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.

The Separation Thesis

Course:Law3020/2014WT1/Group_F/Separation_Thesis

H.L.A. Hart viewed law and morality as separate rule governed systems that should not be conflated. Referred to as the "Separation Thesis," this allows for criticizing immoral laws and unjust legal systems through outright disobedience of the laws. Law and morality give rise to different rights and obligations. At the heart of the Separation Thesis is a question of what exactly to do when law and morality clash. Moral obligations may inevitably fall in conflict with legal obligations and at this point, a decision can be made to determine which obligations outweigh the other. If a law is viewed as unjust, it will remain a law but a moral obligation to disobey can be claimed. For Hart, individuals need to decide whether the obligation to follow the moral rule is greater than the legal obligation and if this is the case, the law does not need to be obeyed.

What is the "penumbra" and how should it be dealt with?

Hart understands that law requires some quality that will make it a law beyond mere formality. Fuller’s response to the separation thesis is that this quality is morality but Hart resists the claim and provides the concept of an “ought claim.” Individuals recognize laws as rules that they ought to follow. What makes legal rules special is that they are not individually chosen. They are special because they are backed up by a legal system and the legal rules are also distinct because they must be rooted in the rule of recognition. The "rule of recognition" is that individuals view the rules as both valid and right, thus providing a sense of validity to others who follow them. Legal rules need to be obeyed, not by everybody but by most, for reasons other than being scared of the punishment for not following. The problem with the “ought claim” is that it can create a situation of uncertainty around the law and its application, what Hart understood as problems of "the penumbra.”

Problems of the penumbra arise in hard cases. When it falls to a judge to determine whether a particular factual case falls within the settled core of meaning of a legal rule. What the law ought to be in these hard cases is left for judges to decide. Hart resists Fuller’s claim that judges use morality to fill in the gaps and instead provides that the judge’s will decide by drawing on the rule-governed practice. Factors that comprise the rule-governed practice in a modern setting could include the Charter, in particular s. 7, as well as natural procedural justice principles such as the impartiality and objectivity of the law and the principles of fundamental justice. The rule-governed practice provides consistency to the law according to Hart.

The Morality of Law

Lon Fuller viewed law and morality as principles that go hand in hand. Fuller’s critique begins with the argument that the acceptance of legal rules must be grounded in morality; that law laws must have moral component to ensure that they produce not just order, but good order. He respond’s to Hart’s rule of recognition is that the recognition results from morality, that individuals follow the law because it will produce good order and is a good thing. Second is Fuller’s point that there is an inner morality to the law. In order to make effective law, the lawmaker must conform to certain requirements that ensure the law he produces is moral. Inner morality ensures that a law will retain its ability of being recognized by individuals. Third, there is an obligation to obey the law and the separation thesis doesn’t provide an adequate reason as to why laws are obeyed. Fourth, Fuller critiques Hart’s idea of the core of settled meaning and the penumbra. Fuller argues that there is no core of settled meaning and that in penumbra cases, law will be interpreted in context with reference to the “good” the law was to accomplish.

Application to A.C. v Manitoba

This case would fall under Hart’s conception of the penumbra. It is a hard case where the law doesn’t quite apply to the factual case with ease. The law in question is the Manitoba Child and Family Services Act. In this legislation, s. 25(8) allows the court to authorize treatment that it considers to be in the child’s best interest and s. 25(9) presumes that the best interests of a child 16 or over would be promoted by allowing the child’s views to be determinative, unless it can be shown that the child does not understand the decision or its consequences. These sections create a penumbra case for children under the age of 16. The child under 16 can very likely understand both the decision and the consequences of their decision regarding a medical condition but courts have the power to authorize medical treatment in the child’s best interest. The case at hand was appealed to the SCC where the appeal was dismissed and ss. 25(8) and 25(9) of the Act were determined constitutional.

AC made a personal decision to not receive blood under any circumstance. The legal obligation in AC’s decision was to conduct the blood transfer because society values life and thus the law reflected that courts have the authority to authorize treatment for those under age 16. AC’s moral obligation to her religion of being a Jehovah’s Witness outweighed the legal obligation. The question is when moral obligations conflict with legal obligations, whether the law could be disobeyed. The answer for Hart would be that law could be disobeyed. He understands that legal rules need to be obeyed to provide legitimacy to them, calling this the "rule of recognition." The exception is that legal rules do not necessarily need to be followed by everybody, just by a majority of individuals. Hart also understood that when there is uncertainty around the law and its application, problems of the penumbra would arise.

Hart would view the situation in this case as being a problem of the penumbra, a hard case. The law doesn’t quite apply to the case of AC and the “ought claim” of the law was to be determined by judges. The Separation Thesis regards law and morality as being separate rule governed systems. For Hart, applying morality to fill in the gaps wouldn’t solve this hard case. A solution based on morality, such as it being moral for a child not to have to end its life prematurely, is not the correct way to solve a hard case. Rather, an application of the rule-governed practice would lead to a consistent result in determining what the law ought to be.

The rule-governed practice could involve applying the Charter or principles of fundamental justice. According to s. 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.” The argument posed by AC was that the courts deprived her right to life, liberty, and security of the person when her decision to forgo medical treatment wasn’t treated as determinative. For Hart, the argument that the judges specifically infringed on AC’s right to decide on the medical treatment of her choosing would not hold as he would understand the forward looking nature of the decision. The judges choose to fill the gap in the law by taking a general approach as to how to deal with problems where children are below the age of 16 and required to make life-altering decisions. The approach was a 'best interests' approach that factored in the risks and benefits of the medical treatment, the child’s intellectual capacity and ability to understand the information necessary to make an informed decision, any emotional or psychiatric vulnerabilities of the child, and whether the views of the child are a true reflection of core values and beliefs. The law ought to protect the health and safety of all children and in this case, that would only be possible if the interests of the child were not determinative. Instead, the court was authorized to make a best interests decision on behalf of the children because the constitutionality of ss. 25(8) and 25(9) of the Act was upheld.

Fuller’s views regarding law and morality as going hand in hand would produce an outcome similar to that of Hart’s. This is because for Hart, law and morality may be separate but law does not supplant morality. His argument is that some judges do apply morality to fill in the gap in hard cases of the penumbra. In the case of AC, the judges had to fill in the gap left by the Manitoba Child and Family Services Act. Fuller would say that it is immoral for a child to have to end its life prematurely because of a religious belief. This would produce not just order, but good order. The good order being the value society places on the life of children. The law in question thus is viewed as having an inner morality to it. It is argued that children under age 16 lack the mental capabilities to make decisions regarding life and death. The Act understands this and ensures that in order to protect the life of children, decisions are made on behalf of the children. Furthermore, Fuller understands the obligation to obey the law because of the “good” it sets out to accomplish. In the case of AC, the law conflicts with her religious views but in its general application, the law ensures that vulnerable children are protected from making difficult decisions.

Law as a System of Rights

Course:Law3020/2014WT1/Group_F/System_Of_Rights

Ronald Dworkin distils the positivist framework into three general tenets: law is a set of rules, judges exercise discretion in hard cases and that legal rules lack an a priori existence. Dworkin rejects all three of these tenets, contending alternatively that law contains not only rules, but also legally binding principles which comprise law in combination with rules. Dworkin evidences this contention by pointing to the adjudicative process, a process requiring appeal to principles such as fairness and justice to guide and underwrite the rules of our legal system. Responding to the positivism’s emphasis of strong judicial discretion, Dworkin argues that where a case is not governed by a legislated rule judges must appeal to a pre-exsisting legal principle rather than simply exercising discretion. The principles embedded within the law are, according to Dworkin, the source of our legal rights. Consequently, a judge deciding a case on principle is ‘simply articulating the rights and duties that the disputant already had.’

Dworkin approaches legal rules as having an a priori existence rooted in society’s articulated principles of justice, fairness and morality. These legal rules are binding because of the principles that inform them and resultantly the court is not free to disregard these principles. The rooting of legal rules in broader legal principles is distinguished from the positivist conception of a master rule that is the ultimate test for binding law. Dworkin contends that the principles which guide legal decision making cannot be distilled into a set of rules because they are ‘controversial, their weight is all important, they are numberless, and they shift and change so fast a list would be obsolete before reaching the middle.’ Principles are not assigned weights like a master rule, but rather underlie the entirety of the legal system and its rules.

Ronald Dworkin

Fundamental to Dworkin’s approach is his thesis on rights. He posits that individual rights are derived from existing political rights based on history and morality and derived from legislation and judicial decision. While principle compels legislation to a degree, legislative lawmaking is more commonly policy driven than judicial lawmaking is. Policy arguments justify political decisions, demonstrating how these decisions advance particular community goals and group rights.

Conversely, judicial lawmaking making is informed primarily by principle. Dworkin argues that political rights need to be incorporated with principle so that judges will approach cases where such rights are at issue with integrity and not simply on the basis of history or policy. Integrity is crucial to Dworkin’s rights thesis. For Dworkin, integrity in the law means that a judicial decision must be brought within ‘some comprehensive theory of principles and policies’ so as to contextually justify it with other right decisions. Dworkin’s premise of integrity as law means that law is interpretive and looks to the past and the future when conceiving current community values that are consistent with past community values.

Application to A.C. v Manitoba

Deciding this case through a Dworkinian lens would compel a decision consistent with the principles that underlie our legal system and guide the rights of the involved parties. Given Dworkin’s conception of law as encompassing both rules and principles, adjudication of this case would require a judge to consider the motivating principles underlying the Manitoba Child and Family Services Act, the Charter and the past case law and academic commentary on the subject.

While a strict legal positivist would likely give primacy to the Charter as part of a constitutional ‘master rule,’ Dworkin does not believe a concise master rule can be articulated in a principle-driven legal system. Rather, Dworkin would consider the purpose of the Charter as a document protecting the rights and freedoms of the individual against unwarranted state interference. Additionally, he would look at the principles guiding the legislation currently at issue, such as protecting vulnerable children from harm. He would also contemplate the policy factors driving the legislation, including medical evidence on children’s physical and psychological needs. Having considered the guiding principles of our legal system and the relevant statutes, Dworkin would then seek to articulate the rights of the involved parties on the basis of those principles. However, this decision would have to be consistent with the larger principles espoused by our communities and articulated by our justice system.

Were Dworkin adjudicating this case, I believe he would take a similar approach to that taken by Justice Abella in the majority judgment. Justice Abella finds that the impugned provisions of the Act are not in violation of the constitution. However, she argues that this is only the case if the provisions respect an adolescent’s autonomy and judgement where they are of sufficient maturity, rather than giving the state discretion over the decisions of all youth under the age of 16 who are in potentially harmful situations. This decision is congruous with Dworkin’s contention that judges must uphold a claimant’s pre-existing rights and duties with regard to principle.

This is exactly what Justice Abella does, appealing to past case law and psychological research that affirms the principles of adolescent growth and autonomy held by our society. Justice Abella goes on to articulate these principles in the form of elements that demonstrate an adolescent’s ability to make important life decisions such as emotional and intellectual development, upbringing, religious and social affiliations and ability to exercise mature judgement. This articulation is consistent with Dworkin’s approach in that it is informed by principle and integrates political rights of autonomy, liberty and religious freedom with principled decision making. Upon articulating the guiding principles that underlie the adolescent right to a certain degree of autonomy, Dworkin would uphold the Act as did Justice Abella, not because it satisfies the constitution as a master rule in the positivist sense, but because it is guided by the principle of the ‘child’s best interests’ as espoused by the community through the constitution and the Act itself.

Liberty

Course:Law3020/2014WT1/Group_F/Liberty

John Stuart Mill proposes that legal philosophers stop asking what the law is and start asking when the law ought to be used to enforce the moral code of society. He believes that since the law is used to regulate human behaviour, people should be more concerned with the limits of law and poses the following: when are restrictions on the liberty of individuals justified?

John Stuart Mill

Mill argues that the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent serious harm to other people. He rejects the principle of paternalism and the idea that it is okay for the law to restrict or prevent a person from harming themselves such as by way of suicide or an addiction to bad habits. An individual, Mill states, knows what is best for him or her self and should be free to do what they want even if others disagree. Additionally, a person should not be punished for thoughts or beliefs that he or she has unless they are injurious to others.

Application to A.C. v Manitoba

Although liberty and freedom are necessary to strengthen the morality of society, Mill argues that these values are not meant to apply to young persons below the legal age. Children are incapable of self-government. That being said, Mill would still agree with the underlying principles of this case. This is because A.C. was asked and able to demonstrate that she is not a child but is in fact a “mature minor” who is capable of rational choice.

Woven into ss. 25(8) and 25(9) of the Manitoba Child and Family Services Act is an age requirement: a child is only able to make a decision with respect to his or her own medical treatment if he or she is at least 16 years old. This is, according to lawmakers, the earliest age that a child is considered to be a “mature” human who is capable of self-government. At 14, A.C. does not meet this basic prerequisite. However – since she was able to demonstrate that she has the intellectual capacity necessary to understand the information relevant to making her medical decision, that she appreciates the consequences of the decision and that her decision was a true reflection of her core religious beliefs – the court found A.C. autonomous despite the legislation. Mill would therefore support the majority and the dissent of this case. Even though A.C. is legally still a child, she possesses mature faculties and liberty applies to her.

To outline what constitutes maturity and impose this definition on young people follows Mill’s rationale. This legislation at least partially reiterates the main point of Mill's thesis: power can only be exercised over an individual, against his will, when it prevents serious harm to other people. While ss. 25(8) and 25(9) are clearly more paternalistic, they do encompass some elements that Mill would agree with: two of the main purposes of the Act for example, is to protect children who are incapable of rationality from obtaining autonomy as well as from causing emotional harm and damage to the other people in his or her life. This includes most specifically a child’s parents (because the well-being of a family unit is crucial and must be preserved), extended family, doctors, friends and community as a whole.

Paternalism

Course:Law3020/2014WT1/Group_F/Paternalism

Gerald Dworkin (not to be confused with previously mentioned legal theorist, Ronald Dworkin) disagrees with Mill and contends that interference with a person’s personal liberty for the purpose of self-harm is justified when it is for his or her own good. Further, paternalistic intervention will be permitted if the consequences of an individual’s free choice are “far-reaching, potentially dangerous and irreversible.” Dworkin argues that paternalism is comparable to a social insurance policy as it is a safeguard that serves to protect each consenting person in society from damaging his or her own personal autonomy.

Application to A.C. v Manitoba

The Manitoba Child and Family Services Act – first and foremost – protects the safety, security and well-being of children. Dworkin would therefore agree with this legislation because it acts as a safeguard for children who are not yet 16 years old and for minors who fail to demonstrate the maturity necessary to direct their own medical treatment. Where a child is deemed unable to know and do what is in his or her best interest, ss. 25(8) and 25(9) entitle a court to intervene and authorize the appropriate resolution.

This case arguably demonstrates however that society is moving away from paternalism. As Justice Abella states at paragraph 46, this case signals a decline in authority – be it parental or judicial – in accordance with a child’s evolution into adulthood. While a young person’s rights are traditionally restricted in relation to medical treatment, the law has begun to abandon the assumption that minors lack decisional capacity.

Furthermore, the majority and dissent both desert the age requirement in s. 25(9), instead choosing to adopt a sliding scale of scrutiny. This scale takes mature children under 16 into consideration and awards autonomy to those who can demonstrate they are a “mature minor.” Since it was the SCC who established this method of assessment, it will undoubtedly become the threshold with which to approach future cases.

Law and Economics

Course:Law3020/2014WT1/Group_F/Law_As_Efficiency

The central claim of law and economics is that law serves the goal of economic efficiency. This provides that the best explanation of why we have rules is that they are efficient, and that we ought to have efficient rules as they are good rules.

Under this theory, efficiency means wealth maximizing. However, wealth maximizing is not to be taken in its colloquial sense referring to financial gain. Law and economics requires that social wealth be maximized as well, and that wealth maximizing is not solely concerned with money. This efficiency is best achieved where resources are allocated and distributed to the people who value them most. Efficient legal rules, therefore, serve to bring about efficient allocations of resources. Law and economics holds that the price of something is either its price in money, or money-equivalents.

Awkward Fit

Although law and economics claims to apply fairly universally, there is an awkward fit when addressing areas such as constitutional law. With the focus being on efficiency, law and economics can ignore scenarios in which morality plays a greater role. The theory tries to justify that morality is a consequence of efficiency, and that may be applicable to areas such as contract law, tort law, property law, and sometimes criminal law. However, in cases involving constitutional law, efficiency is not usually the sought after result and more emphasis is placed on morality, particularly not infringing upon morality through a person’s or society’s rights. This is made very apparent in the case of A.C. v. Manitoba (Director of Child and Family Services). Cases of this type cannot strive to meet or achieve an efficient outcome. It is up to the court to determine if the statutes created by the legislatures maintain or prevent efficiency. If the statute is inefficient, it is at the judge’s discretion to determine if the law should be struck or not.

Broader Application

In law, there will always be some winners and some losers. Due to this circumstance, achieving Pareto-Superiority is unlikely, as it requires an outcome in which there is at least one winner, and absolutely no losers. To achieve Pareto Optimality, may be possible, as the gains just need to outweigh the losses. However, Pareto-Optimal moves are not always utility increasing, as they are moves away from the state, and there are usually many optimal states available which cannot be compared economically to each other. To overcome this problem, law and economics suggests that it is possible to reach Pareto-Optimality through Pareto-Superior moves. However, due to the fact that there almost always winners and losers in law, this application will not work.

To overcome the problem with Pareto-Superiority, economists devised the Kaldor-Hicks test. Under the Kaldor-Hicks test, gains that outweigh the losses in a transaction are permitted, so long as the party that gains fully compensates the loss or losing parties. This will allow the move to increase overall wealth. However, a key part of the test is that the compensation is only potential, and does not actually have to be paid.

The Coase Theorem can also be particularly helpful in its application to law. Under the Coase Theorem, an optimal state is where transaction costs are kept to a minimum and individuals will bargain privately so as to achieve optimality. In this scenario, the law would not need to assign rights as everyone would have perfect information to allow for efficient results. However, where this is not the case, law and economics believes that law should play a role in assigning rights in such a way as to imitate the market and achieve efficiency.

With regards to the creation of laws, law and economics theorists believe that legislators almost never satisfy the Pareto principles, as they are motivated in maximizing their self-interest in seeking re-election. This self-interest will then lead politicians to offer influence to interest groups who will in exchange provide votes and financial support for these politicians. This redistribution is analogous to a Pareto-Optimal state which may not necessarily advance utility. There is no requirement that this redistribution be efficient, nor that it maintain or correct markets for their failure, and thus there is no guarantee that legislation aimed at redistribution will be efficient, or utility increasing. Thus, economic analysis is typically taken to apply only to branches of the common law and not legislative law.

Judges, while not having redistributive powers, can help achieve efficiency. They often face disputes, which arise from market failures. Therefore their decisions can directly correct or maintain the market. If cases are decided inefficiently, in that one party is burdened with unnecessary costs, they can always be appealed. Furthermore, precedent and the doctrine of stare decisis can help guide and create efficient outcomes, which supplement the legislation.

Application to A.C. v Manitoba

In this case, A.C. would be considered a rational person. This is reaffirmed by the cognitive testing she underwent, where the results demonstrated that she had the requisite capacity to make her own decision regarding whether she should proceed with the surgery or not.

If it is assumed that the legislature was acting in a manner as to maximize efficiency regarding the cognitive ability and understanding of a child under 16, the Kaldor-Hicks Test could help justify the impugned provisions. The Act seeks to provide a rule where society can be assured that children, as a vulnerable group who sometimes lack the requisite capacity for certain serious decisions, will have their best interests protected. Therefore, the law and economics approach would affirm this approach by the legislature as the overall gains from it (protecting the vulnerability of children without a requisite capacity to make a life-altering decision) will outweigh the losses, which would be A.C.’s scenario (a mature minor, who although has the capacity to make her own decision, is to abide by the legislation). Compensation should be awarded to A.C., but the Kaldor-Hicks Test holds that compensation need only be potential. Thus, the legislation conforms with the law and economics approach given by the Kaldor-Hicks Test.

Furthermore, setting the age of 16 was not be an arbitrary number as determined by the legislature, but rather an age after which, most commonly, children were less dependent on their parents. Setting this age creates an efficient standard. To try each case or issue involving a child would become arduous and tedious for the courts, and would bottleneck the judicial process. This may seem unfair, but this unfairness is countered by the additional part of the provision which allows a mature minor with requisite capacity to make a decision. This also counteracts any complaints about the age of 16 being an arbitrary one. Thus, there are circumstances in which a child under 16 may still be permitted to make their own decisions regarding medical procedures.

The Coase Theorem further reaffirms this. If all children under the age of 16 could make informed decisions, without the need of intervention from parents, medical professionals, lawyers and judges, the Manitoba Child and Family Services Act would not be necessary. However, children under the age of 16, in many cases, do not have the requisite capacity to make an informed decision. Furthermore, the parents of a child, or other professional adults may significantly affect the decision of the child such that the decision to forego or have a medical procedure will not be in the child’s best interests.

Lastly the court and judges have upheld the law. LeBel and the majority found that the legislation was not violating of a minor younger than 16 years old. The legislation seeks to protect children from physical harm. As law and economic theorists believe that judges can help achieve efficiency, they would most likely agree with the Supreme Court’s decision in this case. The majority, in their decision, upheld the efficiency behind the legislative purpose. Courts have the option of determining whether their actions should maintain or correct the market. By choosing not to strike down the legislation, the majority must have believed that the current statutory scheme was maximizing efficiency, and thus they sought to uphold it. If they did not think so, they could have invalidated the impugned provisions, or altered the market to strive for efficiency.

Although the belief that judges can maintain efficiency can be correct, there are issues with it especially regarding the higher courts in the Canadian system, such as the provincial appellate courts and the SCC. Law and economic theory holds that where a decision is inefficient it can be appealed. However, once a case reaches the Supreme Court, there is no higher authority to appeal to. Thus, if the Supreme Court made a decision which was inefficient, or did not maximize efficiency, it would undermine this premise. Furthermore, since the Supreme Court is the highest judicial court, its decisions would govern over all lower courts, thus impairing efficiency.

A second concern is in regards to where there is more than one justice sitting on the bench of the court. Where the court is not unanimous, and dissents arise, this shows that a majority decision may not achieve efficiency. If the decision was efficient, then the court would be unanimous. Thus decisions with dissents may take the law back to a position of Pareto-Optimality, where there may be many results which are optimal, but do not increase utility.

Feminist Jurisprudence

Course:Law3020/2014WT1/Group_F/Feminist_Jurisprudence

Feminism does not offer a univocal world view. Like legal realism, feminist theories of law form a cluster of related views rather than a single school of thought. Its approach to law concentrates on the experiences of women individually and collectively within particular contexts, giving particular focus to the ares of law affecting women. However, there are two tenets generally espoused by all feminists, regardless of their methodological approach. The first of these theses is that the current global order is premised on a patriarchal structure in which men systemically and systematically dominate women. While this patriarchal structure may appear natural it is actually socially constructed. The second common tenet espoused by feminist theorists is that patriarchy ought to be eliminated because it is morally unjustified and negatively affects women. Jurisprudentially, feminists attempt to understand how patriarchal legal structures affect women and how this can be changed to achieve to sex equality. Part of this feminist approach to jurisprudence involves challenging present legal structures as social constructs and falsehoods that contribute to the invisibility of sex and gender inequality.

Law as a Patriarchal Institution

Smith’s article explains multiple theoretical approaches to feminist jurisprudence and the common core that underlies these approaches. According to Smith, feminist jurisprudence is the analysis and critique of law as a patriarchal institution. This is the common thread running throughout each theoretical approach.

The first of the approaches addressed by Smith is classic liberal feminism. Liberal feminists associated women’s rights and social change with equality. Inspired by the writings of J.S. Mill, they argued that given the premise of individual liberty and moral equality, men and women should be treated equally and granted participation in political, educational and economic life. Building on classical liberal feminism, modern liberal feminists directed their focus towards family issues, addressing the socialization of children, reorganization of family life, stereotypes and reformation of state institutions.

Departing from liberal approaches to feminism, radical feminists posit that patriarchal oppression of women is a result of socially constructed gender roles. According to the radical approach, a solution to patriarchal oppression rests in a reappraisal or elimination of current gender constructs. Disregarding universal feminist approaches, postmodern feminism relies on deconstruction to critique systems of thought such as law. This approach argues that the root of patriarchal oppression is patriarchy’s reliance on a single truth in developing social constructs such as law. Another theory addressed by Smith, which contradicts previous feminist theories, is relational feminism. This approach addresses patriarchal oppression from the premise that men and women are fundamentally different and experience different moral development. Appreciation and recognition of the differences between men and women is more effective at overcoming patriarchy's deleterious effects than is equality and assimilation. Underlying each of these theories is the pervasiveness of patriarchy. Because the standard of measure in society is male, law reflects a patriarchal world view. And ‘because law is a somewhat selective, delayed action mirror, feminist jurisprudence is concerned with correcting the current lag.'

Law as Male Power

Catharine Mackinnon

According to Catharine MacKinnon, law perpetuates oppression of females because of its institutionalization of male power and supremacy. Male-centric jurisprudence has resulted from this institutionalization of male power and supremacy. According to the current social order, the male position is the proper relationship between life and law. While the law is formally equal, Mackinnon argues that ‘...the law guaranteeing sex equality requires, in an unequal society, that before one can be equal legally, one must be equal socially.’ Society’s current sex inequality calls for society to change in order for it to meaningfully recognize sex equality in law.

Application to A.C. v Manitoba

While Smith articulates multiple feminist approaches to jurisprudence, she notes the consistencies shared by each approach. One of these commonalities is that the law reflects a patriarchal world view and that patriarchy must be overcome in order to prevent oppression of women. Because the law is currently lagging and must correct the present male standard of measure, Smith would approach this case outside of a patriarchal context.

Smith would argue that a youth under 16 needs protection from the familial and religious patriarchy espoused by her parents to ensure that her religious decisions are autonomous and not influenced by the patriarchal standard. Were Smith adjudicating this case, she would have upheld s. 25 of the Manitoba Child and Family Services Act but, like Justice Abella in the majority decision, would have placed some caveats on the Act’s interpretation. Smith would likely approve of a court authorization of a medical decision were it made from a non-patriarchal starting point that was truly in the best interests of the child and took into account the wishes of the mother and medical professionals who were female or approached medicine from a feminist framework of practice.

A feminist approach to jurisprudence, according to Smith, determines how legal structures can be changed to contribute to sex equality. Through this approach, Smith would look to social science evidence and academic commentary in order to qualify what characteristics demonstrate decision making competence and entitle adolescent decision making autonomy. However, Smith would engage social science evidence that approached adolescent autonomy with regard to the impact of patriarchy on that autonomy and the role of oppression on adolescent female decision making.

In contrast, Mackinnon takes a more radical approach to feminist jurisprudence than Smith. She sees the male point of view as the standard and argues law upholds male dominance and subordination of women.

Mackinnon might approach this case from the perspective that AC’s decision to avoid blood transfusions on religious grounds was influenced by upbringing in a patriarchal home that practices a patriarchal religion. According to her, ‘...the social power of men over women extends through laws that purport to protect women as part of the community.’ Mackinnon would likely view the legislation in question as purporting to protect the interests of the child but possibly neglecting the social power of the child’s father over the mother and child and the influence of medical professionals who are primarily male or fail to consider a feminist approach. Because of this Mackinnon would suggest legislation alternative to the Act that accounted for the role patriarchy plays in influencing adolescent decision making and the impact of patriarchy on the decisions of medical professionals.

Recognizing that rights often protect the patriarchal status quo, Mackinnon would likely reject the approach taken by the dissent in this case. Because rights often further oppression of women, Mackinnon would likely find that allowing the Charter to strike down this legislation would give unfair weight to patriarchal influence on adolescent medical decision making.

Extra Links

Course:Law3020/2014WT1/Group_F/Extra_Links

CBC Article: Girl's forced blood transfusion didn't violate rights: top court (Published: June 26, 2009)