2008 BCSC 449 V.M. v. British Columbia (The Director of Child, Family and Community Service)

Before: The Honourable Chief Justice Brenner

Reasons for Judgment

Counsel for the Appellants:	Shane H. Brady and John M. Burns
Counsel for the Attorney General of British Columbia:	George H. Copley, Q.C. and Craig E. Jones
Counsel for the Respondent, Director of Child, Family and Community Service for the Province of British Columbia	Margot L. Fleming and E. Kris Chen
Date and Place of Hearing:	August 29, 30, September 10, 2007; January 21–24, & February 29, 2008
	Vancouver, B.C.

INTRODUCTION

[1] This case lies at the intersection of the rights and responsibility of parents to make sound health care decisions for their children and the duty, indeed, the obligation, of the state to override that right in appropriate circumstances. This court must decide where the correct intersection lies and on which side this case falls.

[2] On January 7, 2007 sextuplets were born at the B.C. Women’s and Children’s Hospital (BCCH) in Vancouver at 25 weeks gestation. They had extremely low birth weights. They required resuscitation at birth and were admitted to the Neonatal Intensive Care Unit (NICU) where they received life support including assisted ventilation, oxygen, intravenous nutrition, erythropoietin and other medications. All required surgery to close a blood vessel just outside of the heart. Two of the infants died in the first two weeks due to complications of prematurity. The principal treating physicians were Drs. John A. Smyth and Alfonso Solimano.

[3] The parents are members of the Jehovah’s Witness Church which has as a tenet of its faith a prohibition against blood transfusions. Accordingly the medical team attempted to minimize the necessity for blood transfusions out of respect for the parents’ beliefs. However at various times that followed the medical team concluded that such transfusions were necessary for each of the infants. Over the parents’ objection the Director of Child, Family and Community Service of B.C. (the “Director”) obtained orders in Provincial Court authorizing transfusions for two of the infants; the Director apprehended the other two children under the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 (CFCSA) and authorized their transfusions. After the blood transfusions were administered all four children were returned to the care of their parents. Since that time their development has progressed well without any significant health problems.

NATURE OF THE PROCEEDINGS

[4] The parents appeal the January 26, 2007 Provincial Court order of Buller Bennett P.C.J. authorizing the transfusion for Baby A and the parallel February 2, 2007 order of Antifaev P.C.J. for Baby J. The parents also seek judicial review of the Director’s decision to apprehend Baby E on January 27, 2007 and Baby M on January 29, 2007, which allowed the Director to provide consent to the blood transfusions that the medical team had recommended.

GROUNDS FOR APPEAL AND JUDICIAL REVIEW

[5] The grounds for appeal set out in the Notice of Appeal in the First Appeal are, in summary, as follows:

(a) The Provincial Court lost jurisdiction when Buller Bennett P.C.J. failed to ensure the appellants were given a fair judicial hearing.

(b) The actions of the Director, the ex parte proceedings in the court below, and the resulting ex parte final order unjustifiably violated the parents’ rights under the Canadian Charter of Rights and Freedoms (Charter), ss. 2(a) and 7.

(c) The actions of the Director, the ex parte proceedings in the court below, and the resulting ex parte order clearly proceeded on the stereotypical and paternalistic presumption that the treating doctor is always right and “Jehovah’s Witness parents are always wrong in denying their consent for treatment by way of blood products,” an unjustifiable violation of the parents’ rights under the Charter, ss. 2(a), and 15(1).

(d) Violation of the parents’ Charter rights cannot be justified under s. 1.

[6] The grounds for appeal set out in the Notice of Appeal in the Second Appeal are, in summary, as follows:

(a) The Provincial Court judge lost jurisdiction when she failed to give the appellants a fair hearing.

(b) The Provincial Court judge provided no justifiable reason why the Friday night hearing could not be adjourned to the next morning.

(d) The actions of the Director, the hearing almost without notice and the final order unjustifiably violated the appellants’ rights under ss. 2(a), 7 and 15 of the Charter.

(e) The actions of the Director, the ex parte proceedings in the court below, and the resulting ex parte order clearly proceeded on the stereotypical and paternalistic presumption that the treating doctor is always right and “Jehovah’s Witness parents are always wrong in denying their consent for treatment by way of blood products,” an unjustifiable violation of the parents’ rights under the Charter, ss. 2(a), and 15(1).

f) This violation of rights cannot be justified under s. 1.

[7] The orders sought in the Amended Petition are, in summary, as follows:

(a) Quashing the decisions of the Director to apprehend Baby M and Baby E and returning the children to the parents’ care, custody and control.

(b) Declaring that the warrantless apprehensions unjustifiably infringed the parents’ rights under the Charter ss. 2(a), 7, and 15(1).

(c) Declaring that the CFCSA, ss. 30(1), 32(2), 33.3, 34(1), 35(1), 37(2), as construed and applied, are of no force and effect under s. 52(1) of the Constitution Act, 1982.

[8] The Notice under the Constitutional Question Act, R.S.B.C. 1996, c. 68 seeks similar relief. The order sought is that the CFCSA, ss. 30(1), 32(2), 33.3, 34(1), 35(1), 37(2), as construed and applied in the case at bar violate rights guaranteed under ss. 2(a), 7 and 15(1) of the Charter, and are not saved under s. 1, and should therefore be declared of no force or effect under s. 52(1) of the Constitution Act, 1982. The Amended Constitutional Question Act Notice adds s. 29(5) of the CFCSA to the list of sections of CFCSA being challenged.

[9] In the Notice of Appeal, the parents initially alleged that their s. 15(1) Charter rights were unjustifiably infringed. However, they did not pursue that argument in either their oral or written submissions, and on that basis I need not deal with it.

THE LEGISLATIVE SCHEME

[10] Section 29 of the CFCSA authorizes the Director to apply to the court by the Director as follows:

29(1) If a child or a parent of a child refuses to give consent to health care that, in the opinion of 2 medical practitioners, is necessary to preserve the child's life or to prevent serious or permanent impairment of the child's health, a director may apply to the court for an order under this section.

(2) At least 2 days before the date set for hearing the application, notice of the time, date and place of the hearing must be served on

(a) each parent,

(b) the child, if capable of consenting to health care, and

(3) If satisfied that the health care is necessary to preserve the child's life or to prevent serious or permanent impairment of the child's health, the court may make an order

(a) authorizing the health care,

(b) prohibiting any person from obstructing the provision of the health care,

(d) including any other terms, including the duration of the order, that the court considers necessary.

(emphasis added)

[11] Under s. 69, the court can abridge the time period required for giving notice:

69(1) The Supreme Court or the Provincial Court may

(a) shorten the time period for serving a notice under this Act or extend the period even though it has expired, or

(b) dispense with a requirement that notice of a proceeding or of all proceedings in relation to a child be served on a party or other person.

[12] The Director can move without a court order. The applicable provisions of ss. 30 and 32 provide:

30(1) A director may, without a court order, remove a child if the director has reasonable grounds to believe that the child needs protection and that

(a) the child's health or safety is in immediate danger, or

(b) no other less disruptive measure that is available is adequate to protect the child.

32(1) If a child is removed under section 30 … the director has care of the child until …

(2) While the child is in the director's care, the director may

(a) authorize a health care provider to examine the child, and

(b) consent to necessary health care for the child if, in the opinion of a health care provider, the health care should be provided without delay.

NATURE OF THIS PROCEEDING

[13] Given that each of the infants was returned to the care of its parents very shortly after receiving its blood transfusion, it is clear that this proceeding is moot. Well after the fact, this court was asked to review two Provincial Court decisions as well as the Director’s apprehension decisions. Even if I were to conclude that the lower courts erred or that the Director lacked jurisdiction, I could not grant any meaningful remedy with respect to the blood transfusions. However, even if a case is moot, the court retains a discretion to hear an appeal on the merits: see Tamil Co-operative Homes Inc. v. Arulappah (2000), 49 O.R. (3d) 566 (C.A.). Given the issues this case raises, I considered it appropriate to do so here.

[14] In my view these appeals raise two questions of a preliminary nature that are separate and distinct: does this court have jurisdiction to proceed by way of trial de novo and should the court admit new evidence?

[15] The first question may be answered simply: this court is sitting as an appeal court and as such the hearing cannot proceed by way of trial de novo. Neither case authority nor the legislation provides that an appeal from a decision of the Provincial Court under the CFCSA can be a trial de novo: see s. 81 of the CFCSA; K.(D.) v. British Columbia (Director of Child, Family and Community Service) (1998), 55 B.C.L.R. (3d) 343 (C.A.) at para. 8.

[16] In an appeal the role of the court is limited by the established standard of review. The scope of appellate review is narrow. It is not the function of the court to rehear the matter and substitute its findings. It is the function of the appellate court to intervene if there has been an error of law or a serious misapprehension of the evidence.

[17] The standard of review on an appeal from the Provincial Court on a child protection proceeding is set out in Re P.J.S., 2000 BCSC 582. In that case at para. 6 Blair J confirmed the standard of review applicable in child protection appeals, relying on the following statement of Lord Simmonds in McKee v. McKee, [1951] A.C. 352 (P.C.) at p. 360:

[T]he question of custody of an infant is a matter which peculiarly lies within the discretion of the judge who hears the case and has the opportunity generally denied to an appellate tribunal of seeing the parties and investigating the infant’s circumstances, and that his decision should not be disturbed unless he has clearly acted on some wrong principle or disregarded material evidence.

[18] The deferential standard of review in cases involving custody of children is based upon the trial judge’s unique role in hearing and seeing the witnesses and society’s interest in promoting finality and stability: see Van de Perre v. Edwards, 2001 SCC 60 at paras. 9-15.

[19] Appellate courts have consistently held that the decision of a trial judge should not be disturbed unless the judge acted on some wrong principle or disregarded material facts. Errors in findings of fact are not to be overturned unless the applicant can point to some palpable error.

[20] Whether the appeal court ought to allow fresh evidence is another matter.

[21] All parties agree that the factual issue in this case is whether the transfusions were medically necessary as defined by the CFCSA. If not medically necessary as defined in s. 29, the Director had no jurisdiction to proceed and the two Provincial Court orders and his s. 30 decisions must be reversed. On the other hand, if the transfusions were medically necessary, then the question is whether the orders and the s. 30 decisions contravened the parents’ Charter rights.

[22] In this case the parents argued forcefully for the right to present supplemental medical evidence that, because of the time constraints, they said they were simply unable to present in the proceedings below. They argued that unless this was allowed on this appeal, they would never have an opportunity to fully “challenge the science” in support of their contention that blood transfusions in these circumstances were not medically necessary. They say that first instance hearings are conducted on little or no notice that prevents a full presentation and testing of the scientific evidence before a court.

[23] The Director did not oppose the parents’ application to have fresh evidence admitted, subject to the general rules of admissibility and a similar right being accorded the Director.

[24] Both the parents and the Director filed numerous affidavits containing evidence that was not before the Director or the courts below when the impugned decisions were made. Because of the heavy reliance by all parties on this fresh evidence, I directed cross–examination on the affidavits of the medical professionals that both sides filed.

[25] It is rare that fresh evidence will be allowed on an appeal. I decided to allow it here because it was not opposed, because much of the evidence was not available in the proceedings below due to the time constraints, and finally because I thought it important to give the parents the opportunity to challenge the science and to advance their argument that the blood transfusions administered in this case were not medically essential.

ISSUES

1. Were the blood transfusions necessary to preserve each child's life or to prevent serious or permanent impairment of the child's health?

2. Were the parents’ rights under ss. 2(a) and 7 of the Charter unjustifiably infringed?

3. Are the impugned sections of the CFCSA constitutional?

1. WERE THE TRANSFUSIONS MEDICALLY NECESSARY?

[26] Dr. John A. Smyth is a neonatologist at BCCH. He was the primary physician responsible for the care of the infants from January 22 to February 2, 2007. At other times he was on call.

[27] Born at 25 weeks gestation, the infants’ birth weights ranged from 730 to 815 grams. Each child required life support in the form of assisted ventilation, oxygen, intravenous nutrition and medications. At various times the condition of each infant was “quite unstable”. Each developed anemia (an insufficient number of red cells or insufficient concentration of haemoglobin) to a degree “that was considered serious to his or her health”. Each was administered erythropoietin starting January 7, 2007. Erythropoietin is a naturally occurring hormone that triggers the production of red blood cells in response to anemia or hypoxia. After birth the increase in the oxygenation level suppresses endogenous erythropoietin production for a period of time and red blood cells are not produced. This results in anemia that reaches a nadir at about 8-10 weeks of age when the edogenous erythropoietin levels start to rise and red cells are again produced. Administration of synthetic erythropoietin during this period of decreased erythropoietin production can “kick start” red cell production and minimize the severity of anemia.

[28] Dr. Smyth says that virtually all infants of the gestation and size of these infants require red blood cell transfusions to treat anemia; multiple transfusions, typically four to five, are usually required during the first several weeks of a premature infant’s life. Anemia is harmful because not enough haemoglobin contained in red blood cells may be available to supply oxygen to the vital organs and tissues such as the brain, heart, lungs and kidneys. Without adequate oxygenation the organs and tissues of the body can be seriously and permanently damaged. Red blood cell transfusions allow the baby’s tissues to be sufficiently oxygenated until the body begins to produce an adequate supply of its own red blood cells.

[29] Dr. Smyth testified that in the period leading up to the first transfusion the treating physician group at BCCH reviewed the medical and ethical issues which arise in the provision of care to Jehovah’s Witnesses. On January 25, 2007 Dr. Smyth met with the father and representatives from the Jehovah’s Witness faith. He told them that each infant’s haemoglobin level was falling and that a blood transfusion might be required. He also said that any decision to transfuse red blood cells would be based not only on the haemoglobin/hemocrit level, but also on the overall condition of each infant.

[30] The question in this case is whether the attending physicians should have waited longer to allow the infants to start producing an adequate supply of their own red blood cells instead of recommending the blood transfusions when they did.

[31] The absolute safe low haemoglobin threshold for transfusing a low birth weight infant is undetermined. However there are a number of surveys and studies available to provide guidance to physicians.

[32] In October 2002 the Canadian Paediatric Society (CPS) issued its Position Statement “Red blood cell transfusions in newborn infants: Revised Guidelines”. The guidelines apply to high risk infants such as those in this case. The Position Statement acknowledges that transfusion practices “differ widely among neonatal units”. In fact the CPS reported that pediatricians in Canada were transfusing infants with haemoglobin concentrations of between 60 and 100 grams per litre (g/L) where the infant was severely ill, and/or on mechanical ventilation with compromised oxygen delivery (as was the case with these infants). The CPS report was not a study or a trial. It was simply a report on the low thresholds in use in Canada at the time the survey was prepared.

[33] A randomized trial by E. F. Bell published in 2005 addressed liberal versus restrictive guidelines for red blood cell transfusion in preterm infants. Bell used two low thresholds for respiratory support. For intubated ventilator support a low threshold of 103 haemoglobin g/L was used; for oxygen support a low of 85 g/L was used. However all infants treated during the Bell study belonged to the higher category.

[34] The most recent randomized controlled trial was conducted by Drs. H. Kirpalani, R.K. Whyte and others. It was published in the Journal of Pediatrics in 2006. This is known as the “PINT” study after its title: The Premature Infants in need of Transfusion (PINT) study …”. For infants in the category of the infants in this case, the PINT study used a high haemoglobin transfusion threshold of 100 g/L for one control group and a low haemoglobin threshold of 85 g/L for the other control group. The PINT study concluded that there were no adverse consequences in using 85 g/L as the low threshold as compared with the high threshold of 100 g/L that was used in the trial.

[35] All of the medical witnesses testified that the PINT study is the latest randomized controlled study available. It is clear that, subject to the “PINT Outcome Study” (PINTOS) follow-up referred to below, it demonstrates that 85 g/L is a safe low threshold. However no randomized controlled trial has been conducted that shows just how far below 85 g/L haemoglobin levels can be safely allowed to fall when treating infants in this category.

[36] Dr. Robin Ohls is a Professor of Pediatrics and Associate Director of the clinical Translational Research Center at the University of New Mexico. She is Board certified in the specialties of Pediatrics and Neonatal-Perinatal medicine. She did not treat any of these infants, but she did give expert opinion evidence for the parents.

[37] She testified that at the University of New Mexico they revised their guidelines in 2004 to reflect a more conservative transfusion strategy. She expressed the opinion that under those guidelines, transfusions would not be considered unless the infant’s haemoglobin level dropped below 80 g/L. However as noted below when I review the evidence concerning Baby J, I have concerns regarding her definition of “medically necessary”.

[38] Dr. David Burrows is a neonatologist currently practising in Sault Ste. Marie. He testified for the parents. He based his opinion on the CPS survey. The difficulty with that is that the CPS survey was not a randomized control study like the later PINT study.

[39] The authors of the PINT study conducted a follow-up of infants who had been enrolled in the study. Although they had not been peer-reviewed at that time, the results of the PINTOS were presented at a conference in 2006. The authors reported finding no significant difference in the following outcomes: death, cerebral palsy, cognitive delay, blindness or deafness, or in any combination of these between the high and low transfusion groups used in the PINT study.

[40] Dr. Robin K. Whyte of Dalhousie University and the IW Kate Health Center testified for the Director. Dr. Whyte has completed a Fellowship in neonatology and is practising as a neonatologist with the Department of Pediatrics at IW Kate Health Centre in Halifax. He is also one of the authors of the PINT study.

[41] In his affidavit evidence, Dr. Whyte noted that there is some debate over the PINTOS finding with respect to cognitive delay. In his words: “there is some debate over the interpretation of our outcome for cognitive delay. In the opinion of some, it is a difference approaching statistical significance. They would interpret this difference as being in favour of using the higher haemoglobin threshold [100 instead of 85 g/L]”.

[42] The PINTOS follow-up found that for those transfused at the low threshold, blindness occurred in 2 out of 161 infants or 1.2%, deafness in 4 out of 161 or 2.5% and cerebral palsy in 11 out of 163 or 6.7%. However cognitive delay was noted in 38 out of 156 or 24.4%. Although Dr. Whyte deposed in his affidavit that the 24.4% did not represent a statistically significant outcome, when he testified he told the court: “I am not as sure anymore”.

[43] Dr. Solimano, one of the treating physicians, testified that after the initial PINTOS information was reported, he became unsure if 85 g/L was in fact a safe lower limit. He testified: “I have reservations when we have cognitive delay at 18 months that is almost statistically significant. I am concerned that the lower PINT limit may not be safe”.

Baby J

[44] Baby J was born January 7, 2007 and he weighed 815 grams. His gestational age was 25 weeks, 3 days. He was resuscitated at birth and admitted to the Neonatal Intensive Care Unit for management of extreme prematurity. The management plan called for minimal blood tests and administration of erythropoietin.

[45] Dr. Smyth says that Baby J’s “values of haemoglobin from January 26, 2007 to February 2, 2007 [104 to 82] represent a rapid rate of fall by medical standards’’. He further deposed that “on February 2, 2007 I participated in a case discussion with respect to the medical management of [J] … At the end of the discussion I wrote in [J]’s chart:

Hb [haemoglobin] down to 82 today which is a significant drop from January 26 of 104 – significant change in clinical status: absent spontaneous respiratory effort, increased ventilation, elevation of PCO2, increased band cell count – these changes suggest acute infection – It is clear that the measures we have taken to prevent/minimize anemia (EPO and conservative blood sampling) have been unsuccessful. Even by conservative standards a Hb of 82 in the presence of clinical instability is at the threshold for treatment with red cell transfusion...”

[46] Dr. Smyth then met with the hospital social worker and telephoned the father. He discussed with him the medical need for a red cell transfusion for J. The father refused. Dr. Smyth then signed a letter to the Ministry reporting on J’s case. After describing the efforts to prevent or minimize the need for transfusion, he said “Despite this, [J]’s anemia has worsened to the point where, even by the most conservative standards, he requires transfusion of red blood cells in order to reduce the risk of permanent impairment of his health”.

[47] Dr. Alfonso Solimano in his similar, but not identical letter to the Ministry, stated:

At this time [J]’s ability to supply his brain and organs with oxygen is compromised by him being very fragile, needing intensive care including ventilation and oxygen, and now by a change in condition that may be the result of sepsis (infection).

[J]’s degree of anemia in these circumstances significantly compromises his health, and increases the risk he will develop long term disability. It also restricts our ability to monitor blood tests, including blood gases to determine his levels of CO2 or acids, beyond what is clinically acceptable in his circumstances. This may be life threatening. It also means that we may not be able to adequately tailor the amount of intensive care we provide him; for example, providing him with more intensive care than needed exposes him to the unintended side effects of such therapy (such as worse long term chronic lung disease).

It is because of these considerations and in the absence of alternatives to blood transfusion, that the neonatology team at Children’s and Women’s Hospital, Vancouver and I are seeking permission to transfuse [J] at this time.

[48] The Director used both letters in support of his application in Provincial Court later that day for a s. 29 order.

[49] In his affidavit Dr. Whyte deposed:

Having reviewed the clinical records for each of the infants, it is my medical opinion that each of these infants has received blood transfusions only when medically necessary to prevent serious or permanent harm or death and in keeping with the standard of care for the proper medical treatment of premature low birth weight infants.

[50] With respect to haemoglobin levels, he deposed that haemoglobin levels in a very premature infant fall rapidly and very often these babies require a blood transfusion to raise the level of haemoglobin. His opinion is significant that the level at which the haemoglobin becomes low enough to require a blood transfusion to prevent serious harm, serious damage or death in a very premature baby cannot be established with medical certainty.

[51] With respect to J, he deposed that at the time of J's transfusion of February 2, 2007 his haemoglobin was 82 g/L, which was below the low threshold used in the PINT study.

[52] Dr. David Burrows testifying for the parents based his opinion on the Canadian Pediatric Society survey which reports a range of 60 g/L to100 g/L used for infants in this category. Because the parents in this case opposed blood transfusions, and because none of the infants’ haemoglobin levels fell to a point to even approaching 60 g/L, he concluded: “where the parents object to blood transfusions, it is ethical and medically reasonable for the attending doctor to refrain from transfusing where a newborn like E falls within the acceptable range”.

[53] However the CPS Position Statement is only a survey. It simply reported on the practices of pediatricians in Canada. It was not a randomized controlled trial.

[54] Dr. Ohls testified that using the current University of New Mexico standards she would not have considered transfusing J unless his haemoglobin level dropped below 80 g/L. Even then she says that at that point an attending physician “could begin to consider a blood transfusion as one possible treatment option”. In her evidence she raises the possibility that the decrease in J’s haemoglobin levels could have been due to blood loss for laboratory testing. She also deposed that delayed umbilical cord clamping can boost the amount of blood into an infant’s circulation by 10-20 mL/kg.

[55] In her affidavit of February 19, 2007 Dr. Ohls deposed that the blood transfusion given to J was “not absolutely medically essential”. In her cross-examination by Director’s counsel on January 24 the following exchange took place at p. 9:

Q. Before you drafted either affidavit, were you advised at all about what the legal standard is—what the legal question is before the court with respect to these children?

A. You know, I believe that that question has been clarified for me after the time I wrote these. I mean, it seems – it has come – its sort of more into a question of, you know, were these transfusions needed at the time they were given to save the babies’ lives? That’s my understanding of the sort of question put to me.

(emphasis added)

[56] At p. 47 of the transcript, she again was asked about the meaning of “medically essential” and she replied: “For me that would be essential for life”. Nowhere in her evidence did she say that she considered the phrase medically essential to include non-fatal outcomes such as serious permanent disability.

[57] Dr. Ohls’ definition of medically essential conflicts with the B.C. legislation. The test in s. 29 is not limited to conditions that constitute a threat to life; it also includes conditions that could lead to “serious or permanent impairment”. Leaving the statute to one side, I do not accept Dr. Ohls’ opinion that a reasonable definition of “medically essential” would not include conditions likely to lead to “serious and permanent disability”.

[58] One day, the work that Dr. Ohls has underway may establish that it is safe to use a transfusion threshold for infants in this category lower than the PINT low threshold of 85 g/L. But until that occurs, it is difficult to find fault with medical professionals who choose to use the PINT study low threshold as the safe minimum. That is what occurred here. I conclude that the transfusion of J was “medically necessary” or, adopting the language from s. 29 that it was “necessary to preserve the child’s life or to prevent serious or permanent impairment of the child’s health”.

Baby M

[59] Dr. Smyth deposed that Baby M was born January 7, 2007. His birth weight was 735 grams. He was resuscitated at birth. He was also admitted to the Neonatal Intensive Care Unit for management of extreme prematurity. The management plan called for minimal blood tests and erythtropoetin therapy.

[60] On January 21 M’s haemoglobin level was 88 g/L. He was assessed as being relatively stable.

[61] On January 29, Dr. Smyth noted that M had a haemoglobin of 80 g/L and abdominal distension. He was concerned that M might be suffering from necrotizing enterocolitis. After discussing the situation with Dr. Solimano, they made a joint decision that a blood transfusion was medically necessary and that it should be provided as soon as possible. He deposed that in the period leading up to the decision to seek a transfusion for M, the baby was not feeding and was suffering from abdominal distension. His oxygenation was unstable. These were clinical factors which weighed heavily on the decision to seek a transfusion; the transfusion which occurred on January 29 was not sought on the basis of low haemoglobin levels alone.

[62] On cross-examination counsel referred Dr. Smyth to the records indicating that M’s incubator had been changed. He agreed that this could have been a reason for the desaturation spells, which would lower the haemoglobin level. He also agreed that with the benefit of hindsight that M did not in fact have necrotizing enterocolitis.

[63] However, it is clear that when the transfusion was recommended, M’s haemoglobin level was below the lower limit of the PINT study. It is also clear that Dr. Smyth relied on the other clinical factors to which he referred. While the necrotizing enterocolitis diagnosis turned out with hindsight to be incorrect, it was a justifiable factor to be considered at the time the transfusion decision was made.

[64] On the evidence that was before them should the medical professionals have waited longer before recommending a transfusion of M? Since M’s haemoglobin level had dropped below the PINT low level, in my view the transfusion was medically necessary. The actions and the assessments of the treating physicians must be judged by what was before them at the time, not on what further or other conclusions they were able to arrive at in a court room one year after the fact.

Baby E

[65] Baby E was born January 7, 2007. Her weight was 770 grams. She was also admitted to the NICU for the same management plan.

[66] Dr. Smyth deposed that E’s records showed that on January 11 she had had a normal platelet count. However by January 15, she had a critically low platelet count that was below the criteria for platelet transfusion used by BCCH. On January 16 an automated platelet count showed a count below the transfusion threshold while a manual count, considered more accurate, showed a level above the threshold. After January 16 her platelet levels were monitored and remained above the minimum.

[67] However on January 25, Dr. Smyth noted that E’s haemoglobin level was falling, she had unstable respiration and had an infection. Her haemoglobin that day was measured at 88 g/L. In Dr. Smyth’s opinion she was clinically unwell. She had had many significant episodes of oxygen desaturations and required assistance to recover. Oxygen desaturation is a fall in oxygen saturation below the normal range. Assistance to recover often includes increasing the inspired oxygen concentration temporarily or increasing the degree of ventilation assistance, usually by manually ventilating the patient.

[68] On January 27 Dr. Smyth recommended to the Ministry that E be transfused. Although her haemoglobin level was last measured at 88 g/L, above the PINT safe low limit of 85 g/L, Dr. Smyth nevertheless concluded that a transfusion was medically necessary. He said that E’s ability to supply her brain and organs with oxygen “is compromised by her being very fragile, needing intensive care including ventilation, oxygen, and intravenous medications, being unstable despite this, and being anemic with levels of haemoglobin below those acceptable in these circumstances”.

[69] In summary he concluded that she was an acutely ill, unstable baby with increasing risk of long term disability and other organ injury.

[70] Dr. Whyte observed that on January 25, E’s haemoglobin was 88 g/L, having fallen fairly rapidly from 98 g/L on January 21. The haemoglobin level of 88 g/L was above the low threshold for transfusion in the PINT study. She was transfused January 27. He deposed: “A transfusion on January 27 would be compliant with the lower threshold of the PINT study if the falling haemoglobin is interpreted as anticipating reaching the PINT threshold of 85 g/L as it almost certainly would; the rate of fall of haemoglobin from birth was close to 3.8 g/L per day”. In Dr. Whyte’s opinion her haemoglobin level would have likely fallen to 81 g/L in the two days between the sampling and the transfusion.

[71] On the day of her transfusion, January 27, Dr. Solimano met with the father at 10:00 a.m. He advised him that E’s anemia in conjunction with infection and her unstable oxygenation would seriously compromise her health without a transfusion that day. The father refused to consent to a transfusion. Dr. Solimano advised the Director that E’s condition posed a “significant incremental risk of tissue injury and long term disability to an already at-risk fragile premature ventilated baby who now had hemodynamic instability, respiratory instability, infection, and frequent and marked drops in haemoglobin oxygen saturation [hypoxemia]”. Dr. Solimano was of the view that a transfusion was necessary that day to avoid injury.

[72] Dr. Solimano also wrote to the Ministry on January 27. He said that despite the treatment she received, E’s haemoglobin was “below generally accepted indications for transfusion of red blood cells. Furthermore, this degree of anemia in conjunction with infection and unstable oxygenation seriously compromises her health and survival. There are no alternatives to blood transfusion which I consider essential at this time”. In his evidence Dr. Burrows pointed to the fact that E’s hemocrit level, which is another way of measuring circulating red blood cells, had risen from .270 to .275 from January 25 to January 26.

[73] But the consistent evidence of the treating physicians and Dr. Whyte is that the decision to transfuse is not based solely on haemoglobin levels or even the rate of change in haemoglobin levels. Rather it is based on the the treating physician’s overall assessment of the patient's medical condition.

[74] In this case it is apparent the health of these babies was extremely compromised. I accept the evidence of Drs. Smyth, Solimano, and Whyte that the blood transfusion administered to E on January 27 was medically necessary.

Baby A

[75] Baby A was born January 7, 2007 and weighed 730 grams at birth. She was admitted to the NICU and the same treatment plan was put in place.

[76] Dr. Smyth deposed that on January 25 he noted that A’s haemoglobin was falling and was 84 grams per litre. He said that her platelet values were also of concern. By January 25 they had reached a “significantly low level, associated with a risk of hemorrhage, for which there was no alternative to a platelet transfusion”. In his view it would not have been appropriate to wait another day as she was at serious risk of hemorrhage.

[77] The parents refused a platelet transfusion. After the treatment order was obtained from the Provincial Court on January 26, A received her platelet transfusion later that day. On January 27, A’s haemoglobin had declined to 78 g/L. She required oxygen and assisted ventilation. In Dr Smyth’s opinion, in her condition, on respiratory support and with very unstable oxygen saturation values, a red blood cell transfusion was medically necessary.

[78] Baby A’s haemoglobin level was clearly below the PINT low threshold. In my view her transfusion was medically necessary.

[79] On the evidence before me the transfusions of all four babies were medically necessary and met the tests in ss. 29, 30 and 32 of the CFCSA respectively. The results of the latest randomized controlled trial, the PINT study, established a safe low threshold of 85 grams of haemoglobin per litre. It is true that a lower level might also be safe. However such a lower threshold has not been the subject of a randomized controlled trial. Hence no one can really say just how far below the 85 g/L haemoglobin threshold it is safe to go without a serious risk of death or serious or permanent disability. Therefore I conclude that the treating physicians in this case were justified in using the 85 g/L low threshold, as well as all of their observations concerning the clinical condition of each baby, when concluding that the transfusions were medically essential.

[80] The parents submit that the standard of review that should be applied to the decisions made by the courts below and the Director is correctness. Without necessarily accepting their submission that correctness is the appropriate standard of review, since I have concluded that the blood transfusions were medically necessary as defined in ss. 29(1), 30 and 32 of the CFCSA, it is difficult to see how the decisions of either the Provincial Court or the Director can be said to have been incorrect.

2. WERE THE PARENTS RIGHTS UNDER SS. 2(a) and 7 of the Charter
unjustifiably infringed?

a) Sections 29 and 30 Apprehensions

[81] The relevant sections of the Charter provide:

s. 2(a). Everyone has the following fundamental freedoms: (a) freedom of conscience and religion.

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.

[82] The parents say their Charter rights under ss. 2(a) and 7 were infringed. They did lose the care and control of their children when they refused to authorize the blood transfusions the treating physicians deemed essential. As counsel submitted they “were denied the right to make medical decisions for them that conformed to their sincerely held religious beliefs …”. They also say because of the nature of the proceedings they were denied the essential protections of fundamental justice.

[83] Counsel for the parents say depriving parents of the right to make medical decisions for their children “is an obvious violation of the parents’ liberty interest and security of the person”. He relies on B.(R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 where La Forest J. stated at p. 372:

Nonetheless, our society is far from having repudiated the privileged role parents exercise in the upbringing of their children. This role translates into a protected sphere of parental decision-making which is rooted in the presumption that parents should make important decisions affecting their children both because parents are more likely to appreciate the best interests of their children and because the state is ill-equipped to make such decisions itself. Moreover, individuals have a deep personal interest as parents in fostering the growth of their own children. This is not to say that the state cannot intervene when it considers it necessary to safeguard the child's autonomy or health. But such intervention must be justified. In other words, parental decision making must receive the protection of the Charter in order for state interference to be properly monitored by the courts, and be permitted only when it conforms to the values underlying the Charter.

[84] The parents submit: “In B. (R.), La Forest J. set the test the Director must meet. The burden of proof is on the Director and he must present a ‘strong case’ before he can interfere with the parents’ choice of treatment. A parent’s right to decide their child’s medical treatment cannot be overturned ‘simply because a professional thinks it is necessary to do so’. The constitutional standard is not whether the treating doctor has a good faith belief in his opinion. The standard is that the state must demonstrate that the proposed treatment is a ‘necessity’”.

[85] But here I have concluded that state intervention was justified because, based on the existing science in the PINT study, as well as the physicians’ assessments of the overall health of the infants, the transfusions the treating physicians recommended were essential to preserve the infants’ lives or to prevent serious or permanent impairment of their health. If I am correct in that conclusion, it is difficult to see how the Charter rights of the parents, which they say entitle them to determine the course of medical treatment for their children in this case, could trump the s. 7 Charter rights of the infants to receive medical treatment to prevent their serious personal injury or death.

[86] In fact support for this can be found in B.(R.). That case also involved a premature infant and raised the constitutionality of state interference with child-rearing. In that case the parents argued that the parallel Ontario legislation infringed their right to choose medical treatment for their infant in accordance with the tenets of their faith. They also claimed that this right is protected under both s. 7 and s. 2(a) of the Charter.

[87] In B.(R.) the Supreme Court of Canada held that the parents were not allowed to deny a blood transfusion for their infant child in accordance with their religious beliefs. The majority found that while the parents’ s. 2(a) right to freedom of religion was infringed, the infringement was justified under s. 1. It held at p. 383:

[F]reedom of religion is not absolute. While it is difficult to conceive of any limitations on religious beliefs, the same cannot be said of religious practices, notably when they impact on the fundamental rights and freedoms of others.

[88] However in spite of its assertion that freedom of religion is not absolute, the majority did say at pp. 384 - 385 that it is preferable to engage in a balancing of rights in the s. 1 analysis, rather than limiting the scope of freedom of religion:

In my view, it appears sounder to leave to the state the burden of justifying the restrictions it has chosen. Any ambiguity or hesitation should be resolved in favour of individual rights. Not only is this consistent with the broad and liberal interpretation of rights favoured by this Court, but s. 1 is a much more flexible tool with which to balance competing rights than s. 2(a). As Dickson C.J. stated in R. v. Keegstra, supra, while it is not logically necessary to rule out internal limits within s. 2, it is analytically practical to do so (at pp. 733-34):

Suffice it to say that I agree with the general approach of Wilson J. in Edmonton Journal, supra, where she speaks of the danger of balancing competing values without the benefit of a context. This approach does not logically preclude the presence of balancing within s. 2(b) -- one could avoid the dangers of an overly abstract analysis simply by making sure that the circumstances surrounding both the use of the freedom and the legislative limit were carefully considered. I believe, however, that s. 1 of the Charter is especially well suited to the task of balancing, and consider this Court's previous freedom of expression decisions to support this belief. It is, in my opinion, inappropriate to attenuate the s. 2(b) freedom on the grounds that a particular context requires such; the large and liberal interpretation given the freedom of expression in Irwin Toy indicates that the preferable course is to weigh the various contextual values and factors in s. 1. [Emphasis in original.]

This is not to say that an elaborate examination of the criteria established in R. v. Oakes, supra, will always be necessary. The effect on religious beliefs will often be so insubstantial, having regard to the nature of the legislation, that Charter concerns will obviously be overridden. But in this case, it cannot be maintained that the effect on the rights of the appellants was of a minor character. As I am of the view that the Act seriously infringed on the appellants' freedom to choose medical treatment for their child in accordance with the tenets of their faith, it remains to be determined whether this infringement was justified under s. 1 of the Charter.

[89] Ultimately, the majority held at pp. 385-386 that the infringement of the parents’ section 2(a) rights was justified:

The appellants have conceded that the state interest in protecting children at risk is a pressing and substantial objective. The Act allows the state to assume parental rights when a judge has determined that a child is in need of treatment that his parents will not consent to. As already stated when discussing the conformity of state intervention with the principles of fundamental justice, the process contemplated by the Act is carefully crafted, adaptable to a myriad of different situations, and far from arbitrary. The Act makes provision for notice to be given, for evidence to be called, for time limits to be imposed upon Crown wardship and other orders, as well as for procedural protections to be afforded to parents. The restrictions the Act imposes on parental rights are, in my view, amply justified.

[90] In Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 at paras. 68-75 La Forest J. for the court reaffirmed that the preferred approach is to give freedom of religion a broad interpretation and reconcile competing rights under section 1. As one commentator has noted:

The Supreme Court of Canada’s approach has since moved away from internal limits on s. 2(a) and toward a truncated s.1 analysis when the intrusion on freedom of religion is minimal. In order to determine whether a truncated s.1 test will be appropriate, the entire context of the case must be thoroughly reviewed: Debra McCallister, Taking the Charter to Court: A Practitioner’s Analysis (Ontario: Carswell, 1998).

[91] This issue has been considered in two lower court decisions that were decided after B.(R.) involving adolescent children. In B.(S.J.) v. British Columbia (Director of Child, Family and Community Service), 2005 BCSC 573, Boyd J. found that similar legislation to that at issue in B.(R.) did not infringe s. 2(a) of the Charter, rendering the s. 1 justification analysis unnecessary. In that case, the issue was whether the adolescent child’s right to freedom of religion, rather than her parents’, was infringed. The court held that it was not at paras. 83 and 85:

I reject the submission that the child’s rights under s. 2(a) of the Charter have been violated. While I accept that the child is free to choose and practice the religion of her choice, the law is clear that freedom of religion is not absolute. As Kent J. noted in B.H., “freedom of religion is not absolute and may properly give way to an order or orders duly made in a child’s best interests”. She noted however that in determining the child’s best interests under the statute there, the Court was “required to consider (the child’s) opinion concerning the recommended medical treatment, that is, her specifically religious objections to the treatment, as well as her religious heritage.” Likewise, in the case at bar, s. 2(d) of the CFCSA dictates that “the child’s views should be taken into account when decisions relating to a child are made.”

…

In any case, I reject the notion that the statute in any way infringes or denies the child’s rights to hold her beliefs or to express them or to practice them. The statute does however ensure that ultimately, her beliefs do not override her Charter guaranteed right to life and security of the person.

[92] In B.(S.J.) Boyd J. did not expressly refer to B.(R.). However in the earlier decision in B.H. (Next friend of) v. Alberta (Director of Child Welfare), 2002 ABQB 371 Kent J. did do so at para. 55:

Having regard to B.(R.), supra at para. 105, I find that B.H.'s right to refuse medical treatment in accordance with her religious beliefs is a "fundamental aspect of freedom of religion". However, I note that freedom of religion is not absolute and may properly give way to an order or orders duly made in a child's best interests: see B. (R.), at para. 107. It is notable that, in determining B.H.'s best interests under the CWA, the Provincial Court was and this Court is required to consider B.H.'s opinion concerning the recommended medical treatment, that is, her specifically religious objections to the treatment, as well as her religious heritage. Thus, ss. 1(1)(d), 1(2)(c) and 2(d) of the CWA did not infringe B.H.'s freedom of religion or imposed justifiable limits thereon within s. 1 of the Charter.

[93] Thus, Kent J. found that the adolescent child’s s. 2(a) right to freedom of religion was not breached, or alternatively, any breach was justified under s. 1.

[94] While it was the parents’ s. 2(a) rights that were at stake in B.(R.) rather than that of the transfused child, neither the finding in B.H. nor in B.(S.J.) appear to turn on those distinctions. Rather, both decisions emphasized that freedom of religion is not absolute and may give way to the child’s best interests.

[95] Here this is conceded by the parents. Based on their submission, the state would have met the constitutional standard. In their counsel’s words: “The standard is that the state must demonstrate that the proposed treatment is a necessity” (Appellants’ revised factum at para. 57). In his oral submission Mr. Brady said that the state must “demonstrate objectively that the medical treatment was medically necessary”.

[96] Both Provincial Court judges and the Director when he elected to apprehend concluded that the proposed blood transfusions were a necessity. After much additional evidence adduced by both the parents and the Director and extensive cross-examination, I have concluded that they were correct. For this reason there was no infringement of the parents’ s. 2(a) rights, or, if there was an infringement, it is saved by s. 1.

b) Procedural Fairness

[97] The parents contend that the hearings they were afforded with respect to the Director’s applications for s. 29 orders in the Provincial Court did not grant them the procedural rights guaranteed under the Charter.

[98] The hearing regarding Baby A before Buller Bennett P.C.J. was, in her terms, “essentially” ex parte. While the parents did receive very short notice of the hearing, they had been advised of the doctors’ intention to contact the Ministry. In addition their counsel appeared before the court and made submissions on behalf of the parents.

[99] Section 29 of the CFCSA provides that parents must receive at least two days notice of the time, place and date of a hearing. However s. 69 confers broad discretion on the court to vary the notice requirements. Specifically the court can shorten the time period for notice or can dispense with the notice requirement entirely. In this case the court concluded that the hearing ought to proceed in the manner it did. Buller Bennett P.C.J. specifically turned her mind to the issue of service: See p. 2, line 26; p. 3, line 16, Reasons for Judgment at para. 1.

[100] The court in B.(R.) also considered the issue of procedural rights guaranteed under the Charter. La Forest J. for four of the justices said: “ ‘Reasonable’ is a flexible criterion that permits adjustments to different situations ... The procedural requirements of the principles of fundamental justice can be attenuated when urgent and unusual circumstances require expedited court action”. He further considered the requirements of the principles of fundamental justice in the history of the case. With respect to the initial wardship hearing he said at p. 378: “The evidence indicates that the Children’s Aid Society had to proceed diligently. The parents received notice of the hearing the day it was held. In light of the circumstances, the notice was reasonable”.

[101] However, also in B.(R.), Cory, Iacobucci and Major JJ. in the minority went somewhat further. They held that the right to liberty embedded in s. 7 of the Charter does not include a parent’s right to deny a child medical treatment that has been adjudged necessary by a medical professional. They reached that threshold conclusion by considering the consequences of La Forest J.’s position. They stated at p. 432:

Our colleague's reasons open the door to the possibility that a violation of a guardian's s. 7 rights will be found should the state deny a guardian his or her right to refuse a child in his or her charge medical treatment and should that denial fail to conform with fundamental justice. In the case at bar, Sheena's condition, although believed to be serious, was not sufficiently urgent to prevent the Children's Aid Society from seeking a court-ordered wardship, thereby complying with procedural fundamental justice. But what if Sheena were injured in a car accident and required an immediate blood transfusion to save her life? Even if her parents had been in agreement that the transfusion was necessary and urgently required, their personal convictions would still likely have compelled them to refuse their daughter the treatment. To this end, this exercise of parental liberty can engender the death of an infant.

We find it counter-intuitive that "parental liberty" would permit a parent to deny a child medical treatment felt to be necessary until some element of procedural fundamental justice is complied with.

(emphasis added)

[102] La Forest J. considered it necessary to respond. In doing so he addressed these concerns specifically in an addendum to his reasons at p. 387:

In an emergency, the demands of fundamental justice are more easily met. In R. v. Dyment, [1988] 2 S.C.R. 417, at p. 432, this Court alluded to a medical doctor's powers to take reasonable steps in such circumstances. These powers conform to the practices and procedures followed in this area and are consistent with principles of fundamental justice. The state's powers to exercise its legitimate parens patriae jurisdiction would, in my view, similarly be justified under the principles of fundamental justice. As well, these actions "prescribed by law" seem to me quite clearly to be "reasonable limits prescribed by law [that] can be demonstrably justified in a free and democratic society".

(emphasis added)

[103] In my view the foregoing is the answer to the parents’ submission that “legal niceties” cannot be considered in the context of a constitutional right.

[104] L’Heureux Dube J. for the majority in Winnipeg Child & Family Services v. K.W.L., 2000 SCC 48 addressed this issue. She noted that in S.(B.) v. British Columbia (Director of Child, Family and Community Service) (1998), 48 B.C.L.R. (3rd) 106 (B.C.C.A.) Lambert J.A.’s position supported the proposition that the distinction between emergencies and non-emergencies is difficult and risky to make. L’Heureux Dube J. noted at para. 106:

[Lambert, J.A.] criticized the potential for “legal niceties” to defeat the legislative purpose of the [Child, Family and Community Service Act], which is “to provide for the protection of every child who needs protection. No child should continue in a state of abuse, neglect, harm or threat of harm while administrators, lawyers and judges argue ...”

[105] In K.L.W. L’Heureux Dube J. considered the procedural content of the principles of fundamental justice within the context of warrantless apprehensions. She concluded at para. 117:

I find that the appropriate minimum s. 7 threshold for apprehension without prior judicial authorization is not the “emergency” threshold. Rather the constitutional standard may be expressed as follows: where a statute provides that apprehension may occur without prior judicial authorization in situations of serious harm or risk of serious harm to the child, the statute will not necessarily offend the principles of fundamental justice.

[106] The test for prior judicial determination of a medical intervention order should not require a higher procedural content than for warrantless removals where the infringement on the parents’ rights are greater. Where legislation permits the state to proceed in an ex parte fashion (for example, where the child is at risk of death or serious permanent injury), it does not offend the principles of fundamental justice that the parents were given short notice.

[107] Buller Bennett P.C.J. had before her the letters of two treating physicians and counsel’s submissions. She found that “It is abundantly clear from those letters that there is a necessity, and it is a very urgent necessity, affecting the best interests of the child. So I am not prepared to delay making a decision”. In my view she was correct.

[108] Here the parents seek to import into the principles of fundamental justice a requirement that there be full hearings, with full disclosure prior to the hearings and full opportunity to call expert evidence. While such a process may be desirable, it may be impossible where a child is in urgent need of a medical procedure.

[109] The parents also allege a breach of fundamental justice in that they were denied their venue of choice. The Provincial Court (Child, Family and Community Service Act) Rules require that a first instance application be filed in the registry closest to where the child lives.

[110] Section 28 of the Infants Act, R.S.B.C. 1996 c. 223 provides that the domicile of an infant is the domicile of its parents. Since they live in Maple Ridge, the Director says he was required under the Rules to file the application in the Port Coquitlam courthouse.

[111] Given the short-fused nature of these proceedings and the willingness of the courts to attenuate the traditional procedural fairness criteria in circumstances where children are at risk of imminent death or serious or permanent injury, formal rules around venue should be capable of relaxation. All reasonable steps should be taken to allow the parents in this type of hearing as much participation as possible. If that means a short notice change of venue application matching the short notice nature of the application itself, so be it. Although it does not change my disposition of this appeal, I would not want to be seen as affirming what seems to me to be an overly rigid practice.

[112] The parents say the trial judge ought not to have relied on the unsworn and untested letters of the doctors. However, the CFCSA specifically allows a judge to admit written statements without the necessity of calling the witness: see s. 68(2). In addition the order granted was time limited to seven days.

[113] The parents advance essentially similar arguments regarding the procedural defects surrounding the hearing of the Director’s application to have the court authorize the blood transfusion for Baby J.

[114] The parents were again advised of the necessity for the transfusion by the doctors before the Director was notified. Once prepared, the application was faxed to Mr. Brady, the parents’ counsel. When the matter came before the Provincial Court, Mr. Brady had already arranged for two doctors to testify on behalf of the parents.

[115] At the hearing the court heard the evidence of three doctors and the father. Given the urgency of the situation, in my view this met the requirements of fundamental justice.

[116] The parents also say they were denied their venue of choice. The CFCSA Rules provide that once a file is started, subsequent applications are to be filed in the registry where the file exists. Since the file had been opened in Port Coquitlam, the Baby J application was also filed there. However where parents in this situation make a reasonable request for an alternative venue which will facilitate their participation in hearings, I fail to see why such a transfer request cannot be respected. Either the Rules should be reconsidered or their strict application attenuated in appropriate circumstances.

[117] Two of the infants were apprehended by the Director under s. 30 of the CFCSA and their medical treatment authorized under s. 32. I have concluded that the health or safety of these infants was in immediate danger, that no less disruptive measures were available and that the medical professionals were of the opinion that treatment should be provided without delay.

[118] One of the questions that arose during this hearing was why the Director chose to proceed under s. 30 for two of the infants and why he chose to apply for treatment orders in the Provincial Court under s. 29 for the other two. It appears that the Director believed it necessary to proceed under s. 30 because the treatment became necessary outside of regular court hours when no judges of the Provincial Court would be available to conduct a s. 29 hearing. That misperception was corrected during the course of this proceeding by the Chief Judge of the Provincial Court who advised that, like the Supreme Court of British Columbia, the Provincial Court has judges available to hear after hours emergency applications.

[119] That being so, it will be in only the rarest of circumstances that the Director will have to resort to s. 30 in cases of this nature as opposed to applying to the Provincial Court for a treatment order under s. 29. While s. 29 hearings can also proceed without notice, there is generally at least the opportunity for the type of process, albeit attenuated, seen in this proceeding.

3. ARE THE impugned sections of the CFCSA CONSTITUTIONAL?

[120] The parents seek an order declaring that ss. 30(1), 32(2), 33.3, 34(1), 35(1), 37(2) of the CFCSA, as construed and applied, are of no force and effect under s. 52(1) of the Constitution Act, 1982.

[121] I have concluded that neither the impugned Provincial Court orders nor the impugned acts of the Director violated the parents’ s. 2(a) or s. 7 Charter rights. Because their Charter rights were not breached, they are not entitled to a Charter remedy under s. 24(1) of the Charter, which provides:

24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[122] However in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, Dickson C.J. considered whether a declaration concerning the constitutionality of a law is available independent of a remedy under s. 24(1) of the Charter. He wrote at p. 313:

Section 24(1) sets out a remedy for individuals (whether real persons or artificial ones such as corporations) whose rights under the Charter have been infringed. It is not, however, the only recourse in the face of unconstitutional legislation. Where, as here, the challenge is based on the unconstitutionality of the legislation, recourse to s. 24 is unnecessary and the particular effect on the challenging party is irrelevant.

[123] In the case at bar the parents have not established a Charter breach so they are not entitled to a remedy under section 24(1). However, a declaration that a law is unconstitutional could be available absent recourse to section 24(1).

[124] Here the parents challenged the constitutionality of the provisions in the CFCSA on the basis that they infringed the Charter. The parents sought to prove that the provisions were unconstitutional by proving that their Charter rights had been breached. However, I have held that the parents’ Charter rights were not violated. Since the petitioners bear the burden of proving that the provisions violate the Charter and they failed to do so, it is not necessary to go further and consider whether the provisions might potentially be unconstitutional.

[125] The CFCSA as construed and applied by the Director in this case did not infringe the parents’ rights under the Charter.

[126] Accordingly the appeals and the application for judicial review will be dismissed.

“The Honourable Chief Justice Brenner”

Citation:	*V.M. v. British Columbia (The Director of Child, Family and Community Service)*,
	2008 BCSC 449