B. (S.J.) v. British Columbia (Director of Child, Family and Community Service)

IN THE SUPREME COURT OF BRITISH COLUMBIA IN THE SUPREME COURT OF BRITISH COLUMBIA In the matter of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, s. 29 Citation: B. (S.J.) v. British Columbia (Director of Child, Family and Community Service), 2005 BCSC 573 Date: 20050411 Docket: E051019 Registry: Vancouver Between: S.J.B., by her Litigation Guardian, K.B. and D.A.S. Appellants And: The Director of Child, Family and Community Service for the Province of British Columbia Respondent Before: The Honourable Madam Justice Boyd Oral Reasons for Judgment Pronounced in Chambers April 11, 2005 Counsel for the Appellants, K.B. and D.A.S.: S.H. Brady Counsel for the Appellant, S.J.B. (the Child): D. Dahlgren Counsel for the Respondent, The Director of Child, Family and Community Service: E. Lyszkiewicz and M.L. Fleming Counsel for the Respondent, Attorney General of British Columbia: G. Copley, Q.C. Date and Place of Hearing: April 7-8, 2005 Vancouver, B.C. Nature of Application: [1] The appellant, B. (S.J.) (who I will refer to throughout as "the child"), is 14 years and 10 months old. She is a non-Baptized member of the Fellowship of Jehovah's Witnesses. She and her family have refused that she be transfused with blood or blood products, notwithstanding her grave medical condition and her need for such blood or blood transfusions as she undergoes chemotherapy to treat cancer. [2] By way of appeal brought pursuant to s. 81 of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 ("CFCSA"), the appellants seek to set aside the Orders of Meyers P.C.J. made March 18 and March 23, 2005. [3] On March 18, 2005, pursuant to s. 29(3) (a) of the CFCSA, the learned trial judge authorized the transfusion of blood or blood products as necessary to preserve the life of the child or to prevent serious or permanent impairment of health. He further ordered that the child, as well as her parents and her stepmother, be prohibited from obstructing such Order. [4] On March 23, 2005, the appellants, then represented by counsel, applied to the learned trial judge to re-open the case so as to make additional arguments, more particularly arguments arising pursuant to a Notice served under s. 8(2) of the Constitutional Questions Act, RSBC 1996, c. 68, challenging s. 29 of the CFCSA and s. 17(3) of the Infants Act, RSBC 1996, c. 223, to the extent it could be said either statue supersede the treatment decisions of a capable young person. Meyers PCJ dismissed those applications. Standard of Review: [5] An appellate Court will not disturb the lower Court's order unless the judge there has clearly acted on some wrong principle or disregarded significant evidence or his final decision was clearly wrong. Clearly, the trial judge's finding of fact that the transfusions were essential to preserve the child's life or to prevent serious impairment of health is subject to that standard of review. However the real focus of this appeal concerns a number of legal issues which were either raised, although not argued at any length before the learned trial judge (i.e. the mature minor rule) or were not raised at all (i.e. the Charter challenges). While such decisions would be subject to a correctness standard, there was no consideration of those issues. Admission of Fresh Evidence: [6] At the outset of the hearing, the appellants' counsel made application to adduce fresh evidence from the child herself concerning her general condition since the last order was made on March 23, 2005. I allowed the introduction of that evidence, on condition that the affidavit of Dr. David Dix sworn April 7, 2005 and the affidavit of Ms. Kostuk sworn April 6, 2005 were also filed, since they provide a more in depth description of her condition since that date. Issues: 1. Did the learned trial judge lose jurisdiction when he failed to determine, at the start of the hearing, if representation by counsel was essential to the appellants receiving a fair hearing? 2. Did the learned trial judge err in concluding that s. 29 of the CFCSA empowers the Court to authorize medical treatment for a child, where the child refused to consent and the child is capable of consenting? 3. Are the CFCSA and the Infants Act, to the extent either applies to mature minors, ultra vires the provincial legislature? 4. Does the CFCSA or the Infants Act infringe the child's rights and freedoms under ss. 2(a), s. 7 and s. 15(1) of the Charter? 5. If the answer to question 4 is yes, can the interference be justified under s. 1 of the Charter? Background facts: [7] The child ordinarily resides with her father and her stepmother. Her father and her mother share joint custody of her. All members of the family are members of the Fellowship of Jehovah's Witnesses, although the child alone is an unbaptized member. [8] In December 2004, a large tumour in the child's calf was diagnosed as osteogenic sarcoma, a highly malignant tumor which will result in death if left untreated. The classic treatment protocol requires that the patient undergo two cycles of chemotherapy, followed by the surgery to remove the tumour (often requiring an above the knee amputation), followed by four final cycles of chemotherapy. Each cycle of chemotherapy lasts approximately six weeks. The estimated survival rate is 70%, assuming an optimal response to the proposed treatment. [9] From the outset, Dr. Dix, the treating pediatric oncologist and hematologist, explained to the child and her family that at some point in the course of her treatment, he might consider it medically necessary to seek her consent to administer a blood transfusion. While the child consented to the chemotherapy protocol, the surgical removal of the tumor and, if necessary, an amputation of her leg above the knee, she would not consent to blood transfusions, on the basis of her religious conscience as a Jehovah's Witness. Indeed all members of the child's family refuse to consent to the transfusion of blood or blood products even in the event she will die without the transfusion. [10] Following the child's diagnosis in December 2004, Dr. Dix and the Children's Hospital social worker, held a series of meetings with the child, her father, her stepmother and her mother during which they reviewed her diagnosis, the proposed treatment, and the treatment related complications of chemotherapy. He explained that chemotherapy suppresses the bone marrow's production of blood cells, including red blood cells (hemoglobin), white blood cells and blood platelets. Since the prescribed treatment for low blood levels is a transfusion of blood or blood products, the family and the child were advised that almost every patient with a diagnosis of osteogenic sarcoma requires blood or blood product transfusions during her treatment. [11] In light of the position of the child and her parents, Dr. Dix agreed to make every effort to avoid the transfusion of blood products to the child by taking extraordinary measures to improve her blood levels and by allowing her blood levels to drop below the level at which a blood transfusion would ordinarily be administered. These measures included providing the child with erythropoietin (EPO) which stimulates red blood cell recovery, G-SCF, which stimulates white blood cell recovery, and folic acid and iron supplementation. [12] During the course of the meetings in December 2004, the child and her family were informed that because of the family's stated position to refuse the transfusion of blood or blood products, the hospital would contact the Ministry for Children and Families about the child. Initially, they were informed that the Ministry might apprehend the child and thus, on behalf of the child, provide the necessary consent for transfusion in her parents' stead, should a transfusion become medically essential. [13] Ms. Fritz, a Ministry social worker, subsequently met with the child and her parents. During that meeting her parents confirmed they would not consent to a transfusion for the child even if that meant she was to die. The father advised that they preferred the matter not be dealt with in Court but that in that event, their Church had lawyers they could access. A discussion ensued concerning the child's rights under the Infants Act. [14] Ms. Fritz subsequently met privately with the child on December 21, 2004. The child confirmed her position not to agree to a transfusion even if it was her last resort. [15] The father subsequently contacted a social worker, Mr. Eric Stellingwerff, by telephone. He told the social worker that if the child's condition worsened, he did not think the court should be necessary since the child and the family were willing to allow Dr. Dix to follow whatever treatment plan he thought necessary. He emphasized they would like to leave the options up to Dr. Dix, whom they trusted. While he voiced a desire to avoid a Court application, he noted that in any case, the Church's lawyers were available to the family. [16] The social worker and the father continued to discuss the matter by way of telephone on January 6, 2005, when Mr. Stellingwerff again told him that at some point there would be a need for a consent to be given, should the child require blood products. While the father did not say he would consent, he continued to take the position it would be up to Dr. Dix to decide what the course of treatment would be. During this same discussion, the social worker asked the father where he would prefer the Court hearing to be held, should an application become necessary. He responded he would prefer Vancouver, since that is where the family would be if the child's condition became critical. [17] In January 2005, Dr. Dix informed the family he would have to contact the Ministry in the event a blood transfusion was necessary. [18] In December 2004, and January and February 2005, the child's blood levels fluctuated somewhat but remained relatively stable during the first two cycles of chemotherapy. [19] On February 15, 2005, the Ministry social worker, Amber Phillips, and the Director's legal counsel, Margot Fleming, met with the child, her mother, father, and stepmother (the latter by telephone) and various hospital staff, including the hospital social worker, to discuss the application the Director would make in the event Dr. Dix regarded a transfusion medically necessary. Ms. Fleming outlined in detail the nature of an application for an order pursuant to s. 29 of the CFCSA. The child and her parents were informed of their right to speak with counsel and encouraged to do so. Ms. Fleming offered assistance to the family in finding counsel and invited them to telephone her if they had any questions about the legal proceedings. The family continued to voice their hope that an application would not be necessary but also continued to express the position they would not consent should a transfusion become necessary. [20] On March 7, 2005, an echocardiogram of the her heart showed she had a large blood clot attached to the right side of her atrium and the central venous line through which she had been receiving chemotherapy. Dr. Dix was concerned about the clot, in particular that the clot would propagate, enlarge, spread, break off and then travel to her lungs, causing a fatal pulmonary embolism. [21] On March 8th, surgery was performed to remove the tumour. Although the orthopedic surgeon had expected to amputate the child's right leg above the knee, he was able instead to perform a resection of the leg, removing part or the entire fibula containing the tumour as well as surrounding muscle tissue, and then reclose the wound. [22] Post-surgery, it was necessary to treat the child's blood clot with Heparin, a medication which thins the blood and affects the blood clotting process. Heparin also unfortunately increases the patient's risk of bleeding. The advantages and benefits of heparanizing the child were discussed at length with the child and the family and a decision was made for her to begin to receive Heparin 24-48 hours post-surgery. [23] While her initial post-surgical course was uneventful, on late March 14th or early March 15th the child developed a large hematoma in her right calf which required surgical intervention so as to avoid the development of a compartment syndrome. Pre-surgery, medication was administered to reverse the anticoagulation effects of the Heparin so as to prevent further bleeding. [24] Post-surgery, her hemoglobin levels were found to have dropped dramatically to a point well below that when other patients would receive a transfusion. While a normal hemoglobin reading is 117-149, the child's hemoglobin level had dropped to 60 by March 15, 2005. [25] Although Dr. Dix needed to recommence the child's Heparin treatment within 24-48 hours so as to avoid the risks associated with the heart blood clot, he also appreciated that the Heparin treatment itself increased the child's risk of re-bleeding. Ideally, he also hoped to restart the child's chemotherapy treatment within a few days. The treatment plan which included both heparanizing the child and restarting the chemotherapy meant that the child would now be at a very high risk of requiring a life sustaining blood transfusion. [26] Thus, on the morning of March 16, 2005, Dr. Dix met with the child's mother to discuss these recent events and the child's current condition. He told the mother about the difficulties involved, including the impending need for a life sustaining blood transfusion. He explained that he would be calling the Ministry officials for their intervention. The mother restated that the child and the family would not consent to the transfusion of blood or blood products. [27] On March 16, 2005, the Director prepared an emergency application for an order pursuant to s. 29 of the CFCSA seeking the Court's authorization for blood or blood products to be transfused. The application was filed and served that day upon the father and his wife. The child and her mother were served on March 17, 2005 by the hospital's social worker. The documents stated the Director's application would be heard in Vancouver Provincial Court on Friday, March 18, 2005. [28] On the day before the hearing, Dr. Dix met with the child at her request. She told him she would be writing a letter to the Court to explain her position with respect to blood transfusions. She wanted Dr. Dix's reassurance that by doing so, she would not be jeopardizing their relationship. He gave her that reassurance. On the several occasions that Dr. Dix spoke privately with the child about her potential need for a blood transfusion, while she always indicated she would refuse to consent to such treatment, she also passionately and repeatedly expressed to him her desire not to die. [29] The hearing began on the morning on March 18, 2005 before the learned trial judge, Meyers P.C.J. The mother appeared, without counsel. The child's father and his wife (the child's stepmother), did not appear. The child remained confined to her hospital bed and was not in attendance. [30] From the outset, the Director's counsel advised the Court that the Director regarded the application as an emergency application. When the trial judge asked the mother whether she was prepared to go ahead without counsel, she responded "I saw a lawyer yesterday". And further, "I'm here really to speak on (the child's) behalf .She did write a letter to you, Your Honour that I would like to present to you." [31] She made no request for an adjournment, nor did she indicate she wished counsel to be present on her behalf, on the child's behalf or on behalf of any other family member. She did not indicate why the father was not present. Nor did she tell the Court that the father wished to be present. At no time did she indicate she expected the application not to proceed that day or that she was in any way confused by the process. [32] In support of the Director's application, the Director adduced expert medical evidence from Dr. Dix and his colleague, Dr. Christopher Fryer. In addition the Director called evidence from the Ministry social worker, Amber Phillips, and relied upon the evidence contained in the Director's Book of Documents. [33] Both Dr. Dix and Dr. Fryer testified to the urgent need for an order authorizing the provision of blood or blood products to the child They each indicated that upon a further drop in the child's hemoglobin levels, they might have an hour or less in which to transfuse her and save her life. Dr. Dix noted that the immediate treatment plan for the child included reinstating the Heparin that same day and commencing further chemotherapy early the following week. In his view, the recommencement of the chemotherapy was very much overdue. Since she had not received Heparin since before the emergency surgery of March 15th, he was concerned about the risk of further delaying the provision of Heparin. He expressed extreme reluctance to re‑Heparanize the child without the ability to transfuse her. [34] Dr. Fryer was of the same view concerning the risks arising from her blood clot and reinstating Heparin treatment. Indeed he stated he would not treat her with further Heparin unless he was authorized to transfuse her. [35] Similarly, neither doctor was prepared to commence further chemotherapy with the child's hemoglobin at 60 without an order authorizing a blood transfusion. They agreed that any further delay in providing her with post-operative chemotherapy risked compromising the success of the cancer treatment to that point. [36] Quite apart from the risks of re‑Heparanizing the child, both doctors agreed that further chemotherapy would undoubtedly suppress the ability of her bone marrow to produce blood cells, thus causing a further inevitable drop in her blood levels. [37] During the course of the hearing, the mother advised the court that the child wished to meet with the judge. She presented the child's letter to the judge and she noted that in her letter, the child had in fact invited the judge to meet with her. Over the objections of the Director's counsel, the Court then arranged for the child to participate in the hearing by way of telephone from her hospital bed. A nurse was asked to be present to ensure she was physically well enough to participate in the hearing. The trial judge closed the Courtroom, thus converting the hearing to an in camera hearing at that point, so as to ensure the child's privacy during the telephone call. [38] Ultimately, the learned trial judge held, based on all of the evidence, that Heparin and chemotherapy were indeed mandatory treatments and that given her present condition and the anticipated fatigue of the bone marrow as the chemotherapy progressed, the need for a transfusion could come about suddenly and at any time. Accordingly, he held that the transfusion of blood or blood products was indeed necessary to preserve the child's life or to prevent serious or permanent impairment of her health. Accordingly he granted the orders sought. [39] On March 24, 2005, on one day's notice to the Director and the Attorney General, separate counsel for both the child and the parents made applications pursuant to Rule 8(6) of the Provincial Court Rules for the Court to change or cancel the earlier order of March 18, 2005. The purpose of the application was to allow the Court to hear additional legal arguments. No request was made for a re-hearing of evidence or for any fresh evidence to be heard. The Court was advised, without any affidavit evidence in support, that the father had not attended the March 18, 2005 hearing since it was not possible for him to be there. Again without any affidavits in support, their counsel also submitted that both parents had misunderstood what would take place at the March 18th hearing. He said that neither parent had expected it to be a full hearing; rather it was their understanding the matter would essentially be put over or adjourned until the matter could be dealt with at greater length. While Counsel initially suggested the mother had not obtained any legal advice before the March 18th hearing, he later resiled from that position and confirmed that in fact the mother had spoken to legal counsel on the night before the hearing. He said it was during this discussion that the mother had gained the understanding the matter would simply be set over without a hearing being held on that date. Counsel submitted, without evidence, that the child also understood the March 18th hearing would be procedural only and that had she known the hearing would result in a final order negating her wishes, she would perhaps have attended the hearing or obtained legal counsel. [40] The Court dismissed the application to re-open the hearing based on the absence of any evidence to support counsels' submissions and indeed the contradicting evidence before the Court at the March 18th hearing. In dismissing the application, Meyer P.C.J. said he relied on the mother's conduct at the hearing, the nature of the child's own participation, as well as evidence of the ongoing discussions between the family and the Ministry, dating back to December 2004, concerning the anticipated application. Meyer P.C.J. also noted the emergency nature of the application and the absence of any case law finding other child protection legislation invalid. Issue 1: Did the trial judge lose jurisdiction when he failed to determine, at the start of the hearing, if representation by counsel was essential to the appellants receiving a fair hearing? [41] From the outset it should be noted there is no suggestion the trial judge failed to conduct a fair hearing. Rather the single focus of this ground of appeal is that the trial judge failed to determine, at the outset of the hearing, whether representation by counsel was essential to the appellants receiving a fair hearing. A review of the transcript confirms the hearing was conducted over the course of a full day and well into the evening. At every turn, the trial judge made a very considered, thoughtful, and sensitive effort to ensure the child and her family were afforded a fair and thorough hearing. [42] I agree that in a perfect world, on learning that the appellants were unrepresented by legal counsel, the trial judge might have considered adjourning the hearing over to the following day, a Saturday, or perhaps to the following Monday morning. However, it must be recognized, that he was dealing with what the Director characterized as an emergency application involving the need for an immediate order to authorize transfusions which were critical to the life of the child. When the trial judge asked the mother whether she had any objection to proceeding without counsel, she did not voice any difficulties in that regard, but merely emphasized she was there to speak on the child's behalf. [43] In all of the circumstances, including the history of the family's dealings with both the hospital social workers and Ministry social workers, the various meetings and discussions they had with the doctor, social workers and Ministry officials, the family's knowledge that the application would be brought, their stated ability to access counsel, the mother's actual consultation with counsel, and finally given the lack of any request or suggestion made of a need for an adjournment--I believe the learned trial judge proceeded properly in the circumstances. [44] I reject the appellants' counsel's submission that the purported emergency urged by the Director was not in fact a true emergency since, as it turns out, no immediate transfusion was actually required. That position flies in the face of both the evidence adduced from Dr. Dix's and Dr. Fryer at the March 18th hearing, as well as the latest evidence of Dr. Dix contained in his affidavit sworn April 7, 2005. Dr. Dix explains in that affidavit how, in response to the family's requests, he has changed the treatment protocol regarding the order of the administration of chemotherapy drugs, so as to allow the child's body a chance to build up more of a reserve. While her hemoglobin level has improved, it has remained low. He notes that she is due to return to hospital for the 4th, 5th and 6th courses of chemotherapy commencing April 12, 2005, and that it is difficult to predict the degree to which the blood count will drop off after each successive treatment. [45] Finally he states at ¶ 16: My opinion with respect to the medical risks the child faces has not changed since I testified on March 18, 2005. In my opinion, there is still a significant possibility that the child will require a life-saving blood transfusion at some point during the course of her treatment. Although her current blood counts have improved, they remain below optimal levels and she is about to have the chemotherapy treatment which will most profoundly affect her bone marrow. Without exception, all patients that I have previously treated for this type of cancer have required a blood transfusion at some point during the course of their treatment. [46] The point is that while there was no specific emergent need for an immediate transfusion on the dates the Orders were sought, there was an immediate urgent need to heparanize the child--to deal with the ever present serious life threatening risk of the blood clot in her heart leading to a pulmonary embolism and death. The uncontroverted medical evidence was that the child could not be heparanized, unless a transfusion was simultaneously available to deal with whatever sudden bleeding might follow. Likewise, the Court found on uncontroverted medical evidence that there was a serious pressing need to reinstitute the child's chemotherapy treatment, which itself could not be recommenced until transfusions were available. [47] That treatment has now been delayed well beyond normal protocol parameters and is presently set to restart on April 12th. Dr. Dix and Dr. Fryer have both testified that therapy cannot be commenced unless the safety net of a transfusion is available. [48] In short, the child can simply not avail herself of life sustaining therapy and treatment if a blood transfusion is not available. [49] I find that that on March 18, 2005, the trial judge properly characterized the situation as an emergency situation and that he properly decided, in all of the circumstances, to proceed with the application without further delay. Being well aware of the family's concerns and the fact they were not represented by counsel, he appears to have done everything possible to ensure the proceedings were conducted with the utmost fairness to all of the appellants. A review of the transcript of proceedings confirms that at every turn, the learned trial judge conducted a thorough trial, very much sensitive to both the child's and her mother's desire to participate. [50] It is significant that neither at the March 18th hearing, nor on appeal, has any effort been made by the appellants' counsel to seek to adduce fresh evidence ,either explaining the child's or the family's limited understanding of the legal process or their alleged expectation there would be no hearing held on March 18th. In the circumstances, and particularly in light of the Director's counsel's meeting with the family on February 15th, I infer that the child, and certainly the family, was well aware of what such an emergency application involved and having been served with the materials, made a deliberate decision to consult with but not to retain counsel. [51] While the transcript reveals the mother to be both an intelligent and strident individual, she made no mention of any need to adjourn, even when asked directly by the trial judge. Rather the thrust of the mother's submissions at the hearing concerned her desire to impress upon the trial judge that he should read the child's letter, possibly meet with her, appreciate her thoughtful refusal to be transfused, and finally consider the child's likely future emotional reactions to being the subject of a forced transfusion. While a telephone conversation supplanted the personal meeting she suggested with the child, each of the mother's requests was satisfied by the trial judge who rose to the occasion with demonstrable sensitivity and respect for the child and her family. [52] In all of the circumstances, I find that the learned trial judge did not lose jurisdiction by virtue of any procedural unfairness. Issue 2: Did the trial judge err in concluding s. 29 of the CFCSA empowered the Court to authorize necessary medical care of a capable young person (i.e. mature minor) , who refused to consent to such health care? Is the child a "mature minor"? [53] There is no issue that on the material date, the child was a "mature minor", or to use other words, "a capable young person". The Director's Counsel conceded such a fact during submissions. [54] In the Court below, the report of Dr. Andrea Chapman, a child psychiatrist was filed in evidence. Dr. Chapman met with the child on February 16, 2005, at the request of the treating physician, Dr. Dix. She noted that the child was "clearly able to understand and appreciate the nature and consequences of her illness, of treatment with and of treatment without a blood transfusion." She also noted she was aware she might die if she did not receive a blood transfusion if her hemoglobin dropped over the next months of treatment. She confirmed that the decision to accept or not accept a blood transfusion was her own. She concluded: "On the basis of collateral information, cross-sectional examination and personal history, I think that the child is competent to make decisions about her health care in the context of her treatment for osteosarcoma." [55] Thus this appeal will proceed on the assumption made in the Court below, namely that the child is a mature minor. Legislative Framework Child, Family and Community Service Act, RSBC 1996, c. 46: s. 1 In this Act: "Child" means a person under 19 years of age and includes a youth; "Youth" means a person who is 16 years of age or over but is under 19 years of age. s. 2 This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles: (a) children are entitled to be protected from abuse, neglect and harm or threat of harm; (d) the child's views should be taken into account when decisions relating to a child are made; s. 4 (1) Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the child's best interest, including for example: (f) the child's views; s. 29 (1) If a child or a parent of a child refuses to give consent to health care that, in the opinion of 2 medical practitioners, is necessary to preserve the child's life or to prevent serious or permanent impairment of the child's health, a director may apply to the court for an order under this section. (2) At least 2 days before the date set for hearing the application, notice of the time, date and place of the hearing must be served on (a) each parent, (b) the child, if capable of consenting to health care, and (c) any other person the court directs. (3) if satisfied that the health care is n necessary to preserve the child's life or to prevent serious or Permanente impairment of the child's health, the court may make an order (a) authorizing the health care, (b) prohibiting any person from obstructing the provision of the health care, (c) requiring a parent or another person to deliver the child to the place where the health care will be provided, and (d) including any other terms the court considers necessary. (5) This section does not limit the director's power to remove the child under section 30 or to take any other steps authorized by this Act to protect the child. Infants Act, RSBC 1996, c. 223 Part 2--Medical Treatment: s. 17 (1) In this section: "health care" means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health related purpose, and includes a course of health care; "health care provides" includes a person licensed, certified or registered in British Columbia to provide health care. (2) Subject to subsection (3), an infant may consent to health care whether or not that health care would, in the absence of consent, constitute a trespass to the infant's person, and if an infant provides that consent, the consent is effective and it is not necessary to obtain a consent to the heal care from the infant's parent or guardian. (3) A request for or consent, agreement or acquiescence to health care by an infant does not constitute consent to the health care for the purposes of subsection (2) unless the health care provides providing the health care (a) has explained to the infant and has been satisfied that the infant understand the nature and consequences and the reasonably foreseeable benefits and risks of the health care, and (b) has made reasonable efforts to determine and has concluded that the health care is in the infant's best interests. Analysis: [56] The appellants submit that the trial judge erred in finding that notwithstanding the child was a mature minor who had provided an "informed refusal" of treatment, the Court had an overriding right to give or withhold consent to treatment. Put very succinctly, the appellants submit, relying on our Court of Appeal's decision in Van Mol (Guardian ad Litem of) v. Ashmore (1999), 168 D.L.R. (4th) 637, leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 117, and the New Brunswick Court of Appeal's decision in Walker (Litigation Guardian of) v. Region 2 Hospital Corp. (1994) 4 R.F.L. (4th) 321, that at common-law, as a mature minor, the child has both the capacity to consent to as well as to refuse medical treatment. The appellants say that neither the CFCSA nor the Infants Act overrides the "mature minor" rule. Since there is no mention of the "mature minor" rule in either statute, and since express legislative language is required to alter the common law, particularly where basic human rights are involved, the appellants submit this Court should find the applicable child welfare legislation does not supersede the common law rights of the mature minor at bar. (See Morguard Properties Ltd. v. Winnipeg (City of), [1983] 2 S.C.R. 493 at ¶ 26 and Eve (Re), [1986] 2 S.C.R. 388, at ¶ 29. [57] The appellants note that the courts in at least three Provinces have decided that child welfare legislation does not supersede the mature minor rule. In particular they rely on Kennett Estate v. Manitoba (A.G.) (1998), 42 R.F.L. (4th) 27 (Man. C.A); D. (T.T.), (Re) (1999), 171 D.L.R. (4th) 761 (Sask. Q.B.) and H. (T.) v. Children's Aid Society of Metropolitan Toronto (1996), 138 D.L.R. (4th) 144 (Ont. Gen. Div.). [58] The appellants' submit the powers of the Director, under s. 29 of the CFCSA, are limited to that of parental authority. In other words they say the Director can do no more than step into the shoes of the parent and act as guardian of the child. Relying on New Brunswick (Minister of Health) v. G. (J.), [1999] 3 S.C.R. 46, the appellants submit the legislature's power to enact child welfare legislation is pursuant to the state's parens patriae jurisdiction, and that the exercise of that jurisdiction is not unlimited. [59] I am not persuaded the appellants' submissions on this ground of appeal have any merit. [60] First I note that the appellants' position relies heavily on both the decisions in Van Mol and Walker. Neither decision in my view is of any assistance to the appellants. [61] The Walker decision concerned the issue of whether a 16-year-old boy suffering leukemia, who refused transfusions, had the right under the New Brunswick Medical Consent of Minors Act to refuse treatment. There the hospital, and not any child welfare authority, made application for an order declaring the boy a mature minor and dispensing with the necessity of obtaining parental consent. No application was made by any child protection authorities. On appeal, the court held that since the boy was a mature minor, "there was no room to exercise its parens patriae jurisdiction" and further that a mature minor's right to consent to medical treatment under the Medical Consent of Minors Act, also included the right to refuse treatment. In no way did the decision include a consideration of the issue before this Court, which is whether child protection authorities have the legislative authority to act, notwithstanding a mature minor's refusal of treatment. [62] Regarding Van Mol, I find that that decision is also of limited assistance to the appellants. While it confirms the common law rule regarding mature minors, it no way addresses the authority of child welfare authorities to intervene on a child's behalf. Further the Court there specifically rejected the appellants' submission here that the Court's parens patriae jurisdiction must fall away, in the face of a mature minor who seeks to exercise his rights to refuse treatment. [63] Van Mol was a medical malpractice decision involving a then 16-year-old plaintiff who had undergone surgery to correct a congenital narrowing of her aorta, and was left a paraplegic with severe laryngeal nerve damage. While the decision is primarily one involving an assessment of the issues of negligence, one of the issues concerned who could have consented to the surgery--the child or her parents? The Court held that the 16-year-old plaintiff, being a mature minor, was the only person who could have provided her informed consent to the surgery with the parents acting as no more than her advisors. [64] Lambert J.A. relied on the reasons of Huddart J. (as she then was) in Ney v. Canada (A.G.) (1993) 79 B.C.L.R. (2d) 47 (S.C.) at pages 53 and 57, who summarized the common law position in British Columbia in this way: In sum, where a child has sufficient intelligence and understanding of the nature of proposed health care, he or she is capable at common law of consenting to such treatment. If a child does not meet this test, and as a result is incapable of consenting, the consent of the parents of that child will be required. ..neither the common law nor the statue interferes with the parens partriae jurisdiction of the court, which may override a minor's refusal to consent to treatment that is in the minor's best interests. Even if the parents do not have that power, as guardians they will be able to seek the exercise of such power from the court. [65] Since she was one of the judges sitting on the panel in Van Mol, Huddart J.A. (who also concurred with the majority) took the occasion, to comment on her own reasons in Ney. She noted that her reasons arose from comments made by Lord Donaldson in R. (Re), [1991] 4 All E.R. 177 (C.A.) about the right of parents to consent to treatment in circumstances where their competent child did not consent or was not asked. He posited this concept of concurrent rights of consent as a means of resolving a doctor's dilemma, when faced with parents who sought treatment the child refused. Huddart J.A. rejected such a modification of the common-law, concluding that, whether dealing with a mentally disabled adult or a young, possibly competent, young person, the matter requires a single factual decision which she articulated at ¶ 143: 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 a child who is not competent to give consent to the treatment being provided. 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. I do not read section 16 of the Infants Act .as inconsistent with the common law. (my emphasis) [66] Huddart J.'s reasons in Ney were also adopted by our Court of Appeal in R. v. W. (D.D.) (1997), 114 C.C.C. (3d) 506 (B.C.C.A.) at ¶ 29-30. [67] As I noted earlier, the appellants say that neither the CFCSA nor the Infants Act, override the mature minor common law rule. They rely here on the decisions of the Sask Q. B. in D. (T.T.), (Re) (1999), 171 D.L.R. (4th) 761 (Sask. Q.B.) and the Ontario Provincial Court in K. (L.D.), Re, (1985), 48 R.F.L. (2d) 164 (Ont. Prov. Ct. (Fam. Div.)). [68] In D. (T.T.), the court held, relying on Walker, that if the boy was recognized in law as a mature minor, the Minister's consent to medical treatment would not be required. It is notable that the 13-year-old boy was not found to be a mature minor. In any event, there was no reference to the child welfare legislation or any case law beyond the Walker case. The case is of no assistance here. [69] In K. (L.D.) the Children's Aid Society sought to have the child who was a Jehovah's Witness declared in need of protection, given her own and her family's refusal to accept transfusions as she underwent chemotherapy. The Court held that the Agency had failed to prove the child was in need of protection and had also failed to prove the relative risks of the alternate treatment plan proposed by the hospital versus the treatment plan proposed by the family. There was no consideration of the mature minor rule, the common law nor the powers of the child welfare authorities under the statute, relative to a mature minor who refuses treatment. [70] In my view, quite contrary to the appellants' submissions, the Courts have repeatedly held that the legislature has the power to protect the life of a child who is endangered by his or her own refusal to accept necessary medical treatment, which power is not in any way constrained by the common law limits placed upon the parens patriae powers of a court of inherent jurisdiction. [71] In both C.U. v. McGonigle, [2003] A.J. No. 238 (Alta. C.A.) and B.H. (Next friend of) v. Alberta (Director of Child Welfare) [2002] A.J. No. 518 (Alta. C.Q.B.), the Courts held in almost identical circumstances to the case at bar that the relevant legislation, the Alberta Child Welfare Act, formed a complete and exclusive code for dealing with refusal of treatment and thus superseded the common law mature minor principle. While accepting that a mature minor can provide an informed consent which cannot be overruled by the parent, the Courts determined the rule was overridden by the provisions of the Act regarding any minor for whom protection proceedings had been initiated. [72] Likewise in B.H., the Court rejected the appellant's argument that the Alberta Child Welfare Act did not and could not oust the mature minor rule at common law. The court found that the case law, which is virtually the same case law which the appellants rely upon her here, of little assistance. I note that the application for leave to the Supreme Court of Canada was denied on July 12, 2002 (see [2002] S.C.C.A. No. 196). Issue 3: To the extent the CFCASA or the Infants Act apply to mature minors, are those portions of those statues ultra virus the Provincial Legislature? [73] The essence of the appellants' submission is that if either s. 29 of the CFCSA or s. 17 of the Infants Act is interpreted so as to supersede the child's common law rights as a mature minor to make capable treatment decisions, then the legislation must be found to be ultra vires the provincial legislature. The appellants say the provincial legislature has no jurisdiction to overrule the treatment of capable person, whether they are adult persons or mature minors. [74] This position turns on the same grounds articulated earlier, namely that the legislature's power to enact child protection legislation is pursuant to the state's parens patriae jurisdiction. Since the parens patriae jurisdiction of the superior court ceases once a minor achieves consenting capacity, the appellants submit it follows the parens patriae jurisdiction of the legislature must also come to an end. [75] In any event, as a matter of division of powers, the appellants submit the Provincial Legislature has no general jurisdiction under s. 92(13) of the Constitution Act, 1867 to override the treatment decisions of capable adults and mature minors, since that would constitute the violation of the fundamental freedom of the inviolability of the person. [76] In sum, the appellants say that the legislature must be taken to know the limits of its parens patriae jurisdiction. Accordingly they say that the limitation on s. 29 of the CFCSA must be taken as either intended by the Legislature or imposed by the Constitution. [77] I entirely reject the appellants' submissions on the issue of the division of powers. The analysis must start with a determination of the pith and substance of the enactment. As s. 2 of the CFCSA provides, in interpreting the Act the paramount consideration is the "safety and wellbeing of children". Section 2(a) provides that that paramount consideration must be interpreted and administered in accordance with the principle that "children are entitled to be protected from abuse, neglect and harm or threat of harm". As the Attorney General's counsel submitted, the ultimate threat of harm to any child is the threat of death. Thus the dominant and most important characteristic of the legislation is the preservation of the life and the protection of the health of children. (See Schneider v. British Columbia [1982] 2 S.C.R. 112). [78] I agree with the Attorney General's submission that both such matters fall within Provincial jurisdiction under s. 92(16) of the Constitution Act, 1867. Issue 4: Do the CFCSA or the Infants Act infringe the child's rights and freedoms under ss. 2(a), s. 7, and s. 15(1) of the Charter? If so, can the interference be justified under s. 1? [79] Before addressing this issue, let me acknowledge the Attorney General's position that none of these issues ought to be addressed on appeal, since they were not heard before the learned Provincial Court Judge. As Mr. Copley points out, there was no Notice of Constitutional Challenge before the Court on March 18, 2005 and thus no opportunity for any party to lead any s. 1 evidence either for or against the constitutional validity of s. 29 of the CFCSA. Relying on the decision in R. v. Vidulich (B.C.C.A.) (1989), 37 B.C.L.R. (2d) 391, the Attorney General submits that without a sufficient evidentiary and factual basis before it, this Court should not entertain the constitutional challenge. [80] Notwithstanding the lack of a fulsome evidentiary record, I am prepared to proceed to consider these Charter challenges in any event--particularly since, in the circumstances of a emergency application in which the Appellants were without counsel, it would have been unlikely for any of the parties, including the Attorney General, to have prepared to argue such constitutional issues on the date of the emergency application. [81] This is not to say that there are no better ways of approaching these matters, particularly where the appellants have access to sophisticated Church Counsel who specialize in such litigation. Ideally, such issues should be addressed in advance, prior to the actual hearing of the emergency application. Here, since they were well aware of the very real prospect of an approaching emergency application, the appellants could have elected, at any point after December 2004, to make an application for prohibition against any Provincial Court Judge hearing an application for a treatment order under the CFCSA. Alternatively, the appellants could have commenced an action by way of Writ and Statement of Claim seeking a declaration that the subject section of the CFCSA violated the child's Charter rights. [82] In any case, as I have already noted, in the circumstances of this case, I am prepared to address the Charter issues. Section 2(a) Challenge: [83] I reject the submission that the child's rights under s. 2(a) of the Charter have been violated. While I accept that the child is free to choose and practice the religion of her choice, the law is clear that freedom of religion is not absolute. As Kent J. noted in B.H., "freedom of religion is not absolute and may properly give way to an order or orders duly made in a child's best interests". She noted however that in determining the child's best interests under the statute there, the Court was "required to consider (the child's) opinion concerning the recommended medical treatment, that is, her specifically religious objections to the treatment, as well as her religious heritage." Likewise, in the case at bar, s. 2(d) of the CFCSA dictates that "the child's views should be taken into account when decisions relating to a child are made." [84] In the case at bar, having reviewed the transcript, I am satisfied the learned provincial court judge very carefully considered the child's objections based on her religious convictions before reaching the decision he did. [85] In any case, I reject the notion that the statute in any way infringes or denies the child's rights to hold her beliefs or to express them or to practice them. The statute does however ensure that ultimately, her beliefs do not override her Charter guaranteed right to life and security of the person. Section 7 Charter Challenge: [86] The appellants submit that the Director overriding the child's choice of medical treatment constitutes a gross breach of her right to dignity, personal autonomy, privacy and choice in decision going to her fundamental being. They note that at trial, upon being questioned by Meyers P.C.J., the child said that if she was forced to be transfused she would feel "extremely, extremely violated" and that it was no different to her being the victim of a sexual assault, a rape or a robbery. The appellants submit that denying the child her right to decide her treatment merely because she has not yet attained the age of majority is unfair and arbitrary, and does not meet the requirements of substantive fundamental justice. [87] Here the Attorney General concedes that when the Court makes an Order under s. 29 of the CFCSA, it has the potential to cause a breach of one's s. 7 Charter rights. However the Attorney General's counsel notes that such a breach would be for the purpose of preserving the constitutionally guaranteed right to life and the very important objective of safeguarding the child's health. [88] I reject the appellants' submission that s. 29 of the CFCSA violates the substantive principles of fundamental justice. [89] Clearly there is no basis for suggesting the section is not designed to protect children. Further there are no grounds for submitting the legislation is out of step with either legal tradition or societal beliefs. To the contrary, as La Forest J. noted in R.B. v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 (S.C.C.) at ¶ 88: the 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 become 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 meets the requirements of fair procedure. [90] Here, on a review of the statute, I am satisfied the procedure contemplated by s. 29 of the CFCSA is in accordance with the principles of fundamental justice. The statute creates a framework for a decision to be made by an independent and impartial decision maker, supported by the opinion of two medical practitioners, and in circumstances where the evidence supports the conclusion an order for medical treatment is required to preserve a child's life or prevent serious or permanent impairment of the child's health. Further, the procedure contemplates the Court considering the child's opinion concerning the medical treatment and her religious heritage, in the determination of her best interests. [91] I conclude the legislation is neither unfair nor arbitrary and thus is not in violation of s. 7 of the Charter. Section 15 Charter Challenge: [92] Adopting the test in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 (S.C.C.), the appellants submit the child has been discriminated on the basis of her age--that is she is being treated differently than an adult, although she has the cognitive capacity to understand the nature and consequences of the medical treatment available and to choose between the alternatives. They say that the appropriate comparator groups are (a) persons 19 years of age and older who are permitted to decide their own medical treatment; and (b) children for whom the provisions of the CFCSA are invoked, who are incapable of deciding to give consent or who refuse consent to medical care. [93] While I agree that the selection of the age of 19 is perhaps somewhat arbitrary, I am satisfied that an application of the principles expressed in both Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, [2002] S.C.J. No. 86 and Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, [2004] S.C.J. No. 6, supports the conclusion s. 29 of the CFCSA is not in breach of s. 15. Adopting the contextual inquiry described in Gosselin, which is aimed not specifically at the claimant before the court, but rather the "reasonable person" in her position, and considering the relationship between the grounds of alleged discrimination and the claimant's group characteristics or circumstances, I am satisfied that s. 29 is indeed "closely tailored to the reality of affected group" and therefore unlikely to discriminate within the meaning of s. 15(1). Here, the legislation is closely tailored to the reality of children who are facing life-threatening health conditions or permanent or serious impairment of their health. [94] If I am wrong and s. 29 of the CFCSA does constitute a breach of the child's s. 15 Charter rights, then I find, in any case, that the legislation is a reasonable limit demonstrably justified in a free and democratic society. Regarding the issue of whether certain provisions in the Ontario Child Welfare Act, R.S.O. 1980, c. 66 (which allowed for a child to be declared in need of protection and to allow for blood transfusions to be provided over the objections of the parents) were saved by s. 1 of the Charter, the majority of the Court in R.B., upheld the impugned legislation, noting "the reasonable nature of the scheme, under s. 1 of the Charter." [95] Addressing the issue of whether the impugned legislation was a reasonable limit on parental rights, the majority in R.B. held at ¶ 113: The appellants have conceded that the state interest in protecting children at risk is a pressing and substantial objective. The Act allows the state to assume parental rights when a judge has determined that a child is in need of treatment that his parents will not consent to. As already stated when discussing the conformity of state intervention with the principles of fundamental justice, the process contemplated by the Act is carefully crafted, adaptable to a myriad of different situations, and far from arbitrary. The Act makes provision for notice to be given, for evidence to be called, for time limits to be imposed upon Crown wardship and other orders, as well as for procedural protections to be afforded to parents. The restrictions the Act imposes on parental rights are, in my view, amply justified. [96] I find that ¶ 113 is equally applicable here and that the restrictions upon both parents' and children's' rights as set in s. 29 of the CFCSA are also amply justified. Conclusion: [97] In conclusion, I find that the Appeal must fail on all grounds. I have not been asked to make any order concerning costs and accordingly I will not make an order. If any party is insistent on pursuing the issue of costs further, they ought to contact the Registry to arrange a date for submissions on the issue. "M.E. Boyd, J." The Honourable Madam Justice M.E. Boyd