Court/Judicial body: Supreme Court of Canada
Date: June 26, 2009 CRC
Provisions: Article 5: Parental guidance and the child’s evolving capacities Article 12: The child’s opinion Article 14: Freedom of thought, conscience and religion
Other international provisions: Convention on Human Rights and Biomedicine, E.T.S. No. 164, Article 6 (providing that the opinion of the child will be taken into account in proportion with the child’s maturity).
Domestic provisions:Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (s. 2(a), 7 and 15(1), which deal with the rights to freedom of conscience and religion, security of the person and equal protection); Child and Family Services Act, S.M. 1985-86, c. 8 (section 25(8)), which enables the court to order medical treatment in the best interest of the child).
Case summary
Background: A 14-year-old child and her parents, members of the Jehovah’s Witness faith, objected to a blood transfusion for the child on the religious grounds. In response, the Director of Child and Family Services applied for an order to authorise a transfusion in the best interests of the child under the Child and Family Services Act, which allowed for children under the age of 16 to be given medical treatments against their will. The trial court, after determining that the child was in immediate danger of serious bodily harm or death, concluded that the transfusion would be in the best interests of the child. The child appealed, arguing that the court’s decision violated her right to bodily integrity and self-determination based on her religious beliefs in conflict with the Canadian Charter of Rights and Freedoms.
Issue and resolution: Religion; health. The Court concluded that the blood transfusion did not violate the child’s rights, nor did the Child and Family Services Act run against the Canadian Charter of Rights and Freedoms where properly interpreted.
Court reasoning: Looking at Canadian law on the subject of adolescence, case law from other and the Convention on the Rights of the Child, the Court found that the Children and Family Services Act’s provisions on medical decision-making could be interpreted in a way to further children’s best interests while respecting their maturity and autonomy. In particular, the Court suggested that the best interests of the child standard incorporate the child’s views based on the child’s level of maturity, holding that: “The more a court is satisfied that a child is capable of making a truly mature and independent decision on his or her own behalf, the greater the weight that must be given to his or her views when a court is exercising its discretion.” Although the Court noted that the trial court had not addressed the child’s level of maturity in this case, it did not address that issue as the medical emergency had long since passed.
Dissenting opinion: The dissenting judge would have found the Child and Family Services Act to be an unwarranted violation of a mature child’s right to bodily integrity.
Excerpt citing CRC and other relevant human rights 93. Such a robust conception of the “best interests of the child” standard is also consistent with international instruments to which Canada is a signatory. The Convention on the Rights of the Child, Can. T.S. No. 3, which Canada signed on May 28, 1990 and ratified on December 13, 1991, describes “the best interests of the child” as a primary consideration in all actions concerning children ( Article 3). It then sets out a framework under which the child’s own input will inform the content of the “best interests” standard, with the weight accorded to these views increasing in relation to the child’s developing maturity. Articles 5 and 14 of the Convention, for example, require State Parties to respect the responsibilities, rights and duties of parents to provide direction to the child in exercising his or her rights under the Convention, “in a manner consistent with the evolving capacities of the child”. Similarly, Article 12 requires State Parties to “assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child” (see also the Council of Europe’s Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, E.T.S. No. 164, ch. II, art. 6: “The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity”).
Notes: Although the Supreme Court ruled against the girl, it ordered that the government of Manitoba cover her legal costs, estimated to be in excess of $450,000. For more information on the case, visit http://www.cbc.ca/news/canada/story/2009/06/26/supreme-blood026.html.
CRIN comments: CRIN believes this decision is consistent with the CRC. As recognised by the Court, children’s views on matters that affect them should be given due weight and consideration in line with their age and maturity under Article 12 of the Convention. While it may in some instances be in line with the best interests of the child to against the child’s wishes, such decisions must be carefully considered, especially when the child is capable of forming and expressing a mature viewpoint.
Citation: 2009 SCC 30, [2009] W.D.F.L. 2957
Link to full judgement: http://scc.lexum.org/en/2009/2009scc30/2009scc30.html