Tuesday, January 29, 2008

Supreme Court of Canada to Hear Blood Transfusion Case

The Supreme Court of Canada might soon provide some guidance with reference to the ongoing battle between religious freedom and the best interest of the child.

The Manitoba case of Director of Child and Family Services v. A.C. involved a 14-year old girl who suffered from Crohn’s disease rendering her in immediate need of a blood transfusion. In accordance with her Jehova’s Witnesses beliefs, both the child and the parents refused to accept the transfusion. An urgent Application was heard for the purposes of obtaining a Court Order to administer the transfusion in spite of the child and the parents’ refusal. The Court granted the Order and the transfusion was administered. The decision was appealed to the Court of Appeal.

The Manitoba Court of Appeal specifically examined whether a “ …a mature minor ha[s] the right to refuse medical treatment even if that refusal may result in their death or serious harm and is not in their best interests?”

In such examination, the Court assessed whether s.25 of the Child Family Services Act (CFSA), which provides that a Court may Order treatment that is in the best interest of the child, applies only to children under the age of 16 who do not have capacity, and whether in the alternative, such a Court Order violates the Charter rights of a child under 16 who has capacity.

The Court found that the CFSA intends for the Court to make Orders in accordance with the best interest of the child regardless of whether or not the child under 16 has capacity and that in the matter at hand, the child was in urgent need of specific medical treatment as a matter of life or death. The Court further concluded that should such a decision violate the Charter rights of the child, the violation is justified under s.1 of the Charter as a result of the temporary status of the Order, and the paramount importance of the best interest of the child principle.

The Supreme Court of Canada is scheduled to hear this matter in May, and though the case deals with fact-specific legal issues, the Supreme Court may take this opportunity to provide broader guidance with reference the ongoing debate of religious freedom versus a the best interest of the child.

The B.C Supreme Court will also have its say on the matter. VM and CM v. The Director, which is the case of the 4 surviving sextuplets whose parents also refused blood transfusions in accordance with their religious beliefs, is scheduled for closing arguments next month.

- Annie Noa Kenet, Toronto

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