Director of Child and Family Services (Man.) v. A.C. et al., (2009) 390 N.R. 1 (SCC)

JudgeMcLachlin, C.J.C., Binnie, LeBel, Deschamps, Abella, Charron and Rothstein, JJ.
CourtSupreme Court (Canada)
Case DateMay 20, 2008
JurisdictionCanada (Federal)
Citations(2009), 390 N.R. 1 (SCC);2009 SCC 30;[2009] 2 SCR 181;AZ-50562427;240 Man R (2d) 177;390 NR 1;66 CCLT (3d) 1;65 RFL (6th) 239;191 CRR (2d) 300;309 DLR (4th) 581;JE 2009-1241;[2009] 7 WWR 379;[2009] SCJ No 30 (QL);456 WAC 177

CFS v. A.C. (2009), 390 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] N.R. TBEd. JN.035

A.C., A.C. and A.C. (appellants) v. Director of Child and Family Services (respondent) and Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Alberta and Justice for Children and Youth (intervenors)

(31955; 2009 SCC 30; 2009 CSC 30)

Indexed As: Director of Child and Family Services (Man.) v. A.C. et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Abella, Charron and Rothstein, JJ.

June 26, 2009.

Summary:

AC, a 14 year old Jehovah's Witness, refused to take a blood transfusion. The Director of Child and Family Services apprehended the child under the Child and Family Services Act (CFSA) and applied for a medical treatment order. Section 25(8) of the CFSA provided that, in the case of children under 16, the judge "may authorize ... any medical ... treatment that the court considers to be in the best interests of the child". In the case of children 16 and over, s. 25(9) provided that treatment could not be ordered without the patient's consent, unless the court was satisfied that he or she was unable to understand the nature of the decision and its likely consequences. An applications judge (Kaufman, J.), proceeding on the assumption that capacity was irrelevant because A.C. was under 16, granted the treatment order in the child's "best interests" under s. 25(8) because she was in immediate danger. A.C. was given the blood and recovered. Thereafter, the Director withdrew its application. A.C. and her parents appealed, arguing that s. 25(8) of the CFSA, and the "best interests" test contained in it, applied only to minors under 16 without capacity, and so should not have been applied to AC, who had capacity. Alternatively, they argued that ss. 25(8) and 25(9) of the CFSA were unconstitutional because they unjustifiably infringed AC's rights under ss. 2(a), 7 and 15 of the Charter.

The Manitoba Court of Appeal, in a decision reported 212 Man.R.(2d) 163; 389 W.A.C. 163; 2007 MBCA 9, dismissed the appeal. The court rejected A.C.'s argument that s. 25(8) applied only to children under 16 without capacity. The court concluded that the legislation formed a complete code which ousted the common law principles relating to "mature minors", and instead empowered the court to make treatment decisions for those under 16, with or without capacity, based on a "best interests" test. A child's wishes and capacity were relevant to the analysis, but not determinative. As to the Charter claims, the court held that s. 25 of the CFSA violated s. 2(a) (freedom of religion), but was saved under s. 1 of the Charter. Medical treatment against an individual's wishes also violated the s. 7 interests of liberty and security of the person, but did so here in accordance with the principles of fundamental justice, and so did not result in a breach of s. 7. Finally, the age-based distinction did not violate s. 15. A.C. and her parents appealed again.

The Supreme Court of Canada, Binnie, J., dissenting, dismissed the appeal. Abella, J., speaking for the majority, agreed that the provisions were constitutional, but disagreed with the court of appeal's interpretative conclusion that s. 25(8) of the CFSA "treats all minors under 16 the same way". Rather, to be constitutionally compliant, the interpretation of "best interests" in s. 25(8) required that sufficient account be taken of a particular adolescent's maturity in any given medical treatment context. That is, there was a sliding scale of scrutiny, with the adolescent's views becoming increasingly determinative depending on his or her ability to exercise mature, independent judgment. The more serious the nature of the decision, and the more severe its potential impact on the life or health of the child, the greater the degree of scrutiny that was required. Abella, J., stated that this interpretation of the "best interests" standard in s. 25(8) was not only more consistent with the actual developmental reality of young people; it was also conceptually consistent with the evolutionary development of the common law "mature minor" doctrine in both the Canadian and international jurisprudence. Abella, J., stated that "When the 'best interests' standard is applied in a way that takes into increasingly serious account the young person's views in accordance with his or her maturity in a given treatment case, the legislative scheme created by ss. 25(8) and 25(9) of the Child and Family Services Act is neither arbitrary [s. 7], discriminatory [s. 15], nor violative of religious freedom [s. 2(a)]". Since A.C. was successful in her interpretative argument, the court held that it was appropriate she should be awarded her costs.

McLachlin, C.J.C. (Rothstein, JJ., concurring), in concurring reasons, opined that the judge's decision should be upheld. The CFSA provisions constituted a complete code that displaced the common law doctrine of mature minors. While s. 25(8) impacted on the liberty and autonomy of children under 16, it did so in a way that was appropriately attuned to legitimate the legislative goal and not arbitrary, and therefore did not violate s. 7 of the Charter. As to the discrimination claim, the distinction, while based on an enumerated ground (age), was not discriminatory within the meaning of s. 15. The distinction drawn by the CFSA between minors under 16 and over 16 was ameliorative, not invidious. Section 25(8) violated s. 2(a) of the Charter (i.e., the freedom of religion), but was justified under s. 1 as a proportionate limit on that right. McLachlin, C.J.C., would have dismissed the appeal, affirmed the constitutionality of ss. 25(8) and 25(9) and ordered costs to A.C. throughout.

Binnie, J., dissenting, would have allowed the appeal. He agreed with the court of appeal that ss. 25(8) and 25(9) of the CFSA provided for a modified mature minor rule where the treatment decisions of those 16 and over with capacity would be respected. For those under 16, with or without capacity, the court would decide based on the best interests tests. He opined however that the modified minor rule in ss. 25(8) and 25(9) with its irrebuttable presumption of incapacity violated ss. 2(a) (i.e., the freedom of religion). Further, the provisions violated the rights to liberty and security of the person (bodily integrity) in an arbitrary and procedurally unfair manner, not in accordance with the principles of fundamental justice (s. 7). The provisions were not saved by s. 1 of the Charter. He found it unnecessary to consider the s. 15 issue. He opined that A.C. should have costs in the Supreme Court and in the courts below.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 446

Freedom of conscience and religion - Health care - Blood transfusions and other court ordered medical treatment - Section 25(8) of the Manitoba Child and Family Services Act (CFSA) provided that, in the case of children under 16, the judge "may authorize ... any medical ... treatment that the court considers to be in the best interests of the child" - In the case of children 16 and over, s. 25(9) provided that treatment could not be ordered without the patient's consent, unless the court was satisfied that he or she was unable to understand the nature of the decision and its likely consequences - A 14 year old Jehovah's Witness argued that her freedom of religion was infringed because the CFSA prevented her from refusing medical treatment that was contrary to her religious beliefs - The Supreme Court of Canada interpreted the "best interests" standard in ss. 25(8) and (9) of the CFSA as requiring the court to take into account a particular adolescent's maturity in any given medical treatment context (even where the child was under 16) - "When the 'best interests' standard is applied in a way that takes into increasingly serious account the young person's views in accordance with his or her maturity in a given treatment case, the legislative scheme created by ss. 25(8) and 25(9) of the Child and Family Services Act is neither arbitrary [s. 7], discriminatory [s. 15], nor violative of religious freedom [s. 2(a)]" - See paragraphs 97, 98 and 112.

Civil Rights - Topic 643

Liberty - Limitations on - Health care - Consent to medical treatment - Section 25(8) of the Manitoba Child and Family Services Act (CFSA) provided that, in the case of children under 16, the judge "may authorize ... any medical ... treatment that the court considers to be in the best interests of the child" - In the case of children 16 and over, s. 25(9) provided that treatment could not be ordered without the patient's consent, unless the court was satisfied that he or she was unable to understand the nature of the decision and its likely consequences - The Supreme Court of Canada held that an order under s. 25(8) imposing medical treatment implicated a child's liberty and security of the person (i.e., personal automomy) (Charter, s. 7) - "The inability of an adolescent to determine her own medical treatment, therefore, constitutes a deprivation of liberty and security of the person, which must, to be constitutional, be in accordance with the principles of fundamental justice" - It would be arbitrary to assume that no one under the age of 16 had capacity to make medical treatment decisions - It would not, however, be arbitrary to give them the opportunity to prove that they had sufficient maturity to do so - Therefore, the court's interpretation of the best interests standard, which required the court to take into account a particular adolescent's maturity in any given medical treatment context, achieved a balance between automony and the legislative goal of child protection, and the provisions, so interpreted, were not arbitrary - See paragraphs 98 to 108.

Civil Rights - Topic 650

Liberty - Limitations on - Child or adult protection - [See Civil Rights - Topic 643 ].

Civil Rights - Topic 1099.3

Discrimination - Age (non-employment cases) - Court ordered medical treatment (incl. mature minors) - Section 25(8) of the Manitoba Child and Family Services Act (CFSA) provided that, in the case of children under 16, the judge "may authorize ... any medical ... treatment that the court considers to be in the best interests of the child" - In the case of children 16 and over, s. 25(9) provided that treatment could not be ordered without the patient's consent, unless the court was satisfied that he or she was unable to understand the nature of the decision and its likely consequences - A 14 year old child argued that s. 25(8) violated her equality rights on the basis of age (Charter, s. 15) - The Supreme Court of Canada interpreted the "best interests" standard in ss. 25(8) and (9) of the CFSA as requiring the court to take into account a particular adolescent's maturity in any given medical treatment context (even where the child was under 16) - The court held that ss. 25(8) and 25(9), as interpreted by the court in this manner, did not violate s. 15 of the Charter - By permitting adolescents under 16 to lead evidence of sufficient maturity to determine their medical choices, their ability to make treatment decisions would ultimately be calibrated in accordance with maturity, not age, and no disadvantaging prejudice or stereotype based on age could be said to be engaged - There was therefore no violation of s. 15 - See paragraphs 97, 98 and 109 to 111.

Civil Rights - Topic 1206.1

Security of the person - Right to personal autonomy - [See Civil Rights - Topic 643 ].

Civil Rights - Topic 1393

Security of the person - Health care - Consent to medical treatment - [See Civil Rights - Topic 643 ].

Civil Rights - Topic 1397

Security of the person - Health care - Mature minor - [See Civil Rights - Topic 643 ].

Civil Rights - Topic 5654.1

Equality and protection of the law - Particular cases - Medical treatment of minor - [See Civil Rights - Topic 1099.3 ].

Guardian and Ward - Topic 812.2

Public trustee or guardian - Appointment - Mature minor - The Supreme Court of Canada discussed the development of the mature minor doctrine in Canada and abroad and reviewed the academic literature - See paragraphs 46 to 79 - The court stated, inter alia, that "The latitude accorded to adults at common law to decide their own medical treatment had historically narrowed dramatically when applied to children. However the common law has more recently abandoned the assumption that all minors lack decisional capacity and replaced it with a general recognition that children are entitled to a degree of decision-making autonomy that is reflective of their evolving intelligence and understanding. This is known as the common law 'mature minor' doctrine. As the Manitoba Law Reform Commission noted, this doctrine is 'a well-known, well-accepted and workable principle which ... raise[s] few difficulties on a day-to-day basis' (Minors' Consent to Health Care (1995), Report No. 91, at p. 33). The doctrine addresses the concern that young people should not automatically be deprived of the right to make decisions affecting their medical treatment. It provides instead that the right to make those decisions varies in accordance with the young person's level of maturity, with the degree to which maturity is scrutinized intensifying in accordance with the severity of the potential consequences of the treatment or of its refusal" - See paragraph 46.

Guardian and Ward - Topic 812.2

Public trustee or guardian - Appointment - Mature minor - An applications judge issued a treatment order under s. 25(8) of the Child and Family Services Act (CFSA) respecting a 14 year old Jehovah's Witness (A.C.) who refused to take a blood transfusion - A.C. and her parents appealed, arguing that s. 25(8) of the CFSA, and the "best interests" test contained in it, applied only to minors under 16 without capacity, and so should not have been applied to A.C. - The Manitoba Court of Appeal rejected A.C.'s argument, stating that the legislation ousted the common law principles relating to "mature minors", and instead formed a complete code empowering the court to make treatment decisions for those under 16, with or without capacity, based on a "best interests" test - A child's wishes and capacity were relevant to the analysis, but not determinative - A.C. and her parents appealed again - The Supreme Court of Canada, per Abella, J., for the majority, disagreed with the court of appeal's interpretive conclusion "that s. 25(8) of the Act 'treats all minors under 16 the same way' (para. 49). In my view, to be constitutionally compliant, the interpretation of 'best interests' in s. 25(8) of the Act requires that sufficient account be taken of a particular adolescent's maturity in any given medical treatment context. [22] It is a sliding scale of scrutiny, with the adolescent's views becoming increasingly determinative depending on his or her ability to exercise mature, independent judgment. The more serious the nature of the decision, and the more severe its potential impact on the life or health of the child, the greater the degree of scrutiny that will be required. [23] This interpretation of the 'best interests' standard in s. 25(8) of the Act is not only more consistent with the actual developmental reality of young people; it is also conceptually consistent with the evolutionary development of the common law 'mature minor' doctrine in both the Canadian and international jurisprudence. Under this doctrine, courts have readily accepted that an adolescent's treatment wishes should be granted a degree of deference that is reflective of his or her evolving maturity. Notably, however, they have rarely viewed this mandate as being inconsistent with their overarching responsibility to protect children from harm" - See paragraphs 21 to 96.

Guardian and Ward - Topic 812.2

Public trustee or guardian - Appointment - Mature minor - Section 25(8) of the Manitoba Child and Family Services Act (CFSA) provided that " ... the court may authorize a medical ... treatment ... in the best interests of the child" - The Supreme Court of Canada interpreted the "best interests" standard as used in the CFSA - The court adopted a robust interpretive approach consistent with the common law doctrine relating to mature minors - The court stated, inter alia, "[88] ... When applied to adolescents, therefore, the 'best interests' standard must be interpreted in a way that reflects and addresses an adolescent's evolving capacities for autonomous decision-making. It is not only an option for the court to treat the child's views as an increasingly determinative factor as his or her maturity increases, 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 .... [89] This approach to 'best interests' finds support in the relevant provisions of the Child and Family Services Act. The standard a judge is obliged to follow before deciding whether to authorize treatment for a child under 16 in accordance with s. 25(8) is found in s. 2(1) of the Act. That section sets out the primacy of the child's best interests and delineates a number of considerations to be included in making such a determination. These considerations include the mental, emotional and physical needs of the child; his or her mental, emotional and physical stage of development; the child's views and preferences; and the child's religious heritage. No priority is given to one factor over the other ... [90] What the blending of these factors will actually yield in any particular case will. That is because the best interests standard is necessarily individualistic ... [94] Scrutiny of a child's maturity in a s. 25(8) best interests analysis will require, by definition, an individualized assessment, having regard to the unique situation of the particular child, including the nature of the treatment decision and the severity of its potential consequences ..." - The court listed some factors which might be of assistance to the court in assessing the extent to which a child's wishes reflected true, stable and independent choices - See paragraphs 80 to 96.

Guardian and Ward - Topic 812.2

Public trustee or guardian - Appointment - Mature minor - Section 25(8) of the Manitoba Child and Family Services Act (CFSA) provided that, in the case of children under 16, the judge "may authorize ... any medical ... treatment that the court considers to be in the best interests of the child" - In the case of children 16 and over, s. 25(9) provided that treatment could not be ordered without the patient's consent, unless the court was satisfied that he or she was unable to understand the nature of the decision and its likely consequences - An issue arose as to whether ss. 25(8) and (9) were arbitrary and contrary to the Charter - The Supreme Court of Canada interpreted the "best interests" standard in ss. 25(8) and (9) of the CFSA as requiring the court to take into account a particular adolescent's maturity in any given medical treatment context (even where the child was under 16) - The court held that ss. 25(8) and 25(9), as interpreted by the court in this manner, did not violate ss. 2(a), 7 or 15 of the Charter - "When the 'best interests' standard is applied in a way that takes into increasingly serious account the young person's views in accordance with his or her maturity in a given treatment case, the legislative scheme created by ss. 25(8) and 25(9) of the Child and Family Services Act is neither arbitrary [s. 7], discriminatory [s. 15], nor violative of religious freedom [s. 2(a)]" - See paragraphs 97 to 117.

Guardian and Ward - Topic 815.6

Public trustee or guardian - Appointment - Child in need of protection - Medical or health reasons - [See all Guardian and Ward - Topic 812.2 ].

Guardian and Ward - Topic 879

Public trustee or guardian - Powers - Respecting consent to medical treatment - [See all Guardian and Ward - Topic 812.2 ].

Guardian and Ward - Topic 931

Public trustee or guardian - Children in care - Management of - Medical treatment - [See all Guardian and Ward - Topic 812.2 ].

Infants - Topic 1403

Medical treatment - Consent - [See all Guardian and Ward - Topic 812.2 ].

Medicine - Topic 3056

Relation with patient - Consent to treatment - By infants - [See all Guardian and Ward - Topic 812.2 ].

Cases Noticed:

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. [paras. 16, 137, 199].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [paras. 18, 156, 233].

T., Re (adult: refusal of medical treatment), [1992] 4 All E.R. 649 (C.A.), refd to. [paras. 40, 198].

Malette v. Shulman (1990), 37 O.A.C. 281; 72 O.R.(2d) 417 (C.A.), refd to. [paras. 41, 196].

Fleming v. Reid and Gallagher (1991), 48 O.A.C. 46; 4 O.R.(3d) 74 (C.A.), refd to. [paras. 43, 196].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [paras. 44, 136, 218].

Gillick v. West Norfolk and Wisbech Area Health Authority, [1985] 3 All E.R. 402 (H.L.), refd to. [para. 48].

W. (A Minor), Re (medical treatment), [1992] 4 All E.R. 627 (C.A.), refd to. [para. 54].

R. (A Minor), Re (wardship: medical treatment), [1991] 4 All E.R. 177 (C.A.), refd to. [para. 54].

E. (A Minor), Re (wardship: medical treatment), [1993] 1 F.L.R. 386 (Fam. Div.), refd to. [para. 57].

S. (A Minor), Re (consent to medical treatment), [1994] 2 F.L.R. 1065 (Fam. Div.), refd to. [para. 57].

L., Re (medical treatment: Gillick competency), [1998] 2 F.L.R. 810 (Fam. Div.), refd to. [para. 57].

M., Re (medical treatment: consent), [1999] 2 F.L.R. 1097 (Fam. Div.), refd to. [para. 57].

J.S.C. and C.H.C. v. Wren (1986), 76 A.R. 115 (C.A.), refd to. [para. 58].

Van Mol et al. v. Ashmore (1999), 116 B.C.A.C. 161; 190 W.A.C. 161; 168 D.L.R.(4th) 637; 1999 BCCA 6, refd to. [paras. 58, 202].

Children's Aid Society of Metropolitan Toronto v. T.H. (1996), 9 O.T.C. 274; 138 D.L.R.(4th) 144 (Gen. Div.), refd to. [para. 59].

T.T.D., Re (1999), 176 Sask.R. 152; 171 D.L.R.(4th) 761 (Q.B. Fam. Div.), refd to. [para. 60].

Director of Child Welfare (Alta.) v. B.H., [2002] A.R. Uned. 45; [2002] 11 W.W.R. 752; 2002 ABPC 39, affd. [2002] 7 W.W.R. 616; 302 A.R. 201; 2002 ABQB 371, affd. [2002] 7 W.W.R. 644; 303 A.R. 115; 273 W.A.C. 115; 2002 ABCA 109, leave to appeal refused [2002] 3 S.C.R. vi; 295 N.R. 198; 312 A.R. 392; 281 W.A.C. 392, refd to. [para. 61].

Hôpital Ste-Justine v. Giron, 2002 CanLII 34269 (Que. Sup. Ct.), refd to. [para. 61].

C.U. v. McGonigle et al. (2003), 327 A.R. 25; 296 W.A.C. 25; 13 Alta. L.R.(4th) 1; 2003 ABCA 66, refd to. [para. 61].

L.D.K., Re (1985), 48 R.F.L.(2d) 164 (Ont. Prov. Ct. Fam. Div.), refd to. [para. 62].

A.Y., Re (1993), 111 Nfld. & P.E.I.R. 91; 348 A.P.R. 91 (Nfld. U.F.C.), refd to. [paras. 63, 128].

Walker et al. v. Region 2 Hospital Corp. et al. (1994), 150 N.B.R.(2d) 366; 385 A.P.R. 366; 116 D.L.R.(4th) 477 (C.A.), refd to. [para. 63].

Planned Parenthood of Central Missouri v. Danforth, Attorney General of Missouri (1976), 428 U.S. 52 (S.C.), refd to. [para. 65].

Bellotti, Attorney General of Massachusetts v. Baird (1979), 443 U.S. 622 (S.C.), refd to. [para. 65].

Parham, Commissioner, Department of Human Resources of Georgia v. J.R. (1979), 442 U.S. 584 (S.C.), refd to. [para. 65].

Cardwell v. Bechtol (1987), 724 S.W.2d 739 (Tenn.), refd to. [para. 66].

Belcher v. Charleston Area Medical Center (1992), 422 S.E.2d 827 (W. Va.), refd to. [para. 66].

E.G., Re (1989), 549 N.E.2d 322 (Ill.), refd to. [para. 66].

Long Island Jewish Medical Center, In the Matter of (1990), 557 N.Y.S.2d 239 (Sup. Ct.), refd to. [para. 66].

Novak v. Cobb County-Kennestone Hospital Authority (1994), 849 F.Supp. 1559 (N.D. Ga.), affd. (1996), 74 F.3d 1173 (11th Cir.), refd to. [para. 66].

Rena, In the Matter of (1999), 705 N.E.2d 1155 (Mass.), refd to. [para. 66].

Commonwealth v. Nixon (2000), 761 A.2d 1151 (Pa.), refd to. [para. 66].

J.W.B. (Marion's Case) (1992), 175 C.L.R. 218 (Aust. H.C.), refd to. [para. 67].

Director-General, New South Wales Department of Community Services v. Y., [1999] NSWSC 644, refd to. [para. 68].

Minister for Health v. A.S., [2004] WASC 286; 33 Fam. L.R. 223 (West. Aust. S.C.), refd to. [para. 68].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 88].

King v. Low - see King v. Mr. and Mrs. B.

King v. Mr. and Mrs. B., [1985] 1 S.C.R. 87; 57 N.R. 17; 58 A.R. 275, refd to. [para. 88].

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; 2000 SCC 44, refd to. [paras. 100, 218].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [paras. 100, 218].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 100].

Ciarlariello et al. v. Schacter et al., [1993] 2 S.C.R. 119; 151 N.R. 133; 62 O.A.C. 161, refd to. [paras. 101, 196].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [paras. 103, 140, 218].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [paras. 103, 218].

Child and Family Services of Winnipeg Central v. K.L.W. et al., [2000] 2 S.C.R. 519; 260 N.R. 203; 150 Man.R.(2d) 161; 230 W.A.C. 161; 2000 SCC 48, refd to. [para. 104].

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

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [paras. 104, 127, 195].

Syl Apps Secure Treatment Centre v. B.D. - see B.D. et al. v. Children's Aid Society of Halton Region et al.

B.D. et al. v. Children's Aid Society of Halton Region et al., [2007] 3 S.C.R. 83; 365 N.R. 302; 227 O.A.C. 161; 2007 SCC 38, refd to. [para. 104].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 104].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [paras. 104, 151].

R. v. D.B., [2008] 2 S.C.R. 3; 374 N.R. 221; 237 O.A.C. 110; 2008 SCC 25, refd to. [paras. 104, 145].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [paras. 109, 150, 226].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 110].

Gosselin v. Québec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1; 2002 SCC 84, refd to. [paras. 110, 229].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 110].

Harrison v. University of British Columbia; Connell v. University of British Columbia, [1990] 3 S.C.R. 451; 120 N.R. 1, refd to. [para. 110].

Stoffman et al. v. Vancouver General Hospital et al., [1990] 3 S.C.R. 483; 118 N.R. 241, refd to. [para. 110].

Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; 118 N.R. 340, refd to. [para. 110].

Tétrault-Gadoury v. Canada Employment and Immigration Commission, [1991] 2 S.C.R. 22; 126 N.R. 1, refd to. [para. 110].

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. [paras. 138, 220].

Syndicat Northcrest v. Amselem et al., [2004] 2 S.C.R. 551; 323 N.R. 59; 2004 SCC 47, refd to. [paras. 153, 214].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [paras. 154, 214].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [paras. 157, 237].

Starson v. Swayze et al., [2003] 1 S.C.R. 722; 304 N.R. 326; 173 O.A.C. 210; 2003 SCC 32, refd to. [para. 194].

Hopp v. Lepp - see Lepp v. Hopp.

Lepp v. Hopp, [1980] 2 S.C.R. 192; 32 N.R. 145; 22 A.R. 361, refd to. [para. 196].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361, refd to. [para. 196].

Airedale National Health Service Trust v. Bland, [1993] 1 All E.R. 821; 149 R. 321 (H.L.), refd to. [para. 198].

C., Re (adult: refusal of medical treatment), [1994] 1 All E.R. 819 (Fam. Div.), refd to. [para. 198].

B., Re (adult: refusal of medical treatment), [2002] EWHC 429; [2002] 2 All E.R. 449 (Fam.), refd to. [para. 198].

Cruzan v. Director, Missouri Department of Health (1990), 497 U.S. 261, refd to. [para. 198].

Auckland Area Health Board v. Attorney General, [1993] 1 N.Z.L.R. 235 (H.C.), refd to. [para. 198].

Nancy B. v. Hôtel-Dieu de Québec (1992), 69 C.C.C.(3d) 450 (Que. Sup. Ct.), refd to. [para. 200].

Multani v. Commission scolaire Marguerite-Bourgeoys et al., [2006] 1 S.C.R. 256; 345 N.R. 201; 2006 SCC 6, refd to. [para. 214].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 2(a), sect. 7, sect. 15 [para. 14].

Child and Family Services Act, S.M. 1985-86, c. 8; C.C.S.M., c. C-80, sect. 2(1) [para. 32]; sect. 17(2)(b) [para. 125]; sect. 25(1) [para. 34]; sect. 25(3) [para. 35]; sect. 25(8), sect. 25(9) [para. 9].

United Nations Convention on the Rights of the Child, art. 3, art. 5, art. 12, art. 14 [para. 93].

Authors and Works Noticed:

Alderson, Priscilla, Everyday and medical life choices: decision-making among 8- to 15-year-old school students, in Freeman, Michael, Children, Medicine and the Law (2005), p. 457 [para. 75].

Alderson, Priscilla, In the genes or in the stars? Children's competence to consent, in Freeman, Michael, Children, Medicine and the Law (2005), p. 553 [para. 76].

Ambuel, Bruce, and Rappaport, Julian, Developmental Trends in Adolescents' Psychological and Legal Competence to Consent to Abortion (1992), 16 Law & Hum. Behav. 129, generally [para. 71].

Berg, Jessica W., et al., Informed Consent: Legal Theory and Clinical Practice (2nd Ed. 2001), p. 97 [para. 111].

Blood Transfusion And Outcomes, in Medical News Today (April 23, 2009), online, www.medicalnewstoday.com/articles/147167.php, generally [para. 217, footnote 3].

Brazier, Margaret, and Bridge, Caroline, Coercion or caring: analysing adolescent autonomy, in Freeman, Michael, Children, Medicine and the Law (2005), pp. 468 [para. 72]; 486 [para. 74].

Bridge, Caroline, Religious Beliefs and Teenage Refusal of Medical Treatment (1999), 62 Mod. L. Rev. 585, p. 590 [para. 94].

Buchanan, Allen E., and Brock, Dan W., Deciding for Others: The Ethics of Surrogate Decision Making (1989), p. 221 [para. 71].

Dickens, Bernard M., Medically Assisted Death: Nancy B. v. Hôtel-Dieu de Québec (1993), 38 McGill L.J. 1053, pp. 1060 [para. 198]; 1065 [para. 201].

Douglas, Gillian, The Retreat from Gillick (1992), 55 Mod. L. Rev. 569, generally [para. 54, footnote 2].

Downie, Timothy Caulfield and Floods, Colleen M., Canadian Health Law and Policy (3rd Ed. 2007), p. 443 [paras. 84, 94].

Dworkin, Gerlad, Consent, Representation, and Proxy Consent, in Gaylin, Willard, and Macklin, Ruth, Who Speaks For The Child: The Problems of Proxy Consent (1982), p. 203 [para. 102].

Dykeman, Mary Jane et al., Canadian Health Law Practice Manual (2008) (Looseleaf), paras. 8.52 to 8.54 [para. 83]; 8.54 [para. 84].

Eekelaar, John, The Emergence of Children's Rights (1986), 6 Oxford J. Legal Stud. 161, pp. 181, 182 [para. 79].

Eekelaar, John, The Importance of Thinking that Children Have Rights (1992), 6 Int'l J.L. & Fam. 221, p. 228, 229 [para. 88].

Eekelaar, John, The Interests of the Child and the Child's Wishes: The Role of Dynamic Self-Determinism (1984), 8 Int'l J.L. & Fam. 42, generally [para. 88].

Eekelaar, John, White Coats or Flak Jackets? Doctors, Children and the Courts -- Again (1993), 109 L.Q. Rev. 182, generally [para. 54, footnote 2].

Esman, Aaron H., Adolescent Psychiatry: The Annals of the American Society for Adolescent Psychiatry (2000), vol. 25, pp. 209 [para. 77]; 211, 212 [para. 73].

Ferguson, Lucinda, The End of an Age: Beyond Age Restrictions for Minors' Medical Treatment Decisions (October 29, 2004), p. 5 [para. 40].

Ferguson, Lucinda, Trial by Proxy: How Section 15 of the Charter Removes Age from Adolescence (2005), 4 J.L. & Equality 84, pp. 84, 92 [para. 71].

Fortin, Jane, Children's Rights and the Developing Law (2nd Ed. 2003), pp. 26 [paras. 105, 106]; 27 [para. 106]; 73 [para. 71]; 76 [para. 79].

Freeman, Michael, Children, Medicine and the Law (2005), pp. 445, 457 [para. 75]; 468 [para. 72]; 486 [para. 74]; 488, 489 [para. 71]; 553 [para. 76].

Freeman, Michael D.A., The Rights and Wrongs of Children (1983), c. 2 [para. 79].

Freeman, Michael, Removing rights from adolescents (1993), 17 Adoption & Fostering 14, generally [para. 54, footnote 2].

Gilmour, Joan M., Death and Dying, in Dykeman, Mary Jane et al., Canadian Health Law Practice Manual (2008) (Looseleaf), paras. 8.52 to 8.54 [para. 83]; 8.54 [para. 84].

Gilmour, Joan M., Death, Dying and Decision-making about End of Life Care, in Downie, Timothy Caulfield and Floods, Colleen M., Canadian Health Law and Policy (3rd Ed. 2007), p. 443 [paras. 84, 94].

Grubb, Andrew, Principles of Medical Law (2nd Ed. 2004), pp. 234, 235 [para. 54, footnote 2].

Hartman, Rhonda Gay, Coming of Age: Devising Legislation for Adolescent Decision-Making (2002), 28 Am. J.L. & Med. 409, generally [para. 66].

Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007), vol. 2, p. 668 [para. 229].

Levine, Saul, Informed Consent of Minors in Crucial and Critical Health Care Decisions, in Esman, Aaron H., Adolescent Psychiatry: The Annals of the American Society for Adolescent Psychiatry (2000), vol. 25, pp. 209 [para. 77]; 211, 212 [para. 73].

Lewis, Catherine C., A Comparison of Minors' and Adults' Pregnancy Decisions (1980), 50 Am. J. Orthopsychiatry 446, generally [para. 71].

Manitoba, Law Reform Commission, Minors' Consent to Health Care, Report No. 91 (1995), pp. 32 [para. 78]; 33 [paras. 46, 168, 230]; 38 [para. 230].

Mason, John Kenyon, Medico-Legal Aspects of Reproduction and Parenthood (2nd Ed. 1998), p. 321 [para. 94].

Masson, Judith, Re W: appealing from the golden cage (1993), 5 J. Child L. 37, generally [para. 54, footnote 2].

Meisel, Alan, The Legal Consensus About Forgoing Life-Sustaining Treatment: Its Status and Its Prospects (1992), 2 Kennedy Inst. of Ethics J. 309, generally [para. 198].

Munby, James, Consent to Treatment: Children and the Incompetent Patient, in Grubb, Andrew, Principles of Medical Law (2nd Ed. 2004), pp. 234, 235 [para. 54, footnote 2].

Rosato, Jennifer L., Let's Get Real: Quilting a Principled Approach to Adolescent Empowerment in Health Care Decision-Making (2001-2002), 51 DePaul L. Rev. 769, generally [para. 66].

Ross, Lainie Friedman, Health Care Decisionmaking by Children: Is It in Their Best Interest?, in Freeman, Michael, Children, Medicine and the Law (2005), pp. 488, 489 [para. 71].

Rozovsky, Lorne Elkin, The Canadian Law of Consent to Treatment (3rd Ed. 2003), p. 83 [para. 90].

Scofield, Giles R., Is the Medical Ethicist an "Expert"? (1994), 3 Bioethics Bulletin 1, p. 2 [para. 81].

Scott, Elizabeth S., The Legal Construction of Adolescence (2000-2001), 29 Hofstra L. Rev. 547, generally [para. 66].

Sneiderman, Barney, Irvine, John C., and Osborne, Philip H., Canadian Medical Law: The Mature Minor Patient and the Refusal of Treatment (3rd Ed. 2003), p. 465 [para. 94].

Weithorn, Lois A., and Campbell, Susan B., The Competency of Children and Adolescents to Make Informed Treatment Decisions (1982), 53 Child Dev. 1589, generally [para. 71].

Will, Jonathan F., My God My Choice: The Mature Minor Doctrine and Adolescent Refusal of Life-Saving or Sustaining Medical Treatment Based Upon Religious Beliefs (2005-2006), 22 J. Contemp. Health L. & Pol'y 233, generally [para. 66].

Counsel:

Allan Ludkiewicz and David C. Day, Q.C., for the appellant, A.C. (child);

Shane H. Brady, for the appellants, A.C. and A.C;

Norm Cuddy, Alfred Thiessen and Kristian J. Janovcik, for the respondent;

Deborah L. Carlson and Nathaniel Carnegie, for the intervenor, the Attorney General of Manitoba;

Neena Sharma and Karrie Wolfe, for the intervenor, the Attorney General of British Columbia;

Margaret Unsworth, Q.C., and Lillian Riczu, for the intervenor, the Attorney General of Alberta;

Cheryl Milne and Mary Birdsell, for the intervenor, Justice for Children and Youth.

Solicitors of Record:

Ludkiewicz, Bortoluzzi, Winnipeg, Manitoba, for the appellant, A.C. (child);

W. Glen How & Associates, Georgetown, Manitoba, for the appellants, A.C. and A.C.;

Tapper Cuddy, Winnipeg, Manitoba, for the respondent;

Attorney General of Manitoba, Winnipeg, Manitoba, for the intervenor, the Attorney General of Manitoba;

Attorney General of British Columbia, Vancouver, B.C., for the intervenor, the Attorney General of British Columbia;

Attorney General of Alberta, Edmonton, Alberta, for the intervenor, the Attorney General of Alberta;

Canadian Foundation for Children, Youth and the Law, Toronto, Ontario, for the intervenor, Justice for Children and Youth.

This appeal was heard on May 20, 2008, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The decision of the court was delivered, in both official languages, on June 26, 2009, when the following opinions were filed:

Abella, J. (LeBel, Deschamps and Charron, JJ., concurring) - see paragraphs 1 to 122;

McLachlin, C.J.C. (Rothstein, J., concurring), concurring reasons - see paragraphs 123 to 161;

Binnie, J., dissenting - see paragraphs 162 to 239.

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