Course:Law3020/2014WT1/Group I

=E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388=

This page considers and discusses how a variety of dominant theoretical legal perspectives illustrate and explain the key issues in the case E. (Mrs.) v. Eve, and how the approaches taken by the court parallels and contrasts with these various perspectives. The theoretical perspectives to be discussed are as follows:

Brief Summary of E. (Mrs.) v. Eve
E. (Mrs.) v. Eve is a case delivered by the Supreme Court of Canada regarding a request by a mother to have her "mentally retarded" daughter sterilized. This was a landmark case in Canadian law.

Facts
Eve was a 24-year-old female suffering from extreme expressive aphasia, a condition in which the patient is "unable to communicate outwardly thoughts or concepts which she might have perceived". Eve was unquestionably at least "mildly to moderately retarded", with some learning skills, but only to a limited level.

When she was twenty-one, her mother sent Eve to a school for retarded adults in another community during the weekdays. While at school, Eve struck up a close relationship with a male student, and even began talking about marriage. This situation naturally troubled Mrs. E, who feared that Eve might innocently become pregnant. Mrs. E was concerned that Eve would not be able to adequately cope with the "duties of being a mother and the responsibilities that would follow". As a widow approaching 60, having a granddaughter to fully care for would cause her much difficulty. Thus, she decided that Eve should be sterilized.

Mrs. E wanted to be sure that she had a right to consent to the sterilization of Eve, so she applied to the trial court for the following remedies:


 * (a) that Eve be declared a mentally incompetent pursuant to the provisions of the Mental Health Act;
 * (b) that Mrs. E. be appointed the committee of the person of Eve;
 * (c) that Mrs. E. be authorized to consent to a tubal ligation operation being performed on Eve.

Issue
Of concern was the fact that tubal ligation was an irreversible surgery to be done, in this instance, for "non-therapeutic" reasons. Thus, the argument against Mrs. E that had to be addressed by this court was whether or not a court-ordered sterilization of a person with a diminished capacity to consent would infringe on the individual's right to liberty and security.

The Courts Below
The application for authorization to sterilize was denied, and an appeal was launched by Mrs. E to the Supreme Court of Prince Edward Island. An order was then made appointing the Official Trustee as Guardian ad litem for Eve, seeing how her mother could not fill this role during the trial.

The appeal was allowed at the Supreme Court of PEI. The Court ordered that Eve be made a ward of the Court pursuant to the Mental Health Act, solely to permit the exercise of the parens patriae jurisdiction to authorize the sterilization. A hysterectomy was later authorized. Eve's guardian appealed.

Ruling
The Supreme Court of Canada ruled that the exercise of parens patriae is founded on necessity - the need to act for the protection of those who cannot care for themselves. While the scope of the parens patriae jurisdiction is unlimited, it must be exercised in accordance with its underlying principles; that the discretion be exercised for the benefit of the person in need of protection and not for the benefit of others.

The Court found that in the absence of the affected person's consent, it can never be safely determined that sterilization is for the benefit of that person. It was decided that the "grave intrusion on a person's rights and the ensuing physical damage outweigh the highly questionable advantages that can result from it."

The appeal was granted and the decision of the judge who heard the application was restored.

Theoretical Perspectives
The approaches taken by the court will be examined through the following legal theories:

Natural Law

Positivism

Separation Thesis

System of Rights

Liberty and Paternalism

Law as Efficiency

Feminist Jurisprudence