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

• Judge: Kent, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 10, 2002
• Citations: 2002 ABQB 371;(2002), 302 A.R. 201 (QB)

CFS v. B.H. (2002), 302 A.R. 201 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. MY.021

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 1985

B.H., by her Next Friend, A.H., and A.H. in her own right (appellants) v. Her Majesty the Queen in Right of Alberta (as represented by the Director of Child Welfare) (respondent)

(Nos. 0201-02952; 0201-04211; 2002 ABQB 371)

Indexed As: Director of Child Welfare (Alta.) v. B.H.

Alberta Court of Queen's Bench

Judicial District of Calgary

Kent, J.

April 10, 2002.

Summary:

B., a 16 year old Jehovah's Witness, was diagnosed with acute myeloid leukemia. She refused the recommended treatment because it involved blood transfusions. The Director of Child Welfare applied for apprehension and medical treatment orders.

The Alberta Provincial Court, in a decision reported at [2002] A.R. Uned. 45, granted the orders. B. and her mother appealed.

The Alberta Court of Queen's Bench dismissed the appeal. Although the trial judge acted on the wrong principle in making the orders, her orders were nonetheless correct in law.

Editor's note: an appeal from this decision was dismissed at (2002), 303 A.R. 115; 273 W.A.C. 115.

Barristers and Solicitors - Topic 1545

Relationship with client - Duty to client - General - Obligation of loyalty - B., a 16 year old Jehovah's Witness, refused recommended treatment for leukemia - The trial judge granted the Director of Child Welfare apprehension and medical treatment orders - B. appealed - B.'s father, who supported the treatment, applied to remove B.'s counsel - He claimed, inter alia, that her counsel were also counsel for the Church and were, by definition, members of the Church - He alleged that counsel were unable to differentiate their roles as counsel for B., as counsel for the Church and as Church members - The Alberta Court of Queen's Bench dismissed the application - Removing counsel should only be done in the clearest of circumstances - There should be a presumption that lawyers will carry out their duties in accordance with the Oath of Office and the Codes of Professional Conduct - The court refused to lose track of the primary focus (i.e., B.'s care and treatment) to investigate whether the presumption should be overturned - See paragraphs 9 and 10.

Barristers and Solicitors - Topic 1608

Relationship with client - Conflict of interest - Resulting from lawyer's relations - [See Barristers and Solicitors - Topic 1545 ].

Barristers and Solicitors - Topic 1611

Relationship with client - Conflict of interest - Conduct of action against former client - B., a 16 year old Jehovah's Witness, refused recommended treatment for leukemia - The trial judge granted the Director of Child Welfare apprehension and medical treatment orders - B. appealed - B.'s father, who supported the treatment, applied to remove the firm representing B. - He claimed, inter alia, that the firm was in a conflict of interest, having previously acted for him - The Alberta Court of Queen's Bench held that the evidence was not sufficiently clear to find that the firm had acted for the father - Even if it had, the father did not provide confidential information that was now being used to his detriment - See paragraph 8.

Civil Rights - Topic 446

Freedom of conscience and religion - Health care - Blood transfusions - B., a 16 year old Jehovah's Witness, refused recommended treatment for leukemia because it involved blood transfusions - The trial judge granted the Director of Child Welfare apprehension and medical treatment orders under the Child Welfare Act - The Alberta Court of Queen's Bench stated that "I find that B.'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" - The court held that the relevant provisions of the Act did not infringe B.'s freedom of religion or, alternatively, imposed justifiable limits within s. 1 of the Charter - See paragraph 55.

Civil Rights - Topic 650

Liberty - Limitations on - Child or adult protection - B., a 16 year old Jehovah's Witness, refused recommended treatment for leukemia - The trial judge granted the Director of Child Welfare apprehension and medical treatment orders under the Child Welfare Act - The Alberta Court of Queen's Bench accepted that, in overriding her refusal of medical treatment, there was a deprivation of B.'s liberty interest - However, there was no violation of s. 7 because that deprivation was in accordance with the principles of fundamental justice, both substantive and procedural - See paragraphs 51 to 54.

Civil Rights - Topic 3823

Cruel and unusual treatment or punishment - What constitutes cruel and unusual punishment - Court ordered medical treatment - B., a 16 year old Jehovah's Witness, refused recommended treatment for leukemia - The trial judge granted the Director of Child Welfare apprehension and medical treatment orders under the Child Welfare Act - The Alberta Court of Queen's Bench held that there was no violation of B.'s s. 12 Charter rights not to be subjected to cruel or unusual treatment or punishment - The court stated that assuming, without deciding, that "treatment" within the meaning of s. 12 included state-imposed treatment in contexts other than penal or quasi-penal contexts, there were two classes of "cruel and unusual" treatment: "(1) those that are barbaric in themselves, and (2) those that are grossly disproportionate to the offence" - The treatment given to B. could not be so characterized - See paragraphs 61 and 62.

Civil Rights - Topic 5654.1

Equality and protection of the law - Particular cases - Medical treatment of minor - B., a 16 year old Jehovah's Witness, refused recommended treatment for leukemia - The trial judge granted the Director of Child Welfare apprehension and medical treatment orders under the Child Welfare Act - The Act defined "child" as a person under age 18 - The Alberta Court of Queen's Bench accepted that B.'s equality rights (Charter, s. 15) were infringed - However, the court held that the infringement was justified under s. 1 of the Charter - Some age had to be chosen for legislated ages for health care decisions, and, whatever it was, it would necessarily be somewhat arbitrary, but, provided that it was within a reasonable range, it was justifiable - The choice of age 18 was justifiable - See paragraphs 46 to 50.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 446 and Civil Rights - Topic 5654.1 ].

Guardian and Ward - Topic 812.2

Public trustee or guardian - Appointment - Mature minor - B., a 16 year old Jehovah's Witness, refused recommended treatment for leukemia because it involved blood transfusions - The trial judge granted the Director of Child Welfare apprehension and medical treatment orders under the Child Welfare Act - The trial judge concluded that B. was not a mature minor because she lacked the capacity to refuse life saving medical treatment - Although she was intelligent and understood her situation, she lacked the life or developmental experience that would allow her to question her faith and its teachings - The Alberta Court of Queen's Bench held that the trial judge applied the wrong principle - Mature minor status required the intelligence to do the analysis, not that it be done - B. was a mature minor at the time of trial - See paragraphs 25 to 37 - However, at the time of the appeal, she was no longer a mature minor because she was no longer able to make an informed choice due to undue influence - See paragraphs 63 to 78.

Guardian and Ward - Topic 812.2

Public trustee or guardian - Appointment - Mature minor - The Alberta Court of Queen's Bench held that the Child Welfare Act formed a complete and exclusive code in dealing with refusal of treatment in circumstances covered by the Act - Therefore, the Act replaced the common law principle of mature minor - Section 2(d) of the Act provided that the court and all persons exercising authority had to take into consideration a child's opinions - However, the court was not required to follow the child's opinion - Under the Act, the court must do what is in the best interests of the child - See paragraphs 38 to 44.

Guardian and Ward - Topic 815.9

Public trustee or guardian - Appointment - Child in need of protection - Opinion of child - [See second Guardian and Ward -Topic 812.2 ].

Guardian and Ward - Topic 931

Public trustee or guardian - Children in care - Management of - Medical treatment - General - B., a 16 year old Jehovah's Witness, was diagnosed with leukemia - She refused the recommended treatment because it involved blood transfusions - The Director of Child Welfare applied for apprehension and medical treatment orders - The trial judge allowed the application - B. appealed - The Alberta Court of Queen's Bench dismissed the appeal - The treatment was essential for B.'s survival and was in her best interests - See paragraphs 1 to 58.

Guardian and Ward - Topic 931

Public trustee or guardian - Children in care - Management of - Medical treatment - General - [See Civil Rights - Topic 446 , Civil Rights - Topic 650 , Civil Rights - Topic 3823 and Civil Rights - Topic 5654.1 ].

Guardian and Ward - Topic 945

Public trustee or guardian - Appeals to courts - Admission of "new evidence" - B., a 16 year old Jehovah's Witness, refused recommended treatment for leukemia - The trial judge granted the Director of Child Welfare apprehension and medical treatment orders - B. appealed and sought to adduce fresh evidence - The Alberta Court of Queen's Bench discussed the test for the admission of fresh evidence and agreed 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 [Child Welfare Act]." - See paragraph 18.

Cases Noticed:

C.U. v. McGonigle et al. (2000), 273 A.R. 106 (Q.B.), consd. [para. 5].

Alberta (Treasury Branches) v. Leahy (1998), 223 A.R. 113; 183 W.A.C. 113 (C.A.), refd to. [para. 10].

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46, refd to. [para. 12].

R. v. Stolar - see R. v. Nielsen and Stolar.

K.L.P. v. Director of Child Welfare (Alta.), [1998] A.R. Uned. 125; 37 R.F.L.(4th) 86 (C.A.), refd to. [para. 12].

Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165; 165 N.R. 161; 71 O.A.C. 81, refd to. [para. 13].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 13].

V.G. v. Catholic Children's Aid Society of Metropolitan Toronto (1985), 9 O.A.C. 398; 53 O.R.(2d) 163 (C.A.), refd to. [para. 14].

T.L.O. v. Director of Child Welfare (Alta.) (1995), 175 A.R. 194 (Q.B.), refd to. [para. 16].

T.P. v. Director of Child Welfare (Alta.) (1998), 231 A.R. 115 (Q.B.), folld. [para. 18].

S.E.M., Re (1986), 74 A.R. 23 (Q.B.), refd to. [para. 18].

C.A.Y. v. Director of Child Welfare (Alta.) (1998), 229 A.R. 384 (Q.B.), refd to. [para. 18].

T.M. v. Director of Child Welfare (Alta.) (1998), 231 A.R. 39 (Q.B.), refd to. [para. 18].

Director of Child Welfare (Alta.) v. J.T., [1999] A.R. Uned. 105 (Q.B.), refd to. [para. 18].

G.P.G. et al. v. Director of Child Welfare (Alta.), [2001] A.R. Uned. 432 (Q.B.), refd to. [para. 18].

J.U. v. Regional Director of Child Welfare (Alta.) et al. (2001), 281 A.R. 396; 248 W.A.C. 396 (C.A.), leave to appeal refused (2001), 283 N.R. 398; 299 A.R. 305; 266 W.A.C. 305 (S.C.C.), refd to. [para. 18].

E. (A Minor) (Wardship: Medical Treatment), Re, [1993] 1 F.L.R. 386 (Fam. Div.), refd to. [para. 29].

Gillick v. West Norfolk and Wisbech Area Health Authority, [1985] 3 All E.R. 402 (H.L.), refd to. [para. 30].

J.S.C. and C.H.C. v. Wren (1986), 76 A.R. 115 (C.A.), refd to. [para. 30].

W. (A Minor) (Medical Treatment), Re, [1992] 4 All E.R. 627 (C.A.), refd to. [para. 31].

Van Mol et al. v. Ashmore (1999), 116 B.C.A.C. 161; 190 W.A.C. 161; 168 D.L.R.(4th) 637 (C.A.), leave to appeal refused [2000] 1 S.C.R. vi; 252 N.R. 393; 138 B.C.A.C. 269; 226 W.A.C. 269, refd to. [para. 31].

Ney v. Canada (Attorney General) (1993), 102 D.L.R.(4th) 136 (B.C.S.C.), refd to. [para. 32].

R. v. D.D.W. (1997), 90 B.C.A.C. 191; 147 W.A.C. 191; 114 C.C.C.(3d) 506 (C.A.), affd. [1998] 2 S.C.R. 681; 231 N.R. 322; 113 B.C.A.C. 296; 184 W.A.C. 296, refd to. [para. 32].

Region 2 Hospital Corp. et al. v. Walker et al. (1994), 150 N.B.R.(2d) 366; 385 A.P.R. 366 (C.A.), refd to. [para. 32].

Kennett v. Manitoba (Attorney General), [1999] 1 W.W.R. 639; 129 Man.R.(2d) 244; 180 W.A.C. 244 (C.A.), refd to. [para. 39].

T.T.D., Re (1999), 176 Sask.R. 152; 171 D.L.R.(4th) 761 (Q.B. Fam. Div.), refd to. [para. 40].

A.Y., Re (1993), 111 Nfld. & P.E.I.R. 91; 348 A.P.R. 91 (Nfld. U.F.C.), refd to. [para. 40].

Bayer Aktiengesellschaft et al. v. Apotex Inc. (1998), 113 O.A.C. 1 (C.A.), leave to appeal refused [1999] 1 S.C.R. v; 239 N.R. 200; 124 O.A.C. 199, refd to. [para. 43].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 46].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 47].

Walker and Robertson v. Prince Edward Island (1993), 111 Nfld. & P.E.I.R. 150; 348 A.P.R. 150 (P.E.I.C.A.), affd. [1995] 2 S.C.R. 407; 181 N.R. 158; 130 Nfld. & P.E.I.R. 181; 405 A.P.R. 181, refd to. [para. 50].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 51].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena B., Re.

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 51].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 51].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 51].

Director of Child Welfare (Alta.) v. Jordan, P.C.J. et al. (2000), 279 A.R. 328 (Q.B.), refd to. [para. 53].

Director of Child Welfare (Alta.) v. K.B. - see Director of Child Welfare (Alta.) v. Jordan, P.C.J. et al.

Fleming v. Reid and Gallagher (1991), 48 O.A.C. 46; 4 O.R.(3d) 74 (C.A.), dist. [para. 54].

Statutes Noticed:

Child Welfare Act, R.S.A. 2000, c. C-12, sect. 1(1)(d), sect. 1(2)(c), sect. 2(d) [para. 7].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (1997 Looseleaf Ed.), p. 50-3, para. 50.3 [para. 62]; p. 52-55, para. 52.13 [para. 48].

Manitoba, Law Reform Commission Report, Minors' Consent to Health Care (1995), pp. 6, 7 [para. 34].

Counsel:

David M. Gnam, Shane H. Brady and J. Burns (W. Glen How & Associates), for the appellants, B.H. and A.H.;

Beverley A. Bauer, Q.C., and 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., and K. Clayton (Student-at-Law) (McCarthy Tetrault), for L.H.;

Linda Barry-Hollowell and 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.

This appeal was heard from April 4 to 8, 2002, before Kent, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on April 10, 2002.