Shane H. Brady

A 14-year-old Jehovah's Witness was apprehended by child protection services after refusing a potentially life-saving blood transfusion.

The applications judge ordered the transfusion under s. 25(8) of the Child and Family Services Act, which allows a court to authorize treatment in the best interests of a child under 16.

The adolescent appealed, arguing the legislation violated her Charter rights by irrebuttably presuming she lacked capacity to make medical decisions.

The Supreme Court of Canada dismissed the appeal, holding that the legislation is constitutional when the 'best interests' standard is interpreted as a sliding scale that gives increasingly determinative weight to the young person's views depending on their maturity.

The appellants, a 14-year-old Jehovah's Witness and her parents, fled British Columbia to Ontario to avoid a court order authorizing blood transfusions without consent.

The BC Director obtained an ex parte interim custody order in BC and successfully enforced it in Ontario, resulting in the child's return to BC.

Although the underlying medical dispute was subsequently resolved and the BC orders vacated, the appellants appealed the Ontario enforcement orders.

The Court of Appeal held the appeal was moot but exercised its discretion to hear the procedural issues.

The Court allowed the appeal, finding the Ontario courts erred in enforcing the BC ex parte custody order under s. 41(1) of the Children's Law Reform Act because the appellants were denied an opportunity to be heard, and the motion judge erred in refusing to hear viva voce evidence.

The applicant brought a motion for reconsideration of an application for leave to appeal, arguing that the Court lacked jurisdiction to dismiss the application because one of the panel judges had retired before the judgment was released.

The Supreme Court of Canada dismissed the motion, holding that section 41.1(1) of the Judges Act explicitly permits a retired judge to continue participating in judgments for up to six months after retirement.

Since the judgment was issued within this six-month window, the retired judge was entitled to participate.