freedom of religion is a precious right - and it may be even more precious to a fervent 16 year-old in the throes of her adolescent years than it is to those of us who can only look back on those years of enthusiasm. The life of a 16 year-old, however, is more precious than her right to refuse medical treatment because of her religious beliefs. I recognize that there have been times when certain individuals have become martyrs for a cause. Some of those selfless acts have assisted in the development of our present day freedoms. Such action may be admirable and even necessary today in other countries where freedoms are often trammelled. It is not necessary in Canada in the 21 st century. The Canadian Constitution and in particular the Charter of Rights and Freedoms strikes a fair and reasonable balance between the rights of individuals and the ability of the state to sometimes infringe those rights for good and proper reasons. This is one of those times.

[58] The right of the state to intervene in the life of a 16 year-old to save her life by imposing unwanted medical treatment upon her is a reasonable limitation within the meaning of the Charter even though such action infringes her right to freedom of religion and conscience.

[59] The imposition of medical treatment on B.H. is undoubtedly an infringement of her right to security of the person. I find, however, that the infringement did not offend the requirements of fundamental justice. She was given substantial notice, albeit informal, that a hearing would take place. The hearing did not take place until she had Counsel. She was given the opportunity to consult with Counsel. He participated fully in the hearing. B.H. attended at the hearing on the first evening and gave evidence. On the second night she was given the opportunity to attend but did not do so. She chose instead to make representations through her counsel.

[60] B.H. asserts that she has the right to be treated equally with an adult in a similar situation in accordance with S. 15(1) of the Charter without regard to her age.

[61] I agree with B.H. that her equality rights have been infringed. The equality rights of children are infringed daily in this country. They are treated differently than people of a different age. Three year-olds cannot go to school and have the public education systems pay for it although their six year-old brothers and sisters do. Six year-olds have to go to school but three year-olds don=t. Children can=t engage in litigation without a guardian ad litem. Twelve year-olds can be charged under the Young Offenders Act but eleven year-olds can=t. Teenagers can=t drive until they have attained the age of sixteen. They can=t purchase tobacco or alcohol, enter casinos, join the army or vote until they are eighteen.

[62] Children have always been under a legal disability. The reasons for that are obvious. They have levels of capacity at a certain age that they didn=t have when they were younger. They gradually acquire the full set of rights that will be theirs when they are of the age of majority. In the meantime certain ages are chosen to allow children to do certain things or to impose certain responsibilities upon them. Those ages are chosen because that is the general time in the development of children as an undifferentiated group when they have acquired the developmental skills they require to cope with that new responsibility. Elementary school teachers and most parents recognize the huge developmental leaps which occur when children are about seven years old. That is why the Romans chose that age as the age of criminal responsibility. School systems divide their populations based on age groups. They keep children of similar developmental levels together. There is another large developmental growth period when children are between the ages of eleven and thirteen. The Young Offenders Act recognizes this important developmental stage and sets the age of criminal responsibility in Canada at twelve. The next major growth stage is in the late teen years - children traditionally finish high school around the age of eighteen. This is the age at which they can join the army, smoke, drink and gamble. They are no longer under any legal disability in this country.

[63] It is true that a few three year-olds are capable of going to school five hours a day. Some 14 year-olds are probably old enough to cope with the responsibility of having a drivers= license. Others can drink responsibly long before their eighteenth birthdays. It is too complex a matter, however, for a legal community to measure the abilities of each and every junior member so as to allow them to take on new responsibilities of the exact right time. Reasonable generalized ages are therefore set. For certain individuals those ages will be Aarbitrary@ in some sense of that word. I am satisfied that such Aarbitrary@ages are a demonstrably justified and reasonable limitation in a free and democratic society. The ages set, including the definition of a Achild@ in the Child Welfare Act, are not capricious. They have a foundation in reality which has stood the test of time.

[64] I find that the use of generalized ages in a statute, and in particular the age limitation in the Child Welfare Act which prevents B.H. from making an unfettered decision regarding medical treatment, is a demonstrably justified and reasonable limitation in a free and democratic society.

[65] The final case that I have considered in this matter is Rodriguez v. B.C. (A.G.) (1994) 85 C.C.C.(3d) 15 (S.C.C.).

[66] I am satisfied that the decisions I have made are consistent with the approach of the Supreme Court of Canada in that case. Ms. Rodriguez, who suffered from Lou Gehrig=s Disease, challenged the Criminal Code prohibitions against assisted suicide claiming they infringed her Charter rights to security of the person (S. 7) and to equality before the law (S. 15). The Supreme Court acknowledged that Ms. Rodriguez= S. 7 rights had been infringed and assumed that her S. 15 rights had been violated. Speaking for the majority, Sopinka, J. stated, (quoting from the head note at page 16)

AThe blanket prohibition on assisted suicide is neither arbitrary nor unfair in the sense of being unrelated to the state=s interest in protecting the vulnerable. This purpose is grounded in the state interest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken. ... Canada and other Western democracies recognize and apply the principle of sanctity of life as a general principle which is subject to limited and narrow exceptions ...Assuming that there was a violation of S. 15, any infringement is clearly saved under S. 1 of the Charter. S. 241(b) is grounded in respect for its desire to protect human life and has a clearly pressing and substantive legislative objective. Prohibition on giving assistance to commit is clearly connected to that purpose ...@

This statement of the law is equally applicable to the issues dealt with in this matter.

OTHER ISSUES

[67] I am compelled to address the issue of the state of recording equipment which was provided by Alberta Justice for the purpose of recording this hearing. It would be kind to call it deplorable. It frequently stopped recording. The transcript is replete with the insertion: Portion of Proceedings Not Recorded.

[68] The Calgary Police Service assisted by providing us additional unused tapes from their van. My clerk managed the situation professionally and calmly. She always got the machine going again. I am satisfied that she invariably caught the failure to continue recording within a word or two of that failure. I have no hesitation in relying on the transcript to assist me in the preparation of these reasons because I took detailed notes which coincide with the transcript.

[69] That said, I will not conduct any such hearing again with this equipment. It is almost as old as I am! It has certainly collected more dust. The problem with the machine may be a failure to maintain and use it. This possibility occurs to me because the machine was far more reliable on the second night of these proceedings. It was as if the first night had worked out the wrinkles. That is just the guess of a technologically challenged Judge. It=s not guessing to say it is unreliable. It is totally unreliable.

[70] My second concern about the transcript is the frequent errors which have nothing to do with the machinery. They are the result of Alberta Justice giving the tapes to an in-home typist for transcription. The finished product is embarrassing by any legal standard.

[71] I propose to file two copies of transcript. One will be in its original state. One will have my corrections on it. This may assist any reviewing Court or Counsel in referring to it. I do not suggest that this is a curative measure. It may well be rejected by the reviewing courts as improper. I will do it simply because it is the best I can do.

[72] If this type of technological and transcription problem continues there is no question that Decisions will be quashed and that Alberta Justice will bear that responsibility. That may include a financial responsibility. The latter is not for me to say.

[73] The only way for me to ensure that a proper record is maintained and a proper transcript prepared in the future is to demand that Court Reporters whose jobs were eliminated be reinstated to create the recorded transcript and to transcribe it replete with correct citations and missing the strange appearances of things which appear from nowhere.

[74] Similar problems occurred for several years with the recording systems used in Alberta to record telephone applications for search warrants, blood warrants and child welfare apprehensions. The problem has been solved by using Telus teleconference recording equipment and operators.

[75] This system will not solve the problem in medical treatment applications. They are usually held in hospitals in large rooms with a lot of people present. The teleconference equipment cannot pick up all that happens.

Dated at Calgary, in the Province of Alberta, this 15 th day of March, 2002.

Karen J. Jordan

Judge, The Provincial Court of Alberta

Bethany Hughes appeal: The Judge's Reasoning

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