Supreme Court of Canada Balances the Right to Freedom of Religion and the Best Interests of Children

AC v Manitoba (Director of Child and Family Services), 2009 SCC 30 (26 June 2009)

On 26 June 2009, the Canadian Supreme Court handed down a decision which discussed in detail the right of adolescents to make their own medical decisions.  The Court held that the wishes of the child must be considered when determining what action was in the child’s best interests.

Facts

AC was 14 years old.  She was admitted to hospital with intestinal bleeding, and needed a blood transfusion.  AC was a Jehovah’s Witness and was prohibited from receiving blood or blood products.  She, and her parents, refused to consent to the transfusion.  AC’s doctor applied for a court order permitting the transfusion on the grounds that it was medically necessary to prevent death or serious injury to AC.

Under s 25(8) of the Child and Family Services Act the Court has power to order medical treatment that is in the ‘best interests’ of the child, despite the child and/or parents refusing to consent to the treatment.  Where a child is 16 or older, s 25(9) provides that the child’s views should be determinative, and the Court shall not authorise the treatment without the child’s consent unless there is evidence that the child lacks the maturity to appreciate the consequences of their decision.

AC was deemed competent to make decisions about her medical treatment, but because she was under 16, her wishes were not determinative.  The Court granted the treatment order as requested by the doctors, and the transfusion was given to AC.  In making the treatment order, Kaufman J proceeded on the basis of deemed capacity, and did not investigate AC’s actual capacity to make medical decisions.  This was done because, in Kaufman J’s view, there was no requirement under s 25 for the Court to give consideration to the wishes of a child under 16.

AC appealed the decision to order treatment. Her appeal was denied so she further appealed to the Canadian Supreme Court on the grounds that ss 25(8) and 25(9) of the Act:

• were unconstitutional because they create an irrebuttable presumption of incapacity for minors aged under 16 years and thus infringe the Canadian Charter of Rights and Freedoms;
• infringed her liberty and security interests (s 7 of the Charter);
• discriminated against her based on age (s 15 of the Charter); and
• violated her right to religious freedom (s 2(a) of the Charter).

In a 6:1 decision, the Canadian Supreme Court rejected AC’s appeal and upheld the validity of s 25 of the Act on all grounds.

Decision

Justice Abella, in the majority, noted the difficulty of adolescent consent cases and said that, ‘maturity is necessarily an imprecise standard’.  Her Honour argued that the consideration of the particular child’s ability to make informed decisions was essential in order to ensure the constitutionality of s 25 of the Act, and said:

It is a sliding scale of scrutiny, with the adolescent’s views becoming increasingly determinative on his or her ability to exercise mature, independent judgment.  The more serious the nature of the decision, the more severe its potential impact on the life or health of the child, the greater the degree of scrutiny that will be required.

Her Honour noted that this approach was consistent with the common law’s ‘mature minor’ doctrine, which has been developed in both Canadian and international jurisprudence.  Under the doctrine, ‘an adolescent’s treatment wishes should be granted a degree of deference that is reflective of his or her evolving maturity.’

Whilst s 25(8) does not expressly provide for the wishes of a child under 16 to be considered, Abella J said the section must be viewed in the context of the Act.  Her Honour referred to s 2 of the Act, which provides that a child of 12 years or more is entitled to be advised of the proceedings and can make their views known.  It also provides that children under 12 can have their views considered where the judge is satisfied that they understand the nature of the proceedings.  Section 2(1) provides that, in determining ‘best interests’, consideration should be given to the mental and emotional state of the child, the need for the treatment, the views and preferences of the child, and the child’s religious and cultural heritage.

Justice Abella concluded that the ‘best interests’ test requires consideration of the child’s views, and argued that it is, ‘by definition, in a child’s best interests to respect and promote his or her autonomy to the extent that his or her maturity dictates’.

With respect to s 7 of the Charter, her Honour noted that an inability to determine one's own medical treatment constitutes a deprivation of liberty and security of the person.  However, Abella J considered that this is constitutional where the deprivation is in accordance with the principles of fundamental justice, including that the provisions must not be arbitrarily applied.  Her Honour stated, ‘it would be arbitrary to assume that no one under the age of 16 has capacity to make medical treatment decisions.  It is not, however, arbitrary to give them the opportunity to prove that they have sufficient maturity to do so’.

With respect to s 15 of the Charter, Abella J noted that there are two questions in determining discrimination on the basis of age: (1) Does the law create a distinction based on an enumerated ground?; and (2) Does the distinction cause disadvantage by perpetuating prejudice or stereotyping?  Her Honour stated that:

By permitting adolescents under 16 to lead evidence of sufficient maturity to determine their medical choices, their ability to make treatment decisions is ultimately calibrated in accordance with maturity, not age, and no disadvantaging prejudice or stereotype based on age can be said to be engaged.

With respect to the s 2(a) right to religious freedom, Abella J noted that religious heritage forms part of the consideration given when determining the ‘best interests’ of the child.  Accordingly, her Honour did not consider that s 25(8) of the Act violates the right to religious freedom.

Justice Binnie delivered a dissenting judgment and would have allowed AC’s appeal.  In essence, his Honour argued that s 25(8) of the Act did not specifically provide a child under 16 with the right to have their opinions heard and taken into consideration by the Court.  Justice Binnie considered the approach put forth by Abella J, and said:

[A] young person with capacity is entitled to make the treatment decision, not just to have ‘input’ into a judge’s consideration of what the judge believes to be the young person’s best interests.  Under Abella J’s approach, the court may (or may not) decide to give effect to the young person’s view, but it is still the court that makes the final decision as to what is best for the young person.  This mature young person, however, insists on the right to make her own determination about what treatment to receive or not to receive, based on a mature grasp of her perilous situation.

His Honour argued that the limitations on AC’s rights were not reasonable as reasonableness relates to the purpose of the limitation.  His Honour argued, ‘if the legislative net is cast so widely as to impose a legal disability on a class of people in respect of an assumed developmental deficiency that demonstrably does not exist in their case, it falls afoul of the ‘no valid purpose’ principle …’.

Relevance to the Victorian Charter

This decision may be relevant to the interpretation of ss 8, 14 and 21 of the Victorian Charter of Human Rights and Responsibilities.

Section 8 of the Victorian Charter is similar in effect to the Canadian s 15 provision.  Accordingly, the two stage inquiry proposed by Abella J may prove useful in determining the scope of the s 8 prohibition on age discrimination.

Section 14 of the Victorian Charter provides for freedom of religion and is, in essence, equivalent to s 2(a) of the Canadian Charter.  However, s 14(2) of the Victorian Charter provides that a person must not be restrained in a way that limits their freedom to have a religious observance or practice.  This additional section may limit the impact of the s 2(a) analysis given by the Canadian Supreme Court.

Section 21 of the Victorian Charter protects the right to liberty and security of the person.  Unlike s 7 of the Canadian Charter, the Victorian provision does not contain the limitation that the liberty and security can be deprived, ‘in accordance with the principles of fundamental justice’.  However, s 7 of the Victorian Charter imposes limitations of similar effect, and provides that human rights may be subject to ‘reasonable limits’.  In determining reasonableness, the Victorian Charter prescribes that consideration should be given to the relationship between the limitation and its purpose (s 7(2)(b)).  Accordingly, the discussion in AC v Manitoba may prove highly relevant.

The decision in AC v Manitoba may also impact on s 17 of the Victorian Charter, which provides for the protection of families and children.  There is no corresponding right in the Canadian Charter, but the ‘best interests’ analysis given by the Canadian Supreme Court may prove useful if an AC v Manitoba type case should arise in Victoria.

The decision is available at http://www.canlii.org/en/ca/scc/doc/2009/2009scc30/2009scc30.html.

Victoria Edwards is former secondee to the Human Rights Law Centre from Freehills