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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