| [1995] 1 S.C.R. | B. (R.) v. Children's Aid Society of Metropolitan Toronto | 315 |
v.
the Official Guardian for Sheena B., an Infant,
and the Attorney General for Ontario
and
the Attorney General of Quebec
File No.: 23298.
Reasons and judgment on cross-appeal delivered: January 27, 1995.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
justified as reasonable limit -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b) -- Child Welfare Act, R.S.O. 1980, c. 66, ss. 19(1)(b)(ix), 21, 27, 28(1), (10), (12), 30(1)2, 41.
S.B. was born four weeks prematurely. Within the first few weeks of her life she exhibited many physical ailments and received a number of medical treatments, to which her parents, the appellants, consented. At their request the attending physicians avoided the use of a blood transfusion because, as Jehovah's Witnesses, the appellants objected to it for religious reasons; they also claimed it was unnecessary. When S.B. was a month old, her haemoglobin level had dropped to such an extent that the attending physicians believed that her life was in danger and that she might require a blood transfusion to treat potentially life-threatening congestive heart failure. Following a hearing on short notice to the appellants, the Provincial Court (Family Division) granted the respondent Children's Aid Society a 72-hour wardship. At a status review two doctors testified that although the child's condition had improved, it was still marginal, and they wished to maintain the ability to transfuse in case of an emergency. The head of ophthalmology at the hospital testified that he suspected the child had infantile glaucoma and needed to undergo exploratory surgery within the following week to confirm the diagnosis. This procedure had to be performed under general anaesthetic, and another doctor testified that a blood transfusion would be necessary. The wardship order was extended for a period of 21 days. S.B. received a blood transfusion as part of the examination and operation for the suspected glaucoma. A second Provincial Court order then terminated the respondent's wardship, and the child was returned to her parents. The appellants appealed both orders to the District Court, which dismissed the appeal and awarded costs against the Attorney General of Ontario, who had intervened in the proceedings. The Court of Appeal dismissed the appellants' appeal and the Attorney General of Ontario's cross-appeal on the issue of costs. This appeal is to determine whether s. 19(1)(b)(ix) of the Ontario
Child Welfare Act, which defines "child in need of protection", together with the powers in ss. 30(1)2 and 41 and the procedures in ss. 21, 27, 28(1), (10) and (12), deny parents a right to choose medical treatment for their infants, contrary to s. 7 of the Canadian Charter of Rights and Freedoms, or infringe the appellants' freedom of religion as guaranteed under s. 2( a) of the Charter, and, if so, whether the infringement is justifiable under s. 1 of the Charter. The issue raised in the cross-appeal is whether the District Court erred in awarding costs against the Attorney General of Ontario.
Held (L'Heureux-Dubé J. dissenting on the cross-appeal): The appeal and the cross-appeal should be dismissed.
1. Appeal
Section 7
Per La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ.: The liberty protected by s. 7 of the Charter does not mean unconstrained freedom. Freedom of the individual to do what he or she wishes must, in any organized society, be subjected to numerous constraints for the common good. The state undoubtedly has the right to impose many types of restraints on individual behaviour, and not all limitations will attract Charter scrutiny. On the other hand, liberty does not mean mere freedom from physical restraint. In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance.
The right to nurture a child, to care for its development, and to make decisions for it in fundamental matters such as medical care, are part of the liberty interest of a parent. The common law has long recognized that parents are in the best position to take care of their children and make all the decisions necessary to ensure their well-being. This recognition was based on the presumption that parents act in the best interest of their child. Although the philosophy underlying state intervention has changed over time, most contemporary statutes
dealing with child protection matters, and in particular the Ontario Act, while focusing on the best interest of the child, favour minimal intervention. In recent years, courts have expressed some reluctance to interfere with parental rights, and state intervention has been tolerated only when necessity was demonstrated, thereby confirming that the parental interest in bringing up, nurturing and caring for a child, including medical care and moral upbringing, is an individual interest of fundamental importance to our society.
While parents bear responsibilities toward their children, they must enjoy correlative rights to exercise them, given the fundamental importance of choice and personal autonomy in our society. Although this liberty interest is not a parental right tantamount to a right of property in children, our society is far from having repudiated the privileged role parents exercise in the upbringing of their children. This role translates into a protected sphere of parental decision-making which is rooted in the presumption that parents should make important decisions affecting their children both because parents are more likely to appreciate the best interests of their children and because the state is ill-equipped to make such decisions itself. While the state may intervene when it considers it necessary to safeguard the child's autonomy or health, such intervention must be justified.
While children undeniably benefit from the Charter, most notably in its protection of their rights to life and to the security of their person, they are unable to assert these rights, and our society accordingly presumes that parents will exercise their freedom of choice in a manner that does not offend the rights of their children. If one considers the multitude of decisions parents make daily, it is clear that in practice, state interference in order to balance the rights of parents and children will arise only in exceptional cases. The state can properly intervene in situations where parental conduct falls below the socially acceptable threshold, but in doing so it is limiting the constitutional rights of parents rather then vindicating the constitutional rights of children.
In the present case the application of the Act deprived the appellants of their right to decide which medical treatment should be administered to their infant and in so doing has infringed upon the parental "liberty" protected in s. 7 of the Charter. This deprivation, however,
was made in accordance with the principles of fundamental justice. 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 is a basic tenet of our legal system, and legislation to that end accords with the principles of fundamental justice, so long as it also meets the requirements of fair procedure. Section 19(1)( b)(ix) of the Act, although broad in scope, is compatible with a modern conception of life that embodies the notion of quality of life. The general procedure under the Act also accords with the principles of fundamental justice. The parents must receive reasonable notice of the hearing in which their rights might be affected. Further, the wardship order depriving the parents of the right to refuse medical treatment for their infant is granted by a judge following an adversarial process where conflicting evidence may be presented. The onus of proof is on the Children's Aid Society, and it has been recognized by the courts that it must present a strong case. Finally, the initial order granting wardship to the Children's Aid Society must be reviewed before its expiry.
The notice the parents received of the wardship hearing in this case was reasonable in the circumstances, and the initial wardship order was limited to 72 hours, to enable the parties to come back with further evidence. As well, although the appellants were not able to present conflicting medical evidence at the initial hearing, they were nonetheless represented by counsel, who cross-examined the witnesses summoned by the Children's Aid Society and presented submissions.
Per Cory, Iacobucci and Major JJ.: An exercise of parental liberty which seriously endangers the survival of the child should be viewed as falling outside s. 7 of the Charter. While the right to liberty embedded in s. 7 may encompass the right of parents to have input into the education of their child, and in fact may very well permit parents to choose among equally effective types of medical treatment for their children, it does not include a parents' right to deny a child medical treatment that has been adjudged necessary by a medical professional and for which there is no legitimate alternative. The child's right to life must not be so completely subsumed to the parental liberty to make decisions regarding that child. Although an individual may refuse any medical procedures upon her own person, it is quite another matter to speak for another separate individual,
especially when that individual cannot speak for herself. Parental duties are to be discharged according to the "best interests" of the child. The exercise of parental beliefs that grossly invades those best interests is not activity protected by the right to liberty in s. 7. There is simply no room within s. 7 for parents to override the child's right to life and security of the person. To hold otherwise would be to risk undermining the ability of the state to exercise its legitimate parens patriae jurisdiction and jeopardize the Charter's goal of protecting the most vulnerable members of society.
Per Lamer C.J.: The liberty interest protected by s. 7 of the Charter has not been infringed in this case because it includes neither the right of parents to choose (or refuse) medical treatment for their children nor, more generally, the right to bring up or educate their children without undue interference by the state. While this type of parental liberty is important and fundamental within the more general concept of the autonomy or integrity of the family unit, it does not fall within the ambit of s. 7. By including the expression "right to liberty" in s. 7, the framers of the Charter did not intend to protect "liberty" in its broadest sense or in all its dimensions. The right to liberty protected by s. 7 is not, within the meaning of the Charter, a fundamental freedom of the individual; rather it is a fundamental right which may be limited only in accordance with the principles of fundamental justice. The wording of the provision, its structure, the context in which it is found, the relationship there may be between it and the other provisions, as well as the historical context in which the Charter was adopted, are all factors that must be taken into consideration in seeking to identify the purpose of a protected right or freedom, in order to preserve the coherence of the entire constitutional text and maintain the integrity of the intention of Parliament. The principles of fundamental justice are a qualifier of the right not to be deprived of life, liberty and security of the person, and thus serve to establish the parameters of the interests. Since the principles of fundamental justice are elements that are essentially within the domain of the justice system, the type of liberty to which s. 7 refers must be the liberty that may be taken away or limited by a court or by another agency on which the state confers a coercive power by which it may enforce the laws that it enacts. Accordingly, the subject matter of s. 7 must be the conduct of the state when the state calls on law enforcement officials to enforce and secure obedience to the law, or
invokes the law to deprive a person of liberty through judges, magistrates, ministers, board members, etc.
The nature of the rights guaranteed by s. 7, taken as a whole, and the close connection established between those rights and the principles of fundamental justice, necessarily mean that this constitutional protection is connected with the physical dimension of the word "liberty", which can be lost through the operation of the legal system. In a majority of cases this protection is therefore specific to our criminal or penal justice system and is triggered primarily by the operation of that system. The freedoms that the Charter expressly recognizes and identifies as fundamental are found in s. 2. If s. 7 were to include any type of freedom whatever, provided that it could be described as fundamental, the need for and purpose of s. 2 might be seriously questioned. The nature of the other rights set out in s. 7 is another element of interpretation that militates in favour of a distinction between the scope of the words "freedom" and "liberty" as they are used in ss. 2 and 7. Since the right to life, liberty and security of the person are three distinct rights which the framers deliberately placed, in sequence, in a single provision, there must be a connection or linkage among them. This connection is found in the person himself or herself, as a corporeal entity, as opposed to the person's spirit, aspirations, conscience, beliefs, personality or, more generally, the expression or realization of what makes up the person's non-corporeal identity. The right to liberty, in this context, must therefore be set up against imprisonment, detention or any form of control or of constraint on freedom of movement. Moreover, extending the scope of the word "liberty" in s. 7 to include any type of freedom might mean that a large proportion of the legislative provisions in force could be challenged on the ground that they infringe this liberty interest. It would then be for the courts, in each case, to decide whether or not the freedom invoked was a fundamental freedom in our free and democratic society, whether the limit complied with the principles of fundamental justice, or whether the limit was reasonable and could be justified in a free and democratic society. In so doing the judiciary would inevitably be legislating, when this is not its function.
Per Sopinka J.: It is unnecessary to determine whether a liberty interest is engaged in this case because the threshold requirement of a breach of the principles
of fundamental justice is not met. In all other respects La Forest J.'s reasons were agreed with.
Section 2(a)
Per La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ.: The right of parents to rear their children according to their religious beliefs, including that of choosing medical and other treatments, is a fundamental aspect of freedom of religion, guaranteed by s. 2(a) of the Charter. While the purpose of the Act, the protection of children, does not infringe on the appellants' freedom of religion, the legislative scheme it implements, culminating in a wardship order depriving the parents of the custody of their child, seriously infringed on the appellants' freedom to choose medical treatment for their child in accordance with the tenets of their faith. This infringement was justified, however, under s. 1 of the Charter. 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. 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.
Per Lamer C.J. and Cory, Iacobucci and Major JJ.: A parent's freedom of religion, guaranteed under s. 2(a) of the Charter, does not include the imposition of religious practices which threaten the safety, health or life of the child. Although the freedom of belief may be broad, the freedom to act upon those beliefs is considerably narrower, as it is subject to such limitations as are necessary to protect the fundamental rights and freedoms of others. Since S.B. has never expressed any agreement with the Jehovah's Witness faith or any religion, there is an impingement on her freedom of conscience, which arguably includes the right to live long enough to make one's own reasoned choice about the religion one wishes to follow as well as the right not to hold a religious belief. "Freedom of religion" should not encompass activity that so categorically negates the "freedom of conscience" of another. While s. 1 of the Charter may be the appropriate forum for balancing the interests of the state against the rights violation of the aggrieved individual, such a balance is not required here, since the nexus of the balancing operates between the child's
right to life and security of the person and her parents' right to freedom of religion.
2. Cross-appeal
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: While the awarding of costs against an intervening Attorney General acting in the public interest in favour of a party who raises the constitutionality of a statute appears highly unusual, this case appears to have raised special and peculiar problems. The District Court's exercise of discretion, which was supported by the Court of Appeal, should thus not be interfered with.
Per L'Heureux-Dubé J. (dissenting): The cross-appeal with respect to costs should be allowed. While it is true that appellate courts should not in general interfere with a trial court's exercise of discretion, a court of appeal can interfere where that discretion has not been exercised judicially and judiciously. Section 42(1) of the Supreme Court Act is aimed solely at preventing parties from bringing an appeal from a purely discretionary decision, and does not prevent this Court from interfering with a trial judge's discretion if he or she erred in formulating the principles upon which the discretion was exercised. Awards of costs, while within judicial discretion, can be reviewed by an appellate court on the basis that they were made, inter alia, on wrong principles, on a misapprehension of significant facts or in a non-judicial manner. Moreover, s. 47 of the Supreme Court Act specifically grants this Court a wide discretion with respect to lower courts' costs orders.
The long-standing rule regarding costs is that they are generally awarded to a successful party, absent misconduct on his or her part. This rule, however, is not absolute. Rule 57.01 of the Ontario Rules of Civil Procedure provides a list of factors (the amount claimed and the amount recovered in the proceeding, the complexity of the proceeding, the importance of the issues, etc.) for a judge to consider in the exercise of his or her discretion with respect to an order for costs. According to Rule 57.01, costs can even be ordered against a successful party in a "proper case". This case, however, was not such a "proper case", given all of the circumstances and
in spite of the fact that it was a constitutional challenge based on a fundamental freedom guaranteed by the Charter.
The resources available to the parties should not generally be a relevant factor in awarding costs. It is contrary to public policy that an Attorney General be, as a matter of course, treated as having an unlimited source of funds and for that sole reason be required, even if successful, to pay the other party's costs. Such a result could open the floodgates and encourage marginal applications for constitutional challenges. While there are clearly cases where the government will be required to pay the costs of a particular litigation regardless of its outcome, these cases remain very limited exceptions and are not based on the relative resources of the parties but rather on the importance for the government or the public of having a particular issue decided by the courts. As well, generally in such cases there is a prior understanding that the costs will be borne by the government, independently of the result. Thus, the District Court judge was correct in not basing his order for costs on the relative resources of the parties.
The District Court judge was also correct in finding that there was no misconduct on the part of the Attorney General of Ontario. However, misconduct is only one criterion among many which a judge is entitled to consider in determining how costs should be awarded. Consequently, even in the absence of misconduct, a costs order against a successful party could be justified. That being said, under Rule 57.01, the court's discretion to depart from the general rule of awarding costs to the successful party must be exercised judiciously and judicially. It cannot be exercised arbitrarily, capriciously or for improper reasons.
None of the factors considered by the District Court judge and the Court of Appeal in support of the impugned costs order, in and of themselves or considered in totality, justify the costs order against the successful Attorney General of Ontario in the case at hand. First, the District Court judge, in awarding costs against the Attorney General of Ontario, suggested that the "litigation was originally triggered by an act of the state". However, while the fact that a state action is the trigger for a particular litigation may warrant some
consideration in determining how costs are allocated, it is not a factor which should be determinative with respect to the allocation of costs. Furthermore, in this case, it was the act of the appellant parents in refusing a blood transfusion for their daughter which originally triggered the litigation. The fact that the parents then challenged the constitutionality of the Child Welfare Act provides no basis for awarding costs against the Attorney General for Ontario, who intervened to defend the constitutionality of that statute. The fact that there was state action in answer to a constitutional challenge, whether as an intervener or a party to the litigation, absent any impropriety, as here, cannot be the basis for awarding costs against a successful party. Furthermore, there is a general rule that a party granted intervener status in the public interest is neither entitled to nor liable for the costs in the matter.
Second, the District Court judge erred when he stated that the particular importance of the case before him warranted the ordering of costs against the intervening Attorney General of Ontario. While Rule 57.01(1)(d) expressly states that "the importance of the issues" is a factor which can be considered by a court in awarding costs, this factor seems to be much more relevant with respect to whether costs should be awarded at all, rather than with respect to whether costs should be awarded against a successful party. Furthermore, it is not apparent that this case raises issues of sufficient national importance to justify awarding costs against a successful intervener. Moreover, it would not be in the interest of justice or in the interest of the administration of justice to hold that the fact that a case raises an issue of national importance is in and of itself sufficient to justify awarding costs against a successful party, in this case an intervener. Finally, the fact that the appellants raised a Charter issue does not in and of itself make their case one of particular importance.
Third, Tarnopolsky J.A.'s reasons at the Court of Appeal, suggesting that an award of costs against the Attorney General of Ontario might be justified by the fact that the appellants challenged the state on the basis of freedom of religion, a "fundamental freedom" guaranteed by s. 2(a) of the Charter, were not agreed with. The fact that an individual alleges an infringement of a right or a freedom guaranteed by the Charter is not in and of itself sufficient to attract an exception to the general rule as to costs. To hold otherwise would mean that
all accused or individuals challenging a statute on Charter grounds would be entitled to an award of costs against the state.
Fourth, the District Court judge noted that this case "proceeded in a most unusual fashion and laborious manner". However, the fact that the proceedings in the District Court constituted a lengthy re-trial where fresh evidence was adduced cannot be a source of reproach to the Attorney General of Ontario and cannot serve as a basis for the impugned costs order. Besides, it is not evident that the present case was actually unusual in its proceedings.
Finally, even taken together, the factors considered by the District Court judge and Tarnopolsky J.A. of the Court of Appeal could not make this case a proper one to allow a departure from the general rule as to costs.
Cases Cited
By La Forest J.
Referred to: R. v. Jones, [1986] 2 S.C.R. 284; R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. Lyons, [1987] 2 S.C.R. 309; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972); Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Beare, [1988] 2 S.C.R. 387; Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Prince v. Massachusetts, 321 U.S. 158 (1944); Stanley v. Illinois, 405 U.S. 645 (1972); Wisconsin v. Yoder, 406 U.S. 205 (1972); Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of South-Eastern Pennsylvania v. Casey, 112 S.Ct. 2791 (1992); Hepton v. Maat, [1957] S.C.R. 606; Re C.P.L. (1988), 70 Nfld. & P.E.I.R. 287; R. v. Keegstra, [1990] 3 S.C.R. 697; E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; Cantwell v. Connecticut, 310 U.S. 296 (1940); R. v. Dyment, [1988] 2 S.C.R. 417; Lavigne v. Ontario Public Service
Employees Union, [1991] 2 S.C.R. 211; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326.
By Iacobucci and Major JJ.
Referred to: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Jones, [1986] 2 S.C.R. 284; Re R.K. (1987), 79 A.R. 140; Young v. Young, [1993] 4 S.C.R. 3; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; R. v. Zundel, [1992] 2 S.C.R. 731; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Tutton and Tutton (1985), 18 C.C.C. (3d) 328, aff'd [1989] 1 S.C.R. 1392; Re D. (1982), 30 R.F.L. (2d) 277; M. (R.E.D.) v. Director of Child Welfare (1986), 47 Alta. L.R. (2d) 380 (Q.B.), appeal quashed and application to reinstate refused (1988), 88 A.R. 346 (C.A.); R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Beare, [1988] 2 S.C.R. 387; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211.
By Lamer C.J.
Considered: R. v. Jones, [1986] 2 S.C.R. 284; R. v. Morgentaler, [1988] 1 S.C.R. 30; referred to: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972); Meyer v. Nebraska, 262 U.S. 390 (1923); R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357.
By Sopinka J.
Referred to: R. v. Jones, [1986] 2 S.C.R. 284.
By L'Heureux-Dubé J. (dissenting on the cross-appeal)
Canadian Newspapers Co. v. Attorney-General of Canada (1986), 56 O.R. (2d) 240; Pelech v. Pelech, [1987] 1 S.C.R. 801; R. v. Pringle, [1989] 1 S.C.R. 1645; Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042; Elsom v. Elsom, [1989] 1 S.C.R. 1367; Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326;
R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Finta, [1994] 1 S.C.R. 701; Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; N.V. Bocimar S.A. v. Century Insurance Co. of Canada, [1987] 1 S.C.R. 1247; Lewis v. Todd and McClure, [1980] 2 S.C.R. 694; Jaegli Enterprises Ltd. v. Taylor, [1981] 2 S.C.R. 2; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Charles Osenton & Co. v. Johnston, [1942] A.C. 130; 539618 Ontario Ltd. v. Stathopoulos (1992), 11 O.R. (3d) 364; Prodon v. Vickrey (1988), 31 C.P.C. (2d) 264; Nolet v. Nolet (1985), 68 N.S.R. (2d) 370; Smov Industrie Ceramiche S.P.A. v. Sole Ceramic Importing Ltd. (1983), 141 D.L.R. (3d) 672; Andrews v. Andrews (1980), 120 D.L.R. (3d) 252; Kalesky v. Kalesky (1974), 51 D.L.R. (3d) 30; Donald Campbell and Co. v. Pollak, [1927] A.C. 732; Downey v. Roaf (1873), 6 P.R. 89; In Re Pattullo and The Corporation of the Town of Orangeville (1899), 31 O.R. 192; London & British North America Co. v. Haigh, [1922] 1 W.W.R. 172; Hudson's Bay Co. v. Sjostrom, [1924] 3 W.W.R. 271; Villeneuve v. Rur. Mun. Kelvington, [1929] 2 D.L.R. 919; Wawrzyniak v. Jagiellicz (1988), 9 A.C.W.S. (3d) 175; Attorney General of Quebec v. Labrecque, [1980] 2 S.C.R. 1057; Schachter v. Canada, [1992] 2 S.C.R. 679; Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Coronation Insurance Co. v. Taku Air Transport Ltd., [1991] 3 S.C.R. 622; Roberge v. Bolduc, [1991] 1 S.C.R. 374; Hartford v. Langdon Coach Lines Co. (1975), 10 O.R. (2d) 617; Wismer v. Javelin International Ltd. (1982), 38 O.R. (2d) 26; Attorney-General of Quebec v. Cronier (1981), 63 C.C.C. (2d) 437; R. v. Pawlowski (1993), 20 C.R. (4th) 233; Carey v. The Queen, Ont. H.C., No. 1954/76, September 13, 1988; B.C. (Govt.) v. Worthington (Can.) Inc. (1988), 29 B.C.L.R. (2d) 145; Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 (1990), 70 Man. R. (2d) 59; Hines v. Nova Scotia (Registrar of Motor Vehicles) (1990), 78 D.L.R. (4th) 162; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; John Doe v. Ontario (Information & Privacy Commissioner) (1992), 7 C.P.C. (3d) 33; Janigan v. Harris (1989), 70 O.R. (2d) 5; Poizer v. Ward, [1947] 4 D.L.R. 316.
Statutes and Regulations Cited
African Charter on Human and Peoples' Rights, art. 6.
American Convention on Human Rights, art. 7.
American Declaration of the Rights and Duties of Man, arts. 1, 25.
Canadian Charter of Rights and Freedoms, ss. 1, 2(a), (b), 3 to 5, 6, 7, 8 to 14, 15, 33.
Child and Family Services Act, 1984, S.O. 1984, c. 55.
Child Welfare Act, R.S.O. 1980, c. 66 [rep. S.O. 1984, c. 55, s. 208], ss. 19(1)(b)(ix), 21, 27, 28(1), (6), (10), (11), (12), 30(1), 37, 41.
Children's Protection Act, R.S.O. 1927, c. 279.
Constitution Act, 1982, s. 52.
Courts of Justice Act, 1984, S.O. 1984, c. 11, ss. 122, 141(1) [now Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 109, 131(1)].
Criminal Code, R.S.C., 1985, c. C-46, s. 126(1).
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, art. 5(1).
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, arts. 6, 9(1).
Rules of Civil Procedure, O. Reg. 560/84, r. 57.01(1)(c), (d), (2).
Supreme Court Act, R.S.C., 1985, c. S-26, ss. 42(1), 47.
United States Constitution, Fourteenth Amendment.
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 3.
Authors Cited
Bala, Nicholas, and J. Douglas Redfearn. "Family Law and the `Liberty Interest': Section 7 of the Canadian Charter of Rights" (1983), 15 Ottawa L. Rev. 274.
Colvin, Eric. "Section Seven of the Canadian Charter of Rights and Freedoms" (1989), 68 Can. Bar Rev. 560.
House of Commons Debates, 1st Sess., 32nd Parl., October 6, 1980, p. 3285.
Orkin, Mark M. The Law of Costs, 2nd ed. Aurora: Canada Law Book, 1993 (loose-leaf).
APPEAL and CROSS-APPEAL from a judgment of the Ontario Court of Appeal (1992), 10 O.R. (3d) 321, 96 D.L.R. (4th) 45, 43 R.F.L. (3d) 36, 58 O.A.C. 93, affirming a judgment of Whealy Dist. Ct. J. (1989), 14 A.C.W.S. (3d) 10, affirming an order of Main Prov. Ct. J. (1983), 36 R.F.L. (2d) 70, granting wardship of an infant to the Children's Aid Society and an order of Walmsley A.C. Prov. J. (1983), 36 R.F.L. (2d) 80, terminating the
wardship. Appeal and cross-appeal dismissed, L'Heureux-Dubé J. dissenting on the cross-appeal.
John M. Burns, W. Glen How, Q.C., and David C. Day, Q.C., for the appellants.
Alexander Duncan, for the respondent the Children's Aid Society of Metropolitan Toronto.
Debra Paulseth, for the respondent the Official Guardian of Ontario.
Janet E. Minor and Robert E. Charney, for the respondent the Attorney General for Ontario.
Roslyn J. Levine, Q.C., for the intervener the Attorney General of Canada.
Isabelle Harnois, for the intervener the Attorney General of Quebec.
The following are the reasons delivered by
//Lamer C.J.//
LAMER C.J. -- I have had the benefit of reading the reasons of Justice La Forest and the joint reasons of Justices Iacobucci and Major. I am in agreement with them with respect to the result of this appeal. For the reasons stated by my colleagues Iacobucci and Major JJ., I agree that the impugned provisions of the Child Welfare Act, R.S.O. 1980, c. 66, now repealed, do not violate the freedom of religion guaranteed by s. 2(a) of the Canadian Charter of Rights and Freedoms. With respect to the analysis under s. 7 of the Charter, however, I have arrived at this result for reasons that are different from those of my colleagues. More specifically, I am of the opinion that the liberty interest protected by s. 7 has not been infringed because it includes neither the right of parents to choose (or refuse) medical treatment for their children nor, more generally, the right to bring up or educate their children without undue interference by the state. While this type of liberty ("parental liberty") is important and fundamental within the more general concept of the autonomy or integrity of the family unit, it does not fall within the ambit of s. 7.
The Liberty Interest Protected by s. 7 of the Charter
In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 500, I clearly expressed my agreement with the opinion of Wilson J., who had said in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 205, that "it is incumbent upon the Court to give meaning to each of the elements, life, liberty and security of the person, which make up the `right' contained in s. 7". However, in analysing the rights protected by s. 7 of the Charter, this Court has often taken an exclusionary approach or has preferred to refrain from expressing an opinion as to the scope of the rights protected and has instead concluded that the impugned legislation complied with the principles of fundamental justice. Although the question in the case at bar could also be disposed of, as Tarnopolsky J.A. of the Court of Appeal did ((1992), 10 O.R. (3d) 321), by holding simply that, assuming that the type of liberty claimed by the appellants is protected by s. 7 of the Charter, the impugned statute does not violate the principles of fundamental justice, nevertheless I believe that it is necessary, having regard to the opinion expressed by my colleague La Forest J., to take time to consider the nature of the liberty interest which, in my view, is constitutionally protected in the context of s. 7 of the Charter.
With the exception of certain remarks by Wilson J., this Court has never really, up to this point, examined the concept of liberty in s. 7 except in close connection with the context of the criminal or penal law, by which the state takes action, through the courts or other agencies, to create or punish offences or, more generally, to exercise coercive power over certain human activities.
In R. v. Jones, [1986] 2 S.C.R. 284, the appellant, a pastor of a fundamentalist church, educated his children and others in a school program operating in the church basement. He had refused both to send his children to public school and to seek an exemption as required by the Alberta School Act. He was charged with several counts of truancy, an offence for which the Act provided for punishment
by imprisonment in default of payment of the prescribed fine. The appellant argued that the impugned provisions of the Act in issue infringed his freedom of religion as guaranteed by s. 2( a) of the Charter and deprived him, contrary to s. 7, of his freedom to educate his children as he saw fit, in that the restrictions imposed by the Act with respect to evidence of efficient instruction prevented him from making a full answer and defence.
La Forest J., who wrote the reasons for the majority of this Court, concluded that assuming that liberty as used in s. 7 included the right of parents to educate their children as they saw fit, the impugned provisions did not deprive them of that right in a manner that was not in accordance with the principles of fundamental justice. Wilson J., dissenting, concluded, for herself alone, that the "liberty" protected by s. 7 includes the right of parents to bring up and educate their children in accordance with their conscientious beliefs. Referring first to p. 205 of the decision in Singh v. Minister of Employment and Immigration, supra, in which she had written, citing a passage from Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), "that the concepts of the right to life, the right to liberty, and the right to security of the person are capable of a broad range of meaning", she then noted, at p. 317, the full and generous interpretation given to the expression "liberty" by the United States Supreme Court, at p. 399 of the decision in Meyer v. Nebraska, 262 U.S. 390 (1923):
Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.
She then cited a passage from the comments of Dickson C.J. who wrote, in his examination of the
role and scope of s. 1 of the Charter in R. v. Oakes, [1986] 1 S.C.R. 103, at p. 136:
The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.
Before concluding that the "right to liberty" protected by s. 7 of the Charter includes the right of parents to bring up and educate their children in accordance with their conscientious beliefs, subject to the rights of the community, she added, at p. 318:
I believe that the framers of the Constitution in guaranteeing "liberty" as a fundamental value in a free and democratic society had in mind the freedom of the individual to develop and realize his potential to the full, to plan his own life to suit his own character, to make his own choices for good or ill, to be non-conformist, idiosyncratic and even eccentric -- to be, in to-day's parlance, "his own person" and accountable as such.
In R. v. Morgentaler, [1988] 1 S.C.R. 30, this Court undertook a similar examination of the constitutionality of s. 251 of the Criminal Code, R.S.C. 1970, c. C-34, in relation to the rights protected by s. 7 of the Charter. In that case the state, as a general rule, forced a woman, by threat of criminal sanction, to carry the foetus to term. In a few clearly defined, exceptional cases, however, therapeutic abortion was permitted when the criteria and procedural requirements laid down had first been met. However, a woman who underwent an abortion without complying with the criteria and formalities, and the practitioner who procured it, were liable to a sentence of imprisonment.
A majority of this Court concluded, although for varying reasons, that the legislative scheme set
forth in s. 251 of the Code violated the right to security of the person that is protected by s. 7 of the Charter and that the procedural requirements and restrictions laid down in s. 251 permitting a "legal" abortion to be obtained did not comply with the principles of fundamental justice. However, the question of whether the "right to liberty" protected by s. 7 had been violated was not addressed by the majority. Speaking for herself alone, Wilson J. stated that she was of the opinion that s. 251 of the Code violated not only the right to security of the person but also the right to liberty, also protected by s. 7, as well as the freedom of conscience guaranteed in s. 2( a) of the Charter. According to Wilson J., it may be concluded from the purpose of the Charter and from s. 7 thereof that the "right to liberty" guarantees to every individual, free from state intervention, a degree of personal autonomy over important decisions intimately affecting his or her private life, in order to preserve the human dignity of individuals and enable them to feel self-worth and exercise self-determination. She based that assertion on her analysis of the American jurisprudence on the subject of liberty, and on the comments of Dickson C.J. in Oakes, supra, and in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, where he wrote, at p. 346:
It should also be noted, however, that an emphasis on individual conscience and individual judgment also lies at the heart of our democratic political tradition. The ability of each citizen to make free and informed decisions is the absolute prerequisite for the legitimacy, acceptability, and efficacy of our system of self-government. It is because of the centrality of the rights associated with freedom of individual conscience both to basic beliefs about human worth and dignity and to a free and democratic political system that American jurisprudence has emphasized the primacy or "firstness" of the First Amendment. It is this same centrality that in my view underlies their designation in the Canadian Charter of Rights and Freedoms as "fundamental". They are the sine qua non of the political tradition underlying the Charter.
Wilson J. concluded, at p. 167: "This conception of the proper ambit of the right to liberty under our
Charter is consistent with the American jurisprudence on the subject." She recognized, however, that care must undoubtedly be taken to avoid a mechanical application of concepts developed in different cultural and constitutional contexts.
Thus, relying primarily on the comments of Dickson C.J. in R. v. Oakes and R. v. Big M Drug Mart Ltd. and on the American experience which, with the Fifth and Fourteenth Amendments, has given a broad interpretation to the concept of "liberty" and elevated the concept of the "integrity of the family unit" and of "parental rights" to the constitutional level, Wilson J. in Jones and Morgentaler expressly extended the ambit of the concept of the "right to liberty" in s. 7 to include protection of parents' right to bring up and educate their children in accordance with their conscientious beliefs and a woman's right to decide to terminate a pregnancy. I would note, however, that in both these cases the factual context in which Wilson J. made these comments was one in which the state was interfering in individual and personal choices in order to turn particular behaviour into a criminal offence.
To resolve the instant appeal my colleague La Forest J. proposes an approach analogous to the one adopted by Wilson J. I cannot concur in this interpretation, which is in my opinion, and I say this with great respect, wrong for several reasons.
First, I have already stated at p. 498 of Re B.C. Motor Vehicle Act and at p. 1171 of Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, that I rejected the application of the series of American decisions to the interpretation of s. 7 and the definition of the expression "liberty" in the context of our Charter, because those decisions were made in a specific historical context which, inter alia, does not have either s. 52 of the Constitution Act or the internal checks and balances of ss. 1 and 33 of the Charter, nor even an equivalent of s. 7 itself. In addition, these decisions ignore the fundamental differences in the structure and formulation of the two
constitutions, which mandate distinct interpretations. Moreover, while I do not deny the wisdom and accuracy of the various comments by Dickson C.J., cited earlier by Wilson J. and in the present case by La Forest J., I am nonetheless of the view that those comments must be given limited application in analysing and interpreting s. 7 of the Charter. They must be seen in the context in which they were written. In the comment cited from Oakes, Dickson C.J. listed various essential values and principles that must guide the courts in interpreting Charter provisions. I note that those values and principles are essentially connected with the fundamental freedoms and various categories of rights found in the Charter. It therefore appears to me that Dickson C.J. was speaking primarily of the purpose of the Charter when taken as a whole. Moreover, his comment cited from Big M Drug Mart Ltd. refers expressly to the ability of each citizen to make free and informed decisions as aspects of the right to freedom of conscience.
I do not believe that the mere presence of the word "liberty" in s. 7 means that we can transpose these comments by Dickson C.J. into that section without distinction or nuance. Not all individual freedoms are recognized, a priori, as fundamental values of our society. The text of s. 1 in no way suggests this; it says simply that "the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it . . ." (emphasis added). With due respect for the contrary opinion, I am not prepared to recognize that, by including the expression "right to liberty" in s. 7, the framers of the Charter intended to protect "liberty" in its broadest sense or in all its dimensions. The comments made by Dickson C.J. are certainly very proper and apposite but they are most meaningful when we consider them in reference to the principles that must guide the courts in interpreting the freedoms set out in the Charter. In my view, those freedoms are the freedoms guaranteed in particular by ss. 2 and 6. The other provisions, as their very wording indicates, refer to rights, although it is
possible that a number of them could ground certain freedoms. Thus the "right to liberty" protected by s. 7 is not, within the meaning of the Charter, a fundamental freedom of the individual; it is a fundamental right which may be limited only in accordance with the principles of fundamental justice.
Although it is recognized that through judicial interpretation the courts are called upon to play an important creative and necessary role, which indeed enables the law to change and adapt constantly to our society, nevertheless such interpretation must be strictly limited and circumscribed by the guidelines laid down by the Constitution or the legislation that our country, through its elected leaders and representatives, has adopted. Thus while, as this Court has repeatedly said, we must adopt a large and liberal interpretation of the Charter, this does not in any way mean that its provisions can be given whatever interpretation might be deemed useful or convenient. The flexibility of the principles it expresses does not give us authority to distort their true meaning and purpose, nor to manufacture a constitutional law that goes beyond the manifest intention of its framers. I am therefore entirely in agreement with McIntyre J., who wrote, at p. 394 of Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313:
. . . while a liberal and not overly legalistic approach should be taken to constitutional interpretation, the Charter should not be regarded as an empty vessel to be filled with whatever meaning we might wish from time to time.
This Court has already held that the purposive method of interpretation must be adopted when we are seeking to define the nature and scope of a freedom or right guaranteed by the Charter. In R. v. Big M Drug Mart Ltd., Dickson J. stated, at p. 344:
This Court has already, in some measure, set out the basic approach to be taken in interpreting the Charter. In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this
Court expressed the view that the proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect. [Emphasis in original.]
In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. [Emphasis added.]
Thus the wording of the provision, its structure, the context in which it is found, the relationship there may be between it and the other provisions, as well as the historical context in which the Charter was adopted, are all factors that must be taken into consideration in seeking to identify the purpose of a protected right or freedom, in order to preserve the coherence of the entire constitutional text and maintain the integrity of the intention of Parliament. A proper and prudent interpretation of the Charter is especially necessary because it is a constitutional document of great import that cannot be altered by a mere statutory amendment if this Court were to misunderstand or err as to the scope of the rights and freedoms to which exceptional protection is afforded.
Section 7 of the Charter provides:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
and the French version reads as follows:
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit
qu'en conformité avec les principes de justice fondamentale.
This section contains only three distinct rights, which may be dealt with independently: the right to life, the right to liberty and the right to security of the person ( Singh v. Minister of Employment and Immigration, supra, at pp. 204-5; Re B.C. Motor Vehicle Act, supra, at p. 500; and R. v. Morgentaler, supra, at p. 52). As I said in Re B.C. Motor Vehicle Act, at p. 501:
The principles of fundamental justice, on the other hand, are not a protected interest, but rather a qualifier of the right not to be deprived of life, liberty and security of the person.
As a qualifier, the phrase serves to establish the parameters of the interests but it cannot be interpreted so narrowly as to frustrate or stultify them. [Emphasis added.]
Thus, on the one hand, s. 7 means that the protection afforded to these rights is not absolute; the state may limit them as long as it does so in accordance with the principles of fundamental justice. On the other hand, the connection drawn between the principles of fundamental justice and the protected rights must be an indication of the nature and scope of the rights protected. The liberty in question must therefore be one that may be limited through the operation of some mechanism that involves and actively engages the principles of fundamental justice. Principles of fundamental justice pertain to the justice system. They are designed to govern both the means by which one may be brought before the judicial system and the conduct of judges and other actors once the individual is brought within it. Apart from a situation in which the state engages the judicial system, it is difficult to think of an application for the principles of fundamental justice. As I said at p. 503 of Re B.C. Motor Vehicle Act:
. . . the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent
domain of the judiciary as guardian of the justice system. [Emphasis added.]
At pages 1173-74 of Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), supra, I also expressed the opinion that "[t]he interests protected by s. 7 are those that are properly and have been traditionally within the domain of the judiciary" and, more specifically, when the state "invokes the judiciary to restrict a person's physical liberty through the use of punishment or detention, when it restricts security of the person, or when it restricts other liberties by employing the method of sanction and punishment traditionally within the judicial realm" (emphasis added). I have not changed my opinion. Since the principles of fundamental justice are elements that are essentially within the domain of the justice system, the type of liberty s. 7 refers to must be the liberty that may be taken away or limited by a court or by another agency on which the state confers a coercive power to enforce its laws. In other words, s. 7 actively engages the principles of fundamental justice and demands that the state respect them when it intends to infringe on the right to life, liberty or security of the person. It is judges who invented and developed the concept of "fundamental justice". That concept, I repeat, essentially involves the judicial system and the decision-making bodies whose decisions are enforceable and are supported through the state's coercive power. The principles of fundamental justice must therefore be capable of being relevant to the rights that s. 7 is designed to protect. They must be capable of being implicated in the restriction of the rights set out otherwise these rights cannot be guaranteed. Accordingly, the subject matter of s. 7 must be the conduct of the state when the state calls on law enforcement officials to enforce and secure obedience to the law, or invokes the law to deprive a person of liberty through judges, magistrates, ministers, board members, etc.
With due respect for the contrary opinion, I am still convinced that the nature of the rights guaranteed by s. 7, taken as a whole, and the close
connection established between those rights and the principles of fundamental justice, necessarily mean that this constitutional protection is connected with the physical dimension of the word "liberty", which can be lost through the operation of the legal system. In a majority of cases, therefore, this protection is specific to our criminal or penal justice system and is triggered primarily by the operation of that system. I say a majority of cases, here, because I recognize, as Prof. Eric Colvin noted at p. 584 of his article "Section Seven of the Canadian Charter of Rights and Freedoms" (1989), 68 Can. Bar Rev. 560, that it is possible to imagine limited circumstances in which an individual could be deprived of his or her liberty otherwise than by the application of the criminal or penal law. For example, Prof. Colvin refers to the civil processes for restraining a mentally disordered person or isolating a contagious person. In any event in my view, the principle that must be adopted is that generally speaking s. 7 was not designed to protect even fundamental individual freedoms if those freedoms have no connection with the physical dimension of the concept of "liberty". There are other provisions in the Charter that perform that function.
Moreover, at p. 512 of Re B.C. Motor Vehicle Act, I also pointed out the close connection between ss. 8 to 14 and s. 7, in that they deal with specific infringements of the right to life, liberty and security of the person which offend the principles of fundamental justice and which therefore violate s. 7. These sections are therefore intended to illustrate, although not exhaustively, certain parameters of the nature of the rights protected by s. 7, which is a more general provision. Not only do these sections refer clearly and directly to various phases and aspects of the criminal justice process, which is the ultimate example of a system for depriving a person of liberty or limiting his or her liberty, but they also appear under the heading "Legal Rights".
In Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, Estey J. examined the role of headings in interpreting the Charter. He concluded, at pp. 376-77:
It is clear that these headings were systematically and deliberately included as an integral part of the Charter for whatever purpose. At the very minimum, the Court must take them into consideration when engaged in the process of discerning the meaning and application of the provisions of the Charter. The extent of the influence of a heading in this process will depend upon many factors including (but the list is not intended to be all-embracing) the degree of difficulty by reason of ambiguity or obscurity in construing the section; the length and complexity of the provision; the apparent homogeneity of the provision appearing under the heading; the use of generic terminology in the heading; the presence or absence of a system of headings which appear to segregate the component elements of the Charter; and the relationship of the terminology employed in the heading to the substance of the headlined provision. . . .
At a minimum the heading must be examined and some attempt made to discern the intent of the makers of the document from the language of the heading. [Emphasis added.]
The Charter includes a body of headings which, in my view, make it not only easier to read but also to separate and group its various elements. Thus we have the headings "Guarantee of Rights and Freedoms" (s. 1), "Fundamental Freedoms" (s. 2), "Democratic Rights" (ss. 3 to 5), "Mobility Rights" (s. 6), "Legal Rights" (ss. 7 to 14), "Equality Rights" (s. 15) and so on. The close relationship between the terminology used in the various headings and the substance of the provisions that follow each heading indicates, first, that the framers of the Charter clearly had in mind creating different categories of rights and freedoms, and second, that the meaning, scope and nature of the rights set forth must be different. Accordingly, we note that two headings, "Fundamental Freedoms" and "Mobility Rights" ("Liberté de circulation et d'établissement" in the French version), refer specifically to "freedom" in the sense of the ability of every individual to choose, act or "be" as he or she sees fit, free of any constraints. The other headings refer to different categories of rights.
Not only are the freedoms that the Charter expressly recognizes and identifies as fundamental grouped under a single heading, but they are also found within a single section (s. 2) which
enumerates them in general terms that allow for inclusion of a great diversity of more specific "freedoms" reflecting the fundamental values of our society. Under s. 1, these freedoms are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". The language of s. 2 also clearly indicates that it is intended to be exhaustive. It does not provide that "Everyone has the following fundamental freedoms, in particular", it states that "Everyone has the following fundamental freedoms" (emphasis added).
With great respect for the contrary opinion, I am unable to believe that the framers would have limited the types of fundamental freedoms to which they intended to extend constitutional protection in such explicit terms, in s. 2, and then, in s. 7, conferred "general" protection by using a generic expression which would, unless its meaning were limited, include the freedoms already protected by ss. 2 and 6, as well as all freedoms that were not listed. This approach is clearly contrary to the principles of legislative drafting that require that a general provision be placed before the provisions for its specific application. Moreover, if s. 7 were to include any type of freedom whatever, provided that it could be described as fundamental, we might seriously question the need for and purpose of s. 2. Either it is redundant, or s. 7 should then be considered to be a residual provision so that we can make up for anything that Parliament may have left out.
With due respect for Wilson J., I believe that her reasons in Jones and Morgentaler reveal the difficulty caused by this approach. First, at p. 319 of the decision in Jones, she concluded that s. 7 includes the right of a parent to bring up and educate one's children in accordance with one's conscientious beliefs. Section 2(a) of the Charter itself expressly protects freedom of conscience and religion. Second, in Morgentaler, she concluded that s. 251 of the Criminal Code infringes the right
to liberty set out in s. 7 which guarantees everyone a degree of personal autonomy over important decisions intimately affecting his or her private life, and she then stated, at pp. 175-76:
In my view, the deprivation of the s. 7 right with which we are concerned in this case offends s. 2(a) of the Charter. I say this because I believe that the decision whether or not to terminate a pregnancy is essentially a moral decision, a matter of conscience. [Emphasis added.]
She therefore concluded, for the same reasons but using different words, that s. 251 of the Code also violated the freedom of conscience protected by s. 2(a). Finally, at pp. 179-80, she added:
Accordingly, for the state to take sides on the issue of abortion, as it does in the impugned legislation by making it a criminal offence for the pregnant woman to exercise one of her options, is not only to endorse but also to enforce, on pain of a further loss of liberty through actual imprisonment, one conscientiously-held view at the expense of another. . . .
Legislation which violates freedom of conscience in this manner cannot, in my view, be in accordance with the principles of fundamental justice within the meaning of s. 7. [Emphasis added.]
With due respect for the contrary opinion, these comments clearly show, in my view, the practical difficulty that arises from this interpretation. In any situation that could potentially fall within the ambit of s. 2, that same freedom would also be covered by s. 7. For example, we may ask what the legal solution would have been if, in Jones, the appellant had argued that the impugned legislative provisions violated his freedom of conscience, which is protected by s. 2(a), and his parental liberty, which is protected by s. 7. This situation would mean not only that the legislative foundation would be duplicated, but also that two distinct levels of analysis would have to be applied to assess the justification for the restriction that would render the impugned legislation valid. I do
not believe that this could have been Parliament's intention when it enacted ss. 2 and 7.
Others may try to explain this situation by arguing that s. 2, unlike s. 7, applies solely to the freedoms set out therein and differs from s. 7 in that it says nothing about the principles of fundamental justice applying so that an infringement of those freedoms may be legitimized. First, this is forgetting the existence of s. 1 which, to a large extent, plays a role equivalent to the role played by the principles of fundamental justice in s. 7: it circumscribes the extent to which the state may take action to limit the rights and freedoms protected. It is also forgetting that in most circumstances it is practically impossible to establish a relationship between the principles of fundamental justice and the type of freedoms listed in s. 2, other than by restricting the protection to circumstances in which it is appropriate. For example, the appellants in the case at bar argued that the impugned provisions of the Child Welfare Act that allow for temporary legal custody of their child to be awarded to the Children's Aid Society violate their freedom of religion. In view of the fact that the statute provides that judicial authorization must first be obtained, it would be possible, in this precise context, to examine whether the infringement of freedom of religion complied with the principles of fundamental justice. But what principles of fundamental justice could be invoked, for example, if a statute limited freedom of expression by banning, on pain of payment of a fine, any statement concerning a member of a political body? What principles of fundamental justice could be invoked if a statute banned, on pain of payment of a fine, any manifestation of religious convictions in a public place? What principles of fundamental justice could be invoked if a statute compelled me to have at least three children so that Canada would have its next generation -- and so on? In these situations, the protected freedoms would indeed be violated, but clearly it is possible to imagine a host of circumstances in which it would be difficult to draw any connection whatever with the principles of fundamental justice in order to determine whether the infringement was lawful. Accordingly, it is apparent that this role has necessarily fallen to s. 1
of the Charter and that it is difficult not to conclude that the subject matter of s. 2 and of s. 7, as reflected in the different dimensions of "liberty" that each is designed to protect, is quite obviously different. Moreover, since the fundamental freedoms set out in s. 2 are formulated in terms that refer to sufficiently broad concepts, it is reasonable to think that the framers of the Charter did not intend to make the right to liberty in s. 7 a residual right that could include any component of the fundamental freedoms set out in s. 2.
This approach, which aims to include in s. 7 any freedom that is deemed to be fundamental in a free and democratic Canadian society, also presents a major disadvantage in terms of the actual nature of the freedom that may be invoked, since all the freedoms that have already been identified as fundamental by the framers and set out in s. 2 could and should be included in the "liberty" protected by s. 7. Since, moreover, they are set forth in terms that are capable of covering a very broad ground, the same would be true of all the components or manifestations of those various rights. Thus everyone would have not only the fundamental freedom of religion, conscience, expression and so on, but also the "right to liberty" of religion, of conscience, of expression and so on.
I am still convinced that s. 7 is not a tautology, particularly because it adds two distinct rights that are not set out anywhere else in the Charter and that are not in any way connected with what are called fundamental freedoms. In my view, the nature of the other rights set out in s. 7 is another element of interpretation that militates in favour of a distinction between the scope of the words "freedom" and "liberty" as they are used in ss. 2 and 7. Section 7 provides that everyone has the right to life, liberty and security of the person. As I noted earlier, these are three distinct rights which the framers deliberately placed, in sequence, in a single provision. There must therefore be a connection or linkage among these different rights. In my opinion, the connection is found in the person
himself or herself, as a corporeal entity, as opposed to the person's spirit, aspirations, conscience, beliefs, personality or, more generally, the expression or realization of what makes up the person's non-corporeal identity. The right to liberty, in this context, must therefore be set up against imprisonment, detention or any form of control or of constraint on freedom of movement.
I agree with my colleague La Forest J. that the word "liberty" in its broadest sense does not mean the mere absence of physical restraint. In French, this word certainly includes two distinct dimensions, the physical and the abstract or intangible. These two dimensions are reflected in ss. 7 and 2, respectively, of the Charter, the English version of which uses the words "liberty" and "freedom". With due respect for the contrary opinion, I am of the opinion that the fact that two different expressions are used in the English version is neither meaningless nor accidental. The expression "freedom" refers to a concept that is related to but distinct from the expression "liberty", but it has no equivalent in French, where the two dimensions are expressed in one single word: "liberté". The meaning is then determined by the context.
Moreover, since most laws have the effect of limiting a freedom, the same approach could mean, depending on the facts, that a large proportion of the legislative provisions in force could be challenged on the ground that they infringe the liberty guaranteed by s. 7 of the Charter. It would then be for the courts, in each case, to decide whether or not the freedom invoked was a fundamental freedom in our free and democratic society, whether the limit complied with the principles of fundamental justice which, as I noted, often do not apply, or whether the limit was reasonable and could be justified in a free and democratic society. We must keep in mind, first, that what may be important and fundamental to one person may very well not be to another, including the judge who hears the case, and second, that by adopting this approach the judiciary would inevitably be
legislating, when this is not its function. With respect, I believe that this situation does not reflect the purpose of the Charter or of s. 7, or the intention of Parliament.
To summarize my opinion, I would simply say that extending the scope of the word "liberty" in s. 7 to include any type of freedom other than that which is connected with the physical dimension of the word "liberty" would not only be contrary to the structure of the Charter and of the provision itself, but would also be contrary to the scheme, the context and the manifest purpose of s. 7. Furthermore, it would have the effect of conferring prima facie constitutional protection on all eccentricities expressed by members of our society under the rubric of "liberty", in addition to taking away all legitimacy or purpose from other provisions of the Charter such as s. 2 or s. 6, for example, since they would be redundant. It seems apparent to me that this cannot be the purpose of s. 7, or of the Charter itself, which is a constitutional instrument. It must also be clearly understood that this approach would inevitably lead to a situation where we would have government by judges. This is not the case at present, but I would emphasize again that it must not become the case.
Finally, I would add the following brief comments. First, there may be those who may believe that I am trying, by what may appear an overly restrictive interpretation, to limit the ambit of s. 7 and that I risk closing the door on the possible adaptation of the values and principles expressed by the Charter to society's future realities and aspirations. I shall simply note that while I am limiting the scope of the "right to liberty" to its essentially physical dimension, which is at issue primarily, but surely not exclusively, in the criminal justice system, this right may cover a multitude and variety of situations. Most statutes interfere with individual liberty and most are enforced by sanctions imposed after conviction for federal or provincial offences. Where a statute does not make it an offence to contravene its provisions, s. 126(1)
of the Criminal Code, R.S.C., 1985, c. C-46, provides:
126. (1) Every one who, without lawful excuse, contravenes an Act of Parliament by wilfully doing anything that it forbids or by wilfully omitting to do anything that it requires to be done is, unless a punishment is expressly provided by law, guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
The circumstances in which the state may take action to deprive a person of liberty occur often enough and are diverse enough that we can appreciate the importance of the rights protected by s. 7 of the Charter and understand that provision's obvious purpose.
The approach that I am adopting also appears to me to be supported by the international human rights instruments on which the framers of our Charter drew extensively. On October 6, 1980, in the Debates of the House of Commons (at p. 3285), the Minister of Justice, Jean Chrétien, stated:
Sections 7 to 14 of the Charter set out basic legal rights of Canadians. Some of these rights derive from the Canadian Bill of Rights and some are new. Of the latter, some derive from the International Covenant on Civil and Political Rights. [Emphasis added.]
Article 9(1) of the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, reads as follows:
Article 9. 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
With the exception of the fact that this article does not set forth the right to life (which is provided for in art. 6 of the Covenant), this passage is strikingly similar to what we find in s. 7 of our Charter. If we consult selected decisions of the Human Rights Committee we find that this article has been
invoked in cases of allegedly unlawful arrest, detention, imprisonment, mistreatment and torture. I have not found any decision that raised any question other than a violation of the physical dimension of the person. Moreover, art. 5(1) of the European Convention on Human Rights, 213 U.N.T.S. 221, also sets forth the right to liberty and security of the person. The provisions of the various paragraphs of that article indicate unequivocally that "physical liberty" alone is contemplated by this provision, as is confirmed by an examination of a few decisions of the European Court of Human Rights. Other instruments relating to human rights that set forth a right to liberty and security of the person are to the same effect ( American Convention on Human Rights, art. 7; African Charter on Human and Peoples' Rights, art. 6; Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 3; American Declaration of the Rights and Duties of Man, arts. 1 and 25). For the purposes of this appeal, I am in no way suggesting that I am basing my conclusion on the interpretation given to art. 9 of the International Covenant on Civil and Political Rights or art. 5 of the European Convention on Human Rights. I am fully aware that the weight to be given to the foregoing may be uncertain, but nevertheless I believe that it provides an additional indication, at least, of the scope that the framers of the Charter may have intended to give to the expression "right to liberty" in the context of s. 7.
Finally, but without stating an opinion on the question, I would note, with respect, that I would be much more receptive to the appellants' argument and my colleague's reasons concerning the constitutional protection of parental rights if it had been argued that this right, or the freedom to make choices for our children, was protected by the freedom of conscience guaranteed by s. 2(a) of the Charter. As Dickson J. stated so aptly, at p. 346 of Big M Drug Mart Ltd., it is precisely the rights associated with freedom of individual conscience that are central "both to basic beliefs about human
worth and dignity and to a free and democratic political system . . .".
Disposition
I am therefore of the opinion that the appeal should be dismissed on the ground that the impugned provisions of the Child Welfare Act do not violate the appellants' freedom of religion or their "parental rights" or, more precisely, their right to choose (or refuse) medical treatment for their child, since such a right is not protected by s. 7 of the Charter.
I would dispose of the cross-appeal in the manner proposed by my colleague La Forest J.
The judgment of La Forest, Gonthier and McLachlin JJ. was delivered by
//La Forest J.//
LA FOREST J. -- This appeal raises the constitutionality of state interference with child-rearing decisions. The appellants are parents who argue that the Ontario Child Welfare Act, R.S.O. 1980, c. 66, infringes their right to choose medical treatment for their infant in accordance with the tenets of their faith. They claim that this right is protected under both ss. 7 and 2(a) of the Canadian Charter of Rights and Freedoms.
Facts
Sheena B. was born four weeks prematurely, on June 25, 1983. Soon after, she was transferred to the Hospital for Sick Children in Toronto because of her physical condition. Within the first few weeks of her life she exhibited many physical ailments and received a number of medical treatments. Her parents, the appellants, consented to all the treatments provided during those initial weeks. At their request, the attending physicians avoided the use of a blood transfusion in the treatment of Sheena because, as Jehovah's Witnesses, the appellants objected to it for religious reasons; they also claimed it was unnecessary.
On July 30, the child's haemoglobin level had dropped to such an extent that the attending physicians believed her life was in danger and that she might require a blood transfusion to treat potentially life-threatening congestive heart failure. On July 31, following a hearing on short notice to the appellants, Judge Main of the Ontario Provincial Court (Family Division) granted the respondent Children's Aid Society a 72-hour wardship, on the basis of the evidence of Dr. Perlman that a transfusion might be necessary and that it would not be for experimental purposes. A status review was held on August 3, but was adjourned; it resumed on August 18 and 19. Dr. Pape and Dr. Swyer both testified that although the child's condition had improved, it was still marginal, and they wished to maintain the ability to transfuse in case of an emergency. Dr. Morin, head of ophthalmology at the Hospital for Sick Children, testified that he suspected Sheena had infantile glaucoma and needed to undergo exploratory surgery within the following week to confirm the diagnosis. This procedure had to be performed under general anaesthetic, and Dr. Swyer testified that a blood transfusion would be necessary. Main Prov. Ct. J. extended the wardship order for a period of 21 days: (1983), 36 R.F.L. (2d) 70. On August 23, Sheena received a blood transfusion as part of the examination and operation for the suspected glaucoma.
A second Provincial Court order terminated the respondent's wardship on September 15, and the child was returned to her parents: (1983), 36 R.F.L. (2d) 80. Both orders of the Provincial Court were appealed to the District Court by the appellants. The respondent Children's Aid Society countered with a motion to dismiss which was allowed on the grounds that the transfusion had been administered and the wardship terminated, thereby leaving no lis between the parties, and that the Child Welfare Act had been repealed and replaced by the Child and Family Services Act,
1984, S.O. 1984, c. 55, thus rendering the whole issue moot: (1985), 32 A.C.W.S. (2d) 149.
On an appeal to the Court of Appeal, that court held that the District Court had erred in so holding as there remained the issues of interference with the rights of the parents in determining their child's medical treatment, and of the constitutionality of the Child Welfare Act. These issues were referred back to the District Court and a hearing of the appeal, including the constitutional questions, was ordered on the merits: (1988), 63 O.R. (2d) 385, 47 D.L.R. (4th) 388, 15 R.F.L. (3d) 388. The District Court dismissed the appellants' appeal from the Provincial Court on the merits: (1989), 14 A.C.W.S. (3d) 10. The court awarded costs against the respondent Attorney General of Ontario, who had intervened in the proceedings. The appellants' appeal to the Court of Appeal was dismissed. The respondent Attorney General of Ontario's cross-appeal on the issue of costs was also dismissed, Houlden J.A. dissenting: (1992), 10 O.R. (3d) 321, 96 D.L.R. (4th) 45, 43 R.F.L. (3d) 36, 58 O.A.C. 93.
The Courts Below
Provincial Court, Family Division (Wardship Application, July 31, 1983)
At the initial wardship application hearing, Main Prov. Ct. J. was concerned with the issue of whether the increase in the child's haemoglobin level following a transfusion would, as was the opinion of Dr. Perlman, reduce the risk of fatal congestive heart failure or pulmonary deficiency in the event of a crisis. Main Prov. Ct. J. observed:
I believe that the decision for this must lie with the court, not with the Children's Aid Society nor the parents. It is the decision of this court this afternoon that the rights of the parents are going to be subject to the rights of the child, and that the choices and decisions to be made will, for a very short period of time, be left in the hands of persons other than the parents. This is a very serious step and one not taken lightly and one not
taken automatically, as I must be satisfied, and I am. I have seen stronger cases on behalf of the Society than this one, but on the balance of probabilities and despite the number of positive things in favour of the parents' case, I am going to make the order.
Main Prov. Ct. J. awarded wardship to the Children's Aid Society for 72 hours rather than the 30-day period requested. This order was made in light of the fact that the appellants had received short notice of the hearing; Main Prov. Ct. J. wanted to give them the opportunity to present further evidence and submissions.
Provincial Court, Family Division (1983), 36 R.F.L. (2d) 70
Main Prov. Ct. J. considered a significant amount of evidence over a two-day hearing before ordering that the wardship be continued for a period of 21 days. The appellants chose not to call any expert witnesses although they testified themselves and their counsel cross-examined the respondent's witnesses.
Main Prov. Ct. J. reviewed the current medical status of Sheena, whom he found to be still in a critical condition and requiring a high level of intensive care. He noted that she continued to suffer from serious but undiagnosed problems and that she risked suffering several types of crises. He stated in particular that "[t]he thing which is of concern and for which there is not one single shred of evidence in contradiction is that should a crisis occur, it could be less than 30 minutes before the child is dead" (p. 75). Should such a situation arise, doctors would have needed to be able to react immediately in order to save the infant's life.
Main Prov. Ct. J. recognized that there was a heavy onus upon the respondent to establish the need for intervention in violation of parental rights. He held that this onus had been met, and
that state intervention in the family was "absolutely essential" (p. 77). He added, at p. 78:
It is my firm opinion that the court does not have to wait until the situation gets to the stage where the parents wish to deny the child any medical assistance, as has been submitted.
Main Prov. Ct. J. also expressed the desire that the appellants be permitted to seek a second opinion before the transfusion and the eye examination.
District Court of Ontario
In the District Court, the appellants argued that s. 19(1)(b)(ix) of the Act was loosely worded so as to delegate to a doctor, rather than a judge, the decision as to whether a child is in need of protection. Whealy Dist. Ct. J. disagreed and noted specifically the way in which the section was interpreted by the judge at first instance: Main Prov. Ct. J. placed the civil onus on the state and only granted a restricted order; he also allowed a delay so that the appellants could present medical evidence.
With respect to s. 2(a) of the Charter, Whealy Dist. Ct. J. held that the Act, which originated from a statute first adopted in 1927, was not aimed at Jehovah's Witnesses since they have only refused blood transfusions on grounds of religious principles since 1945. On that basis and relying on case law, he concluded that the purpose of the legislation did not infringe s. 2(a) of the Charter.
With respect to s. 7 of the Charter, Whealy Dist. Ct. J. decided the following:
When an infant, totally incapable of making any decision, is in a life threatening situation and the appropriate treatment is denied or refused by its parents, it cannot be said that any potential protection as given under section 7 for the family unit can be invoked against the right of the infant to live. Section 7 addresses itself also to "the principles of fundamental justice". It can hardly be said
that the principles of fundamental justice could be invoked to deny a child a chance to live.
It is worth noting as well that the rights set out in section 7 are conditional and not absolute. The rights therein set out can be interfered with if done in accordance with the principles of fundamental justice. The scheme of the Child Welfare Act, in my view, meets all the tests of fundamental justice, including a fair hearing before an impartial judicial tribunal.
Whealy Dist. Ct. J. examined whether there was sufficient evidence before the trial judge to support the wardship order and held that Main Prov. Ct. J. "viewed it with appropriate care and caution, and that he applied the appropriate onus in making his decision".
Whealy Dist. Ct. J. also had to decide whether the evidence presented before him altered his conclusion. He heard evidence from Dr. Morin, who defended his 1983 diagnosis of glaucoma, and from Dr. McCormick, who believed there had been no urgent need for an eye examination. Whealy Dist. Ct. J. relied on the evidence of Dr. Morin, since four other doctors had agreed with his diagnosis of probable congenital glaucoma, and because he believed Dr. McCormick's suspicion was without foundation. He also heard from anesthesiologists and haematologists on the issue of whether a transfusion was necessary to undertake the surgery. He preferred the evidence of the respondents' witnesses that anaesthetic could not safely be administered without a transfusion, to that of Dr. Furman to the effect that general anaesthetic could have safely been administered without a transfusion by the use of haemo-dilution. The appellants presented evidence to show that there were inherent risks involved in using blood transfusions in the non-surgical treatment of Sheena, and that alternative treatments could have been used. However, Whealy Dist. Ct. J. accepted the evidence of Dr. Andrew-O'Brodovich that a transfusion was necessary given the risks of administering a general anaesthetic to a child with such a low haemoglobin level, and the evidence of Dr. Sinclair that, in the circumstances, no alternative to blood transfusions would have raised the
haemoglobin level as required. He also relied on Dr. Sinclair's opinion that a transfusion in these circumstances represented a medically accepted standard of practice. Dr. Scherz testified that alternatives to blood transfusion would have been appropriate in the circumstances. Whealy Dist. Ct. J. disregarded the evidence on the basis that it did not address the issue of oxygen-carrying capacity in the red blood cells while under general anaesthetic in an infant with Sheena's problems. He did not take into account the opinion of Dr. Spence that blood transfusions were often unnecessary since he found Dr. Spence's work to be "on the cutting edge of new medical therapy rather than in the main body of the medical profession".
On the issue of costs, Whealy Dist. Ct. J. stated:
As to costs, it is my view, because the Court of Appeal regarded this case as an opportunity to have a test case, because the Attorney General and the Official Guardian have intervened and fully participated before the Court of Appeal and before me, and because in order to consider all of this highly technical material, both counsel and I required daily transcripts, that this is an appropriate case to order costs to be paid by the Attorney General of this province.
However, he gave the parties the opportunity to present further submissions before making a final order. In an addendum to his reasons, Whealy Dist. Ct. J. awarded costs against the Attorney General of Ontario, given that the case had "proceeded in a most unusual fashion and laborious manner for all concerned, and I am not aware of any case where a first level appeal from a decision of a trial judge has gone this circuitous route and ended up with the appeal being transformed into what amounts to a re-trial on fresh evidence".
Court of Appeal (1992), 10 O.R. (3d) 321
Tarnopolsky J.A., speaking for the majority of the Court of Appeal, did not disrupt the findings of the District Court judge regarding the need for the eye surgery performed by Dr. Morin, the need for a blood transfusion in conjunction with the anaesthetic used in the eye surgery, or the need for a blood transfusion in the non-surgical treatment of Sheena. With respect to s. 7 of the Charter, Tarnopolsky J.A. followed the approach adopted by this Court in R. v. Jones, [1986] 2 S.C.R. 284, and held that assuming an interference with the parents' liberty interest, the legislation did not violate the principles of fundamental justice. In particular, he found that s. 19(1)(b)(ix) of the Act did not delegate to the doctor the decision whether a child was in need of protection. The definition in s. 19(1)(b)(ix), he noted, was qualified by two distinct requirements, only one of which had to be met to warrant intervention: "The first is that the parents have acted contrary to the recommendations of a medical practitioner. The second is that the treatment is `necessary for the child's health and wellbeing'" (pp. 335-36). The trier of fact, therefore, ultimately determined whether the child was in need of protection.
The appellants complained of the lack of disclosure at the summary protection hearing, in particular of the fact that Dr. Perlman did not disclose a contrary view he had received, on consultation, with respect to congestive heart failure. Tarnopolsky J.A. found that this shortfall "was not so significant that it denied the appellants a fair hearing" (p. 344). As for other procedural complaints, he was of the view that these did not deprive the appellants of their liberty in a manner contrary to the principles of fundamental justice either. He stated, at pp. 345-46:
In my view, the respondents are correct that the procedures outlined in s. 28 of the Child Welfare Act ensure
that the interests of the parents are given full judicial protection. Pursuant to that provision, witnesses were summoned at the initial hearing on July 31, 1983, to give evidence and produce records. The parents were notified of the hearing, although not until the day on which it was held. The parents were represented by counsel and they, too, gave evidence. Their counsel, who is extensively experienced in issues of this kind, was permitted to cross-examine all of the witnesses called by the C.A.S. As well, there was no suggestion that the judge hearing the application was in any way biased. In light of the dire need for preventive action, which was revealed by the evidence presented at the hearing, it is my opinion that the hearing was conducted in accordance with the principles of fundamental justice.
Tarnopolsky J.A. then considered whether the impugned sections of the Act violated s. 2(a) of the Charter. He agreed with the District Court judge that the purpose of the Act did not violate s. 2(a). However, he stated that the legislation had the effect of restraining the appellants from manifesting their religious views by controlling the treatment provided to Sheena. While he acknowledged that the right of the appellants to choose medical treatment for their infant in accordance with their religious beliefs was protected under s. 2(a) of the Charter, he added that it was so only so long as it did not impede the vital and overriding state interest in the life and health of a child. He was of the view that any limitations on freedom of religion were best addressed under s. 1 of the Charter. After reviewing the four branches of the s. 1 test, set out recently in R. v. Chaulk, [1990] 3 S.C.R. 1303, he decided that a violation of s. 2(a) would be saved by s. 1. He held that the connection between the means used in this case and the objective of the Child Welfare Act was obvious. He also stated, at p. 353:
In my opinion, where a blood transfusion may be necessary to save the life of a child or to protect it from a serious handicap, it is difficult to imagine a means of ensuring that treatment is provided once the actual necessity arises, which is a less restrictive means than that employed in this case. The appellants' rights were only impeded once a court came to the conclusion that the exercise of those rights would endanger the health of the child.
On the issue of costs raised in the cross-appeal, Tarnopolsky J.A. acknowledged the peculiarity of the order, but stated that there was no compelling reason to interfere with the discretionary power of the court below.
Goodman J.A. agreed with the reasoning of Tarnopolsky J.A. and simply commented on the award of costs made by the District Court judge. Houlden J.A. also concurred with the reasons of the majority on the main appeal. He expressed the view that even if the appellants had been successful in their appeal, they would not have been entitled to the declaratory relief they were seeking, as it intruded on the legislative function. In any event, the Act had been amended without incorporating the guidelines proposed by the appellants. However, Houlden J.A. dissented on the issue of costs because, in his view, Whealy Dist. Ct. J.'s order would create a dangerous precedent.
Issues
The following constitutional questions were set by the Chief Justice:
1.Does the Child Welfare Act, R.S.O. 1980, c. 66, s. 19(1)(b)(ix), together with the powers in ss. 30(1)2 and 41 and the procedures in ss. 21, 27, 28(1), (10) and (12), deny parents a right to choose medical treatment for their infants, contrary to s. 7 of the Canadian Charter of Rights and Freedoms?
2.If the answer to question 1 is in the affirmative, is s. 19(1)(b)(ix), together with the powers in ss. 30(1)2 and 41 and the procedures in ss. 21, 27, 28(1), (10) and (12) of the Child Welfare Act, R.S.O. 1980, c. 66, justified as reasonable limits by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
3.Does the Child Welfare Act, R.S.O. 1980, c. 66, s. 19(1)(b)(ix), together with the powers in ss. 30(1)2 and 41 and the procedures in ss. 21, 27, 28(1), (10) and (12), infringe the appellants'
freedom of religion as guaranteed under s. 2( a) of the Canadian Charter of Rights and Freedoms?
4.If the answer to question 3 is in the affirmative, is s. 19(1)(b)(ix), together with the powers in ss. 30(1)2 and 41 and the procedures in ss. 21, 27, 28(1), (10) and (12) of the Child Welfare Act, R.S.O. 1980, c. 66, justified as reasonable limits by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
The issue raised in the respondent's cross-appeal was whether the District Court erred in making its award of costs against the Attorney General of Ontario.
The Court rendered judgment from the bench on March 17, 1994. It dismissed the appeal and answered the first constitutional question in the negative. Question 2 does not, therefore, arise. The Court, however, reserved decision, reasons to follow, as regards whether it was under question 3 or question 4 that the legislation was constitutionally valid. Decision was also reserved on the cross-appeal.
Analysis
I shall first deal with the constitutional questions raised in the main appeal. I shall then briefly address the issue of costs raised in the cross-appeal.
Appeal: Constitutional Questions
In addition to the constitutional issues, the appellants raised certain questions of fact. As these were amply addressed by the courts below, there is no need to discuss them at length. While the appellants were, at the time of the initial wardship hearing and review, unable to adduce their own evidence and call their own experts owing to the summary nature of the proceedings, the frailty in the factual record was remedied by the admission of fresh evidence before the District Court. The appellants contended, however, that conflicting medical evidence was presented, and that Whealy
Dist. Ct. J. should have deferred to their opinion regarding the necessity of a blood transfusion to assist with the anaesthetic while performing the eye surgery, as there was no right or wrong answer and a court of law was ill-placed to substitute its decision for that of the parents.
Whealy Dist. Ct. J. almost uniformly preferred the evidence of the respondents' witnesses to that of the appellants', as the latter did not accord with the accepted medical practice of the time. He did so after a careful examination of the position of each witness, and in every case clearly stated persuasive reasons for preferring the testimony of one witness over another. Far from substituting his decision for that of the parents, Whealy Dist. Ct. J. simply performed his duty under the law, namely appraising the weight and credibility of the competing testimony. Whealy Dist. Ct. J.'s findings of fact were upheld by the Court of Appeal, after a careful review of all the evidence. The appellants have not demonstrated any compelling grounds for disturbing these findings.
Turning now to s. 7 of the Charter, the appellants argued that the right to choose medical treatment for their infant is a liberty interest protected under s. 7 of the Charter, and that the infringement of that interest in the present case did not conform with the principles of fundamental justice. Whealy Dist. Ct. J., we saw, dismissed the contentions of the appellants, and the Court of Appeal simply stated that even on the assumption that s. 7 of the Charter afforded some protection to the interest claimed by the appellants, any infringement of their liberty was done in accordance with the principles of fundamental justice.
Section 7 of the Charter and Parental Liberty
Although I am of the view that the principles of fundamental justice have been complied with in the present case, I nonetheless propose to comment on the scope of the protection afforded by the
Charter as it relates to the right of parents to choose medical treatment for their infant. This Court has, on many occasions, stated that the principles of fundamental justice vary according to the context; see R. v. Lyons, [1987] 2 S.C.R. 309; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869. An examination of the scope of the liberty interest appears warranted, since its formulation may affect the determination of the principles of fundamental justice. I also note that while this case can be disposed of solely on the issue of the right of parents to choose medical treatment for their infant, it is not without consequence for child protection as a whole. Intervention may well be compelling here, but this appeal raises the more general question of the right of parents to rear their children without undue interference by the state.
The appellants claim that parents have the right to choose medical treatment for their infant, relying for this contention on s. 7 of the Charter, and more precisely on the liberty interest. They assert that the right enures in the family as an entity, basing this argument on statements made by American courts in the definition of liberty under their Constitution. While, as I will indicate, American experience may be useful in defining the scope of the liberty interest protected under our Constitution, I agree that s. 7 of the Charter does not afford protection to the integrity of the family unit as such. The Canadian Charter, and s. 7 in particular, protects individuals. It is the individual's right to liberty under the Charter with which we are here concerned. The concept of the integrity of the family unit is itself premised, at least in part, on that of parental liberty. N. Bala and J. D. Redfearn, "Family Law and the `Liberty Interest': Section 7 of the Canadian Charter of Rights" (1983), 15 Ottawa L. Rev. 274, note that a general discussion of the "family unit" often obscures two separate interests, at p. 281:
It is, however, possible to distinguish at least two different, yet interrelated interests. One is familial integrity -- an interest in upholding the family as an autonomous,
independent unit in society. The other is parental authority -- a parental right to enjoy family life and control various aspects of a child's life, free from unnecessary outside interference. [Emphasis in original.]
The term "liberty" has yet to be authoritatively defined in this Court, although comments have been made on both ends of the spectrum. In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, Wilson J., speaking for Dickson C.J., Lamer J. (as he then was) as well, noted that it was incumbent upon the Court to define "liberty", and conceded that the concept was susceptible of a broad range of meanings. Although she did not venture to define the scope of the liberty interest protected under s. 7 of the Charter, she cited the following dictum of Stewart J. in Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), at p. 572, as an example of the liberal interpretation the United States Supreme Court has given to the Fourteenth Amendment, at p. 205:
"While this Court has not attempted to define with exactness the liberty . . . guaranteed (by the Fourteenth Amendment), the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men." Meyer v. Nebraska, 262 U.S. 390, 399. In a Constitution for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 499-500; Stanley v. Illinois, 405 U.S. 645.
In R. v. Jones, supra, speaking alone in dissent, Wilson J. gave a broad formulation of the concept of liberty. She stated, at p. 318:
I believe that the framers of the Constitution in guaranteeing "liberty" as a fundamental value in a free and democratic society had in mind the freedom of the individual to develop and realize his potential to the full, to
plan his own life to suit his own character, to make his own choices for good or ill, to be non-conformist, idiosyncratic and even eccentric -- to be, in to-day's parlance, "his own person" and accountable as such. John Stuart Mill described it as "pursuing our own good in our own way". This, he believed, we should be free to do "so long as we do not attempt to deprive others of theirs or impede their efforts to obtain it".
While she was of the view that s. 7 protected the right of parents to bring up and educate their children according to their conscientious beliefs, Wilson J. acknowledged that this freedom was not "untrammelled". Some limits could be placed on the interest, as "liberty" did not imply the right to bring up and educate one's children "as one sees fit".
On the other hand, Lamer J., speaking for himself alone in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, rejected the line of American cases pertaining to contractual liberty, noting that such an extension of the liberty interest had also been subject to criticism in the United States. The text of the Canadian Charter -- which does not mention "property" -- and the context of its adoption were sufficiently different to mandate a distinct interpretation. According to him, s. 7, which appears in the Charter under the heading "Legal Rights", had to be construed in light of the rights enunciated in ss. 8 to 14, which set out traditional criminal law guarantees. Further, the term "liberty" had to be read in conjunction with its modifier, the principles of fundamental justice. Thus, a restriction on liberty had to occur as a result of an interaction with the justice system. Lamer J. appeared to limit "liberty" to its physical dimension, though he would appear to give the expression "security of the person" a somewhat broader ambit. He summarized his position as follows, at pp. 1177-78:
Put shortly, I am of the view that s. 7 is implicated when the state, by resorting to the justice system, restricts an individual's physical liberty in any circumstances. Section 7 is also implicated when the state restricts individuals' security of the person by interfering with, or
removing from them, control over their physical or mental integrity. Finally, s. 7 is implicated when the state, either directly or through its agents, restricts certain privileges or liberties by using the threat of punishment in cases of non-compliance.
Although this may appear to be a limited reading of s. 7, it is my view that it is neither wise nor necessary to subsume all other rights in the Charter within s. 7. A full and generous interpretation of the Charter that extends the full benefit of its protection to individuals can be achieved without the incorporation of other rights and freedoms within s. 7. [Emphasis in original.]
Lamer J. added, however, that "[t]his is not to say that `liberty' as a value underlying the Charter does not permeate the document in a broader, more general sense, especially as it relates to the maintenance of Canada as a `free and democratic society'" (p. 1179). In that case, Lamer J. was concerned with the narrower issue of "economic liberty" and the right to choose one's profession. The case did not address an issue similar to that raised in the present appeal, where the interest claimed by the appellants is of a different nature altogether, and where the state does use the justice system to restrict it.
While I agree that ss. 8 to 14 are of value in interpreting s. 7 of the Charter, these are not the only sections to which one must turn for guidance. The interpretation of s. 7 is also informed by the other provisions of the Charter. Speaking for the Court in R. v. Lyons, supra, I put the matter as follows (at p. 326):
. . . the rights and freedoms protected by the Charter are not insular and discrete . . . . Rather, the Charter protects a complex of interacting values, each more or less fundamental to the free and democratic society that is Canada (R. v. Oakes, [1986] 1 S.C.R. 103, at p. 136), and the particularization of rights and freedoms contained in the Charter thus represents a somewhat artificial, if necessary and intrinsically worthwhile attempt to structure and focus the judicial exposition of such rights and freedoms. The necessity of structuring the discussion should not, however, lead us to overlook the importance of appreciating the manner in which the
amplification of the content of each enunciated right and freedom imbues and informs our understanding of the value structure sought to be protected by the Charter as a whole and, in particular, of the content of the other specific rights and freedoms it embodies.
One particular provision which affords a clue to what liberty means is s. 1 of the Charter, the general balancing provision. It is useful to recall its wording: the Charter guarantees the rights and freedoms set out in it subject only to such reasonable limits as can be demonstrably justified in a free and democratic society. In R. v. Oakes, [1986] 1 S.C.R. 103, Dickson C.J. stated the following (at p. 136):
The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.
The type of balance I have in mind was well expressed by Dickson J. (as he then was) in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. In that case, Dickson J. gave a liberal interpretation of the word "freedom", albeit in the context of s. 2(a) of the Charter (at pp. 336-37):
Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from
compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.
Although the English version of the Charter employs two different words, "freedom" and "liberty", both emanate from the same concept. In French, the term "liberté" is used in s. 2 as well as in s. 7.
The above-cited cases give us an important indication of the meaning of the concept of liberty. On the one hand, liberty does not mean unconstrained freedom; see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 (per Wilson J., at p. 524); R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 (per Dickson C.J., at pp. 785-86). Freedom of the individual to do what he or she wishes must, in any organized society, be subjected to numerous constraints for the common good. The state undoubtedly has the right to impose many types of restraints on individual behaviour, and not all limitations will attract Charter scrutiny. On the other hand, liberty does not mean mere freedom from physical restraint. In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance. In R. v. Morgentaler, [1988] 1 S.C.R. 30, Wilson J. noted that the liberty interest was rooted in the fundamental concepts of human dignity, personal autonomy, privacy and choice in decisions going to the individual's fundamental being. She stated, at p. 166:
Thus, an aspect of the respect for human dignity on which the Charter is founded is the right to make
fundamental personal decisions without interference from the state. This right is a critical component of the right to liberty. Liberty, as was noted in Singh, is a phrase capable of a broad range of meaning. In my view, this right, properly construed, grants the individual a degree of autonomy in making decisions of fundamental personal importance.
While I was in dissent in that case, I agree with this statement, and, indeed, I later observed in R. v. Beare, [1988] 2 S.C.R. 387, at p. 412, that I was sympathetic to the view that s. 7 of the Charter included a right to privacy. On this point, the American experience can give us valuable guidance as to the proper meaning and limits of liberty. The United States Supreme Court has given a liberal interpretation to the concept of liberty, as it relates to family matters. It has elevated both the notion of the integrity of the family unit and that of parental rights to the status of constitutional values, through its interpretation of the Fifth and Fourteenth Amendments. Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), are the two landmark cases most often cited. In the former, the Supreme Court invalidated a statute that purported to limit the teaching of foreign languages. Its decision was grounded, in part at least, on a finding that the statute interfered with the right of the parents to control the education of their children. In Pierce v. Society of Sisters, the Supreme Court declared unconstitutional a statute that required that children attend public schools. McReynolds J. stated, at pp. 534-35:
Under the doctrine of Meyer v. Nebraska, 262 U.S. 390, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right,
coupled with the high duty, to recognize and prepare him for additional obligations.
Those two cases have survived the Lochner era, a much criticized period in which the Supreme Court engaged in substantive review of many economic and social statutes. Despite the lack of unanimity on the formulation of liberty and the role of the courts in reviewing legislation, the dicta on liberty, in so far as family matters are concerned, have been consistently broad. In Prince v. Massachusetts, 321 U.S. 158 (1944), although the Court upheld a statute prohibiting child labour, Rutledge J. stated, for the Court (at p. 166): "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." These cases have often been reaffirmed by the Supreme Court; see, for example, Stanley v. Illinois, 405 U.S. 645 (1972), Wisconsin v. Yoder, 406 U.S. 205 (1972), and Board of Regents of State Colleges v. Roth, supra. Roe v. Wade, 410 U.S. 113 (1973), which echoed this broad conception of liberty, was again recently reaffirmed in Planned Parenthood of South-Eastern Pennsylvania v. Casey, 112 S.Ct. 2791 (1992).
Where to draw the line between interests and regulatory powers falling within the accepted ambit of state authority will often raise difficulty. But much on either side of the line is clear enough. On that basis, I would have thought it plain that the right to nurture a child, to care for its development, and to make decisions for it in fundamental matters such as medical care, are part of the liberty interest of a parent. As observed by Dickson J. in R. v. Big M Drug Mart Ltd., supra, the Charter was not enacted in a vacuum or absent a historical context. The common law has long recognized that parents are in the best position to take care of their children and make all the decisions necessary to ensure their well-being. In Hepton v. Maat, [1957] S.C.R. 606, our Court stated (at p. 607): "The view of the child's welfare conceives it to lie, first,
within the warmth and security of the home provided by his parents". This recognition was based on the presumption that parents act in the best interest of their child. The Court did add, however, that "when through a failure, with or without parental fault, to furnish that protection, that welfare is threatened, the community, represented by the Sovereign, is, on the broadest social and national grounds, justified in displacing the parents and assuming their duties" (pp. 607-8). Although the philosophy underlying state intervention has changed over time, most contemporary statutes dealing with child protection matters, and in particular the Ontario Act, while focusing on the best interest of the child, favour minimal intervention. In recent years, courts have expressed some reluctance to interfere with parental rights, and state intervention has been tolerated only when necessity was demonstrated. This only serves to confirm that the parental interest in bringing up, nurturing and caring for a child, including medical care and moral upbringing, is an individual interest of fundamental importance to our society.
The respondents have argued that the "parental liberty" asserted by the appellants is an obligation owed to the child which does not fall within the scope of s. 7 of the Charter. Some decisions seem to give credit to this thesis. In Re C.P.L. (1988), 70 Nfld. & P.E.I.R. 287 (Nfld. U.F.C.), for example, a case similar to the present one, Riche J. observed, at p. 303:
The parents have individual rights which they hold as members of society. With respect to their children, they have obligations or responsibilities. The parents have a right to custody of their children while they are children and for as long as they discharge their obligations to those children. The parents maintain a right to attempt to raise their children in the same religious faith as their's [sic]. As between the parents and the children, the parents have few rights and many obligations.
Riche J. concluded that the right of the child to parental care, rather than the rights of the parents, had been breached in a manner that did not conform to the principles of fundamental justice.
While acknowledging that parents bear responsibilities towards their children, it seems to me that they must enjoy correlative rights to exercise them. The contrary view would not recognize the fundamental importance of choice and personal autonomy in our society. As already stated, the common law has always, in the absence of demonstrated neglect or unsuitability, presumed that parents should make all significant choices affecting their children, and has afforded them a general liberty to do as they choose. This liberty interest is not a parental right tantamount to a right of property in children. (Fortunately, we have distanced ourselves from the ancient juridical conception of children as chattels of their parents.) The state is now actively involved in a number of areas traditionally conceived of as properly belonging to the private sphere. Nonetheless, our society is far from having repudiated the privileged role parents exercise in the upbringing of their children. This role translates into a protected sphere of parental decision-making which is rooted in the presumption that parents should make important decisions affecting their children both because parents are more likely to appreciate the best interests of their children and because the state is ill-equipped to make such decisions itself. Moreover, individuals have a deep personal interest as parents in fostering the growth of their own children. This is not to say that the state cannot intervene when it considers it necessary to safeguard the child's autonomy or health. But such intervention must be justified. In other words, parental decision-making must receive the protection of the Charter in order for state interference to be properly monitored by the courts, and be permitted only when it conforms to the values underlying the Charter.
The respondents also argued that the infant's rights were paramount to those of the appellants and, on that basis alone, state intervention was justified. This was the conclusion reached by Whealy Dist. Ct. J. Children undeniably benefit from the Charter, most notably in its protection of their rights to life and to the security of their person. As children are unable to assert these, our society presumes that parents will exercise their freedom of choice in a manner that does not offend the rights of their children. If one considers the multitude of decisions parents make daily, it is clear that in practice, state interference in order to balance the rights of parents and children will arise only in exceptional cases. In fact, we must accept that parents can, at times, make decisions contrary to their children's wishes -- and rights -- as long as they do not exceed the threshold dictated by public policy, in its broad conception. For instance, it would be difficult to deny that a parent can dictate to his or her child the place where he or she will live, or which school he or she will attend. However, the state can properly intervene in situations where parental conduct falls below the socially acceptable threshold. But in doing so, the state is limiting the constitutional rights of parents rather then vindicating the constitutional rights of children. On this point, N. Bala and J. D. Redfearn, supra, observe, at. p. 301:
. . . while the state may be justified in limiting parental rights, it is wrong to conceive of this as a situation where the court or state is somehow protecting constitutional rights of the child. Rather this should be viewed as a situation in which the state limits the constitutional rights of parents, and sometimes those of a child, to promote the welfare of the child. . . . However, it seems inappropriate to allow an agency of the state to invoke the Charter of Rights to limit the rights of a citizen. The Charter is intended to protect individuals from the state, not to justify state interference.
[Emphasis in original.]
A similar approach, albeit in a different context, was taken in R. v. Keegstra, [1990] 3 S.C.R. 697, where a majority of this Court agreed that it would be inappropriate to limit the scope of an individual's freedom of expression under s. 2(b) by
reference to the conflicting s. 15 and s. 27 rights of others.
Once it is decided that the parents have a liberty interest, further balancing of parents' and children's rights should be done in the course of determining whether state interference conforms to the principles of fundamental justice, rather than when defining the scope of the liberty interest. Even assuming that the rights of children can qualify the liberty interest of their parents, that interest exists nonetheless. In the case at bar, the application of the Act deprived the appellants of their right to decide which medical treatment should be administered to their infant. In so doing, the Act has infringed upon the parental "liberty" protected in s. 7 of the Charter. I now propose to determine whether this deprivation was made in accordance with the principles of fundamental justice.
Principles of Fundamental Justice
This Court has on different occasions stated that the principles of fundamental justice are to be found in the basic tenets and principles of our judicial system, as well as in the other components of our legal system; see Re B.C. Motor Vehicle Act, supra; R. v. Beare, supra. The state's interest in legislating in matters affecting children has a long-standing history. In R. v. Jones, supra, for example, I acknowledged the compelling interest of the province in maintaining the quality of education. More particularly, 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; see, for example, Hepton v. Maat, supra; E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388. The protection of a child's right to life and to health, when it becomes 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 also meets the requirements of fair procedure. Section 19 of the Act is but one of the numerous legislative expressions of the parens patriae power. It contemplates different situations where state intervention is mandated in order to ensure the protection
of children. Only one of those is of interest here. It appears in s. 19(1)( b)(ix), which reads:
19. -- (1) In this Part and Part IV,
. . .
(b) "child in need of protection" means,
(ix)a child where the person in whose charge the child is neglects or refuses to provide or obtain proper medical, surgical or other recognized remedial care or treatment necessary for the child's health or well-being, or refuses to permit such care or treatment to be supplied to the child when it is recommended by a legally qualified medical practitioner, or otherwise fails to protect the child adequately, [Emphasis added.]
I note at the outset that this section is not limited to situations where the life of the child may be in jeopardy. It encompasses situations where treatments might be warranted to ensure his or her health or well-being. Although broad in scope, the section is compatible with a modern conception of life that embodies the notion of quality of life.
The appellants do not really contest the legitimacy of the principle that the state may intervene to protect children. Rather, they take issue with the procedure for intervention provided in the Act, and seek a declaratory judgment setting out guidelines that should be read into the Act for overriding parental choices. In light of the disposition of this appeal, there is no need to address in detail the availability of the remedy or the merits of the guidelines. Suffice it to say that the appellants propose that in a true emergency situation, there would be no need for a court order, as the common law permits doctors to provide treatment despite parental refusal. In a non-emergency situation, doctors would need a court order to override parental refusal, which could only be granted if the treatment was found by the court to be necessary, there was no alternative medical management, no
doctor to provide alternative medical care, and 48 hours notice and full disclosure to the parents.
While the pleadings have been centred mostly on the constitutionality of s. 19(1)(b)(ix) of the Act, it is necessary to examine briefly the powers conferred on the courts in ss. 30(1) and 41, as well as the procedure established in ss. 21, 27 and 28. This will enable us to have a better understanding of the scheme devised by the legislature, and to address the appellants' arguments relating to the conformity of the deprivation of their rights to the principles of fundamental justice.
When the Children's Aid Society has reasonable and probable grounds to believe that a child is in need of protection within the meaning of s. 19(1)(b)(ix) of the Act, it can apprehend the child without a warrant and take or confine him or her to a designated place of safety (s. 21). Upon such apprehension, s. 27 requires that the matter be brought before a court within five days for a determination of whether the child is in need of protection. Section 28 governs the procedure to be followed at the court hearing, and allows a judge to summon and compel witnesses, and to hear evidence from parents and other interested parties. Section 28(6) requires that a parent or other person with custody of the child must be given "reasonable notice" of the hearing. Section 28(10) allows the court to dispense with notice when it cannot be served and "any delay might endanger the health or safety of the child". If, at the s. 28 hearing, the court determines that the child is in need of protection, then it may make an order under s. 30(1) that the child be returned to its parents subject to society supervision, or that it be committed as a ward of the relevant Children's Aid Society. Only when the latter order is made is the Children's Aid Society, pursuant to s. 41 of the Act, vested with all rights and responsibilities of a legal guardian, including the right to consent to medical treatment. Finally, the Children's Aid Society must apply to
the court to have the child's status reviewed before the expiry of the wardship order (s. 37).
The appellants attack the general procedure under the Child Welfare Act, and in particular the specific way in which it was carried out in the present case. As for the constitutionality of the procedure under the Act, there is no need to discuss it at length, since I am of the opinion that the scheme designed by the legislature accords with the principles of fundamental justice. The parents must receive reasonable notice of the hearing in which their rights might be affected. "Reasonable" is a flexible criterion that permits adjustments to different situations. While it is possible to hold a wardship hearing without notice in situations of emergency, s. 28(11) of the Act provides that the wardship order cannot, in the absence of another hearing with notice, exceed 30 days. In B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, this Court held that an injunction granted ex parte did not violate s. 7 of the Charter. That case differs from the present one, but its underlying proposition holds true: the procedural requirements of the principles of fundamental justice can be attenuated when urgent and unusual circumstances require expedited court action.
Further, the wardship order depriving the parents of the right to refuse medical treatment for their infant is granted by a judge following an adversarial process where conflicting evidence may be presented. The parents can act through counsel, present arguments, cross-examine witnesses, and so on. The onus of proof is on the Children's Aid Society, and it has been recognized by the courts, and by Main Prov. Ct. J. in this case, that the Children's Aid Society must present a strong case.
Finally, the initial order granting wardship to the Children's Aid Society must be reviewed
before its expiry. In Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, this Court held that the status review procedure under the Child and Family Services Act -- which does not substantially differ from the old Act -- is aimed at reviewing the determination of the status of the child (i.e. whether the child is still in need of protection), and not merely the opportuneness of prolonging the order. Such an interpretation best accords with the purpose of the Act, as it enables the court to monitor any relevant changes that might affect the status of the child.
I now propose to analyze the scheme as it has been applied to this case, and respond to the other concerns voiced by the appellants. I shall first deal with the initial wardship order of July 31, 1983. I shall then turn to the status review of August 18 and 19, 1983.
(i) Wardship Order of July 31, 1983
The doctors responsible for Sheena's care informed the Children's Aid Society that her life was at risk, because her parents were refusing to consent to a blood transfusion, the need of which, in the doctors' view, was imminent. It is upon those facts that the Children's Aid Society founded its reasonable and probable grounds to engage the process contemplated by the Act. The evidence indicates that the Children's Aid Society had to proceed diligently. The parents received notice of the hearing the day it was held. In light of the circumstances, the notice was reasonable. Main Prov. Ct. J., who acknowledged the short notice, limited the initial wardship order to 72 hours, so as to enable the parties to come back before him with further evidence. And although the appellants were not able to present conflicting medical evidence at the initial hearing, they were nonetheless represented by counsel, who cross-examined the witnesses summoned by the Children's Aid Society and presented submissions.
The appellants argued, in particular, that Dr. Perlman, who testified for the Children's Aid
Society, failed to disclose the findings of Dr. Benson, the cardiologist who examined Sheena the day of the hearing. Dr. Benson was of the view that Sheena did not present any imminent risk of congestive heart failure. The respondents argued that this evidence was not available at the time of the hearing on July 31. In any event, the Court of Appeal observed that while these findings should have been disclosed, the failure to include evidence that no congestive heart condition existed was not, particularly with the benefit of hindsight, an omission of much significance. I see no reason to interfere with that conclusion. Moreover, Dr. Perlman was a witness at the wardship hearing, and assuming that there was a breach of the duty to disclose, it did not affect the conformity of the legislative scheme with the principles of fundamental justice.
(ii) Status Review of August 18 and 19, 1983
The hearing of August 18 and 19, 1983, held pursuant to s. 37 of the Act, was to review Sheena's status and to determine if the wardship order should be prolonged. The appellants received notice of the hearing at the beginning of the month of August. Although they would have had time to adduce some medical evidence to counter that of the Children's Aid Society with respect to the congestive heart condition, the appellants chose not to do so. While the child's health had slightly improved, the Children's Aid Society demonstrated, to the satisfaction of Main Prov. Ct. J., that an eventual blood transfusion was still a reasonable course of action, due to the fragile state of the child. The Children's Aid Society wished to retain the authority to consent to a blood transfusion if an emergency were to arise.
The hearing also revolved around the testimony of Dr. Morin, who testified that the child needed to undergo exploratory surgery under general anaesthetic to confirm a diagnosis of infantile glaucoma which, if established, would require surgery to preserve the child's sight. Evidence that Sheena needed to receive a transfusion in order to sustain the anaesthetic was also adduced. The appellants argued that the testimony of the ophthalmologist
took them by surprise, as they were not informed of it in the notice. In reviewing the evidence, however, it appears that even if the appellants and their counsel were unaware that Dr. Morin would be called to testify, they had for some time been aware of this aspect of Sheena's condition. Dr. Pape, the neonatologist responsible for Sheena's care, testified on August 18 that the suspected glaucoma was diagnosed when Sheena was three to four weeks old, and that she had discussed with the appellants the desirability of exploratory surgery. Moreover, Main Prov. Ct. J., who was sensitive to the fact that the appellants did not have time to seek their own medical opinion, recommended that they be permitted to seek a second opinion before the exploratory surgery. In fact, the appellants did consult an ophthalmologist beforehand, who simply confirmed Dr. Morin's diagnosis. I do not think that the failure to notify the appellants that Dr. Morin would testify violated the principles of fundamental justice.
The appellants have also argued that the standard provided for in the Act -- necessity of treatment -- was not met in the case at bar, as there never was any emergency. They argued that the existence of an emergency was the premise on which the Court of Appeal based its analysis. This argument is tied to the questions of fact I have addressed above. As I am of the view that "necessity" under the Act was demonstrated, there is no need to canvass this issue further.
An examination of the application of the impugned provisions to the facts of this case amply demonstrates that the legislative scheme, which deprives parents of their right to choose medical treatment for their infant under certain circumstances, is in accordance with the principles of fundamental justice. Section 7 requires that a deprivation of liberty be in conformity with the principles of fundamental justice, but it does not guarantee the most equitable process of all; it dictates a threshold below which state intervention will not be tolerated: see R. v. Lyons, supra. Therefore, while the guidelines proposed by the appellants are more stringent than those found in the legislative
scheme, the process nonetheless respects the constitutional requirements. In fact, those guidelines were, in substance, contemplated by the legislative scheme. Section 19(1)( b)(ix) of the Act applies to treatments which are deemed necessary. The hearing is adversarial, so that a debate on the medical questions can be presented. The Act requires that the Children's Aid Society notify the parents of a hearing that might affect their rights. The epithet "reasonable" ensures that the process will be adaptable to a myriad of situations. The wardship order is circumscribed and must be reviewed before its expiry.
In sum, the appellants were entitled to such notice, access to information and rights of representation as may be fair and reasonable having regard to the nature of the proceedings and the urgency with which they must be carried out. Tarnopolsky J.A. carefully examined these issues and concluded, and I agree with him, that the procedure, having regard to all the circumstances, did not violate the principles of fundamental justice.
Section 2(a) of the Charter
Turning now to s. 2(a) of the Charter, the appellants argued that the Act, which deprives them of the right to refuse medical treatment for their infant on religious grounds, violates their freedom of religion guaranteed by s. 2(a) of the Charter. Whealy Dist. Ct. J. found that the purpose of the statute was secular; and consequently, that there could not be any violation of the appellants' freedom of religion. Tarnopolsky J.A., on the other hand, was of the view that the Act, in its effect, infringed on the freedom of religion of the appellants, but that the infringement was justified under s. 1 of the Charter. I note at the outset that it is the freedom of religion of the appellants -- Sheena's parents -- that is at stake in this appeal, not that of the child herself. While it may be conceivable to ground a claim on a child's own freedom of religion, the child must be old enough to entertain some religious beliefs in order to do so. Sheena was only a few weeks old at the time of the transfusion.
100 Like the other provisions of the Charter, s. 2(a) must be given a liberal interpretation with a view to satisfying its purpose: see Re B.C. Motor Vehicle Act, supra. In R. v. Big M Drug Mart Ltd., supra, Dickson J. stated, at p. 336:
The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice of by teaching and dissemination. But the concept means more than that.
In R. v. Jones, supra, I observed that freedom of religion encompassed the right of parents to educate their children according to their religious beliefs. In P. (D.) v. S. (C.), [1993] 4 S.C.R. 141, a case involving a custody dispute in which one of the parents was a Jehovah's Witness, L'Heureux-Dubé J. stated that custody rights included the right to decide the child's religious education. It seems to me that the right of parents to rear their children according to their religious beliefs, including that of choosing medical and other treatments, is an equally fundamental aspect of freedom of religion.
It is evident that the purpose of the Act is not directed at limiting the freedom of Jehovah's Witnesses to choose medical treatment for their children, including the freedom to refuse a blood transfusion on religious grounds. It was not until 1945 that the Jehovah's Witnesses adhered to that precept, while the Act originates from a law first adopted in 1927, the Children's Protection Act, R.S.O. 1927, c. 279. I do not rely solely on this historical fact, however. It seems to me that a simple reading of the Act makes it clear that its purpose is nothing more or less than the protection of children. But if the purpose of the Act does not infringe on the freedom of religion of the appellants, the same cannot be said of its effects. The legislative scheme implemented by the Act, which culminates in a wardship order depriving the parents of the custody of their child, has denied them the right to choose medical treatment for their infant according to their religious beliefs.
However, as the Court of Appeal noted, freedom of religion is not absolute. While it is difficult to conceive of any limitations on religious beliefs, the same cannot be said of religious practices, notably when they impact on the fundamental rights and freedoms of others. The United States Supreme Court has come to a similar conclusion; see Cantwell v. Connecticut, 310 U.S. 296 (1940). In R. v. Big M Drug Mart Ltd., supra, this Court observed that freedom of religion could be subjected to "such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others" (p. 337). Similarly, in P. (D.) v. S. (C.), supra, L'Heureux-Dubé J. wrote, in obiter, at p. 182:
I am of the view, finally, that there would be no infringement of the freedom of religion provided for in s. 2(a) were the Charter to apply to such orders when they are made in the child's best interests. As the Court has reiterated many times, freedom of religion, like any freedom, is not absolute. It is inherently limited by the rights and freedoms of others. Whereas parents are free to choose and practise the religion of their choice, such activities can and must be restricted when they are against the child's best interests, without thereby infringing the parents' freedom of religion.
A more difficult issue is whether the freedom of religion of the appellants is intrinsically limited by the very reasons underlying the state's intervention, namely the protection of the health and well-being of Sheena, or whether further analysis should be carried out under s. 1 of the Charter. In support of this thesis, the respondents have brought to this Court's attention a number of American cases, in which the scope of freedom of religion was limited. However, these cases are of little assistance, as the American Constitution contains no balancing provision comparable to s. 1 of the Charter.
This Court has consistently refrained from formulating internal limits to the scope of freedom of
religion in cases where the constitutionality of a legislative scheme was raised; it rather opted to balance the competing rights under s. 1 of the Charter; see R. v. Jones, supra, and R. v. Edwards Books and Art Ltd., supra. A similar approach was taken in the context of s. 2( b) of the Charter, freedom of expression. In R. v. Keegstra, supra, Dickson C.J., writing for the majority, stated that s. 1 was better suited than s. 2( b) to facilitate the necessary balance between state and individual interests. McLachlin J. (in dissent but not on this point) also rejected several proposed limits to the scope of s. 2( b) rights. She suggested that expression should not be excluded from the scope of s. 2( b) merely because the effect of such expression was to impede free expression by others.
In my view, it appears sounder to leave to the state the burden of justifying the restrictions it has chosen. Any ambiguity or hesitation should be resolved in favour of individual rights. Not only is this consistent with the broad and liberal interpretation of rights favoured by this Court, but s. 1 is a much more flexible tool with which to balance competing rights than s. 2(a). As Dickson C.J. stated in R. v. Keegstra, supra, while it is not logically necessary to rule out internal limits within s. 2, it is analytically practical to do so (at pp. 733-34):
Suffice it to say that I agree with the general approach of Wilson J. in Edmonton Journal, supra, where she speaks of the danger of balancing competing values without the benefit of a context. This approach does not logically preclude the presence of balancing within s. 2(b) -- one could avoid the dangers of an overly abstract analysis simply by making sure that the circumstances surrounding both the use of the freedom and the legislative limit were carefully considered. I believe, however, that s. 1 of the Charter is especially well suited to the task of balancing, and consider this Court's previous freedom of expression decisions to support this belief. It is, in my opinion, inappropriate to attenuate the s. 2(b) freedom on the grounds that a particular context requires such; the large and liberal interpretation given the freedom of expression in Irwin Toy indicates that the preferable
course is to weigh the various contextual values and factors in s. 1. [Emphasis in original.]
This is not to say that an elaborate examination of the criteria established in R. v. Oakes, supra, will always be necessary. The effect on religious beliefs will often be so insubstantial, having regard to the nature of the legislation, that Charter concerns will obviously be overridden. But in this case, it cannot be maintained that the effect on the rights of the appellants was of a minor character. As I am of the view that the Act seriously infringed on the appellants' freedom to choose medical treatment for their child in accordance with the tenets of their faith, it remains to be determined whether this infringement was justified under s. 1 of the Charter.
Turning now to s. 1 of the Charter, the appellants have argued that the state has not demonstrated, on a balance of probabilities, that Sheena was in need of protection within the meaning of the Act when she was apprehended by the Children's Aid Society. This argument fails to distinguish between the demonstration of the necessity of the treatment, as contemplated in the Act, and the demonstration of the reasonable nature of the legislative scheme, under s. 1 of the Charter. For the reasons already stated, one must take for granted the necessity of the medical treatment and thus, the need for protection under the Act.
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.
Addendum
Since writing the foregoing, I have read the reasons of my colleagues, Justices Iacobucci and Major. I must confess to being somewhat mystified by the purport they attribute to my reasons. I agree, of course, that parents may not, in the exercise of their rights to nurture their children, refuse them medical treatment that is necessary and for which there is no reasonable alternative. That, I thought, was the conclusion I came to. That conclusion is, of course, clearly contemplated by s. 1 of the Charter, which is the provision that "guarantees the rights and freedoms set out in it", but it does so "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society", and as far as s. 7 is concerned by the requirements of fundamental justice.
If my colleagues are concerned with my mode of approach -- the approach, I may say, traditionally employed by this Court from the earliest stages of Charter adjudication --, I have concerns with their method of limiting one constitutional right against another without relevance to context. Thus some of their remarks may be understood as supporting a parent's rights being overturned simply because a professional thinks it is necessary to do so. I would be very much concerned if a medical professional were able to override the parent's views without demonstrating that necessity. On my approach to the issues so far as s. 7 is concerned, it would be necessary to show that such action would not be contrary to the principles of fundamental justice. More generally, s. 1 requires an interference with the right to be demonstrably justified. That, I think, is perfectly right. In a case like the present where there is no immediate urgency, a
procedure meeting the demands of fundamental justice, which I was at pains to note the Act fully provides for, would be required.
In an emergency, the demands of fundamental justice are more easily met. In R. v. Dyment, [1988] 2 S.C.R. 417, at p. 432, this Court alluded to a medical doctor's powers to take reasonable steps in such circumstances. These powers conform to the practices and procedures followed in this area and are consistent with principles of fundamental justice. The state's powers to exercise its legitimate parens patriae jurisdiction would, in my view, similarly be justified under the principles of fundamental justice. As well, these actions "prescribed by law" seem to me quite clearly to be "reasonable limits prescribed by law [that] can be demonstrably justified in a free and democratic society".
My colleagues express concern that my reasons would create a situation in which a child's right to life or security is reduced to a limitation of the parent's constitutionally protected right. I should observe that my approach is dictated by the nature of the case presented to us. The sole issue before us was that raised by the parents, i.e. that their constitutional rights were infringed in the circumstances in which medical treatment was given to the child. In such a case, the parent's rights must, under s. 1, be balanced against the interests of others in a free and democratic society -- in this particular case the right of their child. In that situation, I, not surprisingly, found the parent's rights were clearly overridden. If a situation arose where it was alleged that the child's right was violated, other rights might be raised as reasonable limits, but if the right alleged was the security of the child as in the present case, then the child's right would again prevail over a parent's rights. In short the
issue raised governs the form, but not the substance of the analysis.
I am happy to see that my colleagues concede that the balancing of the competing rights could be integrated in a s. 1 analysis, since apart from specific provisions such as "fundamental justice", that is the only balancing mechanism provided under the Charter. The Charter makes no provision for directly balancing constitutional rights against one another. It is aimed rather at governmental and legislative intrusion against the protected rights; see s. 32 of the Charter.
There are occasions where it may be necessary to define a right narrowly to make it workable as in Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, at p. 320, where the freedom of association was qualified to permit associations that are necessary and inevitable in a free and democratic society. That is not this case. This is simply a situation where competing constitutional rights fall within the equation in the balance called for by ss. 1 and 7. This can easily be accommodated in a s. 1 or s. 7 analysis; see, for example, Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326. I should also underline that in Lavigne, the right was interpreted as widely as possible consistent with its being workable. Wilson J., hardly an opponent of broad Charter interpretation, found it necessary to define the right more narrowly than I did. I thus fail to see the analogy my colleagues would draw between Lavigne and the present case. In the former, it was essential to narrow the right to make it workable. Here what is attempted is to limit a right by another, with no stated mechanism for judicially determining just when, on the facts, the first right is overridden. To get a fuller appreciation of what this means in the present context, one need simply postulate that the Act impugned here, with all its inbuilt protection for parental rights, did not exist, and was substituted by an Act that made no provision even for notifying parents when some state
agent decided a certain treatment was necessary for a child.
In my view, Charter rights should always be interpreted broadly. Apart from the fact that this brings in the full contextual picture in balancing them with other rights under s. 1, a narrower interpretation has the effect of forever narrowing the ambit of judicial review, and so limiting the scope of judicial intervention for the protection of the individual rights guaranteed under the Charter. This approach forms the basis of my disagreement with the Chief Justice's approach to s. 7, first enunciated in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), supra, under which he would confine liberty to physical liberty.
I add incidentally that I do not (as my colleagues Iacobucci and Major JJ. appear to suggest) think that liberty is all encompassing. I have been at pains to underline that it is limited to those essentially personal rights that are inherent to the individual which in my view include (and on this I believe we agree) the right of parents to nurture their children. Even as so defined, an interference with liberty may be justified as being in conformity with the principles of "fundamental justice". At bottom, I think "liberty" means the ordinary liberty of free men and women in a democratic society to engage in those activities that are inherent to the individual. These may not be extensive, but where they exist, they must under the Constitution be protected from state intervention unless that intervention can be justified. Sometimes that justification is evident. In other cases, it will require close contextual analysis. Here the security of the child was clearly paramount. What was more difficult, and what in the end the appellants really directed their argument to, is whether the procedures to
determine respect for the parents' rights under the Act were sufficient to satisfy ss. 1 and 7 of the Charter. That such procedures must have effect before, and not following the action invasive of the parents' rights, seems to me to be essential and to be clearly required by ss. 1 and 7.
Cross-appeal: Costs
The order to award costs against an intervening Attorney General, acting as she is statutorily authorized to, in the public interest in favour of a party who raises the constitutionality of a statute, appears highly unusual, and only in very rare cases should this be permitted. Nevertheless, this case appears to have raised special and peculiar problems, and the District Court's exercise of discretion was supported by the Court of Appeal. I am loath to interfere with the exercise of their discretion in this case.
Disposition
The concern voiced by the appellants in the present appeal raises the more general question of the appropriateness of proceeding with treatments for which the medical benefits are highly questionable, when parental refusal is in part only grounded on religious beliefs. However, the medical evidence presented in 1983, as well as that presented before Whealy Dist. Ct. J., does not permit us to question the necessity of the blood transfusion, although some might in retrospect be tempted to do so. This appeal does remind us, however, of the necessity of proceeding with care when overriding parental refusal. However, I am satisfied that the courts did just that in this case. For the foregoing reasons, I would dismiss the appeal and the cross-appeal, and answer the constitutional questions in the following manner:
1.Does the Child Welfare Act, R.S.O. 1980, c. 66, s. 19(1)( b)(ix), together with the powers in ss. 30(1)2 and 41 and the procedures in ss. 21, 27, 28(1), (10) and (12), deny parents a right to choose medical treatment for their infants, contrary to s. 7 of the Canadian Charter of Rights and Freedoms?
No.
2.If the answer to question 1 is in the affirmative, is s. 19(1)(b)(ix), together with the powers in ss. 30(1)2 and 41 and the procedures in ss. 21, 27, 28(1), (10) and (12) of the Child Welfare Act, R.S.O. 1980, c. 66, justified as reasonable limits by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
This question does not arise.
3.Does the Child Welfare Act, R.S.O. 1980, c. 66, s. 19(1)(b)(ix), together with the powers in ss. 30(1)2 and 41 and the procedures in ss. 21, 27, 28(1), (10) and (12), infringe the appellants' freedom of religion as guaranteed under s. 2(a) of the Canadian Charter of Rights and Freedoms?
Yes.
4.If the answer to question 3 is in the affirmative, is s. 19(1)(b)(ix), together with the powers in ss. 30(1)2 and 41 and the procedures in ss. 21, 27, 28(1), (10) and (12) of the Child Welfare Act, R.S.O. 1980, c. 66, justified as reasonable limits by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
Yes.
I would make no order as to costs in this Court.
The following are the reasons delivered by
//L'Heureux-Dubé J.//
L'HEUREUX-DUBÉ J. (dissenting on the cross-appeal) -- This case consists of both an appeal and a cross-appeal. The appeal concerns the constitutionality of s. 19(1)(b)(ix) of the Child Welfare Act, R.S.O. 1980, c. 66, as well as that of the legislative scheme established under ss. 21, 27, 28(1), (10)
and (12), 30(1)2 and 41 of that Act. As appears from the judgment rendered orally from the Bench on March 17, 1994, I agree with my colleagues that this principal appeal should be dismissed. In this respect, I concur with the reasons of my colleague La Forest J. However, I part company with my colleagues when it comes to the cross-appeal, on which this Court had reserved judgment at the time of the hearing. Unlike my colleagues, I would allow the cross-appeal.
The issue on the cross-appeal is whether the Ontario Court of Appeal erred in upholding the decision of the Ontario District Court to award costs against the Attorney General for Ontario who intervened in support of the legislation which was constitutionally challenged by the appellants. I agree with Houlden J.A., dissenting on this issue at the Ontario Court of Appeal, that the cross-appeal should be allowed and that no costs should have been awarded against the Attorney General for Ontario by the Ontario District Court.
In explaining this conclusion, I will refer, in order to simplify matters, to the Attorney General for Ontario, the respondent in the principal appeal, as the "respondent", and to Richard and Beena B., the appellants in the principal appeal, as the "appellants", even though, on the cross-appeal, the Attorney General for Ontario is the appellant and Richard and Beena B. are the respondents. Furthermore, I note that while my reasons specifically refer to the Attorney General for Ontario's position, they also apply to that of the Attorney General of Canada, who intervened before us to support the position of the Attorney General for Ontario on the cross-appeal.
I - Facts and Proceedings
Sheena B. was born four weeks prematurely on June 25, 1983 and, as a result of her physical condition, was transferred to the Sick Children's Hospital in Toronto. During the following few weeks, the doctors responsible for her care detected many physical ailments and she received a number of medical treatments. The appellants, her parents,
consented to all of these treatments although, at their request, the attending physicians avoided the use of blood transfusions in treating Sheena B. The appellants, as Jehovah's Witnesses, objected to blood transfusions on religious grounds.
On the night of July 30, 1983 and during the early morning hours of July 31, 1983, Sheena B.'s haemoglobin level dropped to such an extent that the attending physicians believed that her life was in danger and that she might require a blood transfusion in order to treat a potentially life-threatening congestive heart failure. On July 31, 1983, upon an application by the respondent Children's Aid Society of Metropolitan Toronto (the "CAS") under the Child Welfare Act, Judge Main of the Provincial Court (Family Division) granted a 72-hour wardship to the CAS on the basis of the evidence of Dr. Perlman that a transfusion might be necessary and that it would not be for experimental purposes. On August 19, 1983, upon a status review application pursuant to the Child Welfare Act, this temporary wardship was extended by Judge Main for a further three-week period: (1983), 36 R.F.L. (2d) 70. Ultimately, on August 23, 1983, Sheena B. received a blood transfusion as part of the standard procedure for the examination and operation for a suspected glaucoma.
Once the blood transfusion had been administered, the respondent CAS's wardship order was terminated: (1983), 36 R.F.L. (2d) 80 (Walmsley A.C. Prov. J.). Sheena B.'s parents, however, appealed the two orders of the Provincial Court relating to the wardship to the District Court where they challenged the constitutional validity of s. 19(1)(b)(ix) and s. 28(10) of the Child Welfare Act. The respondent Attorney General for Ontario and the intervener Attorney General of Canada were each served with a Notice of Constitutional Question in accordance with s. 122 of the Ontario Courts of Justice Act, 1984, S.O. 1984, c. 11 (now s. 109 of Courts of Justice Act, R.S.O. 1990, c. C.43). The Attorney General for Ontario intervened to defend the legislation in this and all
subsequent legal proceedings leading up to the present appeal.
Upon the respondent CAS's motion, the appeal to the District Court was dismissed on the ground that the case was moot since there was no longer a lis between the parties and the Child Welfare Act had been repealed and replaced by the Child and Family Services Act, 1984, S.O. 1984, c. 55 ((1985), 32 A.C.W.S. (2d) 149 (Webb Dist. Ct. J.)). On a further appeal, the Ontario Court of Appeal held that the District Court had erred in dismissing the original appeal and referred the case back to the District Court to be decided on its merits, namely the right of parents to determine their child's medical treatment and the constitutionality of the Child Welfare Act: (1988), 63 O.R. (2d) 385, 47 D.L.R. (4th) 388, 15 R.F.L. (3d) 388 (Grange and Krever JJ.A., Griffiths J.A. dissenting).
As a result, the District Court reheard the appeal on its merits. This hearing proceeded as a trial de novo, with fresh evidence being adduced pursuant to s. 122(4) (now 109(4)) of the Act. The respondent Attorney General for Ontario called six of the respondent CAS's eight experts and cross-examined the appellants' expert witnesses. The whole hearing ran over a 20-day period. Ultimately, Whealy Dist. Ct. J. dismissed the appeal and upheld the constitutionality of the Child Welfare Act. In an addendum to his reasons for judgment, Whealy Dist. Ct. J. ordered the respondent Attorney General for Ontario (then an intervener) to pay the costs of the appellants, on a party-and-party basis. No order as to costs was made against the respondents CAS or the Official Guardian.
The appellants further appealed to the Ontario Court of Appeal and the respondent Attorney General for Ontario cross-appealed the order as to costs. The appeal and the cross-appeal were both dismissed, without costs on the appeal and cross-appeal. This Court then granted the appellants leave to appeal and the respondent Attorney
General for Ontario leave to cross-appeal from the Ontario Court of Appeal decision: [1993] 1 S.C.R. ix.
II - Judgments concerning the Issues Raised in the Cross-Appeal
Ontario District Court
Although the appellants lost on the merits, Whealy Dist. Ct. J., relying on the discretion conferred by Rule 57.01(2) of the Ontario Rules of Civil Procedure, O. Reg. 560/84 (hereinafter the "Rules"), awarded the appellants costs on a party-and-party basis against the respondent Attorney General for Ontario, for essentially the following reasons:
1.This case was distinguishable from those where it was decidedthat costs should not be awarded against a successful party;
2.The original litigation was triggered by state action through therespondent CAS;
3.The issue was of province-wide importance; and
4.The manner of hearing the appeal was "almost unique in that 18 fresh witnesses were heard extending over several weeks". In addition, the case proceeded in a "most unusual fashion and laborious manner for all concerned", leading to a re-trial on the basis of fresh evidence at the appellate level.
Although Whealy Dist. Ct. J. ordered costs against the respondent Attorney General for Ontario, he nonetheless agreed with the Attorney General for Ontario on two points. First, he agreed that there was no bad conduct on behalf of the Attorney General for Ontario which would justify a punitive award of costs against a successful party. Second, he agreed that the fact that the appellants were individuals of modest means (even if supported by their church) and that the Attorney General for Ontario had practically unlimited resources was not relevant to the allocation of costs, for otherwise the result would be a flood of marginal
applications against the Crown. To this end, Whealy Dist. Ct. J. referred to the following remarks of Osler J. in Canadian Newspapers Co. v. Attorney-General of Canada (1986), 56 O.R. (2d) 240 (H.C.), at p. 242: ". . .it is equally desirable that the Crown should not be treated as an unlimited source of funds with the result that marginal applications would be encouraged".
Ontario Court of Appeal (1992), 10 O.R. (3d) 321
Tarnopolsky J.A., for the majority, agreed with Whealy Dist. Ct. J. that the respondent Attorney General for Ontario was completely successful and had exhibited no "bad conduct". Furthermore, he noted, as Whealy Dist. Ct. J. had, that the available resources of the parties were irrelevant to the decision on costs and, in any event, that there was no evidence as to the appellants' or the respondent's resources.
Furthermore, Tarnopolsky J.A. observed that, even though the litigation in question was originally triggered by an act of the state, this was not in and of itself sufficient for granting the appellants their costs, since, on that basis, any accused person could successfully claim costs. However, he concluded that since the appellants challenged the state on the basis of freedom of religion, a "fundamental freedom" guaranteed by s. 2(a) of the Canadian Charter of Rights and Freedoms, this case fell within the ambit of Rule 57.01(1)(d) ("the importance of the issues"), because the question raised was of "province-wide importance", "national importance" and "international significance".
Tarnopolsky J.A. also referred to and did not disturb Whealy Dist. Ct. J.'s finding that this case proceeded in a "most unusual fashion and laborious manner for all concerned". In addition he then made the following remarks (at pp. 355-56):
In any event, the case before Whealy D.C.J. was complicated, the hearings were very lengthy, and were a form of retrial. The Attorney General submits that a factor that should have been considered was that the learned District Court judge found two of the appellants' witnesses "not too helpful", that he found that one of the other witnesses "did not materially advance either position put before the court", and that two others were "irrelevant". However, it was Whealy D.C.J. who heard all these witnesses and yet granted costs to the appellants. Apparently, although he did not accept their evidence in preference to that of the respondents, he did not consider the evidence on behalf of the appellants to be so "improper, vexatious or unnecessary" (rule 57.01(1)(f)(i)) as to override the other considerations. I do not believe that an appellate court should second-guess him on this.
In view of the factors he identified, Tarnopolsky J.A. dismissed the respondent's argument that Whealy Dist. Ct. J.'s order as to costs would encourage marginal applications for constitutional challenges, which, in any event, was not the case here. Accordingly, Tarnopolsky J.A. affirmed Whealy Dist. Ct. J.'s order as to costs and dismissed the cross-appeal. However, he did not award costs on the appeal or the cross-appeal to the Ontario Court of Appeal.
Goodman J.A. concurred with Tarnopolsky J.A. but expressed the opinion that costs should be awarded against a successful party only in exceptional cases. However, he was not persuaded that the case before him was not a proper case for such an award, and therefore concluded that he would not "interfere with the discretion exercised by the District Court judge in his award of costs to the appellants" (p. 356).
Houlden J.A., dissenting, would have allowed the cross-appeal on the basis that the Attorney General for Ontario was required by the Courts of Justice Act to intervene in the proceedings in order to uphold the validity of the legislation and, furthermore, was successful in doing so. In his view, it would "create a dangerous precedent to award
costs against the Attorney General in these circumstances" (p. 360).
I note that my colleague La Forest J. disposes of the cross-appeal in a manner similar to Goodman J.A. of the Court of Appeal. At page 390 he states:
The order to award costs against an intervening Attorney General, acting as she is statutorily authorized to, in the public interest in favour of a party who raises the constitutionality of a statute, appears highly unusual, and only in very rare cases should this be permitted. Nevertheless, this case appears to have raised special and peculiar problems, and the District Court's exercise of discretion was supported by the Court of Appeal. I am loath to interfere with the exercise of their discretion in this case.
I, however, disagree with this conclusion for the following reasons.
III - Jurisdiction
At the hearing before us, the jurisdiction of this Court to interfere with the exercise of judicial discretion was raised and s. 42(1) of the Supreme Court Act, R.S.C., 1985, c. S-26, was discussed in that regard. Section 42(1) reads:
42. (1) No appeal lies to the Court from a judgment or order made in the exercise of judicial discretion except in proceedings in the nature of a suit or proceeding in equity originating elsewhere than in the Province of Quebec and except in mandamus proceedings.
However, this Court held in Pelech v. Pelech, [1987] 1 S.C.R. 801, at p. 826 (per Wilson J.), that s. 42(1) (then s. 44(1)) does not prevent this Court from interfering with a trial judge's discretion if he or she erred in formulating the principles upon which the discretion was exercised. This is a question of law, in respect of which s. 42(1) does not apply. In addition, s. 42(1) does not preclude this Court from interfering with a trial judge's discretion if it was not exercised judicially. As Lamer J. (as he then was) indicated at p. 1657 of R. v. Pringle, [1989] 1 S.C.R. 1645, s. 42 of the Supreme
Court Act "aims solely at preventing parties from bringing an appeal from a purely discretionary decision" (emphasis added).
While it is true that courts of appeal should, in general, respect a trial judge's discretion and should not interfere lightly with the exercise of such a discretion, this rule is not absolute. This Court has, on numerous occasions, held that it has jurisdiction to interfere with the judicial exercise of discretion if not properly exercised. For instance, in Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549, this Court concluded that it was within the jurisdiction of the New Brunswick Court of Appeal to grant leave to appeal to a person seeking leave which was not a party to the original action and was applying out of time. Although this constituted the exercise of a discretionary power, it was reviewable by this Court. Speaking for the Court on this issue, Wilson J. had this to say (at p. 606):
The concept of a "judicial exercise of discretion" seems to have two prerequisites, namely (1) that the subject matter be within the jurisdiction of the Court; and (2) that the Court must take into consideration all the relevant factors. [Emphasis added.]
In Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, Beetz J., writing for the Court, outlined (at pp. 155-56) the circumstances where a court of appeal could interfere with the discretion of a trial judge with respect to stays of proceedings and interlocutory injunctions by quoting the following passage from the House of Lords' unanimous decision in Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042, at p. 1046 (per Lord Diplock):
[The appellate court] may set aside the judge's exercise of his discretion on the ground that it was based on a misunderstanding of the law or of the evidence before
him or on an inference that particular facts existed or did not exist, which, although it was one that might legitimately have been drawn on the evidence that was before the judge, can be demonstrated to be wrong by further evidence that has become available by the time of the appeal, or on the ground that there has been a change of circumstances after the judge made his order that would have justified his acceding to an application to vary it. Since reasons given by judges for granting or refusing interlocutory injunctions may sometimes be sketchy, there may also be occasional cases where even though no erroneous assumption of law or fact can be identified the judge's decision to grant or refuse the injunction is so aberrant that it must be set aside on the ground that no reasonable judge regardful of his duty to act judicially could have reached it.
In Elsom v. Elsom, [1989] 1 S.C.R. 1367, this Court reviewed the exercise of a trial judge's discretion under provincial matrimonial property legislation, the Family Relations Act, R.S.B.C. 1979, c. 121, to order an unequal division of the matrimonial property of the spouses upon the breakup of their marriage. While this Court unanimously concluded that the British Columbia Court of Appeal had erred in interfering with the discretion of the trial judge, Gonthier J. made the following remarks, which are particularly apposite here (at pp. 1374-75):
Courts of Appeal should be highly reluctant to interfere with the exercise of a trial judge's discretion. It is he who has the advantage of hearing the parties and is in the best position to weigh the equities of a case. The principle of non-interference has been emphasized by this Court in a number of cases concerning the division of family property. In Harper v. Harper, [1980] 1 S.C.R. 2, the Court did interfere with the discretion of the trial judge, but only because the trial judge had acted on certain irrelevant considerations and the Court of Appeal had been misled on a matter of evidence by one of the parties. Chief Justice Laskin for the majority wrote at p. 18:
(A)n appellate Court, and especially an ultimate Court, should ordinarily refrain from interfering with
the exercise by a trial judge of the type of broad discretionary jurisdiction conferred by s. 8 of the Family Relations Act. . . .
In the same case, Estey J. for the minority, dissenting in part, but only as to the share the wife should have in the matrimonial home, wrote at p. 24:
An appellate Court should be extremely reluctant to interfere with the exercise of a discretionary power by a trial judge. However, there are cases, and for the reasons given above I believe this is one, where justice demands that the exercise of discretion be reviewed.
If a judge proceeds on principle properly applicable to the facts of a case and makes a decision judicially, in the exercise of his discretion, this Court will not interfere. But, if it appears that a judge has misdirected himself, or that his decision is so clearly wrong as to amount to an injustice, the Court can and should review the facts upon which the judgment ought to be given. (Re Hull Estate per Laidlaw J.A., ([1943] O.R. 778 (C.A.)), at p. 785.) [Emphasis added.]
In a subsequent case, this Court dealt with the discretionary nature of the direct action in nullity under art. 33 of the Quebec Code of Civil Procedure, R.S.Q., c. C-25: Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326. Referring to Manitoba (Attorney General) v. Metropolitan Stores
Ltd., supra, and adopting the observations of Lord Diplock in Hadmor Productions Ltd. v. Hamilton, supra, Gonthier J. wrote, at p. 370:
I would point out that discretion and arbitrary action should not be confused. While arbitrary action means power exercised at will, just as the person likes, discretion, though it removes the strict duty to act, is subject to certain rules. A judge hearing a direct action in nullity does not decide to do what he feels like doing, but must exercise his power of review in a judicial manner, direct himself correctly in law and observe the applicable principles. [Emphasis added.]
The power of appellate courts to interfere with a trial judge's discretion is also well recognized in criminal law (see, inter alia: R. v. Corbett, [1988] 1 S.C.R. 670, at p. 698 (per Dickson C.J.); R. v.
Finta, [1994] 1 S.C.R. 701, at p. 856 ( per Cory J.)).
In the same vein, although this Court has often reiterated that a court of appeal should refrain from interfering with findings of facts made by a trial judge, it has also made it clear that a court of appeal can, and should, interfere if the trial judge has made a manifest error, has ignored conclusive or relevant evidence, has misunderstood the evidence or has drawn erroneous conclusions from the evidence. In other words, a court of appeal can interfere with a trial judge's fact-finding discretion if he or she does not exercise it judicially. See: Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114, at p. 121 (per McLachlin J.) and all cases cited therein; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141, at pp. 188-89 (per L'Heureux-Dubé J.) and all cases cited therein; N.V. Bocimar S.A. v. Century Insurance Co. of Canada, [1987] 1 S.C.R. 1247, at pp. 1249-50 (per Le Dain J.); Lewis v. Todd and McClure, [1980] 2 S.C.R. 694, at pp. 700-701 (per Dickson J. (as he then was)); and Jaegli Enterprises Ltd. v. Taylor, [1981] 2 S.C.R. 2, at p. 4 (per Dickson J.).
In Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, this Court considered the propriety of a Federal Court of Appeal decision to reverse a decision by a motions judge of the Federal Court Trial Division to dismiss the respondent Society's application for orders in the nature of certiorari and mandamus to compel the Minister of Transport and Minister of Fisheries and Oceans to comply with the federal Environmental Assessment and Review Process Guidelines Order, SOR/84-467. Before us, the appellants argued that the Federal Court of Appeal had erred in interfering with the trial judge's exercise of discretion. La Forest J., writing for the majority, was of the opinion that a court of appeal can interfere with a trial judge's discretion when he or she "refuse[s] to take into consideration a
major element for the determination of the case" (at p. 77, citing Beetz J.'s words in Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at p. 588). La Forest J. therefore concluded that the Federal Court of Appeal did not err in interfering with the trial judge's discretion, since the trial judge did not adequately weigh the proper factors.
The principles governing appellate review of a lower court's exercise of discretion are also found in the following statement of Viscount Simon L.C. in Charles Osenton & Co. v. Johnston, [1942] A.C. 130, at p. 138 (reproduced by La Forest J. in Friends of the Oldman River Society v. Canada (Minister of Transport), supra, at pp. 76-77):
The law as to the reversal by a court of appeal of an order made by the judge below in the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us by the appellant, then the reversal of the order on appeal may be justified. [Emphasis added.]
In light of this jurisprudence, I conclude that it is well within the powers of a court of appeal, and consequently within the powers of this Court, to interfere with a trial judge's wrongful exercise of discretion. The case law clearly indicates that awards of costs, while within judicial discretion, can be reviewed by an appellate court on the basis
that they were made, inter alia, on wrong principles, on a misapprehension of significant facts or in a non-judicial manner. See also: 539618 Ontario Ltd. v. Stathopoulos (1992), 11 O.R. (3d) 364 (C.A.), at p. 380 ( per Osborne J.A.); Prodon v. Vickrey (1988), 31 C.P.C. (2d) 264 (Alta. Q.B.), at pp. 265-66 ( per Matheson J.); Nolet v. Nolet (1985), 68 N.S.R. (2d) 370 (C.A.), at p. 374 ( per Macdonald J.A.); Smov Industrie Ceramiche S.P.A. v. Sole Ceramic Importing Ltd. (1983), 141 D.L.R. (3d) 672 (Ont. H.C.), at p. 674 ( per Parker J.); Andrews v. Andrews (1980), 120 D.L.R. (3d) 252 (Ont. C.A.), at p. 259 ( per Houlden J.A.); Kalesky v. Kalesky (1974), 51 D.L.R. (3d) 30 (Ont. C.A.), at p. 32 ( per Gale C.J.O.); and Donald Campbell and Co. v. Pollak, [1927] A.C. 732 (H.L.).
Moreover, as to costs, s. 47 of the Supreme Court Act specifically grants the Supreme Court of Canada a wide discretion with respect to lower courts' costs orders:
47.The Court may, in its discretion, order the payment of the costs of the court appealed from, of the court of original jurisdiction, and of the appeal, or any part thereof, whether the judgment is affirmed, or is varied or reversed.
In my opinion, the above disposes of the question of whether or not this Court has jurisdiction to review a costs order made by a lower court. It clearly does have such jurisdiction. The question which remains, however, is whether or not, on the facts of this case, the costs order in question, which has already been upheld on an earlier cross-appeal to the Ontario Court of Appeal, should be reversed by this Court.
IV - The Costs
The long-standing rule regarding costs is that they are generally awarded to a successful party, absent misconduct on his or her part. A successful litigant has a reasonable expectation that his or her costs will be paid by the unsuccessful party. The
rationale for this rule is based on the fact that, had the unsuccessful party initially agreed to the position of the successful one, no costs would have been incurred by the successful party. Accordingly, it is only logical that the party who has been found to be wrong must be ready to support the costs of a litigation that could have been avoided.
Mark M. Orkin states the general rule as follows in his book The Law of Costs (2nd ed. 1993), at pp. 2-17 and 2-18, para. 205.2:
Prior to the enactment of [Ontario Rule 57.01] . . . the law had been well settled that where a plaintiff is wholly successful in an action and there is no misconduct on his or her part, the plaintiff is entitled to costs on the ground that there is no material on which a court can exercise a discretion to deprive him or her of costs. The rule has also been applied where a plaintiff succeeded as to a substantial part of his claim. Similarly, a successful defendant is entitled to his or her costs on the same ground, namely, that prima facie the unsuccessful party is to be charged with the costs of the suit. Where it is impossible to say whether either party was successful, no order should be made as to costs.
This long-standing rule is supported by the case law. See, inter alia: Downey v. Roaf (1873), 6 P.R. 89 (Chy. Cham.), at p. 89 (per Blake V.C.); In Re Pattullo and The Corporation of the Town of Orangeville (1899), 31 O.R. 192 (H.C.), at p. 197 (per Armour C.J.); London & British North America Co. v. Haigh, [1922] 1 W.W.R. 172 (Sask. K.B.), at p. 174 (per MacDonald J.); Hudson's Bay Co. v. Sjostrom, [1924] 3 W.W.R. 271 (Sask. K.B.), at p. 271 (per MacDonald J.). For example, in Villeneuve v. Rur. Mun. Kelvington, [1929] 2 D.L.R. 919 (Sask. C.A.), at p. 925, Martin J.A. stated:
Where a plaintiff comes to enforce a legal right and completely succeeds, and has been guilty of no misconduct, there is no material upon which a Court can exercise a discretion, and the plaintiff is entitled to his costs. Edmanson v. Chilie (1914), 7 S.L.R. 34; Cooper v. Whittingham (1880), 15 Ch. D. 501; Civil Service Co-op Soc. v. Gen'l Steam Nav. Co., [1903] 2 K.B. 756; 23 Hals., p. 179, para. 324. As the plaintiffs in the present case have succeeded in obtaining the relief for which
they ask [action for a declaration as to the invalidity of an award and an assessment based thereon], and as they have not been guilty of any misconduct connected with the questions involved in the proceedings, they are entitled to costs. [Emphasis added.]
This rule, however, is not absolute. Orkin, for example, notes (The Law of Costs, supra, at p. 2-20, para. 205.2(2)):
The principle that a successful party is entitled to his or her costs is of long standing, and should not be departed from except for very good reasons.164 [Emphasis added.]
164.Macfie v. Cater (1920), 57 D.L.R. 736 (Ont. S.C.), aff'd 64 D.L.R. 511 (App. Div.).
Furthermore, in Ontario, s. 141(1) of the Courts of Justice Act (now s. 131), and Rules 57.01(1) and (2) of the Rules, clearly make the award of costs a matter for the courts' discretion and articulate guidelines for the exercise of this discretion:
141. -- (1) [Costs] Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
57.01 (1) [Factors in Discretion] In exercising its discretion under section 141 [now s. 131] of the Courts of Justice Act, 1984 to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle made in writing,
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party's denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different solicitor; and
(i) any other matter relevant to the question of costs.
(2) [Costs Against Successful Party] The fact that a party is successful in a proceeding or a step in a proceeding does not prevent the court from awarding costs against the party in a proper case. [Emphasis added.]
Rule 57.01(2) provides that costs may be awarded against a successful party "in a proper case". Therefore, the question in this cross-appeal turns on whether or not this case was "a proper case", within the meaning of Rule 57.01(2), for an award of costs against a successful party, in this case the respondent Attorney General for Ontario. Whealy Dist. Ct. J.'s reasons for awarding costs against the respondent Attorney General for Ontario (then an intervener) are succinctly put in the following extract from his decision:
As well, it was argued that there was no bad conduct justifying a punitive award of costs as against the successful party. With that particular argument, I entirely agree.
The appellants argued that an important factor was that the Court of Appeal, by a majority, had held that the issue argued on the appeal was of province-wide importance and that the manner of hearing the appeal was almost unique in that 18 fresh witnesses were heard extending over several weeks, having the effect of almost making the appellate court a trial court. It was pointed out as well that the litigation was originally triggered by an act of the state in the guise of the Children's Aid Society of Metropolitan Toronto.
. . .
This case proceeded in a most unusual fashion and laborious manner for all concerned, and I am not aware of any cases where a first level appeal from a decision of a trial judge has gone to this circuitous route and ended up with the appeal being transformed into what amounts to a re-trial on fresh evidence. [Emphasis added.]
The appellants agreed with these reasons and advanced the following arguments before us in support of the District Court's order as to costs:
1.The interests of the parties were properly balanced in accordance with the discretion conferred by Rule 57.01, even in the absence of serious misconduct;
2.The importance of the question and the unusual background of the case were proper factors to be considered under Rule 57.01;
3.The Attorney General for Ontario "fully participated" as a party in the District Court hearing;
4.The court's discretion over costs is a powerful check to discourage non-meritorious applications. Furthermore, the granting in this case of an order for costs against the Attorney General for Ontario will not open the floodgates for other such orders against the Attorney General;
5.The proceedings and the number of witnesses called by the respondent were exceptional, amounting to unusual factors;
6.The constitutional challenge served a vital public interest; and
7.The appellants had no choice but to turn to the courts in order to remedy a vital public-law issue involving the interests of children and families throughout Ontario. It was the appellants' only alternative because they were "turned away by the legislature" which did not address their submissions on the Child and Family Services Act, 1984, presented to the Ontario Legislature in February, 1984.
The respondent's arguments against the District Court's order as to costs, on the other hand, can be summarized as follows:
1.Serious misconduct is the only ground to award costs against a successful party;
2.The relative resources of the parties is not a relevant factor. No evidence was adduced regarding the resources of the appellants, nor was there any evidence to suggest that the Attorney General for Ontario possesses unlimited resources. Treating the Crown as an unlimited source of funds is contrary to public policy and will result in the encouragement of marginal applications for constitutional challenges;
3.The fact that the litigation may have been originally triggered by the CAS, a state actor, is not a sufficient basis to award costs against the Attorney General for Ontario, since the CAS acted without misconduct to protect the life of an infant under a constitutionally valid statute;
4.The issue here was not one of special importance as provided for in Rule 57.01(1). If it were, every constitutional challenge or other litigation involving a public law issue would warrant costs being awarded against the state, even where the state is successful in the litigation. Given the number of Notices of Constitutional Questions received each year, such a ruling could expose government to enormous financial liability and is, therefore, a "dangerous precedent";
5.The fact that the Child Welfare Act was being constitutionally challenged as violating the appellants' freedom of religion is also not a sufficient basis for awarding costs against a successful party;
6.There was nothing "unusual" about this case for the purpose of awarding costs; and
7.This case is not a "proper case" for awarding costs against a successful party under Rule 57.01(2).
Before dealing specifically with the parties' respective submissions, I will briefly discuss one factor which Whealy Dist. Ct. J. specifically considered, that is the relative resources of the litigants as a factor in the awarding of costs. Whealy Dist. Ct. J. indicated, rightly in my view, that this was not one of the factors he relied upon in reaching his decision. In this respect, I note that Ontario Rule 57.01 does not include the resources available to the parties as one of the factors to be considered by courts when exercising their discretion on costs under s. 141 of the Act. Orkin, discussing the appropriateness of relying on this factor, commented (The Law of Costs, supra, at p. 2-32, para. 205.2(2)):
The fact that the imposition of costs would cause financial hardship is not sufficient to displace the ordinary rule that costs should follow the event.
(See also: Wawrzyniak v. Jagiellicz (1988), 9 A.C.W.S. (3d) 175 (Ont. H.C.).) In addition, as the respondent points out, in the case at hand, there was no evidence regarding the resources of the appellants, nor was there any evidence to suggest that the Attorney General for Ontario possesses unlimited resources. In any event, as I already noted, the resources available to the parties should not generally be a relevant factor in awarding costs. This is particularly true with respect to the supposed "unlimited resources" of the Attorney General for Ontario. In this respect, the comments of Osler J. in Canadian Newspapers Co. v. Attorney-General of Canada, supra (at p. 242), are apposite in the present appeal:
The legislation herein questioned obviously represents an attempt to balance various interests and although its legislative history makes it apparent that a challenge
was expected, there is nothing in the legislation or in the actions of Parliament or of the Government of Canada to invite such an award [costs on a solicitor-and-client basis, or at least party-and-party basis]. While it is desirable that bona fide challenge is not to be discouraged by the necessity for the applicant to bear the entire burden, it is equally desirable that the Crown should not be treated as an unlimited source of funds with the result that marginal applications would be encouraged. [Emphasis added.]
It is, in my view, contrary to public policy that an Attorney General be, as a matter of course, treated as having an unlimited source of funds and for that sole reason be required, even if successful, to pay the other party's costs. Such a result could open the floodgates and result in encouraging marginal applications for constitutional challenges. The policy considerations against relying on the supposed unlimited resources of the Attorney General for Ontario as a reason for awarding costs against such a government actor are even stronger in light of the fact that, as the respondent indicates, the Attorney General for Ontario is served with a growing number of Notices of Constitutional Questions every year (over 400 in 1991). The same reasoning applies, of course, with respect to the Attorney General of Canada.
In saying the above, however, I should not be understood as setting out an absolute rule. There are cases where the government will be required to bear the costs of a particular litigation. Such a result will occur where it is in the government's interest or that of the public to have a matter decided by the courts, such as the interpretation of legislation, constitutional rulings of particular importance, etc. However, generally in such cases there is a prior understanding that the costs will be borne by the government, independently of the result. Such was the case in Attorney General of Quebec v. Labrecque, [1980] 2 S.C.R. 1057, where the issues to be decided were (1) whether the Quebec Provincial Court or an arbitrator under the collective agreement had jurisdiction to render judgment on a $168 claim by a casual employee of the Quebec government; and (2) what was the nature of the contractual relationship between the casual
employee and the government. The appellant, the Attorney General of Quebec, had accepted to bear the costs, whether or not he was successful (see p. 1086, per Beetz J.).
In Schachter v. Canada, [1992] 2 S.C.R. 679, leave to appeal was granted by this Court on the basis that the appellant government would pay the respondent's costs in any event, since the validity of s. 32 of the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, as am. by S.C. 1980-81-82-83, c. 150, s. 5, was no longer an issue in the appeal ([1990] 2 S.C.R. x, and Bulletin of Proceedings of the Supreme Court of Canada, November 16, 1990, at p. 2400 (Wilson, Sopinka and McLachlin JJ.)). See also: Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575, at p. 598 (per Martland J.); and Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, at pp. 384-85 (per Estey J.).
In addition, where the litigation might have been discontinued had it not been for the public interest to decide the issue, costs may be allocated even against a successful party, whatever its status or its resources. This is also the case where public interest requires that, regardless of the limited interests of the parties or even of the lack of resources of the parties, the court should decide the case. On that issue, see: Coronation Insurance Co. v. Taku Air Transport Ltd., [1991] 3 S.C.R. 622, at pp. 646-48 (per Cory J.); and Roberge v. Bolduc, [1991] 1 S.C.R. 374, at pp. 444-48 (per L'Heureux-Dubé J.).
Thus, there are clearly cases where the government is required to pay the costs of a particular litigation regardless of its outcome. However, these cases remain very limited exceptions, usually dealt with at the time leave is granted, and are not based on the relative resources of the parties but rather on the importance for the government or the public of having a particular issue decided by the courts, independently of the result.
In light of the above, Whealy Dist. Ct. J. was correct, on the facts of this case, in not basing his order for costs on the relative resources of the parties. I also support his finding that there was no misconduct on the part of the Attorney General for Ontario.
Based on this second finding, the Attorney General for Ontario submits that Whealy Dist. Ct. J.'s costs order was inappropriate on the grounds that misconduct is the only factor which justifies the allocation of costs against a successful party. The Attorney General for Ontario relies for this proposition on several cases, including Hartford v. Langdon Coach Lines Co. (1975), 10 O.R. (2d) 617 (H.C.). In that case, Lerner J. held (at p. 621) that there must be misconduct on the part of a successful party in order for costs to be awarded against it. This decision, however, predates the inclusion of Rule 57.01(2) in the Ontario Rules. Wismer v. Javelin International Ltd. (1982), 38 O.R. (2d) 26 (H.C.), at p. 34 (per Hughes J.), also suggests that misconduct on the part of the successful party is one reason for awarding costs against it, but it does not go so far as to say that misconduct is the only reason to award costs against a successful party. The cases of Attorney-General of Quebec v. Cronier (1981), 63 C.C.C. (2d) 437 (Que. C.A.), at pp. 449-50 (per L'Heureux-Dubé J.A. (as I then was)) and R. v. Pawlowski (1993), 20 C.R. (4th) 233 (Ont. C.A.), at p. 237 (per Galligan J.A.) dealt with the inherent jurisdiction of superior courts to award costs against the Crown in criminal cases. However, in these cases, unlike the present appeal which is governed by Ontario Rule 57.01(2), there was no applicable statute which gave the courts discretion to order costs against a successful party.
In light of the above, while these cases may be informative as to the normal course of affairs in matters of costs, they are of a very little assistance where a statutory scheme specifies the criteria for
the exercise of a court's discretion, even in the absence of misconduct. Carey v. The Queen, Ont. H.C., September 13, 1988 (unreported), at p. 2, appears to be the only case based on Rule 57.01(2) which specifically affirms that no order as to costs should be made against a successful party unless there was misconduct on the part of that party. However, in B.C. (Govt.) v. Worthington (Can.) Inc. (1988), 29 B.C.L.R. (2d) 145, at p. 164 (Esson J.A. (Carrothers J.A. and McLachlin J.A. (as she then was) concurring)), the British Columbia Court of Appeal concluded, pursuant to Rule 57 of the British Columbia Supreme Court Rules, which is similar to the Ontario Rule 57.01(2), that costs could be awarded against a successful party regardless of whether or not there was misconduct on the part of that party, especially where success is divided.
Thus, the weight of the jurisprudence is to the effect that misconduct is one criterion among many which a judge is entitled to consider in determining how costs should be awarded. Such a conclusion is buttressed by Rule 57.01(1) which expressly states that "conduct" is only one of the factors, among others, to be considered in making an order as to costs (see para. (e) in particular, as well as paras. (f), (g) and (h)). Consequently, even absent misconduct, a court still retains discretion to award costs against a successful party in a "proper case", and the respondent's arguments to the contrary must fail.
That being said, under Rule 57.01, the court's discretion to depart from the general rule of awarding costs to the successful party must be exercised judiciously and judicially. It cannot be exercised arbitrarily, capriciously or for improper reasons. The question here is whether Whealy Dist. Ct. J. was right to consider as relevant such factors as "the litigation was originally triggered by an act of the state", the case was of "province-wide importance" and "almost unique", as well as that it "proceeded in a most unusual fashion and laborious manner" and, if so, whether the facts of the case can support his findings. Furthermore, as far as the
Ontario Court of Appeal's reasons are concerned, did the "fundamental" nature of the constitutional freedom raised by the appellants in this case warrant the award of costs against the successful Attorney General for Ontario? I will discuss, in turn, each of the above factors considered by the lower courts in arriving at the impugned costs order, in order to determine whether they were present in this case and whether their presence was sufficient to qualify this as a "proper case" in which to order costs against the Attorney General for Ontario.
An "Act of the State"
According to the appellants, because the litigation was originally triggered by an "act of the state" through the CAS, the Attorney General for Ontario was not acting solely as an intervener but took over carriage of the case from the respondents the CAS and the Official Guardian. This, in their view, was, in and of itself, sufficient to uphold Whealy Dist. Ct. J.'s order as to costs. I disagree.
While the fact that state action is the trigger for a particular litigation may warrant some consideration in determining how costs should be allocated, it is not a factor which should be determinative with respect to the allocation of costs. First, Rule 57.01 does not so mandate. Second, to hold otherwise would unfairly penalize the state, particularly where, as here, it is under a specific duty to act. In this case, state action was triggered by the fact that the appellants refused a blood transfusion for their daughter, in circumstances where, as was found by Whealy Dist. Ct. J., medical opinion was to the effect that such a transfusion was necessary. The CAS had, under the Child Welfare Act, the statutory obligation to proceed as it did when Sheena B.'s condition, in the doctors' view, required a blood transfusion. It is therefore the act of the appellant parents which originally triggered the litigation undertaken by the CAS. The CAS acted to protect the life and health of an infant as required
by the Child Welfare Act. The fact that the parents then challenged the constitutionality of this Act provides no basis for awarding costs against the Attorney General for Ontario whose intervention was required to defend the constitutionality of that statute. This reasoning would apply even if the state had intervened of its own initiative to defend the constitutionality of its statute.
The appellants were challenging the constitutional validity of the Child Welfare Act. Section 122 of the Courts of Justice Act, 1984 required notice to be served on the Attorney General for Ontario. Section 122(4) of the Act entitled the Attorney General for Ontario to adduce evidence and make submissions in respect of the constitutional challenge. Section 122(4) reads:
122. . . .
. . .
(4) [Right of Attorneys General to be heard] Where the Attorney General of Canada or the Attorney General of Ontario is entitled to notice under this section, he or she is entitled to adduce evidence and make submissions to the court in respect of the constitutional question.
The appellants submit that s. 122(5) of the Act supports the proposition that, since the Attorney General for Ontario is deemed to be a party to the proceeding, it should pay the costs. Section 122(5) reads:
122. . . .
. . .
(5) [Right of Attorneys General to appeal] Where the Attorney General of Canada or the Attorney General for Ontario makes submissions under subsection (4), he or she shall be deemed to be a party to the proceedings for the purpose of any appeal in respect of the constitutional question. [Emphasis added.]
There is nothing, in my view, in the clear wording of s. 122 which supports the argument of the appellants. Although the Attorney General of
Canada and the Attorney General for Ontario can adduce evidence and make submissions, they are not actually parties to the litigation. They are merely deemed to be parties for the sole purpose of any appeal in respect of the constitutional question. Indeed, s. 122(5) allowed the Attorney General for Ontario to cross-appeal Whealy Dist. Ct. J.'s order as to costs to the Court of Appeal. Consequently, s. 122 provides the Attorney General for Ontario with a statutory right to participate fully on the constitutional issue, without necessarily becoming a party in the usual sense of the term. Besides, even if the Attorney General for Ontario was a full party to the proceedings in the usual sense of the term, this would not automatically carry with it the obligation to pay costs. There is nothing in the Act or in the Rules that would mandate or even imply such a result.
In addition, s. 122 does not affect the rule that a party granted intervener status in the public interest is, generally, neither entitled to nor liable for the costs in the matter: Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 (1990), 70 Man. R. (2d) 59 (Q.B.), at p. 61 (per Ferg J.). The basis for this general rule is that a public intervener who assisted the court, as intended, should not have to bear the costs of the proceedings. As Davison J. said in Hines v. Nova Scotia (Registrar of Motor Vehicles) (1990), 78 D.L.R. (4th) 162 (N.S.S.C.T.D.), at p. 169:
Undoubtedly, there are situations where a party is added as amicus curiae where the awarding of costs both for or against the intervenor would be inappropriate. Undoubtedly there are some situations where the intervenor is added as a party where costs should not be awarded. These will depend upon the discretion of the court which will consider all of the circumstances including whether the interest of the intervenor is public or private.
Where a party intervenes in the public interest but is seriously affected by the result, costs may be awarded to that party, if successful. Such was the case for the interveners the Canadian Labour Congress, the Ontario Federation of Labour and the
National Union of Provincial Government Employees in Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211 (at pp. 303 ( per Wilson J.) and 341 ( per La Forest J.)). Where a party intervenes for the protection of its own interest, or purports to act in the public interest but does not act solely in the public interest, costs may be awarded against that party. Such was the case in John Doe v. Ontario (Information & Privacy Commissioner) (1992), 7 C.P.C. (3d) 33 (Ont. Ct. (Gen. Div.)), at pp. 36-38 ( per Steele J.), where costs were awarded against the Canadian Civil Liberties Association.
Schachter v. Canada, supra, is cited by the appellants as an authority for an award of costs against a successful Attorney General. In fact, however, in Schachter costs were actually awarded against the Queen (at p. 726 (per Lamer C.J.)). However, what is more significant in distinguishing Schachter from the case at hand is that in Schachter the Attorney General of Canada was a full party (appellant), not an intervener. The interveners in that case were not ordered to bear any costs (Attorney General for Ontario, Attorney General of Quebec, Attorney General for New Brunswick, Attorney General of British Columbia, Attorney General for Saskatchewan, Attorney General for Alberta, Attorney General of Newfoundland and Minority Advocacy Rights Council).
In the present case, the Attorney General for Ontario was a purely public interest intervener. The Attorney General for Ontario intervened to defend the validity of the Child Welfare Act. Indeed, without the intervention of Attorneys General, courts may in some or even many cases have little assistance in determining the constitutional validity of a statute. Accordingly, the general rule that costs not be awarded to or against an intervener in the public interest should apply, unless other relevant factors are present.
While it is true that the Attorney General for Ontario adduced evidence and made submissions in respect of the constitutionality of the Child Welfare Act, this was in accordance with the Courts of Justice Act. It is the Court of Appeal itself which dictated that the matter be referred for a trial of a de novo type where fresh evidence was properly adduced and Whealy Dist. Ct. J. did not find that this was an improper course of action. In constitutional challenges, such evidence may be crucial to enable the court to arrive at a decision. Furthermore, in cases where the life and death of a child depends on a judge's decision, expert medical evidence is not only relevant but often essential. This was the case here on both counts.
The fact that there was state action in answer to a constitutional challenge, whether as an intervener or a party to the litigation, absent any impropriety, as here, cannot be the basis for awarding costs against a successful party. Besides, Rule 57.01 does not list this factor as one to be taken into consideration. Finally, one can easily appreciate the floodgates that would be opened if state action was a proper factor to consider in apportioning cost. State action is present in most cases, criminal ones and constitutional ones in particular. To make it a consideration in awarding costs would pose an unbearable burden on the state, a burden that would add to the millions of dollars already devoted to legal aid. In addition, it would provide a means to bypass legal aid norms. Consequently, as a matter of policy, it should be discouraged.
Importance of the Case
The appellants submit that the province-wide or national importance of this case was a proper factor to consider in awarding costs against the intervening Attorney General for Ontario.
Rule 57.01(1)(d) expressly states that "the importance of the issues" is a factor which can be considered by a court in awarding costs (see, for example: Janigan v. Harris (1989), 70 O.R. (2d) 5
(H.C.), at p. 27 ( per Bell Oyen J.)). However, as Orkin observes ( The Law of Costs, supra, at pp. 2-31 and 2-32, para. 205.2(2)), this factor seems to be much more relevant with respect to whether costs should be awarded at all, rather than with respect to whether costs should be awarded against a successful party:
(d) Other cases. An action or motion may be disposed of without costs when the question involved is a new one, not previously decided by courts on the theory that there is a public benefit in having the court give a decision; or where it involves the interpretation of a new or ambiguous statute; or a new or uncertain or unsettled point of practice; or where there were no previous authoritative rulings by courts; or decided cases on point; or where an application concerned a matter of public interest and both parties acted in complete good faith; or where both sides operated with public funds; or where the practice was altered by a recent English decision; or the case involved difficult and sensitive issues of fact; or on an application by a charitable institution for exemption from a real property assessment; or where the action was a test case; or where it was desirable to resolve a conflict in the case law. [Footnotes omitted; emphasis added.]
Furthermore, in my view, this case is not a "test case". Accordingly, the "test case" factor plays no role here and cannot be a factor in justifying the making of an order for costs against the successful Attorney General for Ontario. In any event, the jurisprudence favours the position that no costs should be awarded in a "test case" (see, inter alia: Poizer v. Ward, [1947] 4 D.L.R. 316 (Man. C.A.), at p. 325 (per Bergman J.A.); and Orkin, The Law of Costs, supra, at p. 2-32, para. 205.2(2)).
In addition, it is important to note that the Ontario Court of Appeal, while highlighting the importance of this case and the findings made by Whealy Dist. Ct. J. regarding the constitutional issue, still ordered that there should be no costs on the appeal and the cross-appeal. This position, in my view, is somewhat inconsistent with the
Ontario Court of Appeal's reluctance to intervene in Whealy Dist. Ct. J.'s award of costs.
Besides, it is not apparent to me that this case actually raises issues of sufficient national importance to justify awarding costs against a successful intervener. While this case was framed as a Charter challenge, the parties themselves had agreed that if the life of the child was threatened and there was an emergency, the CAS was entitled to intervene and the blood transfusions were appropriate. Thus this case was really decided on the basis of expert evidence and on the specific facts of the case. The constitutional challenge was totally without foundation and could not have succeeded unless there was such a factual background.
Moreover, it would not be in the interest of justice or in the interest of the administration of justice to hold that the fact that a case raises an issue of national importance is in and of itself sufficient to justify awarding costs against a successful party, in this case an intervener. If this were so, Attorneys General could potentially have to bear the costs in every litigation involving important issues of law, constitutional matters or issues of public interest.
Finally, the fact that the appellants raised a Charter issue does not in and of itself make their case one of particular importance. All cases are important per se. They are important for the parties, they are important to the public and to the law. What must be considered is what makes a case sufficiently important to warrant special treatment. According to the ICON Case Management Statistics of the Program Development Branch of the Ministry of the Attorney General for Ontario, the Ontario Court (Provincial Division), from which the present appeal initially originated, heard 808 cases in 1992 involving Charter-related challenges, and 836 in 1993. These numbers speak for themselves and support the fact that a Charter-related challenge is simply not in and of itself
sufficient to be a basis for awarding costs against a successful party.
I conclude, therefore, that Whealy Dist. Ct. J. erred in the exercise of the discretion conferred on him by Rule 57.01(1) when he stated that the national importance of the case before him warranted the ordering of costs against the intervening Attorney General for Ontario.
Constitutional Challenge
Tarnopolsky J.A. suggested that an award of costs against the Attorney General for Ontario might be justified by the fact that the appellants challenged the state on the basis of freedom of religion, a "fundamental freedom" guaranteed by s. 2(a) of the Charter. With respect, I disagree.
While it could be argued that the constitutional nature of the appellants' challenge is covered by Ontario Rule 57.01(1)(d), which makes "the importance of the issues" a relevant factor in awarding costs, this does not mean that the sole fact that an individual alleges an infringement of a right or a freedom guaranteed by the Charter is in and of itself sufficient to attract an exception to the general rule as to costs. To hold otherwise would mean that all accused or individuals challenging a statute on Charter grounds would be entitled to an award of costs against the state. The fact that the right or freedom in question can be characterized as "fundamental", or otherwise, has no bearing on the issue. General rules, such as the principle that unsuccessful parties must bear their own costs, are not invalidated by the fact that rights, even "fundamental" rights, are being raised by the parties, except, perhaps, as discussed previously, where the government's intent is to have a Charter issue decided in the public interest. In this case, however, the main interests at stake were those of the appellants and they were not successful.
Therefore, I cannot agree with Tarnopolsky J.A. that this case, given its facts, raised issues which were of such a fundamental nature so as to warrant the awarding of costs against the intervener Attorney General for Ontario, a successful party.
The Complexity of the Proceeding
Ontario Rule 57.01(1)(c) states that the "complexity of the proceeding" is a factor that the court may consider in awarding costs. One possible basis for Whealy Dist. Ct. J.'s award of costs is expressed in the following extract of his decision:
This case proceeded in a most unusual fashion and laborious manner for all concerned, and I am not aware of any cases where a first level appeal from a decision of a trial judge has gone this circuitous route and ended up with the appeal being transformed into what amounts to a re-trial on fresh evidence. [Emphasis added.]
However, the "unusual" course taken by these proceedings had nothing to do with the intervener. In fact, the "unusual" proceedings were ordered by the Ontario Court of Appeal (Grange and Krever JJ.A., Griffiths J.A. dissenting) to remedy the errors of Webb Dist. Ct. J. Thus, if anyone is to bear the blame for the unusual proceedings, it would be the Ontario Court of Appeal, not the intervener.
The intervener's interest in the proceedings was simply to uphold the validity of a piece of legislation and to prevent the death of an infant. In order to do so, in the District Court appeal before Whealy Dist. Ct. J., the Attorney General for Ontario called six of the respondent CAS's eight experts and cross-examined the appellants' expert witnesses. There is no indication in the record that the appellants objected to the examination of these witnesses by the Attorney General for Ontario, nor is there any indication that Whealy Dist. Ct. J. found such evidence inappropriate. The fact that the proceedings in the District Court constituted a lengthy re-trial where fresh evidence was adduced,
as directed by the Ontario Court of Appeal, cannot be a source of reproach to the Attorney General for Ontario and cannot serve as a basis for the order of Whealy Dist. Ct. J. Quite the contrary, it was two of the appellants' witnesses that Whealy Dist. Ct. J. found "not too helpful" and one of their other witnesses that, according to Whealy Dist. Ct. J., "did not materially advance" either position put before the Court. No adverse or otherwise unfavourable comments were made as regards the Attorney General's witnesses. Consequently, the unusual nature and the complexity of the proceedings are, in my view, totally irrelevant as a basis for Whealy Dist. Ct. J.'s order as to costs on the facts of this case.
Besides, it is not evident to me that the present case was actually unusual in its proceedings. Admittedly, the proceedings might have been more lengthy than perhaps anticipated by the District Court Justice. A total of 18 witnesses were called, ten by the appellants and eight by the respondents CAS and the Official Guardian for Sheena B. The Attorney General for Ontario, then intervener, called only six of the respondents' eight expert witnesses and cross-examined the appellants' expert witnesses. The District Court appeal was heard over a period of 20 days, in November and December 1988. This, however, is not unusual for a trial, particularly when dealing with a case where medical expertise is essential to the decision.
Moreover, the Attorney General for Ontario cannot be held accountable for the fact that the Ontario Court of Appeal allowed the appeal, launched by the appellants, from Webb J.'s judgment and referred all the issues back to the District Court. New trials are ordered in countless cases and lengthy proceedings are far from unusual. The fact that the case went up to the Ontario Court of Appeal which then ordered a new trial cannot be characterized as "unusual" for the purpose of awarding costs against a successful party, an intervener.
I, therefore, cannot see how Whealy Dist. Ct. J. could have come to the conclusion that the present case proceeded in a "most unusual fashion", absent any other indication in the record than the fact that the hearing was lengthy and proceeded as a trial de novo before an appellate jurisdiction. If that was unusual, it was not so for the purpose of awarding costs to an intervener whose conduct was not the subject of reproach.
The Totality of the Factors
None of the factors identified by Whealy Dist. Ct. J. to justify his award of costs against an intervener who was a successful party, here the Attorney General for Ontario, stand on the facts of this case nor can any of them be sufficient per se to justify the exercise of the court's discretion to award costs against the Attorney General for Ontario, a successful party. The additional factor discussed by Tarnopolsky J.A. is also not sufficient to justify the impugned costs order. This is not to say that the importance of a case, its complexity and the constitutional nature of a challenge could never be appropriate factors to consider in ordering costs against a successful party. They may be in a "proper case". This case is not one of them, in my view. Even taken together, all the factors considered by Whealy Dist. Ct. J. and Tarnopolsky J.A. could not make this case a proper one to allow a departure from the general rule as to costs. To hold otherwise, as Houlden J.A. noted, would be to create a dangerous precedent, particularly in an era of heavy Charter litigation involving to a great extent the provincial and federal Attorneys General as interveners as of right. Eliminating the relative resources of the parties as a relevant factor and misconduct here, there was nothing unusual about this case for the purpose of awarding costs. State action and the importance of the case based on the sole fact that the constitutionality of a piece of legislation was challenged on the ground of a fundamental right guaranteed by the Charter are simply not sufficient factors to trigger the exercise of a court's discretion to award costs against a
successful party, an intervener as of right at that, absent misconduct on his part.
I agree with Houlden J.A. when he says (at p. 360):
Since the appellants were challenging the constitutional validity of the Child Welfare Act, s. 122 of the Courts of Justice Act, 1984, S.O. 1984, c. 11 (now s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43), required notice to be served on the Attorney General of Ontario. By s. 122(4), the Attorney General was entitled to adduce evidence and to make submissions to the court in respect of the constitutional question. Notice was given to the Attorney General for Ontario by the appellants as required by s. 122. The Attorney General intervened to defend the validity of the legislation and was successful before Judge Whealy in upholding its validity. It would, in my opinion, create a dangerous precedent to award costs against the Attorney General in these circumstances.
Goodman J.A.'s reluctance to interfere with the trial judge's exercise of discretion, although perhaps understandable as a rule, was not warranted here since Whealy Dist. Ct. J.'s reasons in that regard were not based on proper considerations given the circumstances of this case.
To put it frankly, I cannot avoid being left with the impression that, as a judge sitting on appeal, Whealy Dist. Ct. J. was unhappy to have to hear the case as if he was sitting as a trial judge. His reference to the length of the case and the number of witnesses, which is in no way unusual at trial but somehow unusual on appeal, has led me to the conclusion that this was the main reason for awarding costs as he did. However, this turn of events, as I said earlier, has nothing to do with the Attorney General for Ontario, but was the result of the order of the Ontario Court of Appeal, an appeal brought by the appellants themselves. In any event, this would not be a proper consideration in a matter of costs.
V - Conclusion
This Court has jurisdiction to entertain a challenge to the exercise of judicial discretion when such discretion is not properly exercised. As far as awards of costs are concerned, s. 47 of the Supreme Court Act specifically grants the Court a wide discretion as to lower courts' costs order.
While it is true that courts of appeal should not in general interfere with a trial court's exercise of discretion, this rule is not absolute. The exceptions cover cases where that discretion has not been exercised judicially and judiciously. Among others, these are cases where relevant factors were not taken into account, insufficient or excessive weight was given to relevant factors, there was misconduct, the decision was capricious or arbitrary, etc.
With respect to costs, the rule is that they are generally awarded to a successful party, absent misconduct on his or her part. This rule, however, is also not absolute. Rule 57.01 of the Ontario Rules provides a list of factors (the amount claimed and the amount recovered in the proceeding, the complexity of the proceeding, the importance of the issues, etc.) for a judge to consider in the exercise of his or her discretion with respect to an order for costs. According to Rule 57.01, costs can even be ordered against a successful party in a "proper case". This case, however, was not such a "proper case", given all of the circumstances and in spite of the fact that it was a constitutional challenge based on a fundamental freedom guaranteed by the Charter. The trial was not an unusual one for the purpose of awarding costs, the intervention of the Attorney General for Ontario was a proper one and no finding of misconduct was made against him.
The Attorney General for Ontario and the Attorney General of Canada have a right to intervene in such cases and the Attorney General for Ontario did intervene here to defend the constitutional
validity of the Child Welfare Act. Absent misconduct and other relevant factors, an award of costs by the trial judge against the Attorney General for Ontario, who was successful at trial, was not warranted.
For those reasons, I am of the view that Whealy Dist. Ct. J. erred in the exercise of the discretion conferred by s. 141(1) of the Courts of Justice Act, 1984.
As a result, I would allow the cross-appeal, reverse the judgment of the Ontario Court of Appeal on the issue of costs, award no costs on the appeal to the District Court and no costs on the appeal and the cross-appeal to the Ontario Court of Appeal, the whole without costs.
The following are the reasons delivered by
//Sopinka J.//
SOPINKA J. -- I have read the reasons for judgment herein of the Chief Justice and of Justice La Forest and the joint reasons of Justices Iacobucci and Major. With respect to the issue raised in the first constitutional question, I would adopt the approach followed by Tarnopolsky J.A. in the Court of Appeal ((1992), 10 O.R. (3d) 321) who in turn relied on the judgment of La Forest J. in R. v. Jones, [1986] 2 S.C.R. 284. In Jones, as in this case, it was unnecessary to determine whether a liberty interest was engaged because the threshold requirement of a breach of the principles of fundamental justice was not met. In all other respects I agree with the reasons of La Forest J. I would answer the constitutional questions and dispose of the appeal and cross-appeal as he suggests.
The reasons of Cory, Iacobucci and Major JJ. were delivered by
//Iacobucci and Major JJ.//
IACOBUCCI AND MAJOR JJ. -- We have read the reasons of Justice La Forest, and we agree with the result that there has been no unconstitutional violation of the appellants' rights, under either s. 7 or s. 2(a) of the Canadian Charter of Rights and
Freedoms. However, we respectfully disagree with La Forest J.'s reliance on s. 1 of the Charter and the principles of fundamental justice in s. 7 in order to establish the constitutionality of the repealed Child Welfare Act, R.S.O. 1980, c. 66. Instead, we conclude that the class of parents caught by s. 19(1)( b)(ix) of the Act simply cannot benefit from the protection of the liberty interest in s. 7 or freedom of religion encapsulated in s. 2( a) of the Charter. We therefore find the appellants incapable of crossing the first threshold of Charter analysis. There is thus no initial constitutional infringement and, consequently, no need to uphold any such infringement either through its consonance with fundamental justice or its status as a reasonable limit in a free and democratic society.
Section 30(1) of the Child Welfare Act provides that a court may order a child to be committed to or subject to the care and custody of the Children's Aid Society for a period of time not exceeding 12 months. Section 30(1) is only triggered should the court deem the child to be "in need of protection": in other words, falling into one of the categories established by s. 19. In the case at bar, the relevant provision is s. 19(1)(b)(ix), since it is upon this that Judge Main of the Provincial Court (Family Division) relied to determine that Sheena was a "child in need of protection". Subparagraph (ix) provides as follows:
(b) "child in need of protection" means,
. . .
(ix) a child where the person in whose charge the child is neglects or refuses to provide or obtain proper medical, surgical or other recognized remedial care or treatment necessary for the child's health or well-being, or refuses to permit such care or treatment to be supplied to the child when it is recommended by a legally qualified medical practitioner, or otherwise fails to protect the child dequately.
To this end, parents or guardians caught by s. 19(1)(b)(ix) will be those who neglect or refuse to provide medical care to the child in their charge when such treatment has been deemed necessary by a legally qualified medical practitioner.
It is important to bear in mind that the impugned provisions of the Child Welfare Act are geared to the promotion of the health, safety and personal integrity of the child. To this end, although this appeal raises issues related to the right of parents to rear their children without undue influence by the state, it also touches on the s. 7 right of the child to life and security of the person. It is this perspective that we find absent from the reasons of La Forest J. As such, we are concerned by the fact that our colleague's decision creates a situation in which the child's right to life or security of the person is reduced to a limitation on the parents' constitutionally protected ability to deny that child the necessities of life owing to parental liberty and freedom of religion.
1.Section 7
We find that the right to liberty embedded in s. 7 does not include a parents' right to deny a child medical treatment that has been adjudged necessary by a medical professional. Although the scope of "liberty" as understood by s. 7 is expansive, it is certainly not all-encompassing. This Court has unequivocally held that "liberty" is not synonymous with unconstrained freedom: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 (per Dickson C.J., at pp. 785-86). Such an interpretation of "liberty" flows from some of the prior decisions of this Court cited by La Forest J. in his reasons. Not all individual activity should immediately qualify as an exercise of "liberty" and hence be prima facie entitled to constitutional protection, subject only to the limits consonant with fundamental justice or s. 1. For example, Wilson J. (in a passage relied upon by La Forest J. in his judgment in this
case) in R. v. Jones, [1986] 2 S.C.R. 284, remarked at p. 318:
John Stuart Mill described it [liberty] as "pursuing our own good in our own way". This, he believed, we should be free to do "so long as we do not attempt to deprive others of theirs or impede their efforts to obtain it". [Emphasis added.]
This is clearly a case where Sheena's right to liberty, security of the person, and potentially even to life is deprived. It is important to note that the abridgment of Sheena's s. 7 rights operates independently from the question whether the parents honestly believe that their refusal to consent to the transfusion is in the best interests of the child, since such a refusal shall, according to the appellants, prevent her from being "defiled in the eyes of God". Whether or not her parents' motivations are well-intentioned, the physical effects upon Sheena of the refusal to transfuse blood are equally deleterious.
We note that La Forest J. holds that "liberty" encompasses the right of parents to have input into the education of their child. In fact, "liberty" may very well permit parents to choose among equally effective types of medical treatment for their children, but we do not find it necessary to determine this question in the instant case. We say this because, assuming without deciding that "liberty" has such a reach, it certainly does not extend to protect the appellants in the case at bar. There is simply no room within s. 7 for parents to override the child's right to life and security of the person.
In any event, there is an immense difference between sanctioning some input into a child's education and protecting a parent's right to refuse their children medical treatment that a professional adjudges to be necessary and for which there is no legitimate alternative. The child's right to life must not be so completely subsumed to the parental liberty to make decisions regarding that child: Re R.K. (1987), 79 A.R. 140 (Prov. Ct. (Fam. Div.)), at p. 147. In our view, the best way to ensure this
outcome is to view an exercise of parental liberty which seriously endangers the survival of the child as falling outside s. 7.
Our colleague's reasons open the door to the possibility that a violation of a guardian's s. 7 rights will be found should the state deny a guardian his or her right to refuse a child in his or her charge medical treatment and should that denial fail to conform with fundamental justice. In the case at bar, Sheena's condition, although believed to be serious, was not sufficiently urgent to prevent the Children's Aid Society from seeking a court-ordered wardship, thereby complying with procedural fundamental justice. But what if Sheena were injured in a car accident and required an immediate blood transfusion to save her life? Even if her parents had been in agreement that the transfusion was necessary and urgently required, their personal convictions would still likely have compelled them to refuse their daughter the treatment. To this end, this exercise of parental liberty can engender the death of an infant.
We find it counter-intuitive that "parental liberty" would permit a parent to deny a child medical treatment felt to be necessary until some element of procedural fundamental justice is complied with. Although an individual may refuse any medical procedures upon her own person, it is quite another matter to speak for another separate individual, especially when that individual cannot speak for herself and, in Sheena's case, has never spoken for herself. The rights enumerated in the Charter are individual rights to which children are clearly entitled in their relationships with the state and all persons -- regardless of their status as strangers, friends, relatives, guardians or parents.
The suggestion that parents have the ability to refuse their children medical procedures such as blood transfusions in situations where such a transfusion is necessary to sustain that child's health is
consistent with the view, now long gone, that parents have some sort of "property interest" in their children. Indeed, in recent years, this Court has emphasized that parental duties are to be discharged according to the "best interests" of the child: Young v. Young, [1993] 4 S.C.R. 3; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141. The nature of the parent-child relationship is thus not to be determined by the personal desires of the parent, yet rather by the "best interests" of the child. In Young, supra, at p. 47, L'Heureux-Dubé J. (discussing the issue of custody in family law) commented that:
The proposition . . . is one of duty and obligation to the child's best interests. . . . One cannot stress enough that it is from the perspective of the child's interests that these powers and responsibilities must be assessed, as the "rights" of the parent are not a criterion.
The exercise of parental beliefs that grossly invades the "best interests" of the child is not activity protected by the right to "liberty" in s. 7. To hold otherwise would be to risk undermining the ability of the state to exercise its legitimate parens patriae jurisdiction and jeopardize the Charter's goal of protecting the most vulnerable members of society. As society becomes increasingly cognizant of the fact that the family is often a very dangerous place for children, the parens patriae jurisdiction assumes greater importance. Although there are times when the family should be shielded from the intrusions of the state, Sheena's situation is one in which the state should be readily able to intervene not only to protect the public interest, but also to preserve the security of infants who cannot yet speak for themselves.
It is clear that a purpose of the Charter is to protect the individual from governmental interference. For this reason, as noted by our colleague La Forest J., many Charter rights have been given broad interpretations. In the instant appeal, concern has been raised that whittling down the ambit of "parental liberty" could deny parents a constitutional remedy should the state, without due process
or substantive merit, arbitrarily decide to remove a child from a home. In our estimation, a more appropriate way of mitigating such a possibility would be to view such a removal as an interference with the child's own liberty or security interest, not that of the parent. With respect, such an approach obliges the state's parens patriae jurisdiction to be fairly exercised, both procedurally and substantively, without necessitating that the "liberty" interest embedded in s. 7 be extended to include parents' endangering the lives of children or denying them required medical treatment.
In sum, since we find the parental decision to withhold medical care to be outside the scope of "liberty", it does not qualify for Charter protection in the first place.
We have also read the reasons of the Chief Justice. He would confine the right to liberty in s. 7 to the "judicial" context, specifically criminal matters. He would also limit its reach to the physical or corporeal component of liberty, thereby leaving psychological coercion and emotional trauma outside the scope of "liberty". With respect, we do not find it necessary to pronounce on such an important matter in these reasons, particularly since this Court has not had the benefit of full argument on the appropriate contours between the rights protected by s. 7 and the freedoms covered by s. 2. We would consequently leave this determination for another day, and a case in which such issues arise more directly.
2.Section 2(a)
The parents of Sheena are constitutionally entitled to manifest their beliefs and practise their religion, as is their daughter. That constitutional freedom includes the right to educate and rear their child in the tenets of their faith. In effect, until the child reaches an age where she can make an independent decision regarding her own religious
beliefs, her parents may decide on her religion for her and raise her in accordance with that religion.
However, the freedom of religion is not absolute. Although La Forest J. considered that limitations on this right are best considered under a s. 1 analysis, we are of the view that the right itself must have a definition, and even if a broad and flexible definition is appropriate, there must be an outer boundary. Conduct which lies outside that boundary is not protected by the Charter. That boundary is reached in the circumstances of this case.
We are of the view that the constitutional question should be: to what extent can an infant's right to life and health be subordinated to conduct emanating from a parent's religious convictions? With this perspective as a starting point, we find that the appellants do not benefit from the protection of s. 2(a) of the Charter since a parent's freedom of religion does not include the imposition upon the child of religious practices which threaten the safety, health or life of the child.
Just as there are limits to the ambit of freedom of expression (e.g. s. 2(b) does not protect violent acts: R. v. Zundel, [1992] 2 S.C.R. 731, at pp. 753 and 801; R. v. Keegstra, [1990] 3 S.C.R. 697, at pp. 732 and 830), so are there limits to the scope of s. 2(a), especially so when this provision is called upon to protect activity that threatens the physical or psychological well-being of others. In other words, although the freedom of belief may be broad, the freedom to act upon those beliefs is considerably narrower, and it is the latter freedom at issue in this case. The fact that "freedom" does not operate in a vacuum was underscored by Dickson J. (as he then was) in his seminal decision in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 337:
Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way
contrary to his beliefs or his conscience. [Emphasis added.]
In more recent years, members of this Court have recognized the limits of s. 2(a) as a tool to justify parental control over children. For example, in 1989 the Supreme Court affirmed the decision of the Ontario Court of Appeal in R. v. Tutton and Tutton (1985), 18 C.C.C. (3d) 328 (affirmed with no discussion of s. 2(a) of the Charter, [1989] 1 S.C.R. 1392). At page 355, the Ontario Court of Appeal held that:
The duty imposed by statute to provide necessaries of life is applicable to all parents. It is not a lawful excuse for a parent who, knowing that a child is in need of medical assistance, refuses to obtain such assistance because to do so would be contrary to a tenet of their own particular faith. The guarantee of freedom of conscience and religion as enshrined in the Charter has nothing to do with this issue. [Emphasis added.]
Furthermore, in the even more recent decision of this Court in P. (D.) v. S. (C.), supra, L'Heureux-Dubé J. (writing for the majority on this point) held at p. 182 that:
As the Court has reiterated many times, freedom of religion, like any freedom, is not absolute. It is inherently limited by the rights and freedoms of others. Whereas parents are free to choose and practise the religion of their choice, such activities can and must be restricted when they are against the child's best interests, without thereby infringing the parents' freedom of religion. [Emphasis added.]
A similar approach was taken by McLachlin J. in Young, supra, at p. 122, this decision released concurrently with P. (D.), supra:
It is clear that conduct which poses a risk of harm to the child would not be protected. As noted earlier, religious expression and comment of a parent which is found to violate the best interests of a child will often do so because it poses a risk of harm to the child. If so, it is clear that the guarantee of religious freedom can offer no protection.
We are also reinforced in our findings by the decisions of lower courts not to view parents' refusal to consent to a blood transfusion for their
children as activity protected by s. 2( a): Re D. (1982), 30 R.F.L. (2d) 277 (Alta. Prov. Ct.); M. (R.E.D.) v. Director of Child Welfare (1986), 47 Alta. L.R. (2d) 380 (Q.B.) (appeal to Court of Appeal quashed and application to reinstate appeal refused (1988), 88 A.R. 346 (C.A.)), at p. 395; Re R.K., supra.
The appellants proceed on the assumption that Sheena is of the same religion as they, and hence cannot submit to a blood transfusion. Yet, Sheena has never expressed any agreement with the Jehovah's Witness faith, nor, for the matter, with any religion, assuming any such agreement would be effective. There is thus an impingement upon Sheena's freedom of conscience which arguably includes the right to live long enough to make one's own reasoned choice about the religion one wishes to follow as well as the right not to hold a religious belief. In fact, denying an infant necessary medical care could preclude that child from exercising any of her constitutional rights, as the child, due to parental beliefs, may not live long enough to make choices about the ideas she should like to express, the religion she should like to profess, or the associations she should like to join. "Freedom of religion" should not encompass activity that so categorically negates the "freedom of conscience" of another. We are fortified in this conclusion by the following passage of Dickson J. in Big M Drug Mart Ltd., supra, at p. 346:
The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own. [Emphasis added.]
In conclusion, we would affirm the decision of the District Court judge that s. 2(a) will not protect conduct that overrides the s. 7 life and security interests of an infant.
3.Balancing Conflicts Between Individual Rights
Although many of the competing rights discussed in this appeal could perhaps be integrated into a s. 1 analysis as was done by La Forest J. both in his disposition of the matter at hand as well as in R. v. Jones, supra, at p. 297, we believe this is inappropriate in the present case. Such an approach elevates choosing to refuse one's child necessary medical care on account of one's personal convictions to the level of constitutionally protected activity. Moreover, this approach obliges s. 1 almost single-handedly to play the role of balancing diverse interests. Although s. 1 may be the appropriate forum for balancing the interests of the state against the rights violation of the aggrieved individual, such a balance is not required in the case at bar. The nexus of the balancing operates between Sheena's right to life and security of the person and her parents' right to freedom of religion. We are not convinced that s. 1 should be the exclusive balancing agent between two individuals' positive and negative liberties. Further, it is noteworthy that many of the Charter cases relied upon as supporting a broad definition of the liberty interest clearly involve conflicts between individual rights and state interests, often in the context of the criminal law: R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Beare, [1988] 2 S.C.R. 387. This is not the situation in the case at bar. To this end, we do not find that denying the appellants the protection of s. 2(a) or s. 7 unduly truncates the application of the Charter.
In Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, at pp. 320-21, La Forest J. remarked that s. 2(d) of the Charter, although encompassing a right of freedom from association, "could certainly not have been intended [to] protect us against the association with others that is a necessary and inevitable part of membership in a democratic community, the existence of which the Charter clearly assumes". He thus ascribes an outer boundary to s. 2(d). If s. 2(d) will not encompass the right to dissociate
from institutions integral to the structure of society, we conclude by analogy that neither s. 2( a) nor the liberty interest of s. 7 permits parents to endanger the lives of their children. Expanding the substantive rights guarantees to cover such activity would, with greatest respect, render them meaningless owing to a lack of definition. Just because it is self-evident that a rights limitation shall be upheld as comporting with fundamental justice or s. 1 does not mean that it is necessary to proceed to this level of analysis.
4.Disposition
We conclude that the impugned provisions of the Child Welfare Act do not occasion any rights infringements in the first place. We would otherwise dispose of the appeal and cross-appeal in the manner proposed by La Forest J.
Appeal and cross-appeal dismissed, L'HEUREUX-DUBÉ J. dissenting on the cross-appeal.
Solicitors for the appellants: W. Glen How & Associates, Halton Hills, Ontario.
Solicitor for the respondent the Children's Aid Society of Metropolitan Toronto: Heather L. Katarynych, Toronto.
Solicitor for the respondent the Official Guardian of Ontario: Debra Paulseth, Toronto.
Solicitors for the respondent the Attorney General for Ontario: Janet E. Minor and Robert E. Charney, Toronto.
Solicitor for the intervener the Attorney General of Canada: Roslyn J. Levine, Ottawa.
Solicitors for the intervener the Attorney General of Quebec: Isabelle Harnois and Monique Rousseau, Ste-Foy, Quebec.
The official version of these documents appear in the Supreme Court Reports.
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