Course:Law3020/2014WT1/Group Q

Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 SCR 925

Facts:

In August 1996, the respondent was five months pregnant with her fourth child. During her pregnancy, she was addicted to sniffing glue, which may cause damage to the nervous system to the developing fetus. As a result of the respondent’s addiction, two of her previous children were born permanently disabled and regarded as permanent wards of the estate. A motion was made by the appellant, and a superior court judge ordered that the respondent be placed in custody of Director of Child and Family Services and remain in health center for treatment until the birth of the child. One ground for the order was as per the parens patriae jurisdiction. The superior court judge acknowledged that they have never exercised parens patriae on behalf of an unborn child, however, did not see any reason why it should not be extended. The order was later stayed and further set aside on appeal. The Court of Appeal held that the existing law of tort and of parens patriae did not support the order and, given the difficulty and complexity entailed in extending the law to permit such an order, the task was more appropriate for the legislature than the courts.

Issue:

Whether the power of a court to make orders for the protection of children (its parens patriae jurisdiction), as it exists or may properly be extended by the Court, to permit an order detaining a pregnant woman against her will in order to protect her unborn child from conduct that may harm the child?

Parens Patriae Jurisdiction:

Parens patriae jurisdiction refers to the power of the court to act in for the protection of a child. At common law, parens patriae is only exercisable after a child is born. However, tort law recognizes that an action brought by or on behalf of a child once born may vest prior to birth, but it does not recognize an unborn child as a legal person

Majority:

Canada does not recognize unborn children as legal persons possessing rights, which is a general proposition applicable to all areas of the law. However, once a child is born, alive and viable, the law may recognize that its existence began before birth for certain limited purposes. Courts will not extend common law where revision is major and ramifications are complex, as it would require major changes, involving moral choices and conflicts between fundamental interests and rights of mothers. Changes in law of tort that would be required to support the order would exceed lawmaking powers of court and should be left to legislature. A pregnant woman and her unborn child are one and to make orders protecting fetuses would impinge on the fundamental liberties of the mother, both as to lifestyle choices and how and as to where she chooses to live and be. This would have the potential to affect a much broader range of liberty interests since the court cannot make decisions for the unborn child without inevitably making decisions for the mother. Nevertheless, this would seriously intrude on the rights of women.

Dissent:

The dissent hold the view that the superior court judge was within his jurisdiction under parens patriae to order the respondent to refrain from the consumption of intoxicating substances, and to compel the respondent to live at a place of safety until the birth of child. The parens patriae jurisdiction is to act in the best interest of child which should include the power to act in the best interest of fetus. It exists to protect interests of those unable to protect themselves. A fetus suffering from mother’s abusive behaviour is within class and deserves protection. The dissent holds the view that the born alive rule should be set aside due to medical developments and advancements. The dissent holds the view that a woman had the choice to carry the fetus to term; therefore, she should accept responsibility of its well-being. The state has interest in ensuring a child’s health when he or she is born.

The dissent refers to a test for state intervention, which has a high threshold to meet. In order to protect the fetus, the exercise of parens patriae jurisdiction will necessarily involve an overriding of some rights possessed by the mother. It is said that confinement must be for purposes of treatment not punishment, and to justify a state intervention the following thresholds have to be met: (1) the woman must have decided to carry the child to term (2) prof must be presented to the civil standard that the abusive activity will cause serious and irreparable harm to the fetus (3) the remedy must be the least intrusive option (4) the process must be procedurally fair

On the facts of this case, the dissent believes that the test for state intervention was met, and the governmental agency has standing to apply for an order.

Natural Law Theory

Law is derived from a higher, non-human source. That source could be god or “nature.” Law has a divine origin. Our laws have been put in their respective positions by god or by nature and they can identify the common good and identify the reasonable steps that need to be taken in order to achieve the common good. We need the law to force us on the path to the common good. The purpose of a valid law is to get us to take reasonable steps to take us to the common good. Threats, force, and punishment may be needed to keep us on this road. If a law doesn’t set out reasonable steps that will allow us to reach a common good, it is not a valid law and we are under no obligation to follow it. Laws flow from morality. Law is seeking absolute values, justice, and truth. Since natural law is morally right, human law that embodies or is consistent with natural law must also aim at “morally right aims.” The problem with this is that in a diverse society people have different ideas about what constitutes morally right aims. For example, religious conservatives may not consider same sex marriage to be consistent with natural law. What is the source of Thomas Aquinas’ natural law? For Aquinas, natural law is not simply a man-made artifact. Man’s nature, as crafted by god, inclines him to the common good. Man’s reason, as crafted by god, allows him to devise laws that will lead us to the common good. Four elements of a valid law:

1. It must be directed towards the common good The common good is the good of community, as opposed to good for a specific individual or even what most individuals want. Some goods are essential to all humans (e.g. self-preservation, procreation, living in society and exercising spiritual and intellectual capacities). 2. It must follow practical reason (reasonable steps leading to the common good) The law directs us to what we must do and the steps we must take to reach the common good. Laws are practical because they direct us to the common good. 3. It must be made by a valid lawmaker (e.g. a ruler within the community who holds this position by reason of the natural order) For Aquinas, the lawmaker does not carry out the will and the wishes of the community. A ruler is selected naturally; some people are naturally meant to rule, and some are naturally meant to be ruled. It is not a form of democracy. The natural rulers know what is in the common good, and what will achieve universal happiness, and they can threaten, coerce and punish the people being ruled to pursue the goal. 4. It must be promulgated.

A condition of justice is that the laws be written and known to the people. People cannot obey unknown laws. Law’s that are unjust do not need to be followed. Teleology holds that that final accounts exist in nature. Law’s end or function is the rational pursuit of the common good. Law’s that do not have this function are not in fact law, and do not need to be followed. Legal and government officials cannot act in a way that is contradictory to natural law. Judges should apply the law in a manner that is just, their interpretation of the law doesn’t entail simple adherence to the letter of the law, it also requires adherence to the principle of law. For Aquinas, a “judgment” is a right decision about what is just. Just judgment requires prudence, the inclination of justice, and authority. If a written law contains anything contrary to the natural law it is unjust and should not be applied. Otherwise, judges must apply the written law.

Parens patriae jurisdiction

1. For procreation, it would make sense to extend it to an unborn child. Either way it applies to the common good, as it protects the best interest of any child, as the first and most important. In this case, it would make sense to extend it because this way we can protect the child earlier from developmental disabilities. This also protects the mother, in the sense that it would stop the mother from sniffing glue. It is directed at a common good because the woman chooses to carry the fetus to term and should accept responsibility for its wellbeing, and state has an interest in ensuring the child’s health. 2. No steps, which is a problem. General principle that is broad as there is no rational reasonable connection of what to do and how to get there. 3. Not made by a valid lawmaker. It is simply a common law principle 4. It is common law, therefore, it is not written in a specific code or piece of legislation.

Majority decision

Majority does not want to extend parens patriae because they believe that individual liberty and autonomy is important. For example, the woman in this case should have rights to do what they want to with their body. The woman is the best person to know what is best for her child. Her being able to choose not to be confined or have an abortion would promote stability in the society. The woman would not feel like a prisoner. Thomas Aquinas would be against mental retardation because it would not be a common good. The majority views moral choices conflicting between the rights of the mother and the interests of the unborn child. For example, for expectant mothers, conflicts may arise with respect to receiving treatment with the fear of state intervention. Mothers may avoid treatment for the sole purpose of avoiding detection. Mothers may not seek prenatal care when it is needed, and further it would be difficult to enforce the law, as it would be very hard to keep track of women. Partners, parents, friends, and neighbours are among the potential classes of people who might monitor the pregnant woman’s actions to ensure that they remained within the legal parameters. However, this may be proven to be difficult given the personal needs of the mother conflicting with those of the child.

1. Courts may not be in a position to fully appreciate the economic and policy issues with respect to the choice. There are rights and remedies available in other areas of law, once the child is born. This is not a decision for the courts to make, rather it is a change which is required by legislation. It is not every evil that is seen as attracting the courts action; rather some evils remain for the legislator to correct. Overall, this may have an immediate and drastic impact on the lives of women as well as men who might find themselves incarcerated and treated against their will for conduct alleged to harm others. The proposed order might impede the goal of healthy infants more that it would promote it.

2. Further, there is an argument that there are no legal steps and that it should be written in as legislation. Courts should not be able to make broad decisions, as that is not a judicial role. Thomas Aquinas does not want judicial legislating because he believes certain people have that role. Judicial change is confined to incremental change “based largely on mechanism of extending an existing principle to new circumstances.” Courts will not extent the common law “where the revision is major and its ramifications are complex”. Courts may not be in the best position to assess the deficiencies of the existing law, which may be associated with changes that it may make. Nevertheless, it is vague and broad and may not be adequate by the Court to narrowly confine the duty of care.

3. Not made by a valid law maker. Constitutional democracy is the role of the legislature, as the elected branch of government, which should assume the major responsibility for law reform. It is a system of parliamentary democracy, and it is for parliament to decide which controls should be imposed, and as well as the limitations and conditions. 4. Not written, and if it is to be then it should be written by legislators. It is time-honoured, and evident in common law countries such as England and Australia.

Dissent

1. Common good is for procreation because we have the scientific ability to see what is good for the child, and its well-being. The woman makes the decision to bring the baby to term; therefore, if she feels she cannot take care of the child she can either have an abortion or be confined. They want to extend parens patriae to the child, as the child is unable to protect him or herself during the time that it is a fetus. The dissent believes that there should be custody care and control, protection of the child and its health problems, and protection against harmful associations.

2. They are trying to limit the scope so that it is not broad. Right of the mother should be infringed as less as possible. They should put steps in place to achieve this goal. There can be no general formula and each case must be decided on its own facts. The court should consider an individual as a human with rights. These are not actually steps, however, if you tried to interpret steps this would be the guideline for them. The threshold is very high and difficult to meet for state intervention, however as a minimum, to justify state intervention, the following thresholds have to be met:

1. The woman must have decided to carry the child to term 2. Proof must be presented to a civil standard that the abusive activity will cause serious and irreparable harm to the fetus 3. The remedy must be the least intrusive option 4. The process must be procedurally fair

3. Dissent does not want it constrained to a valid lawmaker. This is against natural law, because they are taking a case-by-case analysis, which should not made by a law maker but by a judiciary. The common law has proven adaptive enough over centuries to meet exigent circumstances as they arise. It is clear that here we are dealing purely with the common law, and no enactment of parliament prevents a re-evaluation of the premises of this rule. It may be preferable that the legislature should act, but the failure to do so is not an excuse for the judiciary. The judiciary should not follow the same course of inaction, as it is not in the best interest of the fetus.

4. It is not written down; therefore it is hard for other people to follow. The parens patriae jurisdiction of the superior courts is of undefined and indefinable breadth

Legal Positivism: Austin and beyond

“Legal Positivism” is a theory about the nature of law developed over last 200 years by, among others, John Austin, Jeremy Bentham, HLA Hart, and Joseph Raz. Generally, legal positivists see law as a social fact, which is to be characterized using only empirical and evaluatively neutral terms. Focusing on John Austin, he believed there was three main types of directives governing humans: God’s law, positive morality, and positive law. The main two that will be focused on are positive morality and positive law. Positive Morality is essentially manner, custims, club rules, international law, etc., or more generally social norms that members of society adhere to. Positive Law is considered to be a command, issued by superiors to subordinates, and backed by sanctions. Its important to note that both positive morality and positive law may be immoral, but it is ideal to have moral laws.

Majority

Using the theory of Legal Positivism to evaluate Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 SCR 925 [Winnipeg Child and Family Services] results in an interesting contrast between the majority and dissenting opinions. Looking at the majority first, Legal Positivism can be used to explain the way their decision was crafted. The essence of the majority decision not to allow the respondent to be placed in custody of the Director of Child and Family Services and detained in a health centre until the birth of her child rested upon the fact that in their opinion, there was no law giving them the power to do so. Two different potential avenues of the law were looked at, the common law, and the legislation. Looking at the legislation, the Majority decided that it did not authorize the Court to extend any power over the respondent. The principle reason for that conclusion was because the Law of Canada did not recognize an unborn fetus as a legal person, therefore there is no person on whose behalf the Court could act. Further, the Court declared that this was an issue for the legislature to preside over, and the Court should respect the legislature’s prerogative. From a legal positivist’s perspective, the reason the Court could not extend the state’s power over the defendant was that there was no valid law that gave them the right. According to John Austin, the requirements of a valid law are that it must be a command, which is issued by superiors, and it must be backed by sanctions. Further, it must be created in accordance with the rule of the law making jurisdiction regarding the creation of law. In other words, did it come into being correctly as a law according to the rules of the systems? In this instance, the Court was stating that there was no command issued by superiors to subordinates. The legislature had not created legislation to give the state the power to place the respondent in a medical centre, which meant that there was no valid law governing that situation. As a result, the Court should not back the plaintiff’s request with sanctions, because it was not a valid law. This decision also fits with a legal positivist’s perspective because the law and morality are not necessarily the same thing. It is preferable that they coincide, but a law does not have to be moral. In this situation, it appears law and morality (from a certain point of view) do not concur, as protecting the unborn fetus from a potential lifelong disability would appear to have been the morally correct choice. Or at the least it is open to debate, which is in keeping with the critical view of law a legal positivist would encourage. The other avenue of law that the majority of the court refused to extend in favour of the appellant was the Parens Patriae jurisdiction of the court. Parens patriae arose out of the Court’s common law power, and at the point in time Winnipeg Child and Family Services took place, had not ever been extended to protect an unborn fetus. The common law is a difficult thing to evaluate through the lens of a legal positivist, because it fits awkwardly into the scheme of what is a valid law. Presuming in this case that the legislature has formally given the judiciary the power to apply common law and that this is a valid law ( a command, issued by superiors, backed by sanctions), the Court does have the power to interpret and apply the common law by using sanctions. In this situation, the majority decided that it would be more than an incremental change to allow the jurisdiction of parens patriae to be used on behalf of an unborn fetus. Again, the decision is open for debate in terms of the morality of not extending the common law power, but the Court makes a decision that a legal positivist would view as valid law (on the assumption stated earlier). To summarize the majority’s decision, it fits very nicely with John Austin’s theoritcal view of legal positivism. From his perspective, even if we do not like a law, until it is changed we must still abide by it. The court applies this principle with respect to both the legislation, and the parens patriae jurisdiction, by ruling the law did not allow the state to intervene on the behalf of an unborn fetus, whether it wished to or not.

Dissent

Looking at the dissent’s ruling in Winnipeg Child and Family Services, the view expressed can be viewed as either agreeing or conflicting with a legal positivists point of view. Presuming a valid command from the legislature has given the Court’s the ability to exercise the common law on their behalf, the dissent argues that the Court has the power to extend the jurisdiction of parens patriae to protect unborn fetus’. Under John Austin’s theoretical perspective, the ideal law is one that is concurrant with morality. In this situation the dissent is suggesting the Court has the power to make a valid law that is moral in nature by using parens patriae jurisdiction to protect unborn fetus’s. It would be a valid law, as it came from a command, (through the superior, i.e. legislature’s approval) that the Court would be willing to back by sanctions (confinement in a medical centre). The dissent even supplied a test that would help to ensure the valid law the Court would be backing with sanctions was moral, and would even provide a scientific (empirical) method of decision. In keeping with Austin’s perspective, the dissent also pointed out that the state (superior) may issue another statute later that overrules the Court’s decision, as is there prerogative. On the other hand, if Austin’s theory is interpreted a little more literally, his idea that judicial decisions are specific commands, as opposed to generalized rules applying to a class of people, would provide a little more difficulty with the dissent’s proposition. The command the dissent proposed would apply to an entire class of people in the future as a generalized rule, because it gives the state the power to step in when the criteria he proposed has been met. From that perspective the Court’s ruling would not be a valid law, because it would potentially fall outside the power given to the court by the legislature (superior) and therefore not originate from the proper ruling body to form a valid law. However, this is the weaker argument, and its more in keeping with Austin’s theory that the law and morality intersect, which is possible through the Court’s use of the parens patriae doctrine.

HLA Hart

HLA Hart’s view of legal positivism sees laws as human artifacts, that are not dependent on moral content for their validity, and they may be disobeyed when warranted if the law is immoral. Looking at the majority decision in Winnipeg Child and Family Services, Hart’s perspective would fit with the decision on the basis that law does not have to be moral. Again, it is debatable what the most moral outcome is in the situation, but Hart allows for that divergence between law and morality. The Court was applying a recognized set of criteria, which they believed they ought to apply, helping them to arrive at the decision that they did not have the power to step in on the unborn fetus’s behalf. By following the “criteria” which they believed they were obliged to, the majority demonstrated Hart’s rule of recognition. After applying the law, it is then debatable whether the law merits being followed based on its morality/immorality. Looking at the dissent, the proposition clashes a little with Hart’s rule of recognition, because the dissent suggests progressing away from the established boundaries the Court had previously felt bound by, and extending the parens patriae jurisdiction to cover the unborn fetus. The reason being that medical technology has progressed to such a degree it is time to shift the application of the common law in this area. That postulation parallels Hart’s theory in another way though by suggesting the Court “disobey” the law (because there is no law giving the state the power requested) on moral grounds. That conclusion flows from the dissent’s opinion that it is immoral to not intervene in the case of an unborn fetus who will likely be born with a permanent disability is the state does not intervene.

Joseph Raz

Acording to Joseph Raz, a claim of authority is justified if the authority actually performs a service for its subjects, helping them really act better than they would without the benefit of the authorities intervention. In this scenario, the dissent’s opinion fits best with this theory. The dissent suggests that the state has an obligation to step in on the unborn fetus’ behalf. Further, it is in the state’s best interest to intervene because of the cost to the state if the child is subsequently born with a permanent disability, and the intervention may enable the respondent to break their addiction. Therefore, the claim of authority would be justified, because the intervention would benefit them personally, and it would help to decrease the costs to the rest of society. The majority decision would not fit as well with the theory of a justified claim of authority, unless it could be argued that a lack of state intervention in that scenario would help them act better. If that was so, then the claim of authority by the state that no intervention should occur could be a justified claim.

Ronald Dworkin: Law as a System of Rights

http://literarytable.files.wordpress.com/2011/05/dworkin.jpg?w=810

Background

Dworkin’s theories strongly reject legal positivism’s propositions that law is strictly a set of rules and absent these rules judges exercise discretion. He also opposes the idea that legal rights and obligations are born strictly out of legal rules and have no existence apart from those rules.

Theory

Dworkin argues that law is a compilation of rules, principles and policies. He believes that “law” is not empirically provable and cannot be defined by a set of rules. Principles are legally binding fundamental ideas of justice and fairness that support certain rights and duties. In the absence of a rule, judges will draw on principles of justice and fairness to discover rights and duties. Policies are a representation of the social goals pursued on behalf of a segment of people. Policy decisions are best left to the legislators. Policies are made by the legislators in consideration of principles. Policy communicates the goals of a specific or overall community and principles communicate rights. Rights are individualized while goals are collective. Judges are mainly concerned with the application of principles to rules and Dworkin argues that they serve the protection of rights better than legislators.

Although rules of the law and principles are separate entities that evolve over time, they are interconnected and influence each other. This can be analogized by the following:

Imagine you have an underground river of “principles”. Surrounding the river is “policy” sediment that leaks into the stream. Above ground are the “rules”. When the courts are faced with a hard case they draw up the “principles” river to interpret the rules. Once the case is decided, the “principles” river flows back underground informing the river of the decisions made by the case and thereby influencing the existing principles. Basically, when judges make new rules in a hard case they are informed by society’s principles that can be applied to that situation at that point in time. The principles that are relevant can be assessed by the current rules in place, how courts discuss the principles when creating new rules, and examining how the system of rules have been evolving. Principles that hold more weight at the time a rule is being made will be most influential in the judicial decision. Dworkin stands by the idea that if all the principles that apply to the situation are properly applied will result in the one and only “right” decision. If the decision made is not the right one then the judge has failed at applying the principles correctly. Future decisions on a particular situation may arrive at a different outcome than if it were made in the past due to the different weights of the applicable principles. Rules can be altered when they no longer reflect the principles that are prominent in society at the time.

Summary

Dworkin’s theory visualizes principles as concepts of fundamental justice. Over time these principles carry different weights in different circumstances. These are not parallel with Hart’s envision of “super rules”. Hart’s “super rules” are idle and influence how rules are created the same way every time.

Application to Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.)

A criticism of Dworkin’s theory is that it assumes that if the right principles are applied, the right decision will be made. This fails to envision the possibility of conflicting principles, as is seen in Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.). The courts grapple with the competing principles of individual rights and autonomy with the principle of parens patrie and the protection of those who cannot protect themselves. It would seem unlikely that there would be a way to reconcile the outcome such that both principles are adhered to in the creation of a rule for this situation.

Majority

Dworkin asserts that different weights are applied to different principles and the more weighty principle will lead to the correct outcome. The principle of individual rights is embedded in the law through both statute and common law. The issue here is what happens when individual rights conflict? As it stands, the majority found that the self-autonomy of a mother holds more weight than the rights of an unborn fetus. This is because the current law does not recognize an unborn child as a legal person. Dworkin would question whether this current rule is relevant to the principles relevant today. The court does recognize, however, that there is a resounding issue in not addressing the unborn child’s rights at all. The court is not overlooking the principle protecting unborn fetuses but suggests that the legislators should make laws that balance out these principles.

Dissent

In dissent, the judge argued that the weight of parens patrie was heavier than the autonomy of a mother experiencing addiction. They state that this principle doesn’t completely override the rights of self-autonomy in a mother. Rather, by placing a responsibility on the mother to ensure the well being of a child that she has decided to carry to term, it is no different than the principle that parents owe a duty of care to born children. Dworkin would argue that this was the more appropriate application as it properly weighs the principles in a way that they can both be represented in the law.

Course:Law3020/2014WT1/Group_Q/Natural_Law

Course:Law3020/2014WT1/Group_Q/Positivism

Course:Law3020/2014WT1/Group_Q/System_Of_Rights