Alberta (Child, Youth v. Family Enhancement Act, Director), 2020 ABQB 799

Court of Queen’s Bench of Alberta Citation: Alberta (Child, Youth and Family Enhancement Act, Director) v JI, 2020 ABQB 799 Date: 20201218 Docket: FL01 32262 Registry: Calgary Between: Alberta (Child, Youth and Family Enhancement Act, Director) Applicant - and - JI, II and LI Respondents - and - Minister of Justice and Solicitor General of Alberta Intervenor Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2. No person shall publish the name or photograph of a child or of the child’s parent or guardian in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice L. Bernette Ho

_______________________________________________________ [ 1 ] The Director of Child and Family Services filed an application to strike or dismiss appeals filed by JI (a minor), and her parents II and LI (collectively, the “Respondents”) based on the principle of mootness.

The Respondents’ appeal was filed in respect of emergency apprehension and medical treatment orders made in October 2019 under the Children, Family and Youth Enhancement Act , RSA 2000, c-12 (“ CYFEA ”). [ 2 ] The Attorney General of Alberta intervened because the Respondents also filed in December 2019 a Notice of Constitutional Questions, with notice to the Attorney General of Canada and the Minister of Justice and Solicitor General of Alberta, stating that JI was challenging the constitutional validity of various sections of CYFEA . I.

Introduction [ 3 ] JI, who was 14 years old in October 2019, suffers from sickle cell anemia, a hemoglobin disorder characterized by red blood cells being distorted into sickle, or crescent, shapes. The disorder interferes with the red blood cells’ ability to carry oxygen throughout the body. Some individuals with sickle cell anemia receive blood transfusions to increase the number of flexible, round red blood cells in the body as a form of pain management.

In some cases, sickle cell anemia may lead to other health issues such as strokes or organ damage. [ 4 ] JI, II and LI are Jehovah’s Witnesses and they oppose blood transfusion as a form of medical treatment based on their religious beliefs. A. The Proceedings Below [ 5 ] On October 5, 2019, JI was admitted to the Alberta Children’s Hospital in Calgary (the “Hospital”) in order to seek treatment to manage and alleviate the possible complications of a sickle cell pain crisis. JI was treated by Dr. Leaker, her pediatric hematologist for over seven years, Dr.

Cook, her pediatrician, and numerous other medical staff. [ 6 ] Dr. Leaker was aware of JI’s position on blood transfusions and the Respondents’ desire to investigate, and if necessary pursue, other forms of medical treatment for JI other than blood transfusion. However, it seems that Dr.

Leaker became concerned that it might be medically necessary to resort to blood transfusion as a treatment option for JI. [ 7 ] On the evening of October 13, 2019, it was determined that an emergency application for apprehension and medical treatment orders would be made. [ 8 ] The emergency hearing was convened in a Hospital boardroom at approximately 1:30 a.m. on October 14, 2019. Provincial Court Judge LaRochelle heard viva voce testimony from Nicole Ward, a social worker, Dr. Leaker and II.

Two representatives of the Hospital’s Liaison Committee of Jehovah’s Witnesses assisted II and made submissions but II did not have an opportunity to retain legal counsel because he reportedly received approximately 1 hour’s notice of the hearing. JI did not receive formal notice of the hearing and was not represented by counsel, again due to short notice. [ 9 ] Ms. Ward testified as the Director’s Delegate at the ex parte application for an apprehension order under

section 19 of CYFEA . Based on her consultation with JI’s medical team, Ms. Ward outlined a concern regarding the lack of consent to the provision of blood products. Specifically, there was a “possible and imminent risk” that JI could sustain a stroke or brain damage, and this precise risk would be mitigated significantly through a blood transfusion. Ms. Ward acknowledged that the family was open to any other medical treatment and she described the other treatment being provided to JI. Ms.

Ward indicated that a previous apprehension and medical treatment order was issued in 2013 in relation to JI and confirmed her opinion that without the apprehension order, JI’s “safety, security and development” was at imminent risk if left in the Guardian’s care. [ 10 ] Judge LaRochelle issued the apprehension order and immediately proceeded to hear the application for a medical treatment order under

section 22.1 of CYFEA since counsel to the Director asked that the one-day notice provision required be dispensed with on the grounds of urgency. [ 11 ] Ms. Ward reiterated the concern about the risk that JI could sustain a stroke or damage to other organs without a blood transfusion. It was the Director’s position that, although JI was clear about her wishes, the Director had the responsibility to protect JI until she reached adulthood. Ms. Ward also outlined her discussions with JI, II and LI and it was clear that consent to a blood transfusion would not be provided. [ 12 ] When Ms.

Ward was cross-examined by II and one of the representatives from the Hospital Liaison Committee, Mr. Backous, she reviewed her discussion with JI and testified that JI was steadfast in her beliefs at which she had arrived without being subject to pressure or duress from others. Ms. Ward was then questioned about JI and whether she was “mature” for her age, to which she responded that JI seemed to be a typical 14-year-old. Ms.

Ward also began to speak about the fact that JI had been assessed by Alberta Health Services as to her maturity. [ 13 ] Before cross-examination went much further, Judge LaRochelle interjected as follows: My understanding is that the Court of Appeal says that the Court of Appeal says that the CYFEA is a complete code and a mature minor is not found within the code, so it’s not an issue before me. [ sic in original] [ 14 ] Dr. Leaker was then qualified as an expert and testified. He described his history treating JI starting in 2013 when a blood

transfusion was given to JI. She responded promptly to the treatment at that time and her respiratory status improved. He also indicated that since he has known JI, she has suffered sickle cell complications every 3 to 6 months, requiring hospitalization or treatment of some kind although a blood transfusion had not been required since 2013. [ 15 ] In October 2019, JI was admitted to address a pain crisis affecting her back and legs. Dr. Leaker outlined the drugs that had been administered to JI to address her pain.

Because JI’s hemoglobin levels were dropping, she was also administered erythropoietin (referred to as “EPO”), a blood forming hormone. When he provided his testimony, Dr. Leaker described JI’s condition as “remarkably stable” but indicated that if her hemoglobin levels dropped further and she were to experience other clinical symptoms then there may be a point where further intervention would become critical. Even if her hemoglobin levels were to stay as low as they were for a prolonged period, Dr.

Leaker described there being an “unknowable and unquantifiable” risk to JI’s heart, lungs, kidney and brain as a result of progressive anemia. [ 16 ] Then, the following exchange occurred during the direct examination of Dr. Leaker: Q: Okay. Do you feel that blood transfusion is an essential medical treatment option – or essential medical treatment that the child requires at this time? A: At this precise moment, I would say it represents a standard of care, but it’s not essential in the sense that a major clinical consequence will certainly follow if she does not receive blood immediately. Q: Okay.

So you’re saying you require flexibility in the event that she requires a blood transfusion: A: I’m looking for guidance as to what my options are to provide the best care in the context of coming to understand what a mature minor status case is and isn’t in the jurisdiction. [emphasis added] [ 17 ] Dr. Leaker then described his conversations with JI as well as with II and LI. He confirmed that they expressed the desire to pursue the EPO, iron and other alternative treatments to address JI’s hemoglobin levels, without blood transfusion. [ 18 ] Dr.

Leaker was cross-examined by II and he confirmed that JI has previously recovered without the need for a blood transfusion. He also confirmed that her condition was, at the time, stable though her hemoglobin level remained low. [ 19 ] Both representatives from the Hospital Liaison Committee, Mr. Backous and Mr. McLeod, also cross-examined Dr. Leaker. He again reiterated that JI’s condition was stable and that the EPO treatment had only just been commenced. Dr.

Leaker acknowledged that it could be reasonable to wait before resorting to a blood transfusion, but he stated that other pediatric sickle cell anemia patients with the same clinical symptoms as JI have agreed to transfusion. Dr. Leaker then testified: You know, we generally seek to administer therapy with the consent of all parties including the patient where they are, usually it’s assent in a pediatric patient rather than concept.

It’s not usual that a pediatric patient expresses the degree of a program that [JI] has to this particular intervention and I have to admit from a global health perspective and looking at a broader definition of the child’s best interests, that’s a sobering concern for me, as a practicing physician. It’s difficult to administer a therapy it’s specifically forbidden by a given patient. It’s not what we’re trained to do. [ sic in original] [ 20 ] In response to questions from the Court, Dr.

Leaker indicated that if he were permitted to consider JI and her parents’ wishes, then he would wait before administering a blood transfusion. However, if he were directed to administer according to the “standard of care” as he knew it, without regard for the family’s wishes, then he would likely order an immediate blood transfusion.

Judge LaRochelle then questioned the timing of a possible adjournment of the hearing and the health concerns that might be presented by the timing of such a scenario. [ 21 ] II also addressed the Court, reiterating that it was both JI’s wish as well as that of her parents for her not to receive a blood transfusion. He further described JI’s medical history and asked for time for the EPO and other treatments to take effect. He asked the Court to consider JI’s best interests having regard for her emotional and psychological well-being. [ 22 ] Dr.

Leaker also responded to questions regarding the risks associated with a blood transfusion. [ 23 ] The Court ultimately ruled as follows: The Court: All right. I’m going to make an order authorizing the later. So the order will direct you to carry out a course of conduct standard of care, however, I’m asking you to carry out the standard of care in accordance with your discussions with the parents and what their wishes are i.e. let’s give these other alternatives a little bit longer perhaps.

But, at the point where you feel that professionally her health is put at a risk that you cannot conscientiously continue it, at that point you could transfuse. Does that make sense? Dr. Leaker: It may be difficult to define that point, but yes, it makes sense. The Court: The Act says “essential” and Mr. Dylke makes a good point, I think there’s two

definitions to essential here. There’s the more global one that this meets, but then there’s perhaps a more direct one which better fits what the family’s concerns are. If it gets to the point where we need to protect this young lady from serious harm, at that point. [ 24 ] The matter was then adjourned to the following Tuesday, October 15 which would allow time for counsel to be appointed and for the family to better prepare for the hearing.

Judge LaRochelle concluded the hearing by stating the following: …I put it over to Tuesday morning ‘cause normally when an apprehension is granted, the Director has ten days to bring the matter into court. I put into court in front of myself on Tuesday morning as a courtesy to dad. If it should happen that things work out well, which we’re all praying for, dad could simply advise Child Welfare that I’m not – lawyers

aren’t coming in to make any further submissions on this on Tuesday morning. They’ll advise Mr. Dylke, he’ll show up in front of me and I’ll put it over to another date. So it’s not necessary, it’s a courtesy and that’s because of your comment that this was rushed upon you and dad hasn’t had an opportunity to consult with counsel, we don’t have a lawyer for the young person. So does that sound fair? I’m doing that out of an abundance of caution. Okay. Thanks everyone. [ 25 ] On October 15, the Court was convened with counsel for the Director and counsel for the parents in attendance by telephone.

Counsel to JI indicated by letter that he was not available and so he asked that the matter be adjourned for a week. The Court adjourned the matter to October 21. No treatment had been provided under the medical treatment order at that point but the Court continued the order. Counsel to the parents wished to make substantive submissions and mentioned that the Supreme Court of Canada’s decision in Manitoba (Director of Child & Family Services) v AC , 2009 SCC 30 [ AC ] required an assessment of the child’s best interests from her viewpoint.

Counsel was advised that further discussion regarding JI’s wishes could be addressed on October 21 as Judge LaRochelle was expected in another courtroom and thus not running a hearing. Judge LaRochelle advised counsel to the parents that the Supreme Court of Canada jurisprudence could be addressed at the next court appearance. [ 26 ] Prior to the hearing re-convening on October 21, counsel to the Director and counsel to the parents appeared before Judge LaRochelle on October 17, 2019. Because JI’s hemoglobin levels had increased, the Director brought an application to set aside the medical treatment order.

No blood transfusion was provided to JI under the medical treatment order. [ 27 ] Counsel to the parents submitted that the better course of action was for the medical treatment order to be dismissed since blood transfusion was no longer required. He argued that no evidence was led at first instance regarding JI’s maturity and referenced that five medical expert opinions had been obtained addressing her maturity. Judge LaRochelle questioned whether he had the jurisdiction to dismiss the medical treatment order since an order had already been issued.

It was confirmed that the parents no longer wished for the medical treatment order to continue and Judge LaRochelle proceeded to set it aside. B.

Proceedings to Date [ 28 ] A few weeks later, in early November 2019, the Respondents filed a Notice of Appeal with this Court on a number of grounds, including allegations that JI and her parents were denied their substantive and procedural rights to fundamental justice due to: the failure to provide notice of the hearing; the failure to provide an opportunity to retain counsel; and the failure to allow JI to lead evidence. [ 29 ] They also alleged that Judge LaRochelle erred in law by holding that the maturity of JI was not an issue to be considered, thus violating JI’s rights under sections 2(a), 7 and 15(1) of the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ] and contrary to the Supreme Court of Canada’s decision in AC , and by failing to consider JI’s expressed medical treatment choices under the best interests test set out in

section 1.1 (

a) of CYFEA . [ 30 ] The Respondents seek an order revoking Judge LaRochelle’s prior orders; an order pursuant to section 24(1) of the Charter declaring that the proceedings, findings and orders below violated the rights and freedoms of the Respondents; and an order pursuant to section 24(1) of the Charter or section 52(1) of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 declaring that sections 1(1) (d), 1(2.1) (b), 1.1 (a), 2(1) (b), 2.1 , 19(1) (

a) and 20(1) of CYFEA , on their face or as construed and applied, violated the Respondents’ Charter rights.

Finally, the Respondents also stated that they would make an application to adduce new evidence. [ 31 ] In December 2019, the Respondents filed a Notice of Constitutional Questions, with notice to the Attorney General of Canada and the Minister of Justice and Solicitor General of Alberta, stating that JI was challenging the constitutional validity of various sections of CYFEA and seeking a remedy pursuant to section 24(1) of the Charter and section 52(1) of the Constitution Act, 1982 , for violation of her rights under sections 2(1) , 7 and 15(1) of the Charter .

The Notice sets out the material facts and legal basis for the Constitutional Questions, then sets out the following three questions: (

a) Do the notice requirements at sections 2.1 and 23(1) of the CYFEA , in their effect, and as construed and applied by the Director and Judge LaRochelle, violate the rights of a mature young person less than the age of 18 under the Charter , ss 2(a), 7, and 15(1)? If so, should those subsections be declared of no force and effect under s52(1) of the Constitution Act, 1982 ? (

b) Did the Treatment Order of Judge LaRochelle and the actions of the Director infringe JI’s rights under the Charter , ss2(a),7, and 15(1)? If so, is she entitled to relief under the Charter , s24(1), declaring her rights were violated, invalidating the Treatment Order, and assessing appropriate damages? (

c) If the CYFEA, ss1(1)(d), 1(1)(cc), 1(2.1)(b), 2(1)(b), 2(1)(1), 2.1, 20, 22.1 and 23(1)(c), interferes with the treatment choices of capable persons under the age of 18, do those sections violate their rights under the Charter , ss 2(a), 7, and 15(1)? If so, should those sections be declared of no force or effect under the Constitution Act, 1982 s 52(1)? [ 32 ] In February 2020, the Director filed an Application to strike the Appeal on the ground that it is moot because (1) the Provincial Court terminated the medical treatment order at the request of the Director on October 17, 2019; and

(2) JI did not receive a blood transfusion before the medical treatment order was terminated, so the basis for the appeal is hypothetical. II. CYFEA – the legislative framework [ 33 ] Before discussing the issues at hand, a brief overview of CYFEA and the relevant provisions is warranted. [ 34 ] Section 1(1) (

d) of CYFEA defines “child” as “a person under the age of 18 years and includes a youth unless specifically stated otherwise,” and section 1(1) (cc), in turn, defines “youth” as “a child who is 16 years of age or older.”

[ 35 ] Section 1(2)(

c) states that a child is considered to be “in need of intervention” if there are reasonable and probable grounds to believe that the child’s safety, security or development is endangered because the child is neglected by their guardian.

Under section 1(2.1)(b), an example of such neglect is where the child’s guardian is unwilling to permit the child to receive “essential medical, surgical or other remedial treatment that is necessary for the health or well-being of the child.” [ 36 ] Consistent with the purpose of CYFEA , where a child’s guardian is unable to afford adequate protection to the child’s safety, security or development, a director designated by the province may step in to exercise their guardianship power in lieu.

Most notably, pursuant to section 19(1) (a), “if a director has reasonable and probable grounds to believe that a child is in need of intervention, the director may make an ex parte application” to a judge of the Court or in certain circumstances, a justice of the peace for an order “authorizing the director to apprehend the child.” [ 37 ] When a child is apprehended, section 20(1) (

a) stipulates the director to notify the guardian of the child forthwith that the child has been apprehended. [ 38 ]

Section 22.1 explains the potential healthcare services that may be administered subsequent to the child’s apprehension. The relevant subsections are reproduced below for convenience:

(1) If the guardian of a child who has been apprehended is unable or unavailable to consent to the provision of essential medical, surgical, dental or other remedial treatment for the child that is recommended by a physician or dentist, a director may authorize the provision of any recommended treatment for the child.

(2) If the guardian of a child who has been apprehended refuses to consent to essential medical, surgical, dental or other remedial treatment for the child that is recommended by a physician or dentist, the director must apply to the Court for an order authorizing the treatment.

(3) Despite section 23(4), notice of the date, time and place at which an application under subsection (2) is to be heard must be served not less than one day before the date fixed for the hearing.

(4) A director may make an application by telephone or other means of telecommunication to a judge of the Court in accordance with section 19(5) to (10), in which case section 19(11) applies to the order.

(5) If it is satisfied that the treatment is in the best interests of the child, the Court may authorize the treatment notwithstanding that the guardian of the child refuses to consent to the treatment. […] [ 39 ] The phrase “best interests of the child” under subsection (5) is echoed and further explained in section 2(1) of CYFEA : If a child is in need of intervention, a court, an Appeal Panel and all persons who exercise any authority or make any decision under this Act relating to the child must do so in the best interests of the child and must consider the following as well as any other relevant matter: […] (

b) if the child is capable of forming an opinion, the child’s opinion should be taken into account; […] [ 40 ] Finally, regardless of the child’s capability to form an opinion, the child has procedural rights under CYFEA and the right to be informed of such rights by the director, when appropriate, under

section 2.1 . [ 41 ] Against this backdrop, the issues before this Court are listed below. III. Issues 1. Should the Director’s application to dismiss the appeal for mootness be granted? 2. If the appeal is moot, should this Court exercise its discretion to hear the appeal? 3. What, if anything, should be done with the fresh evidence tendered by the Respondents? IV. Analysis A. Issue 1 – Should the application to dismiss the appeal for mootness be granted? [ 42 ] The doctrine of mootness allows a court to decline to hear hypothetical or abstract cases.

The doctrine is sometimes raised at the appellate level, such as here, because of events that have occurred after the trial: R.P. Kerans and K.M. Willey, Standard of Review Employed by Appellate Courts , 2 nd ed, (Edmonton: Juriliber Limited, 2006) at 333.

[43] The leading case on mootness is the Supreme Court’s decision in Borowski v Canada (AG), (SCC), [1989]1 SCR 342, 1989 CarswellSask 241 (Cited to WL Can) [Borowski]. In Borowski, the Supreme Court of Canada explained that thedoctrine “applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect therights of the parties.

If the decision of the court will have no practical effect on such rights, the court will decline to hear the case”: atpara 15. [44] The Court also clarified that the controversy must exist when a court is called upon to make a decision, thus the requirementfor a “live controversy”: at para 15. If there is no present controversy which affects the rights of the parties, the case is said to be moot. [45] However, even if a court finds a matter to be moot, the court retains the discretion to hear the case if the circumstanceswarrant.

The factors to consider are: (1) the presence of an adversarial context; (2) the concern for judicial economy; and (3) the need forthe court to be sensitive to its role as the adjudicative branch in our political framework: New Brunswick (Minister of Health andCommunity Services) v G(J), (SCC), [1999] 3 SCR 46 at para 43 [G(J)]; Borowski at paras 31-42. [46] The Director (or the “Applicant”) argues that this case is moot as the initial purpose for the orders has now passed. TheDirector immediately withdrew the application when circumstances changed and JI’s condition improved.

JI never received a bloodtransfusion and is no longer the subject of a medical treatment order. [47] The Applicant submits that there is no longer a dispute between the parties. It is purely hypothetical to suggest that JI mayneed a future transfusion and that her position on blood transfusions will remain the same at that time.

The Applicant submits that theissues raised would best be decided in the future when a live dispute arises and an adversarial context exists. [48] Further, the Applicant submits that the law in this area is settled, and that the provincial child welfare legislation ousts thecommon-law mature minor principle because it provides a complete code with respect to medical decision-making for apprehendedminors, citing AC and H(

B) v Alberta (Director of Child Welfare), 2002 ABQB 371 at paras 43 and 44 [H(B)], aff’d 2002 ABCA 109[H(

B) CA]. The Director takes the position that AC’s findings regarding maturity only apply in Manitoba and do not overrule the Albertadecision in H(B). [49] Regarding the procedural questions raised by the Respondents, the Director argues that the hearing occurred on short notice inan emergency situation. While the parents did not have counsel, they did participate at the hearing and had advocates from the HospitalLiaison Committee there to assist them.

The Court was also made aware of JI’s opposition to blood products and the ultimate order diddelay blood transfusion, in accordance with the request of JI and her parents. [50] The Respondents disagree.

They submit that there is a live controversy between the parties and that this matter is not moot.The extent of JI’s procedural and substantive rights, as a mature minor in Alberta, remains a live issue and will be resolved by the appeal.JI will not reach the age of majority for another three years and since she suffers from a chronic medical condition, she will likely requirehospitalization in the future where blood transfusions are recommended. [51] The Respondents submit that the Supreme Court of Canada was clear in AC that a careful analysis must be done of a youngperson’s ability to exercise mature and independent judgment about a particular medical treatment and that Judge LaRochelle actedcontrary to this direction by refusing to hear any evidence on JI’s maturity.

The failure to consider JI’s maturity raises Charter andconstitutional issues, and the possibility of applicable remedies under section 24(1) of the Charter and section 52(1) of the ConstitutionAct, 1982, all of which remain live issues and are not moot: B(

R) v Children’s Aid Society of Metropolitan Toronto, (ON CA) at para 9. [52] The Respondents further argue that even if this Court finds that a live controversy does not exist, it should neverthelessexercise its discretion to hear the appeal based on the three criteria set out in Borowski and G(J). [53] First, there is an adversarial context present as the adversarial relationship between JI, her parents and the Director continues.JI has now been apprehended by the Director twice (the first time being in 2013) and was transfused on the first occasion.

The risk ofanother crisis leading to her apprehension before she turns 18 is not theoretical. The Director’s actions have caused serious and profoundeffects on JI’s psychological integrity. The Respondents submit that it is apparent the appeal will be vigorously argued on both sides bythe parties and the intervenor. [54] Second, the Respondents submit that this case raises important issues that are evasive of review, so the concern for judicialeconomy does not arise. The importance of personal autonomy in medical treatment decisions is an issue of broad social andconstitutional importance.

If the decision of Judge LaRochelle is left to stand, there is no requirement for the Provincial Court to considerthe capacity of an adolescent and his or her maturity when issuing medical treatment orders. This case would allow for clarification onthis issue after careful argument and consideration, a circumstance that is often lacking due to the emergency nature of medical treatmentorders. That factor is one that militates towards a court exercising its discretion to hear a moot issue: G(

J) at para 47; BN v Alberta(Director of Child Welfare), 2004 ABCA 40 at para 18 [BN]. [55] Third, the hearing of this appeal does not require this Court to overstep its institutional role. The Respondents are asking for adetermination of their procedural and substantive rights arising from government action under CYFEA. This is a matter of statutoryinterpretation and does not require the Court to give a legal opinion that supersedes its adjudicative role. [56] I agree with the Applicant that there is no longer a live controversy in this case, and that this matter is moot.

The issue beforeJudge LaRochelle was whether to order an apprehension order and medical treatment order for JI, such that she would receive a bloodtransfusion if medically necessary. I find that whether to order the medical treatment order was the “tangible and concrete dispute” thatwas before that Court for determination: Borowski at para 16.

As that issue was determined, an order granted and later set aside, there isno longer a live controversy between these parties. [57] In coming to this decision, I rely on G(J), where the Supreme Court of Canada made a similar finding in relation to a Charterchallenge involving the right to counsel for a mother facing child welfare proceedings. The Court held at para 42 that as the custody

order had expired, there was no longer a live controversy on appeal: … At issue is whether the Government of New Brunswick was under an obligation to provide state-funded counsel to the appellant in the circumstances of this case. The appellant, though, was in fact represented by counsel at the custody hearing, the custody order has expired, and she has since regained custody of her children. Consequently, there is no “live controversy” in this appeal.

The tangible and concrete dispute has disappeared, and the issue has become academic. [ 58 ] Of course, this does not end the matter as I now must go on to consider whether the matter, or aspects of the matter, should still be heard. B. Issue 2 – Should this Court exercise its discretion to allow the matter to proceed? [ 59 ] The first criterion to consider is whether there is an appropriate adversarial context. In Borowski this was described as determining whether “despite the cessation of a live controversy, the necessary adversarial relationships ... nevertheless prevail”: at para 31.

It was apparent at the hearing of this application that the Applicant and Respondents are still heavily invested in the issues of this case and strongly believe in their positions. I also accept that there is a likelihood that due to JI’s chronic health condition that has resulted in multiple hospitalizations, this issue may arise again before she reaches the age of 18. I have no hesitation in finding that the issues will be fully and ably argued by the parties. [ 60 ] The second criterion is the concern for judicial economy and the need to ration scarce judicial resources.

I find that there are two important factors in this case which negate this concern. [ 61 ] First, I find that this appeal raises an issue where clarity in the law is required, both as guidance for the litigants in this case (and those who face similar circumstances in the future), and for those in the medical community such as Dr. Leaker who are uncertain about how to apply the mature minor principle in cases of this type. [ 62 ] More specifically, there is a lack of judicial clarity on whether the mature minor principle applies in a medical treatment context in Alberta under CYFEA .

Although Judge LaRochelle indicated that this issue was addressed by our Court of Appeal in H(

B) CA , in my view, H(

B) CA offers little guidance. In H(

B) CA , the Court found that the treatment order under the old Child Welfare Act did not contravene the child’s rights precisely because the child did not have the necessary capacity to be considered a mature minor: at para 13. In other words, it remains unanswered whether a treatment order that is granted despite the refusal of a mature minor is constitutionally compliant. [ 63 ] A more instructive case for our purposes appears to be AC .

Although it is true that it was decided in the context of the Manitoba Child and Family Services Act , CCSM c C80 (“ CFSA ”), AC dealt with a child’s maturity and its significance in the medical treatment context. [ 64 ] AC was a 14-year-old Jehovah’s Witness with Crohn’s disease. Due to her religious views, AC refused to consent to blood transfusions. Consequently, the Director of Child and Family Services apprehended AC as a child in need of protection under CFSA and applied for an order authorizing blood transfusions.

Kaufman J. considered the fact that AC had refused transfusions and signed an advanced medical directive but ultimately determined that, given the immediate danger of serious damage or possibly death, it was in AC’s best interests pursuant to section 25(8) of CFSA to order blood transfusions. The Court of Appeal of Manitoba dismissed AC’s appeal, and AC further appealed to the Supreme Court of Canada. [ 65 ] Writing for the majority, Abella J. explained that while she largely agreed with the analyses from the proceedings below, in order to be constitutionally compliant, the

interpretation of “best interests” in section 25(8) of CFSA requires courts to take sufficient account of a child’s maturity in any given medical treatment context: at para 21. Abella J. further summarized: It is a sliding scale of scrutiny, with the adolescent's views becoming increasingly determinative depending on his or her ability to exercise mature, independent judgment. The more serious the nature of the decision, and the more severe its potential impact on the life or health of the child, the greater the degree of scrutiny that will be required: at para 22. The Supreme Court held that such an

interpretation of the “best interests” standard is consistent with the actual developmental reality of young people and is also conceptually in accordance with the evolutionary development of the mature minor doctrine: at para 23. [ 66 ] Determining whether the Supreme Court of Canada’s

interpretation in AC is germane in the case at hand will require a thorough comparison between CFSA and CYFEA. At first glance, it appears that there are significant similarities between the two pieces of legislation. Although CFSA creates a distinction between children who are under 16 and children who are 16 or older and CYFEA does not, both statutes place a particular emphasis on the “best interests” of a child. For example, similar to section 25(8) of CFSA ,

section 22.1(5) of CYFEA provides that the Court may authorize certain treatment despite the child’s refusal, if the Court is satisfied that the treatment is in the best interests of the child. [ 67 ] The Supreme Court of Canada’s discussion in AC regarding the mature minor principle revolved around the “best interests” standard, and this standard is a key element in CYFEA , just as it is in CFSA . As such, it appears that AC has some applicability in Alberta or that at the very least, the law surrounding the mature minor doctrine in the medical treatment context in Alberta is not settled.

The issue in this case therefore rises to being a matter of public importance. Given the significance of this issue, a fulsome and complete analysis is warranted, which can be achieved by allowing this appeal to proceed. This factor therefore favours the appeal proceeding: Borowski at para 37 . [ 68 ] The second counterpoint to concerns for judicial economy is that cases of this nature are evasive of review: BN at para 18. Applications for apprehension and medical treatment orders by their nature occur during times of emergency circumstances: sections

22.1(1) and (2) of CYFEA . The provision of one day’s notice also demonstrates the usual urgency that attends these types of applications:

section 22.1(3) of CYFEA . Once the order is given, the treatment typically follows shortly after. [ 69 ] Similar to the situation in G(J) , orders of this nature “…will ordinarily have expired by the time the matter comes to this Court, rendering the controversy moot. The Court will therefore likely have to decide a moot case if it ever wants to address this issue”: at para 47. [ 70 ] See also JH v Alberta Health Services , 2017 ABQB 477 [ JH ], where my colleague exercised her discretion to hear a moot constitutional challenge.

The challenge was to mental health certificates, which like medical treatment orders, are often temporary in nature and of short duration, making a “live controversy” an uncommon occurrence: at para 23.

As in JH , I find that it is in the public interest to determine whether the safeguards are in place to ensure that medical treatment orders granted under CYFEA are justified and issued in accordance with the Charter . [ 71 ] I therefore conclude that issues of judicial economy should not prevent this matter from being heard. [ 72 ] Finally, the third criterion under Borowski considers whether a court is potentially overstepping its institutional role as an adjudicator. This was a concern in Borowski itself, where the litigant was asking for an abstract

interpretation of how sections of the Charter applied to fetal rights, and no specific legislation was at issue. I do not find that to be the case here, as this Court has been asked to address actual governmental action (the Director’s actions in obtaining the orders) and to consider the Respondents’ procedural and substantive rights under CYFEA in light of the Charter . These issues do not ask for abstract pronouncements and instead are grounded in actual facts and the

interpretation of existing legislation. I find that the issues raised engage the Court in its proper adjudicative role. [ 73 ] Based on the three criteria, there are strong grounds for this matter to proceed. [ 74 ] Although this is my overall conclusion, I do have concerns that not all of the matters in the Notice of Appeal meet the test for judicial economy. I therefore conclude that not all of the grounds in the Notice of Appeal should proceed.

This divided approach makes sense where resolving some issues will have little impact practically, such as determining whether a blood transfusion was essential in October 2019, and some judicial time and resources can be saved. See Athabasca Chipewyan First Nation v Alberta (Minister of Aboriginal Relations, Aboriginal Consultation Office) , 2018 ABQB 262 at paras 49-52 , for an example of this type of approach being used before. [ 75 ] Therefore, the following grounds from the Notice of Appeal will not proceed to the next stage of the proceedings: (

a) Ground 2(a)(vii) : Failing to consider the evidence of the treating doctor indicating an emergency hearing was unnecessary; (

b) Ground 2(a)(ix) : Failing to consider an apprehension of bias arising from the trial judge’s admission on the record of previous involvement as counsel for the Director in a previous case of a similar nature; and (

c) Ground 2(b) : Finding, contrary to the expert medical evidence of Dr. Leaker, that blood transfusions were “essential” in the medical treatment of JI. [ 76 ] Similarly, there are certain remedies that should not be pursued for reasons of judicial economy. The request in paragraph 3 in the Notice of Appeal, at subparagraphs (

a) to (e), ask for the orders of Judge LaRochelle to be revoked because JI was not in need of protection, and because the blood transfusion was not essential or in JI’s best interests. I find that these are matters that no longer present a live controversy between the parties. Any determination on these questions in the future will need to proceed based on the medical evidence and best interests of JI at that time, and using judicial resources to answer these questions now is not warranted. [ 77 ] As a result, the following grounds from the Notice to Appeal will procced. They will be heard concurrently with the issues raised in the Notice of Constitutional Questions. (

a) The grounds relating to the procedural fairness of the hearing, including issues of notice, retaining of counsel, opportunity to be heard for the parents or JI, disclosure and whether a hearing should have been held on October 15th: Grounds 2 (a)(i), (ii), (iii), (vi), (viii) and (

x) of the Notice of Appeal. (

b) The grounds relating to alleged errors in law by proceeding without hearing or requesting submissions from JI or hearing evidence from the medical experts on JI’s maturity and best interests: Grounds 2(a)(iv) and (

v) and 2(

c) and (

d) of the Notice of Appeal. (

c) The grounds relating to whether the proceedings and orders in the court below violated the rights and freedoms of JI, II and LI under sections 2(a) , 7 and 15 of the Charter , and if so, whether a remedy pursuant to section 24(1) of the Charter can or should issue: Paragraph 3(

a) and (

b) pertaining to section 24(1) of the Charter on the Notice of Appeal . (

d) The grounds relating to whether CYFEA is Charter compliant: The portion of paragraph 3 relating to CYFEA on the Notice of Appeal . [ 78 ] I note that at the hearing before me, the Applicant raised an issue that the Respondents may face difficulties with the Charter and constitutional remedies in this case, as this is an appeal from a provincial court decision: JM v Alberta (Director of Child Welfare) , 2004 ABQB 512 [ JM ].

The parties provided little argument or case law on this point, and I find that it is an issue best left to the substantive hearing of this matter, where the parties can provide more fulsome argument. C. Issue 3 – What, if anything, should be done with the fresh evidence tendered by the Respondents? [ 79 ] A final matter is the fresh evidence that was filed prior to the hearing by the Respondents being an Affidavit of JI and an

Affidavit of II. The Director noted that no application to submit fresh evidence had been made. In their filed materials, the Respondents indicated that such an application would be brought in the future.

Given that no formal application to admit fresh evidence was before me, neither party substantively addressed this issue during oral submissions and I did not rely on the Affidavit of JI or Affidavit of II in my consideration of the Director’s application. [ 80 ] I note that where procedural issues are at play, as they are in this matter, adducing fresh evidence may be permissible if it is relevant to the challenge, credible and otherwise admissible: JM at paras 13-22. [ 81 ] I direct the Respondents to consider what fresh evidence they wish to adduce based on the matters going forward, and make their application accordingly.

V. Next Steps [ 82 ] I direct the parties to have discussions regarding this decision and what future procedural steps may be required in order for there to be a fulsome hearing on the questions which I have specified will proceed. This could include discussion of supplemental briefs, evidential issues, timing and whether any further pre-hearing motions need to be heard. Counsel should also discuss how much time will be required for the hearing of this matter. In short, the parties are expected to arrive at litigation plan.

If necessary, the parties may write to the Associate Chief Justice with a request for a rule 410 case conference to assist in moving this matter forward efficiently. Heard on the 29 th day of October, 2020. Dated at the City of Calgary, Alberta this 18 th day of December 2020. L. Bernette Ho J.C.Q.B.A. Appearances: Christopher Dylke for the Applicant Rachel Anderson and Scott Hammond for the Respondent, JI David Gnam and Alexander Manoli for the Respondents, II and LI David Kamal for the Intervenor