Winnipeg Child Services v. G.(D.F.)
Supreme Court of Canada File No. 25508
Date of Decision: October 31, 1997
In this issue:
- Key Terms
- Summary of Facts
- Significant Issues
- Decision
- The Court's Reason
- Lex View Commentary
Key Terms:
Mother's duty of care to unborn child; parens patriae power of
courts; validity of "born-alive" rule; whether tort
law should be extended to protect unborn child
Summary of Facts:
The respondent, D.F.G., was addicted to sniffing glue. As a
result of her addiction, two of her children had been born with
permanent disabilities, and were made permanent wards of the
state. In August 1996 she was pregnant with her fourth child. She
wanted to overcome her addiction and had sought the assistance of
the appellant, Winnipeg Child and Family Services. When the
appellant went to the respondent's home to take her to a treatment
facility, she was intoxicated and refused to go. The appellant,
concerned about the effect of the respondent's addiction on her
unborn child, sought an order that she be placed in custody of the
Director of Child and Family Services and be confined at the
Health Sciences Centre until the delivery of the child.
The injunctive order was granted by a justice of the Manitoba
Queen's Bench, and stayed two days later. Nevertheless, the
respondent chose to remain at the hospital until she was
discharged by her doctor on August 14, 1996. She stopped sniffing
glue and gave birth to an apparently healthy baby in December
1996, which she is now raising. The order was subsequently
overturned by the Manitoba Court of Appeal, prior to the present
appeal to the Supreme Court of Canada.
Significant Issues:
Does the court have the jurisdiction to order the confinement
of a pregnant woman in order to safeguard the health of the unborn
child? Does a mother owe a duty of care to her unborn child?
Decision:
The majority of the Court held that the Court did not, as the
law stands, have the jurisdiction to grant the relief sought in
order to protect the child. Sopinka and Major, JJ. dissented.
The Court's Reasons:
In the majority reasons, McLachlin, J. reviewed existing
precedent and concluded that because the common law had never seen
a foetus to be a legal person, a foetus can have no interests at
law until such time as it is born alive (the "born
alive" rule). No one is permitted to take any steps to
protect the unborn child's interests, because there is no person
there to protect. She opined:
This is not a story of heros and villains. It is the more
prosaic but all too common story of people struggling to do their
best in the face of inadequate facilities and the ravages of
addiction. This said, the legal question remains: assuming
evidence that a mother is acting in a way which may harm her
unborn child, does a judge, at the behest of the state, have the
power to order the mother to be taken into custody for the purpose
of rectifying her conduct?
McLachlin J. considered the appellant's request that the
"born alive" rule be overturned, but declined on the
basis that such a change in the law would be of a magnitude that
should be left to the legislature. She expressed fear that if the
Court were to allow any steps to be taken to protect the unborn,
the process would be unmanageable and would result in injustice to
the mother's liberty interests, and substance-abusing mothers
avoiding medical care during pregnancy for fear of detection.
The judge of first instance had made the confinement order on
the basis of the court's parens patriae power. Under parens
patriae, a superior is entitled to protect those who are unable to
protect themselves. With respect to children, it has meant that
where necessary the state can step into the shoes of the parents
in order to protect the child. The majority held that it was wrong
for the trial judge to accept the parens patriae power in this
instance, and held that the power should not be extended to
protect the unborn. McLachlin, J., throughout her reasons for
judgment, held to the position that any change to the law in this
case would have to come at the instance of the legislature.
Lex View Commentary:
This case is not intended to revisit Morgentaler. There are of
course common elements, such as the competing questions of what
justice requires for the unborn and what constraints can be
imposed on the liberty of a pregnant woman. The Court in
Morgentaler struck down the provision of the Criminal Code dealing
with abortion in the expectation that Parliament would enact a new
law consistent with the Charter. Of course, after a stalled
attempt in 1989, defeated largely due to misguided
"pro-life" activity, efforts to create a new law were
abandoned.
Faced with a grave social problem, the Court has declined to
provide a remedy. In the words of McLachlin J., '(i)t is not every
evil which attracts court action; some evils remain for the
legislature to correct.' To this argument Justice Major stated:
I do not believe our system, whether legislative or judicial,
has become so paralysed that it will ignore a situation where the
imposition required in order to prevent terrible harm is so
slight. It may be preferable that the legislature act but its
failure to do so is not an excuse for the judiciary to follow the
same course of inaction. Failure of the court to act should occur
where there is no jurisdiction for the court to proceed. Outdated
medical assumptions should not provide any licence to permit the
damage to continue. Where the harm is so great and the temporary
remedy so slight, the law is compelled to act.
And again from Justice Major:
The parens patriae jurisdiction exists for the stated purpose of
doing what is necessary to protect the interests of those who
are unable to protect themselves. Society does not simply sit by
and allow a mother to abuse her child after birth. How then
should serious abuse be allowed to occur before the child is
born?
In his dissent Major J. insisted that precedent must not be
followed blindly. Examining the rationale behind the 'born alive'
rule and the limitation of parens patriae, he concluded that the
'born alive' rule existed solely because more primitive medical
science could not tell with any accuracy if an unborn child was
alive at the time it suffered an injury unless the child was born
alive. The law sought to avoid fixing anyone with the blame of
injuring a child in utero if in fact as a result of some
independent cause, the child was not alive at that time anyway.
Justice Major points out that the born alive rule was never
intended to ascribe worth or limit the rights of the unborn; it
was simply an evidentiary rule to prevent people from being held
accountable for wrongs they did not cause.
It is clearly the case that our law is in disarray with respect
to the unborn. Since every move in the direction of recognition or
protection further strengthens the arguments against abortion,
courts contort the law to provide relief for damage done in utero
but without imposing duties to the foetus in utero because that
might cause us to question the unbridled "choice" that
can destroy the unborn child that we supposedly value. The high
point of this judicial contortion is probably the case of Cherry
v. Borsman (1992) 94 D.L.R. (4th) 487, cited by McLachlin J.
in this case.
In Cherry, the BC Court of Appeal held that a physician
performing an abortion has a duty of care to the mother to perform
the abortion properly and to the foetus so that if he does not
kill it, he (or she) must not injure it. This application of the
principles of tort law did not seem strange to the highest court
in British Columbia. One wonders how long this kind of judicial
sophistry can continue. For the moment the judges still seem to be
able to keep straight faces even if the law is becoming
increasingly twisted. It should be remembered that the principles
of the common-law referred to by the judges in this case
(principles of tort or the courts' parens patriae jurisdiction)
have been historically developed by judges not legislatures.
Legislative options are another, but not unrelated, matter. The
court has been willing to interfere with legislative decisions in
questionable areas (see our upcoming review of the Supreme Court
of Canada's Eldridge decision) but here has refused to act where
the extension seems called for within principles that are the
proper area of beneficial judicial development.
Justice McLachlin's arid comments about the unborn child having
no legal interests to protect do not indicate a high point in
legal reasoning. Our courts have in the past been called to come
to the aid of the relatively powerless who had been denied the
status of persons by the majority. In a famous judgment, the Privy
Council overturned both precedent and the unanimous Supreme Court
of Canada and upset blind obedience to outdated precedent when
they determined, in 1928, that women were, in fact, persons for
the purposes of being able to gain seats in Canada's senate.
The objection remains that by affording some protection to the
unborn, the Court would be sliding down a slippery slope into the
eradication of the liberty of pregnant women. This is a danger
that should always be kept in mind, yet nevertheless cannot
justify complete intransigence. Again from the minority opinion:
Once the mother decides to bear the child the state has an
interest in trying to ensure the child's health. What
circumstances permit state intervention? The "slippery
slope" argument was raised that permitting state intervention
here would impose a standard of behaviour on all pregnant women.
Questions were raised about women who smoked, who lived with a
smoker, who ate unhealthy diets, etc. In response to the query of
where a reasonable line should be drawn it was submitted that the
pen should not even be lifted. This approach would entail the
state to stand idly by while a reckless and/or addicted mother
inflicts serious and permanent harm on to a child she had decided
to bring into the world.
Serious substance abuse that has a reasonable probability of
causing serious and irreparable harm to the foetus should be
restrained. Simply because there may be hard cases on other facts
not before the Court does not mean we should ignore what is
obvious from the evidence in this case. The damage caused to
children by serious substance abuse is well documented. It seems
derelict to suggest that we should not restrain this abuse because
we can imagine some other cases that may not be as clear.
The problem of appropriate application to "marginal"
of "difficult" cases already applies in apprehension
cases of various kinds and has posed no problem to the
"workability" in those areas.
The Court has missed a significant opportunity to assist in
arresting the crisis of fetal alcohol syndrome. It remains to be
seen whether the legislatures will take up the challenge, and
something will be done. Again in the words of Justice Major,
'[s]omeone must speak for those who cannot speak for themselves.'
Lex View is researched and written by:
Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of
the British Columbia Bar
Brad Miller, B.Comm., LL.B, LL.M. (magna cum laude)
of the British Columbia Bar.
Lex View is a project brought to you by the Centre for Cultural
Renewal, a not-for-profit agency. Lex View is made possible
through the donations of foundations, corporations and
individuals. To inquire about making your contribution, please
contact the Centre for Cultural Renewal at (613) 567-9010.
Copyright © 2000 Iain Benson and Brad Miller
Lex View is an on-going review of judgments of Canadian
appellate courts that have an impact on the complex
interrelationships between law, public policy, culture, moral
reasoning and religious belief.
Please note that Lex View is not intended to constitute
legal advice and the interpretation and comments are those of the
authors alone and are not necessarily those of the Editorial
Board.
NB: Lex View is also available on Quicklaw,
the Canadian legal database. They provide the preferred citation
format.
Copyright notice: Lex View may be copied, printed, and
re-transmitted by e-mail, provided that the copying, printing, or
re-transmission is not for commercial purpose. Portions of Lex
View less than a single paragraph may appear in broadcast, print
or other media, provided that proper citation is made. Otherwise,
Lex View may not be reproduced, in any form in broadcast or print
media without express written permission. Permission may be
obtained by application to: Centre for Cultural Renewal/ 503-39
Robertson Road / Ottawa, Ontario, Canada K2H 8R2 / Phone: (613)
567- 9010 / Fax: (613) 567- 6061 / E-mail: info@culturalrenewal.ca
Any copying, printing, re-transmission, distribution, or other
use of any portion of Lex View of one paragraph or more, must
include the following credit line, in full, at the conclusion of
the portion of Lex View that is used:
Copyright © 2000 Iain Benson and Brad Miller. Reprinted with
permission. "Lex View" is a publication of the Centre
for Cultural Renewal.
| 
