By Don Hutchinson
On Saturday, September 22 the funeral of a two-year old was held at the Canadian Islamic Centre in Edmonton, Alberta. Most who have reported on the too short life of “Baby M” have used some form of the word “tragedy” to describe the circumstances. If you’re not familiar with this true story, here is a summary of the details.
About four months ago paramedics arrived at a call and found Baby M with head injuries, malnourished and in cardiac arrest. Her twin sister was also malnourished. Police report the girls each weighed about half the normal weight for a child that age – 13 and 16 pounds respectively. An older brother was found to be in good health.
Baby M’s sister is recovering in foster care. Baby M, however, slipped into a coma and was kept alive on life support. A team of doctors determined that her brain injuries left her with no hope of recovery.
Her parents were charged with aggravated assault, criminal negligence causing bodily harm and failing to provide the necessities of life. Still, they fought in the courts to stop Baby M from being taken off life support. They founded their legal battle in the precepts of parental right and religious belief. On Thursday, September 20 three judges of the Supreme Court of Canada dismissed the parents’ final appeal, giving no reasons for their decision. That night, Baby M was removed from life support and slipped from coma into eternity.
My grandson is two years old. He weighs as much as Baby M and her sister’s combined weights. I can’t imagine him at half the weight.
I am a devout Christian and spend much of my time standing up for the constitutionally guaranteed right to religious freedom. I also spend a fair amount of time promoting the principles of the sanctity of life and care for the vulnerable. So, you can perhaps imagine the thought process involved when a reporter called to ask my opinion about the aligning decisions of the Alberta Court of Queen’s Bench, Alberta Court of Appeal and Supreme Court of Canada.
The courts in the Baby M case were confronted with an untenable fact situation. In working their way through a legal quagmire, they respectfully included consideration of the religious beliefs of the parents, parental rights and the sanctity of human life in weighing the use of the courts’ parens patriae jurisdiction to assess the “best interests of the child.” Parens patriae is a latin term that means the courts and government are called upon at times to fill the role of the “parents of the nation” in making decisions. Using that authority governments have legislated standards of care for the best interests of children, setting standards that all parents are required to meet in providing basic care and preventing abuse. From time to time, a government authorized agency determines that those standards are not being met and parents lose the care of children who are found to be vulnerable, at risk of further harm. The limits of government agencies end at the point of withdrawing life support or forcing life-saving measures on children against the wishes of the parents. At that point the courts become involved.
Decisions of the Supreme Court of Canada in cases involving life saving measures set the framework for the courts’ evaluation in this instance. While there is no truly acceptable process for evaluating the quality of life in a patient’s future, faced with an extremely difficult set of facts the Alberta courts made a tight technical legal decision to avoid invasive and immediate medical measures that might only potentially have extended Baby M’s life.
In particular, I was asked by the reporter to offer comment on this statement:
By refusing to stay/permitting the withdrawal of life support from a permanently comatose patient the Supreme Court has signaled/tacitly affirmed, for the first time, that courts can use their parens patriae power to withdraw life support in a patients’ best interests.
The question was being put to me in light of the EFC’s intervention before the Supreme Court of Canada in Cuthbertson v Rasouli, a case involving an adult in a coma. The legal standard employed in assessing the use of the parens patriae jurisdiction in regard to the care of a child is different from the standard applicable in the case of an adult whose desires have been expressed and are known by an appointed substitute decision maker.
There’s an old saying that “hard cases make bad law.” The implication is that cases with particularly difficult fact situations are a poor basis for establishing generally applicable legal principles, so “no,” I do not think the Supreme Court of Canada has signalled anything other than it was not prepared to hear or provide written reasons on the appeal of a case that is distinguishable on extreme and unique facts.
What I know about the Baby M case is only the details reported in the media and the written reasons of the courts. That leaves me with too little knowledge to know whether or not I agree with the decisions made in the same way I can agree with the judicial process followed. I do, however, agree with the word chosen by journalists and jurists alike to describe the situation, “tragedy.”