Bethany Hughes appeal: The Judge's Reasoning

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    B.H. v. Alberta (Director of Child Welfare), 2002 ABQB 371

    Date: 2002 04 10

    Prov. Court File No. N21619

    Q.B. Court File No. 0201-02952

    No. 0201-04211

    IN THE COURT OF QUEEN'S BENCH OF ALBERTA

    JUDICIAL DISTRICT OF CALGARY

    IN THE MATTER OF THE CHILD WELFARE ACT, BEING CHAPTER C-8.1 OF S.A. 1984 AND AMENDMENTS THERETO;

    IN THE MATTER OF AN APPEAL OF APPREHENSION AND TREATMENT ORDERS MADE UNDER PART 3 OF THE CHILD WELFARE ACT ON FEBRUARY 18, 2002, BY THE HONOURABLE PROVINCIAL JUDGE K.J. JORDAN REGARDING B.H., AN INFANT, BORN AUGUST 20, 1985

    BETWEEN:

    B.H., by her Next Friend, A.H., and A.H. in her own right

    Appellants

    - and -

    HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA (as represented by the Director of Child Welfare)

    Respondent


    APPEARANCES:

    David M. Gnam / Shane H. Brady / J. Burns

    W. Glen How & Associates

    for the Appellants, B.H. and A.H.

    Beverley A. Bauer, Q.C. / C.R. Ford

    Alberta Justice, Civil Law Division

    for the Respondent, Director of Child Welfare

    Roderick Wiltshire

    Alberta Justice, Constitutional and Aboriginal Law

    for the Attorney General of Alberta

    Robert W. Calvert, Q.C. / K. Clayton (Student-at-Law)

    McCarthy Tetrault

    for L.H.

    Linda Barry-Hollowell / D.T. Weyant

    Calgary Regional Health Authority

    for the Alberta Children's Hospital

    David Steele

    Bennett Jones

    for Drs. Saunders and Coppes

    E.H. Molstad, Q.C.

    for W. Glen How & Associates

    _______________________________________________________

    REASONS FOR JUDGMENT

    of the

    HONOURABLE MADAM JUSTICE C.A. KENT

    _______________________________________________________

    FACTS


    [1] B.H. is 16 and a half years old. She is a baptised member of the Fellowship of Jehovah's Witnesses. On February 14, 2002, B.H. was diagnosed with acute myeloid leukemia , sub-type M-1 ("AML M-1"). This diagnosis was made at the Alberta Children's Hospital (the "hospital") in Calgary. B.H. had advised the medical staff at the hospital that she would not consent to blood transfusions or the administration of blood products. On February 15, 2002, Provincial Court Judge Jordan attended at the hospital and commenced a hearing pursuant to the Child Welfare Act, R.S.A. 2000, c. C-12 ("CWA"). The Director of Child Welfare was seeking an apprehension order and a medical treatment order because of the refusal by B.H. and her family to accept blood transfusions. After several hours of evidence, the child's father provided a consent to treatment. As a result, no orders were granted. On February 18, 2002, the Director renewed its application. Although the father still consented, B.H. was refusing recommended treatment which involved blood transfusions. The hospital and the physicians would not treat in the face of that refusal. A hearing was held. As a result, Judge Jordan issued the orders sought.

    [2] The medical evidence at the time of the hearing was reasonably straightforward. The treating physician, Dr. Coppes, the head of the Oncology Department at the hospital, had consulted with physicians across North America about the treatment of B.H. As I understand the evidence at the hearing, such North American-wide consultations are common. Over 200 children's hospitals across the continent have entered into an arrangement whereby specialists in particular diseases can consult about the preferred and most effective treatment for a particular disease. It was pursuant to that arrangement that Dr. Coppes consulted with Dr. Arceci who is a leading expert in the treatment of pediatric AML M-1. Dr. Coppes also consulted with three other physicians whose names were given to him by the family. None of those were specialists in the treatment of AML M-1.

    [3] Dr. Coppes put four questions to each of the experts. Their responses were unanimous. The proposed treatment, detailed below, was the best treatment option, the survival rates that Dr. Coppes was using were accurate, the treatment could not be administered without blood products and Dr. Coppes was not missing any reasonable treatment option.

    [4] The recommended treatment referred to above is four intensive courses of chemotherapy. The chemotherapy must 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. Other evidence before Judge Jordan indicated that while there are some drugs that could be used in the treatment of AML M-1 those drugs are not curative. The only curative treatment is chemotherapy with blood transfusions. That treatment has a success rate in pediatric patients of 40 to 50%. The treatment for children involves higher doses of chemotherapy than would be given to adults because the children can tolerate such doses. That also makes the replacement blood more necessary.

    [5] The bifurcated hearing before Judge Jordan consisted of the evidence of Dr. Saunders who admitted B.H., Dr. Coppes, B.H., the mother and father of B.H., and social workers. After a review of the evidence that Judge Jordan heard, Judge Jordan came to the following conclusions:

    1. The recommended treatment was essential medical treatment.


    2. B.H. did not have the life or developmental experience which allowed her to question her faith and/or its teachings, and such experience is an essential step in arriving at a personal level of development such that she could be considered to be a mature minor who had the capacity to refuse medical treatment which was necessary to save her life.

    3. The law governing her decision was C.U. v. McGonigle (2000), 273 A.R. 106 (Q.B.). The concept of mature minor has been superceded by the CWA when treatment is refused in circumstances covered by theCWA.

    4. Granting the apprehension and medical treatment orders did not violate B.H.'s Charter right to security of the person but did violate her freedom of religion and right to equality before the law. However, the right of the state to intervene to save the life of a 16-year-old by imposing unwanted medical treatment was a reasonable limitation within the meaning of the Charter on B.H.'s freedom of religion. The age limitation in the CWA of 18 years was also a justified and reasonable limitation in a free and democratic society on B.H.'s equality rights.

    [6] B.H., through her lawyers, appeals the orders made by Judge Jordan.

    LEGISLATIVE FRAMEWORK

    [7] The relevant provisions of the CWA are:

    Section 1(1) In this Act, ...

    (d) "child" means a person under the age of 18 years; ...

    Section 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: ...

    (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; ...


    Section 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; ...

    (f) any decision concerning the removal of a child from the child's family should take into account

    (i) the benefits to the child of maintaining, wherever possible, the child's familial, cultural, social and religious heritage, ...

    (h) any decision concerning the placement of a child outside the child's family should take into account

    (i) the benefits to the child of a placement that respects the child's familial, cultural, social and religious heritage, ...

    (l) a person who assumes responsibility for the care of a child under this Act should endeavour to make the child aware of the child's familial, cultural, social and religious heritage; ...

    Section 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 is recommended by a physician or dentist, the director shall apply to the Court for an order authorizing the treatment. ...

    Section 22(5) If it is satisfied that the treatment is in the best interest of the child, the Court may authorize the treatment notwithstanding that the guardian of the child refuses to consent to the treatment. ...

    Section 117(1)

    On hearing an appeal, the Court of Queen's Bench shall determine the appeal on the material filed with or forwarded to the Court of Queen's Bench and any further evidence that the Court of Queen's Bench may require or permit to be given.

    Section 117(2)

    The Court of Queen's Bench may

    (a) confirm the order or refusal,

    (b) revoke or vary the order made, or

    (c) make any order the Court could have made in the hearing before it.

    THE APPEAL HEARING

    [8] In this case, it is important to outline the process that was followed during the appeal hearing because of the preliminary applications that were made, some of which form part of this decision. The first application was made by counsel for the father to have the firm of W. Glen How & Associates removed as counsel for B.H. There were two arms to the argument. First, it was argued that the firm is in a conflict of interest having previously acted for B.H.'s father who is now supporting medical treatment involving blood transfusions and, therefore, is in opposition to the appeal. I ruled on that arm of the application during the hearing. The evidence is not sufficiently clear to find that the firm had acted for the father. Even if the firm had acted for the father, the father did not provide confidential information that is now being used to his detriment.

    [9] The second arm of the argument was that the particular lawyers who are members of the firm are not only lawyers for B.H. but also lawyers for the Watch Tower Society who act only in cases involving Jehovah's Witnesses, are elders in the Jehovah's Witness congregation, and, by definition, are Jehovah's Witnesses themselves. The argument was that, for those reasons, the lawyers are unable to give objective advice to B.H. with respect to the matters in issue in this case. It was alleged that information given by them to B.H. about her treatment is wrong (for example, that the treatment being undertaken at the hospital is experimental or for research purposes), that they recommended that she start physically resisting the transfusions and that they informed her that she would be honoured by the Church if she refused transfusions. In the end result, the lawyers are unable to differentiate their roles as counsel for B.H., as counsel for the Church and as members of the Church themselves. Provisions of the Alberta Code of Professional Conduct and the Canadian Bar Association's Code of Professional Conduct were cited in support. Counsel who appeared on behalf of the W. Glen How firm argued, in opposition, that the provisions of the Codes of Professional Conduct which provide that lawyers are to be objective are a guide for lawyers and not intended to be used as a sword to have lawyers removed from a file. Neither side was able to provide me with any case authority with respect to this issue.


    [10] I accept the proposition that to remove counsel from a case should only be done in the clearest of circumstances: Alberta (Treasury Branches) v. Leahy (1998), 223 A.R. 113 (C.A.). I also accept the proposition that there should be a presumption that a lawyer will carry out his or her duties in accordance with the Oath of Office and the Codes of Professional Conduct. There have been a great number of allegations made throughout this litigation. I am not prepared at this stage to lose track of the primary focus--the care and treatment of B.H.--to embark on a long investigation to determine if that presumption should be overturned. The application to remove counsel is denied.

    STANDARD OF REVIEW AND ADMISSION OF FRESH EVIDENCE

    [11] Pursuant to s. 117 of the CWA, the Appellants seek to adduce fresh evidence relating almost exclusively to events arising after the making of the appealed orders for the purpose of proving that the appealed orders are no longer correct in law. In turn, the Respondents seek to adduce fresh evidence but only in reply to any fresh evidence admitted on the Appellants' motion.

    [12] The parties are in agreement that the proper procedure to be followed on a motion for the admission of fresh evidence is that set out in R. v. Stolar, [1988] 1 S.C.R. 480 at 491-492, and approved by the Alberta Court of Appeal in P. (K.L.) v. Alberta (Director of Child Welfare) (1998), 37 R.F.L. (4th) 86 at para. 3:

    The procedure which should be followed when an application is made to the Court of Appeal for the admission of fresh evidence is that the motion should be heard and, if not dismissed, judgment should be reserved and the appeal heard. In this way, the Court of Appeal has the opportunity to consider the question of fresh evidence against the whole background of the case and all the other evidence in the case. It is then in a position where it can decide realistically whether the proffered evidence could reasonably have been expected to affect the result of the case. If, then, having heard the appeal, the court should be of the opinion that the evidence could not reasonably have affected the result, it would dismiss the application for the introduction of fresh evidence and proceed to a disposition of the appeal. On the other hand, if it should be of the view that the fresh evidence is of such nature and effect that, taken with the other evidence, it would be conclusive of the issues in the case, the Court of Appeal could dispose of the matter then and there. Where, however, the fresh evidence does not possess that decisive character which would allow an immediate disposition of the appeal but, nevertheless, has sufficient weight or probative force that if accepted by the trier of fact, when considered with the other evidence in the case, it might have altered the result at trial, the Court of Appeal should admit the proffered evidence and direct a new trial where the evidence could be heard and the issues determined by the trier of fact.


    [13] In seeking to introduce fresh evidence, the Appellants rely on Catholic Children's Aid Society of Metropolitan Torontov. M. (C.), [1994] 2 S.C.R. 165 at 185-190. In that case, L'Heureux-Dub J., for the Court, ruled that the nature of child welfare appeals requires a flexible application of the four-part test for the introduction of fresh evidence established by Palmer v. The Queen, [1980] 1 S.C.R. 759 at 775, and re-affirmed in Stolar, supra at 486:

    (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases....

    (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

    (3) The evidence must be credible in the sense that it is reasonably capable of belief, and

    (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

    [14] Having approved the approach of the Ontario Court of Appeal in Re Genereux and Catholic Children's Aid Society of Metropolitan Toronto (1985), 53 O.R. (2d) 163 at 164-165:

    The judge on appeal, bearing in mind that he is dealing with the welfare of children, may determine that he will exercise his discretion and will hear further evidence so long as it is relevant to a consideration of the best interests of the child.

    L'Heureux-Dub J. reasoned in M. (C.), supra at 188-190:


    Although it might be more in line with usual procedures for a court of appeal to base its conclusions on the evidence before the trial judge, the particular nature of appeals in child welfare legislation requires a sufficiently flexible rule, where an accurate assessment of the present situation of the parties and the children, in particular, is of crucial importance. If Genereux, supra, has enlarged the scope of the admission of fresh evidence on appeal, it has done so, in the present case at least, with regard to the final arm of the Stolar test, that is, whether the fresh evidence may affect the result of the appeal when considered with the other evidence. If that is so, and the fact that the admission of up-to-date evidence is essential in cases such as the one at hand, Genereux, supra, should be applied in cases determining the welfare of children. ...

    After reviewing the new evidence sought to be introduced before us, there is no doubt it meets the test for admission. In particular, it could not have been adduced before, is highly relevant in that it enables the Court to make determinations on an accurate picture of the situation at hand, is potentially decisive as to S.M.'s best interests and is credible. In addition, the evidence is uncontroverted and bridges the gap between the evidence submitted before the Court of Appeal in May 1993 and the present situation. In light of the Court's broad discretion to admit fresh evidence and the legislated objective of the CFSA requiring the court to act in the best interests of the child in child welfare proceedings, the respondent society's motion to adduce fresh evidence must be allowed and the evidence admitted.

    [15] The Alberta Court of Appeal in P. (K.L.), supra at para. 3, approved the substantive rules for the admission of fresh evidence set out in M. (C.), supra:

    In our view, the substantive rules for the admission of fresh evidence on the appeal of a trial decision involving permanent guardianship of children, are set out in the Supreme Court of Canada decision of Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.)....

    [16] On the other hand, the Respondents focus on the test for admission of fresh evidence adopted by Fruman J., as she then was, in T.L.O.v. Alberta (Director of Child Welfare) (1995), 175 A.R. 194 at para. 16 (Q.B.):

    a) whether the new evidence proposed to be adduced could not have been obtained by reasonable diligence before the trial;

    b) whether the new evidence is such that, if adduced, it would be practically conclusive.

    [17] The Respondents assert that the test set out in T.L.O., supra, is essentially the same as the test set out in M.(C.), supra.

    [18] While I accept that the governing test is that set out in M. (C.), supra, I agree with Nash J. in T.P. v. Alberta (Director of Child Welfare) (1998), 231 A.R. 115 at paras. 13-18 (Q.B.), that the power to admit fresh evidence must be understood in context, that is, circumscribed with reference to the appellate standard of review applicable to a decision of a Provincial Court Judge under the CWA. That standard is set out in Re S.E.M. (1986), 74 A.R. 23 at para. 24 (Q.B.):


    [O]n an appeal under s. 83 [now s. 117] of the Child Welfare Act the decision of the Provincial Court Judge should not be disturbed unless he had clearly acted on some wrong principle or disregarded significant material evidence or his final award is otherwise clearly wrong.

    and subsequently approved in several cases, including T.L.O., supra at paras. 6-14; C.A.Y. v. Alberta (Director of Child Welfare) (1998), 229 A.R. 384 at para. 10 (Q.B.); T.M. v. Alberta (Director of Child Welfare) (1998), 231 A.R. 39 at para. 6 (Q.B.); T.P., at paras. 13, 17; J.T. v. Alberta (Director of Child Welfare), [1999] A.J. No. 345 at paras. 28-30 (Q.B.), online: QL (AJ); and G.P.G. v. Alberta (Director of Child Welfare), 2001 ABQB 1130 at para. 58. "An appeal [under the CWA] is not a hearing de novo":J.U.v. Alberta(Regional Director of Child Welfare) (2001), 281 A.R. 396 at para. 6 (C.A.), leave to appeal refused [2001] S.C.C.A. No. 381, online: QL (SCCA).

    [19] I have considered all of the fresh evidence filed and the uses to which the parties wish it to be put, and I dismiss the Appellants' motion to adduce fresh evidence except as it relates to one issue dealt with at the end of my reasons concerning the appeal. To the extent that the fresh evidence sought to be adduced by the Appellants relates to facts existing prior to the hearing before Judge Jordan and is for the purpose of proving that the appealed orders were made in error, I find that it either does not constitute "new" evidence or could not reasonably be expected to have affected the result. To the extent that the fresh evidence sought to be adduced by the Appellants relates to events arising after the making of the appealed orders and is for the purpose of proving that the appealed orders are no longer correct in law, I note that receipt of that evidence would necessitate a full-blown hearing de novo. Moreover, it could not reasonably be expected to have affected the result. I will deal further with the fresh evidence after concluding my decision on the appeal.

    ISSUES ON APPEAL

    [20] The issues on appeal are:

    1. Is the treatment essential?

    2. Is B.H. a mature minor?

    3. Does s. 2(d) of the CWA replace the common law principle of mature minor so far as it relates to a child who is in need of protective services in the nature of essential medical treatment?


    4. Subject to the answers to the above three questions, have any of B.H.'s rights under the Charter of Rights and Freedoms been violated, and, if so, are those violations justifiable?

    1. Is the treatment essential?

    [21] The Appellants argue that the treatment recommended by the medical team at the hospital is not essential treatment. As I indicated above, treatment of pediatric diseases is managed by North American hospitals in a team approach. Rather than rely upon the limited expertise that may be found at any one hospital, the hospitals have access to the expertise of medical personnel around the continent. So, when B.H. was diagnosed with AML M-1, Dr. Coppes was able to call upon the knowledge and expertise of Dr. Arceci, the leading expert in treating this disease in children. Because of B.H.'s position on blood transfusion, he also consulted with doctors that the family had asked him to contact. The response was unanimous: the proposed course of treatment is the only course that holds any expectation of curing the AML M-1; all others are palliative only.

    [22] First, the Appellants argue that the hospital has little experience in the treatment which the hospital says is essential. What this amounts to is turning the team approach set out above, which most would consider to be a benefit, into a liability. They are wrong. Children in Alberta now not only have the experience of the doctors practising in Alberta but also have access to the best experts.

    [23] The Appellants make much of what occurred in B.H's treatment between the first and second hearings before Judge Jordan. When Dr. Coppes realized that there was a problem with consent to giving blood transfusions, he used a treatment that did not require blood transfusions until the second hearing was held. He testified that as a result B.H. had stabilized and "has actually done very well". (Transcript, p. 234.) That, the Appellants say, shows that the blood transfusions are not essential. That argument ignores the balance of Dr. Coppes' evidence wherein he said that the treatment employed over the week-end between the two hearings was not life-saving. (Transcript, pp. 236-237.)

    [24] The Appellants also argue that the consent form which was signed by the father and the Director indicates that the procedure is experimental or for research purposes and that B.H. should not have to submit to research. Treating a virulent cancer is not like treating a broken leg or appendicitis. At one time, I assume that AML M-1 was an automatic death sentence. Now with the treatment recommended by B.H.'s medical team, there is a 40 to 50% chance of survival. I have no doubt that what happens to B.H. as with every other child treated for AML M-1 is of considerable interest in the medical community attempting to raise that percentage to 100%. That is how medical knowledge and treatment advance. Judge Jordan was correct in finding that the treatment recommended by the doctors is essential and the only curative treatment available.

    2. Is B.H. a mature minor?


    [25] There was no disagreement from the physicians who interviewed B.H., or Judge Jordan, that B.H. is an intelligent, capable 16-year-old. Three doctors who spoke with her during the first days at the hospital concluded that she was a mature minor. Drs. Mitchell (Transcript, pp. 230-231) and Naseer (Transcript, p. 233) found B.H. to be lucid, articulate and to have an understanding of the consequences of her choice to refuse transfusions. Dr. Coppes testified at the hearing before Judge Jordan that he concurred with the opinions of Drs. Mitchell and Naseer. (Transcript, p. 252.)

    [26] Judge Jordan also considered the evidence of B.H.'s father and the evidence of Dr. Saunders. Dr. Saunders said that B.H. had a sophisticated understanding of what she was facing. However, Dr. Saunders said that she did not believe that B.H. had an understanding on an experiential basis of what it is to die. Dr. Saunders acknowledged that adults can also lack this experiential understanding.

    [27] When asked if she understood what it means to die, B.H. testified before Judge Jordan, "To die, is basically when you're not conscious of anything. You no longer have any thought processes and you just cease to exist."(Transcript, p. 161.)

    [28] Judge Jordan also considered B.H.'s upbringing: B.H. has been raised within the Jehovah's Witness faith which rejects the use of blood transfusions. Judge Jordan went on to say, at para. 24, "She has participated actively in her religious community to such an extent that I find that she has lived a sheltered life. ... She has never been exposed to any other religious teachings. ... [R]eligious 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." Her ultimate conclusion, at para. 25, was:

    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.

    [29] Judge Jordan relied upon the decision of Ward J. inRe E (A Minor) (1990), [1993] 1 F.L.R. 386 (Fam. D.). In that case, the boy was 15 years old. At para. 28, Judge Jordan quoted the following from that case:


    He is of an age and understanding at least to appreciate the consequence if not the process of his decision, and by reason of the convictions 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 of decision I will not have a blood transfusion', the product of his full but his free informed thought? Without wishing to introduce into the case 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 it members is the most eloquent testimony of the power of that 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. ... 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.

    [30] Before dealing with Judge Jordan's findings, it is helpful to understand the principle upon which the concept of mature minor is built. First, adults have a right to make decisions, on their own and of any nature with respect to medical treatment. That includes the right to refuse treatment. Indeed, that concept is enshrined in legislation dealing with advanced directives. Second, the common law recognized that there comes a time in the maturation process where teenagers should have more and more say over their bodies. When they have reached the point where they have sufficient intelligence and understanding to appreciate the nature and consequences of what is proposed, they are mature minors: see Gillick v. West Norfolk and Wisbech Area Health Authority, [1985] 3 All E.R. 402 (H.L.). The common law concept of mature minor was acknowledged to be part of the law of Alberta in J.S.C. v. Wren (1986), 76 A.R. 115 (C.A.). Finally, although the question of whether a minor is a mature minor is a legal question, the opinions of those medical personnel who have had dealings with the minor must be carefully considered.

    [31] There are two issues where the common law is arguably not settled. First, there is a question about whether the parents or the court's parens patriae jurisdiction can override the decision of a mature minor. That debate stems in part from the statement of Lord Donaldson inRe W (A Minor), [1992] 4 All E.R. 627 at 639 (C.A.), that "[n]o minor of whatever age has power by refusing consent to treatment to override a consent to treatment by someone who has parental responsibility for the minor and a fortiori a consent by the court." About that statement, Huddart J.A. in Van Mol (Guardian ad Litem of) v. Ashmore (1999), 168 D.L.R. (4th) 637 at para. 143 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi, said:


    I do not consider Lord Donaldson's proposed judicial modification of the common law to be necessary or desirable. The dilemma is no different to that faced by doctors and all others required to deal with mentally disabled adults, as Lord Donaldson recognized at 186 of Re R. It requires not a legal resolution but a factual decision. Is this person with whom I am dealing capable of consenting to what I am proposing? In both cases courts may override the refusal of treatment upon appropriate application, just as a court may be called upon to resolve a dispute between parents with concurrent rights to give consent to treatment of a child who is not competent to give consent to the treatment being proposed. In the case of a person under 19 years of age in British Columbia, the ultimate resort is to the parens patriae jurisdiction of the Supreme Court.

    [32] The Appellants argue that that quote from Huddart J.A. supports the proposition that the decision of a mature minor is final. It is vis- -vis a parent, but it is not vis- -vis the court; according to Huddart J.A., the parens patriae jurisdiction remains. See also Neyv. Canada (Attorney-General) (1993), 102 D.L.R. (4th) 136 at 145-147 (B.C.S.C.); and R. v. W. (D.D.) (1997), 114 C.C.C. (3d) 506 at paras. 28-30 (B.C.C.A.), aff'd [1998] 2 S.C.R. 681 . The opposite point of view is expressed by Hoyt C.J.N.B. inRegion 2 Hospital Corp. v. Walker (1994), 150 N.B.R. (2d) 366 at para. 26 (C.A.).

    [33] For the reasons set out below, I need not enter that debate.

    [34] The second issue is central to my finding on this issue. InMinors'Consent to Health Care (1995) at 6-7, the Manitoba Law Reform Commission frames the debate:

    In conclusion, it is clear that the mature minor rule is firmly entrenched in Canadian common law. There are, however, some aspects of the rule that need further clarification. For example, maturity may involve more than an intellectual appreciation of the nature and risks of the medical treatment per se. The court may also consider ethical, emotional maturity, particularly in difficult and controversial areas such as contraceptive treatment, abortion and the treatment of sexually-transmitted disease. The welfare principle has also yet to be tested. It may be seen as incompatible with mature, autonomous and independent decision-making. However, hard cases will test the extent of the court's commitment to the autonomy of mature minors. Some of those hard cases will centre on a mature minor's right to refuse beneficial and necessary treatment favoured by both parents and the medical establishment. It will arise when mature minors refuse life-saving treatment when the chances of success are good and the treatment is supported by parents and the medical professionals.


    [35] As we are all taught in first year law school, hard cases make bad law. In my view, a restrictive test for the mature minor principle is and ought to be the law. To require physicians, lawyers and judges to delve into moral, cultural or religious beliefs to determine if the child is not only capable of making a decision but makes a good decision leads to uncertainty and the potential for unreasonable, ill-founded decisions. Mature minors are capable of making all manner of medical decisions. Wren, supra, provides a perfect example. The mature minor principle is part of the law in Alberta. Whether it has been replaced by the CWA in cases where a minor refuses essential medical treatment will be dealt with below, but the mature minor principle as it applies generally should not be expanded because this is a hard case.

    [36] With those principles in mind, I accept, as I must, the findings of fact of the trial Judge: B.H. is not only intelligent and had a sophisticated understanding about what she was facing, but also her life has been sheltered and she has not yet reached that stage where she can question her faith. Does that second set of facts mean that she is not a mature minor? In my view, Judge Jordan has applied a wrong principle. The reasoning goes like this. B.H. has not yet done a critical analysis of a literal reading of the Bible, written 17 centuries before William Harvey first explained the function of the heart and blood and 21 centuries before the discovery of treatments that allow doctors to save the lives of people diagnosed with probably fatal diseases which require the infusion of blood. She has not considered that most people, even those of deep faith who use the Bible as a guide to their daily lives, accept that blood transfusions do not run counter to the Bible's teachings. We (and by that I mean most of society) are of the view that such an analysis necessarily leads to only one answer: blood transfusions are acceptable. Put more starkly, we say that B.H.'s religious beliefs are wrong and we hope that sometime before her 18th birthday she understands that and changes her mind. Or, to use the words of Ward J., the child's faith is interfering with the exercise of free will. That cannot be a part of the concept of mature minor. What mature minor status requires is the intelligence to do the analysis, not that it has been done. And, in this case, the trial Judge has found that B.H. is of sufficient intelligence. As well, that reasoning starts down a very slippery slope. Most people have done the analysis that I have set out above and have concluded that blood transfusions are acceptable. Indeed, the reason for the large body of litigation involving Jehovah's Witness children is that their parents will not consent to blood transfusions, and where the child cannot consent himself or herself, the state intervenes to ensure that the blood is in fact given. But, to say that no Jehovah's Witness child who is of sufficient intelligence and ability to understand the nature and consequences of proposed medical treatment can refuse blood because the refusal comes from a religious conviction which we believe is wrong creates a principle which may be used at other times in dangerous circumstances.

    [37] Accordingly, I am of the view that in and around February 15-18, 2002, B.H. was a mature minor in the common law sense.

    3. Does s. 2(d) of the CWA replace the common law principle of mature minor so far as it relates to a child who is in need of protective services in the nature of essential medical treatment?


    [38] The third issue on appeal is whether or not McGonigle, supra, applies to this case so that even if B.H. is a mature minor, s. 2(d) of the CWA requires only that she be consulted about treatment and that her wishes can be overridden. Judge Jordan said she was bound by McGonigle. That is correct. I am not, so I must consider McGonigle, other cases, and the legislation itself. McGonigle holds that notwithstanding that the common law concept of mature minor exists in Alberta, the CWA has replaced the common law insofar as it relates to refusal of essential medical treatment. To make that finding, Clarke J. found that the common law is as stated by Lord Donaldson in Re W, supra at 639, namely, "[n]o minor of whatever age has power by refusing consent to treatment to override a consent to treatment by someone who has parental responsibility for the minor and a fortiori a consent by the court." As I indicated above, that law, particularly as to the latter, is not settled.

    [39] Clarke J. also relied on Kennett Estate v. Manitoba (Attorney General) (1998), [1999] 1 W.W.R. 639 (Man. C.A.). I agree with his interpretation of that case. In Kennett, the Court found that the Manitoba child welfare legislation operated when a parent of a child under 16 years of age refused treatment for the child and the medical practitioner was not prepared to rely on the instructions of the child. The Court noted, at para. 45:

    For a child over the age of 16, his/her consent is required subject only to the provisions of sec. 25(9). With respect to all other children, the governing principle is "the best interests of the child" (sec. 25(8)), but an order can be made only after a hearing before a judge and the child must be heard.

    In my opinion, the Manitoba legislation overall is not sufficiently similar to our CWA to be of much help, and to the extent that I see similarities between our CWA and Manitoba's legislated response to children under 16 years of age, Kennett does not help the Appellants.

    [40] The Appellants argue that in Walker, supra, Re Dueck (1999), 171 D.L.R. (4th) 761 (Sask. Q.B.), and Re A.Y. (1993), 111 Nfld. & P.E.I.R. 91 (Nfld. S.C.), similar legislation has been found not to oust the common law principle. Each case has its own problems for the Appellants, however. First, in Walker, the Medical Consent of Minors Act, not the child welfare legislation, codified the mature minor principle without modification for minors aged 16 and older and with an important modification for minors aged under 16. As to the latter, in the opinion of two physicians, not only must the minor be capable of understanding the nature and consequences of a medical treatment, but the proposed treatment must also be in the best interests of the minor and his continuing health and well-being. Under that provision, which apart from age restriction bears some resemblance to ourCWA, there would still be an issue on the facts of this case about whether the refusal is in the best interests of B.H.


    [41] I agree that in Dueck,supra, the Court made the simple statement that if the minor was a mature minor, the Minister's consent to treatment would no longer be required. The trial Judge did not consider the legislation in detail, nor was she required to do so, given the fact that she found that the minor was not a mature minor.

    [42] In A.Y.,supra, there is no doubt that the 15-year-old's wishes were followed, but the Court was not satisfied that the treatment was essential. It is against that backdrop that the Court decided that it was in the minor's best interests to continue to refuse treatment. I emphasize, too, that the Court was focussed on the minor's best interests.

    [43] Since the cases do not provide me with much assistance, I return to the legislation. The Appellants argue that McGonigle, supra, should not be followed because the CWA does not clearly state that it is replacing the common law principle of mature minor. They say that there is a presumption against the implicit alteration of the common law. To replace the common law, legislation must be clear: see Bayer Aktiengesellschaft v. Apotex Inc. (1998), 113 O.A.C. 1 (C.A.), leave to appeal refused [1999] 1 S.C.R. v. Under the CWA, "child" is defined as being a person under 18 years, and a child is in need of protective services when the guardian is unable or unwilling to obtain essential medical services for the child. That language is clear. The legislation occupies the field, so that B.H. being a person under 18 years and so in need of protective services falls under the legislation. Looking, too, to s. 2(d), I am satisfied, as was Clarke J. in McGonigle, that the CWA forms a complete and exclusive code for dealing with refusal of treatment in circumstances covered by the CWA.

    [44] Having found that the CWA so replaces the common law principle of mature minor, then I must consider what the wording of s. 2(d) means in the context of this case. I have found that B.H. is a mature minor. Section 2(d) says that the Court and all persons exercising authority should take into consideration the opinions of the child. "Take into consideration" is not equivalent to "follow". While I have said above that the Court ought not to import moral, cultural or religious considerations into the common law doctrine of mature minor, under the CWA the Court must do what is in the best interests of the child. In this case, the overwhelming evidence was that the treatment regime recommended by B.H.'s medical team is the only curative treatment available to B.H. Accordingly, while B.H.'s opinions should be considered, they cannot rule the day and should not in this case. Under the mature minor principle, the analysis to which I earlier referred is left to B.H. Under the legislation, it is the Court and other people exercising authority who do the analysis. Having done the analysis and balancing all the factors, including the treatment regime in place, its chances of success, the process followed by Dr. Coppes which led to the conclusion that it was the only curative treatment, B.H.'s religious heritage and her wishes, it is in B.H.'s best interests to have the treatment recommended by the hospital.

    4. Subject to the answers to the above three questions, have any of B.H.'s rights under the Charter of Rights and Freedoms been violated, and, if so, are those violations justifiable?


    [45] The Appellants contend that, by virtue of ss. 1(1)(d), 1(2)(c) and 2(d) of the CWA, B.H.'s rights under ss. 2(a), 7 and 15(1) of the Charter of Rights and Freedoms have been violated. The pertinent sections of the Charter read:

    1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

    2 Everyone has the following fundamental freedoms:

    (a) freedom of conscience and religion; ...

    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.

    12 Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

    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....

    [46] In relation to B.H.'s asserted violation of s. 15(1) of the Charter, I note and the Appellants concede that an infringing distinction drawn on the basis of age must be substantively discriminatory, that is, arbitrary and without relation to individual capacities (see Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 ). While it is arguable that the age distinction under the CWA is not arbitrary in the sense that there is mandated consideration by the Court of B.H.'s capacity to form an opinion on matters affecting her and, in the event that she can form an opinion, mandated consideration of that opinion, I prefer to decide this issue on the basis of a violation saved by s. 1 of the Charter.

    [47] In R. v. Oakes, [1986] 1 S.C.R. 103 at 136-137, the Court held that the burden is on the government to prove that a violation is justifiable. In this case, the government itself did not provide evidence. While such evidence would "generally" be required, "there may be cases where certain elements of the s. 1 analysis are obvious or self-evident": Oakes, at 138. I believe that this is such a case. There was material before me about the consideration that governments have given to the choice of the appropriate age when children will qualify for rights and privileges, for example, the Manitoba Law Reform Commission's report entitled Minors'Consent to Health Care, supra. The Appellants provided a helpful chart which shows the different choices that the provinces have made concerning legislated ages for health care decisions. Some age must be chosen, and, whatever it is, it will necessarily be somewhat arbitrary, but, provided that it is within a reasonable range and age 18 is, I am prepared to find the choice of age 18 justifiable.


    [48] In deciding that s. 1 saves the violation, I refer to P.W. Hogg, Constitutional Law of Canada, looseleaf (Toronto: Carswell, 1997) at para. 52.13, p. 52-55:

    [T]here is some correlation between age and ability.... In fact, our laws are replete with provisions in which age is employed as the qualification for pursuits that require skill or judgment. Consider the laws regulating voting, driving, drinking, marrying, contracting, will-making, leaving school, being employed, etc. In regulating these matters, all jurisdictions impose disabilities on young people, employing age as a proxy for ability. Such stereotyping is inevitably inaccurate, because individuals mature at different rates. In principle, the use of age could be eliminated, because each individual could be tested for performance of each function. Age is used as a qualification for no other reason than to avoid or reduce the administrative burden of individualized testing.

    Disabilities imposed on young people by reference to the attainment of a qualifying age may have to be regarded as discrimination under s. 15, since a disadvantage is imposed by reference to a named ground of discrimination, but it is to be hoped that the Supreme Court of Canada would readily uphold them under s.1....

    [49] I note, too, that age distinctions in relation to treatment decisions by minors have another and more important social objective than avoidance or reduction of administrative burden, that being the overriding concern for the protection of a minor's right to life and to health.

    [50] In response to the Appellants'arguments concerning the differing and purportedly less restrictive legislative approaches across Canada, I first observe that at least some of them also require that the treatment decisions of minors with decisional capability, usually under 16 years, be assessed in relation to the best interests of the minors. Second, I adopt the reasoning of Mitchell J.A. for the Court in Walker v. Prince Edward Island (1993), 111 Nfld. & P.E.I.R. 150 at para. 13 (P.E.I.S.C. (A.D.)), aff'd re no Charter violations [1995] 2 S.C.R. 407 :


    [I]t is not for the courts to "second-guess the wisdom of the policy choices made by our legislators". The fact that other provinces and territories are unregulated or have fewer restrictions does not mean that the Prince Edward Island legislation goes beyond the minimal impairment standard. Peter Hogg points out in Constitutional Law of Canada (3rd Ed.), vol. 2 at p. 35-29 that the minimal impairment test must be applied in such a way as to accommodate Canada's Federal system. Therefore, it has to allow for distinctive provincial responses to similar social objectives.

    [51] I find no violation of s. 7 of the Charter. I accept that, in overriding her refusal of medical treatment, there was a deprivation of B.H.'s liberty interest (see B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at para. 80; and Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at para. 49) and B.H.'s interest in security of the person (see Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 ; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46 at paras. 58-60; and Blencoe, at para. 57). However, because that deprivation was effected in accordance with the principles of fundamental justice, both substantive and procedural, there was no violation of s. 7. I acknowledge that legislation that limits control over one's body may violate the substantive principles of fundamental justice if the limit is arbitrary or unfair, that is, unrelated to the legislative objective and lacking foundation in the legal traditions and societal beliefs represented by the legislation. In finding no such arbitrariness or unfairness in this case, I rely on B. (R.), at para. 88:

    [T]he 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, when it becomes necessary to do so, is a basic tenet of our legal system, and legislation to that end accords with the principles of fundamental justice, so long, of course, as it also meets the requirements of fair procedure.

    [52] Moreover, as was found in B. (R.), supra, I find that the procedure contemplated by the CWA is in accordance with the principles of fundamental justice, both generally and specifically as to the mandated consideration by the Court of B.H.'s opinion concerning the medical treatment and of her religious heritage in the determination of her best interests.

    [53] Supportive of my finding of no s. 7 violation is the reasoning employed by Rooke J. in Alberta (Director of Child Welfare) v. K.B. (2000), 279 A.R. 328 at para. 69 (Q.B.):


    In this case, it is the children who are asserting a liberty interest, apart from any right of parental liberty.... With respect to a child's right to life and health, if the child (if old enough to do so) or parent does not take responsibility to act in the best interests of the child's life or health, a child's liberty interests must still be balanced against the state's "parens patriae" jurisdiction to intervene to protect children's welfare. While these are not young children that we are dealing with at bar, they are still children in the eyes of the law. Ultimately, because they are children, their right to liberty must give way to the overriding interest of protecting their general welfare as long as the procedures employed to do so are fair. I am therefore of the view that the principles of fundamental justice, where a child's liberty is affected under the Act, do not differ materially from the principles of fundamental justice found to exist when a parent's liberty interests are at stake.

    [54] Flemingv. Reid(1991), 4 O.R. (3d) 74 (C.A.), on which the Appellants rely, does not lead me to a contrary conclusion. It is true that, in that case, the Court found that the Mental Health Act, in permitting the competent wishes of an incompetent patient to be overridden by the review board on the basis that the proposed treatment order would be in the patient's best interests, was in violation of s. 7 of the Charter. However, I note that the violation was based on the review board's being precluded from considering the patient's prior competent wishes in determining the patient's best interests. Section 2(d) of the CWA which mandates that the child's wishes be considered in determining the child's best interests renders that case distinguishable.

    [55] Having regard to B. (R.), supra at para. 105, I find that B.H.'s right to refuse medical treatment in accordance with her religious beliefs is a "fundamental aspect of freedom of religion". However, I note that freedom of religion is not absolute and may properly give way to an order or orders duly made in a child's best interests: see B. (R.), at para. 107. It is notable that, in determining B.H.'s best interests under the CWA, the Provincial Court was and this Court is required to consider B.H.'s opinion concerning the recommended medical treatment, that is, her specifically religious objections to the treatment, as well as her religious heritage. Thus, ss. 1(1)(d), 1(2)(c) and 2(d) of the CWA did not infringe B.H.'s freedom of religion or imposed justifiable limits thereon within s. 1 of the Charter.

    [56] In summary, I find that, in making B.H.'s opinion a matter that a Court must consider in determining whether to order her treatment rather than deferring to her opinion, ss. 1(1)(d), 1(2)(c) and 2(d) of the CWA did not infringe ss. 2(a), 7 and 15(1) of the Charter or did so in a manner that is justifiable under s. 1 of the Charter.

    CONCLUSION

    [57] In the result, the law in Alberta is that insofar as medical treatment which has been refused is determined to be essential treatment required for the survival or well-being of the child, the provisions of the CWA apply. B.H. falls within that category. Although Judge Jordan acted on a wrong principle in making the appealed orders as detailed above, her orders are nevertheless correct in law and are confirmed.


    [58] The Appellants argue that the orders are too broad. I have considered that in light of what is contained in the hospital records, entered as an exhibit to the affidavit of Merrill Morrell sworn March 28, 2002. It is clear that B.H. is allowed choices in treatment ancillary to the chemotherapy treatment, for example, in the treatment of her rash. I expect that she will continue to be allowed to make those choices.

    HABEAS CORPUS

    [59] At the outset of these reasons, I indicated that on the appeal, I was not going to take into consideration the fresh evidence. Indeed, as the reasons have shown, some of that evidence would be unnecessary. For example, there is no need to do an assessment of B.H.'s mental capacity in view of my findings on the issue of mature minor. There was a great deal of other evidence about what has occurred since B.H.'s admission to the hospital. I am of the view that I ought to deal with that evidence now.

    [60] Over the weekend, I read the hospital records. That gave me pause when I considered it in light of all of the other evidence that was filed under the fresh evidence application and in support of the habeas corpus application. I came to three conclusions. First, the treatment that B.H. is undergoing is far from pleasant. She has suffered from several side-effects including nausea, headaches and a skin rash. I considered that in light of the image of B.H. that I saw on the video that was filed. B.H. appeared to me to be bright, alert and reasonably energetic. That speaks to the resilience of youth and the resilience of this girl in particular.

    [61] Second, I was struck by the overwhelming compassion and care that is being shown and given to B.H. and her family by the doctors and staff at the hospital. Treating dangerously ill children must be difficult at the best of times. This case presents special challenges. All of the doctors and staff at the hospital have attempted to provide the best treatment available while respecting the rights of B.H., her mother, her father and other family members, all at a time when the doctors and staff are under intense scrutiny by the legal process. With this in mind, I find no violation of B.H.'s s. 12 Charter right.

    [62] Assuming, without deciding, that "treatment" within the meaning of s. 12 includes state-imposed treatment in contexts other than penal or quasi-penal contexts, I note that there are two classes of "cruel and unusual" treatment: "(1) those that are barbaric in themselves, and (2) those that are grossly disproportionate to the offence":Hogg, supra at para. 50.3, p. 50-3. I have no hesitation in finding that the treatment given to B.H. under the appealed orders cannot be so characterized. The restraint, sedation and restricted visitation have been measured responses to B.H.'s expressions of resistance and otherwise, all necessary to effect safely the essential medical treatment.


    [63] Third, I grew increasingly concerned about B.H.'s present ability to make informed decisions about her health. Counsel for the Appellants argue that B.H. has now looked death in the face and continues to choose her religious convictions over blood transfusions. Is that the case?

    [64] The evidence to which I refer consists of the hospital records, the affidavits of B.H., the video of her evidence, the affidavits of A.H., the affidavit of L.H. sworn April 2, 2002, the affidavits of Drs. Coppes (sworn April 2, 2002), Saunders and Lill, the affidavit of Bev Reed and the affidavit of Laura Scott-Lane. I acknowledge that none of the affidavits have been tested by cross-examination. However, on their face, the evidence is telling about B.H.'s treatment at the hospital and the influences that she has been under.

    [65] It is important to understand the weight that I give to the evidence listed above. The hospital records are of considerable weight. While they are a legal record, they are not being prepared for this litigation. They can be characterized as non-partisan documents.

    [66] The affidavits of A.H. have given me great insight into her reaction to her daughter's illness. In her affidavit sworn March 19, 2002, there is one of the most intemperate statements I have seen in evidence. She says, at para. 54:

    Over the past days I have reflected on the atrocities thousands of innocent persons endured during Nazi rule, many of whom were mistreated because they would not violate their conscience. I have reviewed The Nuremberg Code (attached as Exhibit "E"). The "treatment" therein described, bears a chilling resemblance to what is happening to B.

    and then goes on to quote from The Nuremberg Code.

    [67] First, I had thought that we as a society had come to understand that what occurred under Nazi rule was a singular event because it was so horrible. It is not something that should be lightly used as a comparator. Second, if A.H. truly believes what she says, then it is a very strong indication that she has no perspective on her child's current medical situation. She cannot make decisions for her or advise her.

    [68] That conclusion is fortified by A.H.'s actions at the hospital. On March 4, Dr. Saunders writes at 1:15 p.m. (hospital records, p. 340), "B. struggled with her IV line during transfuse. 3 people required to hold her to keep her safe. I allowed Mom to stay if she promised not to touch her lines & use only verbal protest. She was unable to comply. I suggest that Mother not be by her side for next transfusion." It is troubling to hear that B.H.'s mother would risk harm to her child by tampering with medical equipment during a procedure. I am not talking about the long-term issues of whether or not to receive blood transfusions. I am talking about the immediate physical harm to B.H. if the lines were removed improperly.


    [69] Compare that behaviour to what occurred on March 10. The note (I cannot read the signature) says in part (hospital records, pp. 347-348), "A/P Plts [I take that to mean platelets] today, pt's mother asked to leave room for plts transfusion. Pt offered sedation, she refused. Pt fought - but not very hard with transfuse. Writer held & comforted & Kevin (nurse) held & comforted. Procedure went relatively well." That is the kind of care which I would expect during the medical procedures, whatever they are.

    [70] According to her affidavits, A.H. is also telling B.H. that she has the right to withdraw from the treatment protocol that she is receiving, which is simply wrong given the treatment order that is in place. A.H. appears to believe that the treatment is experimental, which I have said above is wrong.

    [71] I have read the affidavit of L.H. I understand that L.H. is very close to the issues in this case, and I must weigh anything that he says carefully. There is, however, a letter attached written by Mr. Gnam to Mr. Calvert dated March 1, 2002; in it, Mr. Gnam also talks about the treatment as experimental. I have said above that it is not.

    [72] L.H. talks about the number of visitors from B.H.'s congregation who are visiting her. The best evidence I have is in a note written on March 28, 2002. Again, I cannot read the signature. It says (hospital records, p. 600), "3 Continue to enforce policy of only 2 visitors at the bedside 4 Effective this afternoon (after 3:15 pm) only immediate family may visit - parents, two sisters & brother-in-law". That tells me that the hospital was trying to maintain a reasonable, calm atmosphere for B.H. during very difficult times.

    [73] There is the statement which B.H. made to Laura Scott-Lane on March 18 (hospital records, p. 540): "Pt. voices a stance where she does not believe she could be co-operative for a 3-4 hr. transfusion. I've asked her to think about what other options might exist from her perspective. She voices disbelief that her death would result if she received no blood products."

    [74] I have the affidavit of Laura Scott-Lane. She is the hospital social worker. I place great weight on her affidavit because I have noted throughout the hospital records her work in trying to comfort, advocate for, counsel and just talk to B.H. She has tried to balance the need for B.H. to reflect on the very difficult choices that she faces and maintain contact with members of her family who do not want B.H. to engage in any reflection. One paragraph, numbered 16(i), stood out; it said:

    Initially the Child co-operated with medical staff but voiced her objections to the transfusions in a way that did not place herself or others at harm. She has informed me that she had been instructed to "fight" by both the Mother and Mr. Gnam, counsel for the Child and she was confused how passive resistance would not be accepted as "fighting". Once the Mother began to attend during the blood transfusions, there was an immediate and noticeable deterioration of the Child's behavior; ...


    [75] Those facts troubled me in light of something that I remembered reading from the evidence of Dr. Saunders at the first hearing before Judge Jordan. Dr. Saunders was asked what impact there would be on B.H. if restraints were used. Her answer was (Transcript, pp. 99-100):

    I suspect the child would feel invaded and betrayed, angry, maybe she would feel relieved, at a certain level, I don't know. I think she would most likely experience a wide spectrum of human emotions and I think it would be dominated in the early phase by anger and frustration. And the sicker she got I think the more scared she would be and the more she would question her belief system. Because that's pretty much what I see parents and children go through.

    [76] Dr. Saunders says that when a patient looks death in the face, the patient can change his or her mind. It changed L.H.'s mind. B.H. has not been allowed to look death in the face. Because of incorrect information and the behaviour of some around her, she now believes that she will not die if she does not have transfusions. Even if B.H. was in law entitled to refuse medical treatment, the undue influence put upon her in the last few weeks has taken away her ability to make an informed choice.

    [77] Finally, there is the evidence of Dr. Coppes at para. 34 of his affidavit. Dr. Coppes says that ordinarily they are prepared to defer some transfusions even if the preferred treatment is to give more transfusions. Because of B.H.'s resistance, they cannot risk letting her platelets drop to minimal levels. The consequence is that B.H. is perhaps receiving more transfusions than would be necessary if she confined her resistance to verbal resistance.

    [78] I am told that B.H. wanted to testify before me. I read her affidavits and viewed the video. Can I now or could I, if she did testify, rely on the evidence coming from a free, informed will? I could not, not after the pressures and influences that have been brought to bear on her in the last few weeks to maintain her position on blood transfusions. In administering treatment to B.H. over the coming weeks, authorities will continue to be required to consider B.H.'s views. They, too, should be mindful of the pressures that are and may continue to be placed upon her.

    [79] My judgment on the appeal and what I have just said deals with all but one of the grounds for the application for habeas corpus. I said at the time that we scheduled these dates for argument that anything left of that application after my appeal would be dealt with. I said that because the material filed in support of the application addressed many of the issues argued on the appeal.


    [80] The one issue that I have not yet addressed is the application to have B.H. moved to California for treatment. The Applicants say that I should hear from Dr. Lill before I make any decision. Assuming that Dr. Lill's treatment is appropriate for a teenager and not experimental (assumptions that are not at all clear), there remains a fundamental problem with the application. The treatment proposed by Dr. Lill, on his admission, can be provided in Alberta. On Dr. Lill's admission to Dr. Lewis, he has not applied this procedure to Jehovah's Witness patients with AML. (Dr. Coppes' affidavit, para. 23.) If B.H. leaves Alberta today, she will likely refuse blood transfusions. I have already expressed my doubts about her ability to make an informed decision concerning blood transfusions. This Court will have no jurisdiction over B.H. once she leaves the province. Since the treatment is available in Alberta, the Court must look to the doctors treating B.H., who are in turn supported by the leading North American experts in this field, to determine whether this alternate treatment should be used with or without blood transfusions. It is not in B.H.'s best interests to carry on protracted litigation when there is such a fundamental flaw in the application and where all of the issues have already been raised before me.

    [81] Accordingly, the application for habeas corpus is dismissed.

    [82] Postscript: These are the final, edited reasons of the judgment that I gave orally on April 10, 2002. On that date, I advised counsel that there would be editing. In addition to correcting typographical, grammatical and stylistic errors, I have added to my reasons in some areas, notably in sections 3 and 4, without changing the conclusions.

    HEARD from April 4th to 8th, 2002.

    DATED at Calgary, Alberta this 10 th day of April, 2002.

    __________________________

    J.C.Q.B.A.


    Edited by - expatbrit on 7 February 2003 22:28:13

  • Uzzah
    Uzzah

    I must admit to taking a long time to read and re-read this document. At first I was thinking CRAP she changed the verbal reasons and softened the stance, but as I read more I couldn't believe the gems that came out of the written orders.

    What a HUGE success. I may be mistaken but isn't this the ruling that was appealed to the Supreme Court of Canada and thrown out? If so, that means the Supreme Court is in basic agreement with the case and saw no need to review it or that they have already considered the principles involved and will not re-hear another case. That makes this law!!

    Removing W. Glen How & Associates:

    This was interesting to read and I believe it gives future trials the angle necessary to show the inability of the Bethel Lawyers to both represent the church, the parent and the child. The judge stated:

    The second arm of the argument was that the particular lawyers who are members of the firm are not only lawyers for B.H. but also lawyers for the Watch Tower Society who act only in cases involving Jehovah's Witnesses, are elders in the Jehovah's Witness congregation, and, by definition, are Jehovah's Witnesses themselves. The argument was that, for those reasons, the lawyers are unable to give objective advice to B.H. with respect to the matters in issue in this case. It was alleged that information given by them to B.H. about her treatment is wrong (for example, that the treatment being undertaken at the hospital is experimental or for research purposes), that they recommended that she start physically resisting the transfusions and that they informed her that she would be honoured by the Church if she refused transfusions. In the end result, the lawyers are unable to differentiate their roles as counsel for B.H., as counsel for the Church and as members of the Church themselves.

    I accept the proposition that to remove counsel from a case should only be done in the clearest of circumstances: I also accept the proposition that there should be a presumption that a lawyer will carry out his or her duties in accordance with the Oath of Office and the Codes of Professional Conduct. There have been a great number of allegations made throughout this litigation. I am not prepared at this stage to lose track of the primary focus--the care and treatment of B.H.--to embark on a long investigation to determine if that presumption should be overturned. The application to remove counsel is denied.

    This presumption needs to be questioned from the onset of the matter, making it a separate motion so that it need not detract from the actual trial itself. Hawk - this lends itself to my idea regarding the use of Law Societies.

    JW's & Mature Minors:

    The judge made very good observations regarding the legal aspect of mature minors and did in fact say that BH was intelligent and bright and by definition (under common law) she was a mature minor HOWEVER the Alberta Child Welfare legislation is the basis of law not the common law and under that legislation lifesaving medical treatment is grounds for superceding the mature minor clause.

    So this means that any JW living in Alberta under the age of 18 can have a blood transfusion forced on them if it is deemed to be a life saving medical technique.

    But the best part is her concluding comments about the conduct of WT Lawyer David Gnam, the JW mother and the JW community. Also included below are her paraphrased comments regarding the Society's constant argument that forcing blood is tantamount to cruel and unusual punishment. She blasted them!!!

    I was struck by the overwhelming compassion and care that is being shown and given to B.H. and her family by the doctors and staff at the hospital...This case presents special challenges. ...All of the doctors and staff at the hospital have attempted to provide the best treatment available while respecting the rights of B.H., her mother, her father and other family members,

    So much for evil wicked doctors. These people were saints and didn't deserve to be abused by the HLC and WT Lawyers labeling them as if they were Nazi's

    ...I note that there are two classes of "cruel and unusual" treatment: "(1) those that are barbaric in themselves, and (2) those that are grossly disproportionate to the offence ... I have no hesitation in finding that the treatment given to B.H. under the appealed orders cannot be so characterized. The restraint, sedation and restricted visitation have been measured responses to B.H.'s expressions of resistance and otherwise, all necessary to effect safely the essential medical treatment.

    Okay now here is the good part ...

    I grew increasingly concerned about B.H.'s present ability to make informed decisions about her health. Counsel for the Appellants argue that B.H. has now looked death in the face and continues to choose her religious convictions over blood transfusions. Is that the case?

    The affidavits of A.H. {note the JW Mother} .. is one of the most intemperate statements I have seen in evidence. She says

    " I have reflected on the atrocities thousands of innocent persons endured during Nazi rule, many of whom were mistreated because they would not violate their conscience. I have reviewed The Nuremberg Code. The "treatment" therein described, bears a chilling resemblance to what is happening to B. and then goes on to quote from The Nuremberg Code."

    First, I had thought that we as a society had come to understand that what occurred under Nazi rule was a singular event because it was so horrible. It is not something that should be lightly used as a comparator. Second, if A.H. truly believes what she says, then it is a very strong indication that she has no perspective on her child's current medical situation. She cannot make decisions for her or advise her.

    Now when it can be demonstrontrated in future trials that the exact same quote has been offered up before it shows that the Society is the one feeding this stuff to the JW's and thus proving that any under the influence of the JW's should be viewed similiarly. The judge lets her and the JW's have it again:

    It is troubling to hear that B.H.'s mother would risk harm to her child by tampering with medical equipment during a procedure. I am not talking about the long-term issues of whether or not to receive blood transfusions. I am talking about the immediate physical harm to B.H. if the lines were removed improperly.

    ... pt's mother asked to leave room for plts transfusion. Pt offered sedation, she refused. Pt fought - but not very hard with transfuse.

    .. According to her affidavits, A.H. is also telling B.H. that she has the right to withdraw from the treatment protocol that she is receiving, which is simply wrong given the treatment order that is in place. A.H. appears to believe that the treatment is experimental, which I have said above is wrong.

    ... I understand that L.H. {Lawrence}is very close to the issues in this case, and I must weigh anything that he says carefully. There is, however, a letter attached written by Mr. Gnam to Mr. Calvert dated March 1, 2002; in it, Mr. Gnam {idiot WT Lawyer} also talks about the treatment as experimental. I have said above that it is not.

    And this is by far the most damning comment IMO

    Initially the Child co-operated with medical staff but voiced her objections to the transfusions in a way that did not place herself or others at harm. She has informed me that she had been instructed to "fight" by both the Mother and Mr. Gnam, counsel for the Child and she was confused how passive resistance would not be accepted as "fighting".

    ... Even if B.H. was in law entitled to refuse medical treatment, the undue influence put upon her in the last few weeks has taken away her ability to make an informed choice.

    ... The consequence is that B.H. is perhaps receiving more transfusions than would be necessary if she confined her resistance to verbal resistance.
    (Therefore Bethel's instrcution resulted in more blood needing to be given)

    [quote] Can I now or could I, if she did testify, rely on the evidence coming from a free, informed will? I could not, not after the pressures and influences that have been brought to bear on her in the last few weeks to maintain her position on blood transfusions.

    In view of the above, I really think Lawrence should be very proud. He protected his daughter, seeing that she received the best medical treatment and at the same time managed to get some amazing language into the law books.

    Uzzah

    "Don't mind me, I am just trying to steady the ark"
  • Simon
    Simon

    Thanks expatbrit and Uzzah for the summary / key points

  • Scully
    Scully

    Wow.

    This is a very long and (as expected) a somewhat tedious read. But it is - for all intents and purposes - a kick in the butt for the WTS, their lawyers, and JWs everywhere.

    I remember how disturbed and horrified I was when LH told me about how AH, at the recommendation of the WTS lawyer, tampered with Bethany's central line. I just cannot fathom the blatant disregard for Bethany's IMMEDIATE life which that act demonstrated. If, in my practice, anyone attempted to tamper with a patient's direct intravenous line to the heart, I would have them removed by security personnel first, and then bring charges against them. That behaviour - instigated by the WTS lawyer, and carried out by Bethany's mother - is reprehensible beyond description.

    It's interesting how the concept of conscientious objection to blood transfusions came up when AH (Bethany's mother) compared what was happening to Bethany with the horrors of the Nazi concentration camps. I wonder if the judge fully realizes that a JW's "conscientious objection" (deeply held convictions based on religious beliefs) would evaporate instantly if there was a sentence or two in The Watchtower that suddenly made accepting blood transfusions "a matter of conscience". It's all completely dependent on the WTS's doctrine du jour. Yet when LH (Bethany's father) exercised HIS conscience and granted permission for the treatments, we all know what the WTS did to him!!

    I'm sure the language and principles of law contained in this decision will be extremely useful in the legal action that Bethany's father is undertaking against the WTS.

    Thanks for sharing this with us Expatbrit, and thanks Uzzah for finding those gems within the decision that show, beyond any doubt, that the Honourable Judge knows exactly what's going on in these cases.

    Love, Scully

  • Scully
    Scully

    I also had a good chuckle when I read the part in the decision in which the judge refers to AH's (Bethany's mother) affidavit - in comparing Bethany's treatments to what happened under the Nazi regime - as "one of the most intemperate statements I have seen in evidence". Intemperate comes from the word "temperance" - meaning the abstention from alcohol. Intemperance, on the other hand, would be the opposite - drunkenness or over-indulging in alcohol. In other words, the judge was saying that the comparison between Nazi concentration camps and administering blood transfusions to a minor child of the JW faith, is ridiculous and the result of alcohol-induced stupidity.

    I guess The Honourable Judge has JF Rutherford's number too. LOL

    Love, Scully

  • Farkel
    Farkel

    Wow! This is great stuff!

    : Can I now or could I, if she did testify, rely on the evidence coming from a free, informed will? I could not, not after the pressures and influences that have been brought to bear on her in the last few weeks to maintain her position on blood transfusions.

    This is a great example that contradicts the LIES of what the geriatic, manipulative, idiotic, hypocritical morons in Brooklyn call "Christian Freedom(tm)." Or as Fred Franz would say in his typical windbagging way, "Life Everlasting in Freedom of the Sons of God(tm)." There is no freedom in WatchtowerLand. Just bondage to people that consider the lives of their sheep worth less than their 19th Century pharisaical doctrines. They are WORSE than the Nazis used in AH's red-herring argument: they claim to speak exclusively for GOD. Even Hitler never went that far.

    Pay heed to what Scully said, folks. She's a medical professional.

    Farkel

    Edited by - Farkel on 8 February 2003 9:15:32

  • JT
    JT
    I have also to ask myself to what extent is that assertion of decision I will not have a blood transfusion', the product of his full but his free informed thought? Without wishing to introduce into the case 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 it members is the most eloquent testimony of the power of that 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. ... 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.

    on the money- consider the influences that will make a 16yr refuse blood

    all doctors and medical staff leave and only - mom and dad and HLC are left and they begin to say the following:-

    mommy and daddy will see you die at Armeggdom, (SEE PICTURE IN FROM PARDISE LOST TO PARADISE REGAIN)

    you will disappoint mommy and daddy and even GOD WILL BE DISAPPOINTED

    YOU WILL BE DFED OOPS we changed that to DAed, all your little jw friends will not be able to talk to you, grandma, grandpa, your aunt, uncles, cousins, etc will not be able to speak to you ever again

    NOW Little JOHNNY Do you really want to take that blood,

    No brothers(members of HLC) i don't

    see doctor

  • concerned mama
    concerned mama

    Wow, I agree, Scully. I am so glad that the judge has put forth her reasoning so clearly. Although sadly, Bethany didn't survive, the legal ramifications of this case may make it easier to save the life of other minors.

    Does anyone know how the poor father is doing?

  • Scully
    Scully

    concerned mama:

    I have an e-mail out to Shunned Father - I'm sure he'll be happy to hear that people are still thinking about him.

    Love, Scully

  • jgnat
    jgnat

    Yes, a long read, but it looks like you guys dug out the gems already.

    28] Judge Jordan also considered B.H.'s upbringing: B.H. has been raised within the Jehovah's Witness faith which rejects the use of blood transfusions. Judge Jordan went on to say, at para. 24, "She has participated actively in her religious community to such an extent that I find that she has lived a sheltered life. ... She has never been exposed to any other religious teachings. ... [R]eligious 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." Her ultimate conclusion, at para. 25, was:

    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.

    ...Without wishing to introduce into the case 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 it members is the most eloquent testimony of the power of that 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. ... 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.

    67] First, I had thought that we as a society had come to understand that what occurred under Nazi rule was a singular event because it was so horrible. It is not something that should be lightly used as a comparator. Second, if A.H. (the mother) truly believes what she says, then it is a very strong indication that she has no perspective on her child's current medical situation. She cannot make decisions for her or advise her.

    [68] That conclusion is fortified by A.H.'s actions at the hospital. On March 4, Dr. Saunders writes at 1:15 p.m. (hospital records, p. 340), "B. struggled with her IV line during transfuse. 3 people required to hold her to keep her safe. I allowed Mom to stay if she promised not to touch her lines & use only verbal protest. She was unable to comply. I suggest that Mother not be by her side for next transfusion." It is troubling to hear that B.H.'s mother would risk harm to her child by tampering with medical equipment during a procedure. I am not talking about the long-term issues of whether or not to receive blood transfusions. I am talking about the immediate physical harm to B.H. if the lines were removed improperly.

    Initially the Child co-operated with medical staff but voiced her objections to the transfusions in a way that did not place herself or others at harm. She has informed me that she had been instructed to "fight" by both the Mother and Mr. Gnam, counsel for the Child and she was confused how passive resistance would not be accepted as "fighting". Once the Mother began to attend during the blood transfusions, there was an immediate and noticeable deterioration of the Child's behavior; ...

  • hawkaw
    hawkaw

    Hi guys,

    I just saw this .... and was aware of a lot of this. I will look through this some more.

    hawk

  • expatbrit
    expatbrit

    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

    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.

    [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

    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.

    [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

  • hawkaw
    hawkaw

    P I N G ..... plus I want to cross reference this thread with ......the one of Kismet's threads discussing minors.

    http://www.jehovahs-witness.com/forum/thread.aspx?id=31854&page=1&site=3#657350

    hawk

  • hawkaw
    hawkaw

    BTTT

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