Course:Law3020/2014WT1/Group F

A.C. v Manitoba (Director of Child and Family Services), [2009] 2 SCR 181

This case addresses the issue of children directing their own medical treatment.

A.C. was a 14-year-old Jehovah’s Witness suffering from lower gastrointestinal bleeding caused by Crohn’s Disease. Although her doctor advised against it, as he believed that she was in imminent danger, A.C. signed an “advance medical directive” containing instructions not to be given blood under any circumstances.

Flag of Manitoba

A psychiatric evaluation revealed A.C. to be a “mature minor.” She was deemed mentally sound, demonstrated that she understood why a blood transfusion was the best course of treatment and did not fail to comprehend the consequences of her decision to refuse a transfusion. Despite the lawful advance medical directive however, the Director of Child and Family Services apprehended her as a “child in need of protection” and sought an order for treatment under ss. 25(8) and 25(9) of the Manitoba Child and Family Services Act. They read:

25(8). Subject to subsection (9), upon completion of a hearing, the court may authorize a medical examination or any medical or dental treatment that the court considers to be in the best interests of the child.

25(9). The court shall not make an order under subsection (8) with respect to a child who is 16 years of age or older without the child’s consent unless the court is satisfied that the child is unable

(a) to understand the information that is relevant to making a decision to consent or not consent to the medical examination or the medical or dental treatment; or

(b) to appreciate the reasonably foreseeable consequences of making a decision to consent or not consent to the medical examination or the medical or dental treatment.

The application judge granted the order because, according to the legislation, A.C. was she was not technically old enough to know what was or was not in her “best interest.”

A.C. and her parents appealed this order on the grounds the Manitoba Child and Family Services Act violates the Canadian Charter of Rights and Freedoms – more specifically Section 2(a) because A.C.’s right to practice her religion was contravened; Section 7 because the inability of children under 16 to determine their own capacity was an arbitrary restriction; and Section 15 because the Act is discriminatory against her age.

The main question in this case is whether ss. 25(8) and 25(9) are constitutional. Writing for the majority, Justice Abella claims that they are, but only if they are interpreted in a way that sufficiently respects an adolescent’s maturity and developing autonomy in a specific medical decision-making context.

Further, she states that competence is not merely possessing the capacity to make a decision, but it is determined by balancing many elements against one another including the adolescent’s ability to exercise mature and independent judgment, influence of family relationships or social affiliations as well as the existence of any emotional vulnerabilities.

Justice Ian Binnie

When this standard is properly applied and takes into account a young person’s views in accordance with his or her maturity, it will create a situation where the law “is neither arbitrary, discriminatory, nor violative of religious freedom” (para 98).

In the dissent, Justice Binnie agreed with the majority but went even further. He stated that proof of capacity and maturity by way of the “best interest of the child” analysis, entitles a the young person to make the treatment decision, not just to have “input” into a judge’s consideration of what the judge believes to best (para 202). Under Justice Abella’s approach, the court still has the final say and may or may not give effect to the adolescent’s view.

In conclusion, the Supreme Court upheld the decision to dismiss A.C.’s appeal.

Although A.C. and her family technically lost the constitutional challenge, they did convince the most influential lawmakers in Canada that all adolescents under the age of 16 should have the right to demonstrate sufficient maturity for the purposes of directing their own medical treatment and have the decision respected.

Natural Law

Course:Law3020/2014WT1/Group_F/Natural_Law

Often referred to as “higher law,” natural law is believed to stem from an external, divine source that exists independently of humans, such as God or nature. As rational creatures, humans have access to such knowledge through the use of reason. Additionally, it is believed to be static and universal since the sources that inform it are considered unchanging and widespread.

St. Thomas Aquinas

According to Thomas Aquinas and other theorists of natural law, morality and law are inherently linked concepts that are indivisible from each other. Therefore, a law is obeyed for reasons of justice, fairness and morality. In this sense, natural law has a teleological purpose: the order and behavior of all individuals must be rationally and objectively directed toward the pursuit of common and moral good – not for the good of the sovereign. This is because the common good is the morally correct end for humanity. Furthermore, any law that does not have this function is no law at all and need not be followed.

Four elements of a valid law:

1. Must be directed to the common good (objective)

2. Must follow practical reason (reasonable steps leading to the common good)

3. Must be made by valid lawmaker (ruler within community, holds this position by way of the natural order)

4. Must be promulgated (public, written, proclaimed)

Application to A.C. v Manitoba

In assessing the validity ss. 25(8) and 25(9) of the Manitoba Child and Family Services Act, natural law theorists would agree with the majority that the common good of this legislation is to protect all children in the province under 16 years old who wish to direct their medical treatment. This law calls for a judge to balance what an adolescent wants against external factors including the desires of his or her family and doctor. A judge must be satisfied that the child understands his or her medical diagnosis, the consequences of his or her decision and was not influenced by other people. If the court is not satisfied, this law allows a court to act as a safeguard and change the proposed course of treatment so as to ensure the child’s safety. Therefore, ss. 25(8) and 25(9) shield children from harm even if they fail to recognize what is or could be harmful to them. According to the majority, this law is not directed to the benefit of one specific individual, rather it considers multiple interests in an attempt to uphold the common good of protecting children.

In contrast, the dissent argues that a child should be able to make the decision free from the input of a judge. Naturalists would disagree with this ruling and declare the legislation invalid because it goes against the common good. A law of this sort serves to grant individual autonomy.

This law and the majority ruling, naturalists would continue, is reasonable primarily because it limits the age of children in Manitoba who are eligible to make their own medical decisions to those 16 years old and up. While the majority ruled that this is a lenient restriction and courts should address maturity on a case-by-case basis, Thomas Aquinas would approve of the practical reason behind ss. 25(8) and 25(9) because it is in line with how the common good is reached.

The Manitoba Child and Family Services Act was created by government. While the provincial legislature does hold an authoritative position, natural law theorists would argue that it does not constitute a valid lawmaker because it is too concerned with democracy and fairness. This is evidenced by the fact that most members of the legislature are elected. According to naturalists, a valid lawmaker is a person or body that is naturally inclined to rule rather than be ruled, such as a king or queen.

Lastly, ss. 25(8) and 25(9) are part of a published provincial statute that is accessible to the public. Aquinas would assert that writing the law down and proclaiming its purpose to society compels each individual – particularly children and judges however – to follow it. If the legislation had not been pronounced, people in the province of Manitoba would not be compelled to comply with it because they would not be aware of it.

Based on this analysis, Aquinas and other natural law theorists would approve of the decision in this case and find that ss. 25(8) and 25(9) are valid laws.

Postitivism

Course:Law3020/2014WT1/Group_F/Positivism

Legal positivism is best known for its direct opposition to the core beliefs from natural law theory. Legal positivists hold that there is an established disconnect between law and morality, which it treats as two separate constructs. This is known as the "Separation Thesis" by legal positivists. Therefore, under the legal positivist theory, law can be immoral and still exist as valid law. Legal positivism also rejects the teleological foundation established by Thomas Aquinas and other natural law theorists. Positivists believe that there is no morally good end that law must serve, which reaffirms the separation between law and morality.

Positivists believe that morality is outside the jurisdiction of jurisprudence or the study of law. In believing that morality is separate from law and no connection between the two exists, positivists believe that unjust and immoral laws may be legally valid. However, positivists such as John Austin and H.L.A. Hart, have differing opinions on what obligations each individual faces to obey unjust or immoral laws.

John Austin

John Austin

John Austin begins by identifying three types of directives that govern human behaviour:

1. Laws set by God for humans

2. “Positive morality” is human-made rules governing human conduct that lack at least an essential condition of law

3. “Positive law” is human-made laws set for other humans

“Command Theory” occurs when political superiors set commands backed by sanctions to the subordinates within a community. When the sovereign issues a command, it must be obeyed, and coherency does not matter so long as it is a command. In this regard, Austin reaffirms the distinction between morality and law by saying that we can have immoral or unjust laws, and that so long as they are commands that should be followed.

Austin then elaborates on how failure to comply with law can result in the imposition of liability through sanctions. However, if there is an absence of liability or sanctions imposed for failure of compliance, then there is no command – Austin refers to these as wishes. Sanctions or liability is necessary as it implies a relationship where someone is bound or obliged by the command, and have a duty to obey it. Austin reiterates that it is only by the chance of incurring evil, that one is bound or obliged to comply with a command. Rewards do not have the same effect, as they do not reinforce commands.

Therefore, the terms "command," "duty" and "sanction" are inseparably connected to establish law under Austin’s perspective. The law or commands must also come from superiors.

Judicial commands are commonly occasional or particular (as they regard to this specific case), although the commands which they are calculated to enforce are commonly laws or rules.

Jeremy Bentham

Jeremy Bentham

Laws, as man-made creations, should not be constructed on the basis of morality, but should focus on utilitarianism. Jeremy Bentham states that these laws were enacted by Parliament and therefore are established as law, regardless of whether or not they are good or make people better off. Laws should specifically seek to discover how a rule maximizes utility, and that utility should replace morality.

Joseph Raz

According to Joseph Raz, law claims authority, which means that it has the right to tell its subjects what they must do. However, it goes on to say that law’s authority is only justified when its subjects, when left to their own devices, would have done worse. Then, where what the law commands its subjects to do is close enough to what they ought to do, it is justified. Raz called this a “Service Conception” of authority because the law was supposed to serve or guide its subjects, where otherwise they would have been morally wrong. The law’s authority is justified where it helps its subjects act better than they would have without the benefit of the authority’s intervention.

Application to A.C. v Manitoba

Applying Austin’s Command Theory, to this case, he would hold that regardless of the maturity of the specific individual, the law is established and should be followed. Whether this is immoral or unjust is not an issue to be dealt with, as law and morality are separate issues. He would therefore contend that regardless of the plaintiff’s age, the trial judge and Supreme Court of Canada were correct in holding that the age of 16 as a standard to measure against is good law and that it should be followed.

However, the Manitoba Child and Family Services Act would not be treated as a command by Austin. Although this legislation comes from a superior, it is a wish that does not have the threat of a sanction which obliges people or creates a duty to follow the law. Furthermore, there is no sanction which is imposed under the impugned sections of the Act. Austin would therefore hold that the impugned legislation is imperfect law, because the author of the law created no purpose of enforcing compliance with the desire of the law.

Joseph Raz

Austin would most likely hold that the impugned legislation fell under the “positive morality” directive as it lacks an essential condition of law. He considered this directive to include such laws and legislation as the Constitution, as it served to protect moral rights and obligations as opposed to legal ones. Under ss. 25(8) and 25(9), the Act allows the judge’s discretion to shape their decision, which draws heavily upon morality. This case is therefore fundamentally concerned with the constitutionality of the impugned legislation and how it morally affects the outcome of a specific child in the instance of the protection the legislation provides to a larger class.

In his support for an egalitarian doctrine, Bentham would likely agree with the judgment and the Manitoba Child and Family Services Act in this case. This legislation set a standard age of 16 as it found this to be an age where children typically had gathered a sufficient capacity to make their own decisions in regard to major medical decisions that affected their health, wellness, and life. Since society is also greatly concerned with legislation affecting children, and that society also wants to ensure that children are not taken advantage of, the imposition of this age standard would most likely maximize utility. By upholding the legislation as valid under s. 1 of the Charter, the SCC recognized that the purpose of the impugned legislation was to maximize utility regarding the well-being of children and their capacity to make serious medical decisions.

The Razian view would also most likely support the impugned legislation and the trial judge’s decision in this case. While not focusing exclusively on morality, Raz’s view incorporates a theme of morality which allows law’s authority to exist to serve its subjects. If the impugned legislation did not exist, children of all ages would be left to make their own decisions regarding serious, possibly life-threatening, medical treatments. Not all children have the requisite capacity to make such decisions and, even if they did, their parents’ thinking, which could undermine their own, may heavily influence some of them. Therefore the impugned legislation accomplishes the purpose it serves which is to provide a standard where subjects are better than they would have been without its existence. While there may be a few instances, or outlier cases, that the legislation imposes on, such as this case, the legislation still provides a general standard which benefits the general class of subjects. Raz would therefore agree with the SCC's decision.

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