Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925

Winnipeg Child and Family Services (Northwest Area) Appellant

v.

D.F.G. Respondent

and

The Attorney General of Manitoba, the Government of Yukon, the Evangelical Fellowship of Canada, the Christian Medical and Dental Society, the Catholic Group for Health, Justice and Life, the Alliance for Life, the Association des Centres jeunesse du Québec, the Southeast Child and Family Services, the West Region Child and Family Services, the Canadian Civil Liberties Association, the Canadian Abortion Rights Action League, the Women’s Legal Education and Action Fund, the Women’s Health Clinic Inc., the Metis Women of Manitoba Inc., the Native Women’s Transition Centre Inc. and the Manitoba Association of Rights and Liberties Inc. Interveners

Indexed as: Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.)

File No.: 25508.

1997: June 18; 1997: October 31.

Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for manitoba

Torts ‑‑ Negligence ‑‑ Duty of care ‑‑ Mother and unborn child ‑‑ Pregnant mother addicted to glue sniffing ‑‑ Superior court judge ordering detention and treatment of mother to prevent harm to unborn child ‑‑ Whether law of tort should be extended to permit order ‑‑ Whether appropriate for court to change law of tort.

Courts ‑‑ Jurisdiction ‑‑ Parens patriae ‑‑ Pregnant mother addicted to glue sniffing ‑‑ Superior court judge ordering detention and treatment of mother to prevent harm to unborn child ‑‑ Whether parens patriae jurisdiction should be extended to protect unborn child ‑‑ Whether appropriate for court to change law of parens patriae.

In August 1996, the respondent was five months pregnant with her fourth child. She was addicted to glue sniffing, which may damage the nervous system of the developing fetus. As a result of her addiction, two of her previous children were born permanently disabled and are permanent wards of the state. On a motion by the appellant, a superior court judge ordered that the respondent be placed in the custody of the Director of Child and Family Services and detained in a health centre for treatment until the birth of her child. One of the grounds for the order was the court’s parens patriae jurisdiction. The superior court judge, while acknowledging that the courts have never exercised this power on behalf of an unborn child, saw no reason why the power should not be extended to protect unborn children. The order was later stayed and ultimately set aside on appeal. The Court of Appeal held that the existing law of tort and of parens patriae did not support the order and, given the difficulty and complexity entailed in extending the law to permit such an order, the task was more appropriate for the legislature than the courts.

Held (Sopinka and Major JJ. dissenting): The appeal should be dismissed.

Per Lamer C.J. and La Forest, L’Heureux‑Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ.: The law of Canada does not recognize the unborn child as a legal person possessing rights. This is a general proposition applicable to all aspects of the law. Once a child is born, alive and viable, the law may recognize that its existence began before birth for certain limited purposes. But the only right recognized is that of the born person. Any right or interest the fetus may have remains inchoate and incomplete until the child’s birth. It follows that, under the law, the fetus on whose behalf the appellant purported to act in seeking the detention order was not a legal person and possessed no legal rights. There was thus no legal person in whose interests the appellant could act or in whose interests a court order could be made. Putting the matter in terms of tort, there was no right to sue, whether for an injunction or damages, until the child was born alive and viable. Since the action at issue was commenced and the injunctive relief sought before the child’s birth, under the law as it presently stands, it must fail.

As well, courts do not have parens patriae jurisdiction over unborn children. The power of the court in parens patriae, as it stands, does not therefore support an order for the detention and treatment of a pregnant woman for the purpose of preventing harm to the unborn child.

As a general rule, judicial change to common law principles is confined to incremental change based largely on the mechanism of extending an existing principle to new circumstances. Courts will not extend the common law where the revision is major and its ramifications complex. To extend the law of tort to permit an order for the detention and treatment of a pregnant woman for the purpose of preventing harm to the unborn child would require major changes, involving moral choices and conflicts between fundamental interests and rights. Recognition of a fetal action against the mother for lifestyle choices would affect women, who might find themselves incarcerated and treated against their will for conduct alleged to harm the fetus. The proposed changes to the law have complex ramifications impossible for a court to fully assess, giving rise to the danger that the proposed order might impede the goal of healthy infants more than it would promote it. Taken together, the changes to the law of tort that would be required to support the order at issue are of such magnitude, consequence, and difficulty in policy terms that they exceed the proper incremental law‑making powers of the courts. These are the sort of changes which should be left to the legislature.

Similarly, to extend the court’s parens patriae jurisdiction to permit protection of unborn children would require a major change to the law of parens patriae. The same problems encountered in relation to extending tort law to the unborn arise in relation to extending the parens patriae jurisdiction of the court. The ramifications of the change would be significant and complex, since such change involves conflicts of fundamental rights and interests and difficult policy issues. A pregnant woman and her unborn child are one and to make orders protecting fetuses would radically impinge on the fundamental liberties of the mother, both as to lifestyle choices and how and as to where she chooses to live and be. The invasion of liberty involved in making court orders affecting the unborn child is far greater than the invasion of liberty involved in court orders relating to born children. In the latter case, the only liberty interest affected is the parent’s interest in making decisions for his or her child. By contrast, extension of the parens patriae jurisdiction of the court to unborn children has the potential to affect a much broader range of liberty interests since the court cannot make decisions for the unborn child without inevitably making decisions for the mother herself. Such a change would not be an incremental change but a generic change of major impact and consequence. It would seriously intrude on the rights of women. If anything is to be done, the legislature is in a much better position to weigh the competing interests and arrive at a solution that is principled and minimally intrusive to pregnant women.

Per Sopinka and Major JJ. (dissenting): The superior court judge was within his jurisdiction under parens patriae to order the respondent to refrain from the consumption of intoxicating substances, and to compel the respondent to live at a place of safety until the birth of her child. The jurisdiction available under parens patriae to act in the best interests of a child should include the power to act in the best interests of a fetus. The parens patriae jurisdiction exists for the stated purpose of doing what is necessary to protect the interests of those who are unable to protect themselves. A fetus suffering from its mother’s abusive behaviour is particularly within this class and deserves protection.

The “born alive” rule is a legal anachronism and should be set aside, at least for the purposes of this appeal. This common law rule, which requires a fetus to be born alive before any legal rights of personhood can accrue, is an evidentiary presumption rooted in rudimentary medical knowledge not a substantive rule of law. The limited medical knowledge of the past could not determine whether a child in utero was alive at the time it was subjected to an injury unless the child was also born alive, suffering from that injury. Today’s medical technology has improved to the point of eliminating nearly all of the evidentiary problems from which the “born alive” rule sprang, and it no longer makes sense to retain the rule where its application would be perverse.

When a woman chooses to carry a fetus to term, she must accept some responsibility for its well‑being and the state has an interest in trying to ensure the child’s health. Since the pregnant woman has the right to decide her lifestyle, a court’s ability to intervene to protect the fetus must be limited to extreme cases where her conduct has, on proof to the civil standard, a reasonable probability of causing serious irreparable harm to the unborn child. The test for state intervention is set at a high threshold because, in order to protect the fetus, the exercise of the parens patriae jurisdiction will necessarily involve an overriding of some rights possessed by the mother. The least rights-diminishing option should always be sought and the remedy of confinement should be the final option. The severe step of ordering confinement should be taken only when, on a balance of probabilities, no other solution is workable or effective. In cases such as this, confinement must be for purposes of treatment, not punishment. The mother remains free to reject all suggested medical treatment. While the granting of a remedy of confinement interferes with a mother’s liberty interests, those interests must bend when faced with a situation where devastating harm and a life of suffering can so easily be prevented. In any event, this interference is always subject to the mother’s right to end it by deciding to have an abortion.

In sum, while there can be no general formula ‑‑ each case must be decided on its own facts ‑‑ as a minimum, to justify a state intervention the following thresholds have to be met: (1) the woman must have decided to carry the child to term; (2) proof must be presented to a civil standard that the abusive activity will cause serious and irreparable harm to the fetus; (3) the remedy must be the least intrusive option; and (4) the process must be procedurally fair. Here, the difficult test for state intervention is met. While the “slippery slope” argument has some merit, it cannot be raised as a principled bar to granting an injunction in this case. The appellant, as a governmental agency, had the requisite standing to apply for an order.

Cases Cited

By McLachlin J.

Referred to: F (in utero), Re, [1988] 2 All E.R. 193; Tremblay v. Daigle, 1989 CanLII 33 (SCC), [1989] 2 S.C.R. 530; Montreal Tramways Co. v. Léveillé, 1933 CanLII 41 (SCC), [1933] S.C.R. 456; Paton v. British Pregnancy Advisory Service Trustees, [1979] Q.B. 276; Elliot v. Lord Joicey, [1935] A.C. 209; Dehler v. Ottawa Civic Hospital (1979), 1980 CanLII 1878 (ON CA), 101 D.L.R. (3d) 686, aff’d (1980), 1980 CanLII 2715 (ON CA), 117 D.L.R. (3d) 512; Medhurst v. Medhurst (1984), 1984 CanLII 2134 (ON SC), 9 D.L.R. (4th) 252; Diamond v. Hirsch, [1989] M.J. No. 377 (QL); Watkins v. Olafson, 1989 CanLII 36 (SCC), [1989] 2 S.C.R. 750; R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654; Duval v. Seguin, 1972 CanLII 371 (ON SC), [1972] 2 O.R. 686, aff’d (1973), 1973 CanLII 693 (ON CA), 1 O.R. (2d) 482; Cherry (Guardian ad litem of) v. Borsman, 1992 CanLII 1545 (BC CA), [1992] 6 W.W.R. 701; Watt v. Rama, [1972] V.R. 353; Paton v. United Kingdom (1980), 3 E.H.R.R. 408; Dobson (Litigation Guardian of) v. Dobson (1997), 1997 CanLII 9513 (NB CA), 148 D.L.R. (4th) 332; Lynch v. Lynch (1991), 25 N.S.W.L.R. 411; Kamloops (City of) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2; E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388; A., Re (1990), 1990 CanLII 6702 (ON SC), 28 R.F.L. (3d) 288; New Brunswick (Minister of Health and Community Services) v. Hickey, N.B.Q.B., November 4, 1996, unreported; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315.

By Major J. (dissenting)

E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388; Wellesley v. Wellesley (1828), 2 Bli. N.S. 124, 4 E.R. 1078; X (a minor), Re, [1975] 1 All E.R. 697; F (in utero), Re, [1988] 2 All E.R. 193; Hughes v. State of Oklahoma, 868 P.2d 730 (1994); Commonwealth v. Cass, 467 N.E.2d 1324 (1984); State v. Horne, 319 S.E.2d 703 (1984); R. v. Sullivan, 1991 CanLII 85 (SCC), [1991] 1 S.C.R. 489; Montreal Tramways Co. v. Léveillé, 1933 CanLII 41 (SCC), [1933] S.C.R. 456; Duval v. Seguin, 1972 CanLII 371 (ON SC), [1972] 2 O.R. 686, aff’d (1973), 1973 CanLII 693 (ON CA), 1 O.R. (2d) 482; Paton v. British Pregnancy Advisory Service Trustees, [1979] Q.B. 276; Tremblay v. Daigle, 1989 CanLII 33 (SCC), [1989] 2 S.C.R. 530; R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30; Edwards v. Attorney‑General for Canada, 1929 CanLII 438 (UK JCPC), [1930] A.C. 124, rev’g 1928 CanLII 55 (SCC), [1928] S.C.R. 276; Dobson (Litigation Guardian of) v. Dobson (1997), 1997 CanLII 9513 (NB CA), 148 D.L.R. (4th) 332.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms.

Congenital Disabilities (Civil Liability) Act 1976 (U.K.), 1976, c. 28, ss. 1, 2.

Court of Queen’s Bench Act, C.C.S.M., c. C280.

Court of Queen’s Bench Rules, Man. Reg. 553/88.

Declaration of the Rights of the Child (1959), preamble.

Authors Cited

Canada. Health Canada. Joint Statement: Prevention of Fetal Alcohol Syndrome (FAS) and Fetal Alcohol Effects (FAE) in Canada. Ottawa: Health Canada, October 1996.

Canada. Parliament. House of Commons. Standing Committee on Health and Welfare, Social Affairs, Seniors and the Status of Women. Report. Foetal Alcohol Syndrome: A Preventable Tragedy. Ottawa: Queen’s Printer, June 1992.

Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples, vol. 3, Gathering Strength. Ottawa: The Commission, 1996.

Canada. Royal Commission on New Reproductive Technologies. Final Report. Proceed with Care, vol. 2. Ottawa: The Commission, 1993.

Forsythe, Clarke D. “Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms” (1987), 21 Val. U. L. Rev. 563.

Hanigsberg, Julia E. “Power and Procreation: State Interference in Pregnancy” (1991), 23 Ottawa L. Rev. 35.

Holmes, Oliver Wendell. “The Path of the Law” (1897), 10 Harv. L. Rev. 457.

Johnsen, Dawn E. “The Creation of Fetal Rights: Conflicts with Women’s Constitutional Rights to Liberty, Privacy, and Equal Protection” (1986), 95 Yale L.J. 599.

Kyres, Catherine A. “A ‘Cracked’ Image of My Mother/Myself? The Need for a Legislative Directive Proscribing Maternal Drug Abuse” (1991), 25 New Eng. L. Rev. 1325.

Manitoba. Children and Youth Secretariat. Strategy Considerations for Developing Services for Children and Youth. Winnipeg: Children and Youth Secretariat, March 1997.

Moffatt, Michael E. K., A. E. Chudley, D. Kowlessar and J. Evans. Fetal Alcohol Syndrome, Fetal Alcohol Effects and the Impact of Alcohol Exposure during Pregnancy on School Performance and Behavior in School‑age Children in a First Nation Community, November 1996.

University of Washington School of Medicine. Department of Psychiatry and Behavioral Sciences. Understanding the Occurrence of Secondary Disabilities in Clients with Fetal Alcohol Syndrome (FAS) and Fetal Alcohol Effects (FAE). Prepared by Ann P. Streissguth, Helen M. Barr, Julia Kogan and Fred L. Bookstein. Seattle, Wash.: University of Washington School of Medicine, August 1996.

APPEAL from a judgment of the Manitoba Court of Appeal (1996), 1996 CanLII 12479 (MB CA), 113 Man. R. (2d) 3, 131 W.A.C. 3, 138 D.L.R. (4th) 254, [1996] 10 W.W.R. 111, [1996] M.J. No. 398 (QL), setting aside an order of Schulman J. (1996), 1996 CanLII 12453 (MB QB), 111 Man. R. (2d) 219, 138 D.L.R. (4th) 238, [1996] 10 W.W.R. 95, [1996] M.J. No. 386 (QL), requiring the respondent to enter a treatment program for her substance addiction until the birth of her child. Appeal dismissed, Sopinka and Major JJ. dissenting.

Heather Leonoff, Q.C., and Norman Cuddy, for the appellant.

David A. W. Phillips, Joe Aiello and Darren Sawchuk, for the respondent.

Shawn Greenberg, for the intervener the Attorney General of Manitoba.

Howard Kushner and Thomas Ullyett, for the intervener the Government of Yukon.

David M. Brown and Danielle Shaw, for the interveners the Evangelical Fellowship of Canada and the Christian Medical and Dental Society.

William J. Sammon, for the intervener the Catholic Group for Health, Justice and Life.

Angela M. Costigan and Marcelle Crouse, for the intervener the Alliance for Life.

Hugues Létourneau and Viviane Primeau, for the intervener the Association des Centres jeunesse du Québec.

Jeffrey F. Harris and Edward J. Gilson, for the interveners the Southeast Child and Family Services and the West Region Child and Family Services.

John B. Laskin and Cynthia L. Tape, for the intervener the Canadian Civil Liberties Association.

Beth Symes and Lucy K. McSweeney, for the intervener the Canadian Abortion Rights Action League.

Sheilah Martin and Sharon McIvor, for the intervener the Women’s Legal Education and Action Fund.

Arne Peltz and John A. Myers, for the interveners the Women’s Health Clinic Inc., the Metis Women of Manitoba Inc., the Native Women’s Transition Centre Inc. and the Manitoba Association of Rights and Liberties Inc.

//McLachlin J.//

The judgment of Lamer C.J. and La Forest, L’Heureux-Dubé, Gonthier, Cory, McLachlin and Iacobucci was delivered by

[1] McLachlin J. -- In August 1996, a judge of the Manitoba Court of Queen’s Bench ordered that the respondent, five months pregnant with her fourth child, be placed in the custody of the Director of Child and Family Services and detained at the Health Sciences Centre until the birth of her child, there to follow a course of treatment prescribed by the Director. The purpose of the order was to protect the respondent’s unborn child. The respondent was addicted to glue sniffing which may damage the nervous system of the developing fetus.

[2] The order was stayed two days later and ultimately set aside on appeal. The respondent voluntarily remained at the Health Sciences Centre until discharged August 14. She stopped sniffing glue and in December gave birth to an apparently normal child, which she is now raising.

[3] While the problem that gave rise to these proceedings has been resolved, the legal issues it raised have not. Hence this appeal. Winnipeg Child and Family Services (the “agency”) asks this Court to overturn the order of the Manitoba Court of Appeal striking down the original order for detention. The respondent argues that the courts have no power to order a mother into custody against her will for the purpose of protecting her unborn child, and that such a radical departure from the existing law is best made, if it is to be made at all, by the legislature.

[4] I would dismiss the appeal on the ground that an order detaining a pregnant woman for the purpose of protecting her fetus would require changes to the law which cannot properly be made by the courts and should be left to the legislature.

I. History of Proceedings

[5] Since the outcome of this case has been resolved by events and the passage of time, there is little point in minutely canvassing the facts and allegations. The agency stresses that of the three children that the respondent had previously given birth to, two had been injured by her glue-sniffing addiction, and that in these circumstances it felt driven to take steps to protect her fourth unborn child. The respondent points out that damage to the fetal nervous system occurs in the early stages of pregnancy long before the order was sought or made, that at an earlier stage of her pregnancy she had voluntarily sought treatment but had been turned away due to lack of facilities, that when asked to take treatment she agreed and only later refused because she had fallen into a state of intoxication, and that once taken to hospital, she remained until discharged, although the custodial order requiring her to remain had been stayed. This is not a story of heros and villains. It is the more prosaic but all too common story of people struggling to do their best in the face of inadequate facilities and the ravages of addiction. This said, the legal question remains: assuming evidence that a mother is acting in a way which may harm her unborn child, does a judge, at the behest of the state, have the power to order the mother to be taken into custody for the purpose of rectifying her conduct? It is on this footing that I approach the case.

[6] Schulman J. based the order for detention on two grounds. The first, that the respondent was suffering from a mental disorder within the meaning of the Manitoba Mental Health Act, R.S.M. 1987, c. M110, was not pursued in this Court. The second ground for the order was the court’s parens patriae jurisdiction -- that is, the power of the court to act in the stead of a parent for the protection of a child. Schulman J. acknowledged that the courts have never exercised this power on behalf of an unborn child. However, he saw no reason why the power should not be extended to the protection of the child prior to birth: (1996), 1996 CanLII 12453 (MB QB), 111 Man. R. (2d) 219, 138 D.L.R. (4th) 238, [1996] 10 W.W.R. 95, [1996] M.J. No. 386 (QL).

[7] The Court of Appeal held that the evidence did not establish incompetency under the Mental Health Act. The trial judge had wrongly relied on the court’s parens patriae jurisdiction in lunacy. This power exists only where a finding of incompetency is made on the evidence, and exists moreover only for the purpose of benefiting the patient. Nor, in the view of the court, could the order be supported on the ground of an extension of the court’s parens patriae jurisdiction to protect the child. At common law, the court’s parens patriae jurisdiction is only exercisable after the child is born: Re F (in utero), [1988] 2 All E.R. 193 (C.A.). Finally, the order could not be supported as an injunction to restrain tortious conduct. Tort law recognizes that an action brought by or on behalf of a child once born may vest prior to birth. But it does not recognize an unborn child as a legal person. There is thus no one at common law who can sue to restrain the mother from a course of action potentially harmful to the child. Having concluded that the existing law of judicial parens patriae powers and tort did not support the order, the Court of Appeal asked whether it could or should extend the law. Citing a host of difficulties, it concluded that it could not. Any restraint would involve moral choices and difficult conflicts between the rights of the mother and the interests of the unborn child. Extending the power of the courts to make this sort of order could have adverse effects; for example expectant mothers fearing state intervention might avoid detection by not seeking desirable prenatal care. The difficulty of enforcement and incompleteness of the remedy presented obstacles. Given the difficulty and complexity entailed in extension of the law, the task was more appropriate for the legislature than the courts. For these reasons, the Court of Appeal set aside the order for detention.

[8] The agency asks this Court to reverse the decision of the Court of Appeal and restore the order for detention.

II. Issues

[9] This appeal raises two legal issues:

(1) Does tort law, as it exists or may properly be extended by the Court, permit an order detaining a pregnant woman against her will in order to protect her unborn child from conduct that may harm the child?

(2) Alternatively, does the power of a court to make orders for the protection of children (its parens patriae jurisdiction), as it exists or may properly be extended by the Court, permit an order detaining a pregnant woman against her will in order to protect her unborn child from conduct that may harm the child?

[10] The appellant agency does not request that the order for mandatory treatment be upheld. At the same time, treatment, at least in the minimal sense of abstention from substance abuse, emerged as the only justification for the order for detention. Without mandatory treatment, the order for detention would lack any foundation. Thus the question of whether a judge may order detention of a pregnant woman at the request of the state encompasses the issue of whether a judge may make an order for mandatory treatment.

III. Analysis

A. Does the Law of Tort Permit an Order for the Detention and Treatment of a Pregnant Woman for the Purpose of Preventing Harm to the Unborn Child?

1. Does the Existing Law of Tort Support the Order?

[11] Before dealing with the cases treating the issue in tort law, I turn to the general proposition that the law of Canada does not recognize the unborn child as a legal or juridical person. Once a child is born, alive and viable, the law may recognize that its existence began before birth for certain limited purposes. But the only right recognized is that of the born person. This is a general proposition, applicable to all aspects of the law, including the law of torts.

[12] By way of preamble, two points may be made. First, we are concerned with the common law, not statute. If Parliament or the legislatures wish to legislate legal rights for unborn children or other protective measures, that is open to them, subject to any limitations imposed by the Constitution of Canada. Further, the fact that particular statutes may touch on the interests of the unborn need not concern us. Second, the issue is not one of biological status, nor indeed spiritual status, but of legal status. As this Court put it in Tremblay v. Daigle, 1989 CanLII 33 (SCC), [1989] 2 S.C.R. 530, at p. 553:

The task of properly classifying a foetus in law and in science are different pursuits. Ascribing personhood to a foetus in law is a fundamentally normative task. It results in the recognition of rights and duties -- a matter which falls outside the concerns of scientific classification. In short, this Court’s task is a legal one. Decisions based upon broad social, political, moral and economic choices are more appropriately left to the legislature.

[13] What then is the status of the fetus at common law? In Tremblay v. Daigle, the father of a fetus sought an injunction to prevent the mother from terminating the pregnancy. He argued that a fetus was a “human being” entitled to the “enjoyment of life” under s. 1 of the Charter of Human Rights and Freedoms, R.S.Q., c. C-12. This Court unanimously rejected that contention on the ground that neither the Quebec civil law nor the common law of England and Canada recognize the fetus as a juridical person. While injury to a fetus due to the negligence of third parties is actionable, the right to sue does not arise until the infant is born. See Montreal Tramways Co. v. Léveillé, 1933 CanLII 41 (SCC), [1933] S.C.R. 456; Paton v. British Pregnancy Advisory Service Trustees, [1979] Q.B. 276, at p. 279, citing Lord Russell of Killowen in Elliot v. Lord Joicey, [1935] A.C. 209 (H.L.), at p. 233; Dehler v. Ottawa Civic Hospital (1979), 1980 CanLII 1878 (ON CA), 101 D.L.R. (3d) 686 (Ont. H.C.), aff’d (1980), 1980 CanLII 2715 (ON CA), 117 D.L.R. (3d) 512 (Ont. C.A.); Medhurst v. Medhurst (1984), 1984 CanLII 2134 (ON SC), 9 D.L.R. (4th) 252 (Ont. H.C.); and Diamond v. Hirsch, [1989] M.J. No. 377 (Q.B.).

[14] The Court summarized the law at p. 569 and concluded that the Quebec Charter confers no rights on the unborn child:

The treatment of a foetus in tort law, property law and family law reveals a similar situation as found under the Civil Code, namely, that the foetus has no rights in private law. In the field of tort, it is in fact the Quebec case of Montreal Tramways, supra, which is most often relied upon for authority in other jurisdictions in Canada (see, e.g., Duval v. Seguin, 1972 CanLII 371 (ON SC), [1972] 2 O.R. 686 (H.C.); Steeves v. Fitzsimmons (1975), 1975 CanLII 410 (ON SC), 66 D.L.R. (3d) 203 (Ont. H.C.)). As stated earlier, the Montreal Tramways decision does not recognize foetuses as legal persons. In the field of property law, Anglo-Canadian law, like Quebec law, has allowed a foetus to be a beneficiary of a will or a donation but it has only protected a foetus’ interests where the foetus has been born alive and viable (see Earl of Bedford’s Case (1587), 7 Co. Rep. 7b, 77 E.R. 421; Thellusson v. Woodford (1805), 11 Ves. Jun. 112, 32 E.R. 1030, and Elliot v. Lord Joicey, [1935] A.C. 209). In family law, a foetus appears to receive some protection, but, as elsewhere in the law, the rights take effect and are perfected by birth (see K. v. K., 1933 CanLII 493 (MB KB), [1933] 3 W.W.R. 351 (Man. K.B.), and Solowan v. Solowan (1953), 1953 CanLII 496 (AB SCTD), 8 W.W.R. 288 (Alta. S.C.)).

[15] The position is clear. Neither the common law nor the civil law of Quebec recognizes the unborn child as a legal person possessing rights. This principle applies generally, whether the case falls under the rubric of family law, succession law or tort. Any right or interest the fetus may have remains inchoate and incomplete until the birth of the child.

[16] It follows that under the law as it presently stands, the fetus on whose behalf the agency purported to act in seeking the order for the respondent’s detention was not a legal person and possessed no legal rights. If it was not a legal person and possessed no legal rights at the time of the application, then there was no legal person in whose interests the agency could act or in whose interests a court order could be made.

[17] Putting the matter in terms of tort, there was no right to sue, whether for an injunction or damages, until the child was born alive and viable. The law of tort as it presently stands might permit an action for injury to the fetus to be brought in the child’s name after its birth. But there is no power in the courts to entertain such an action before the child’s birth. The action at issue was commenced and the injunctive relief sought before the child’s birth. It follows that under the law as it presently stands, it must fail.

2. Should the Law of Tort Be Extended to Permit the Order?

[18] It is necessary at the outset to consider the principles that govern judicial extension of common law principles. As a general rule, judicial change is confined to incremental change “based largely on the mechanism of extending an existing principle to new circumstances”; courts will not extend the common law “where the revision is major and its ramifications complex”: Watkins v. Olafson, 1989 CanLII 36 (SCC), [1989] 2 S.C.R. 750, at pp. 760-61; approved in R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, at pp. 668-69, per Iacobucci J. As I stated in Watkins:

There are sound reasons supporting this judicial reluctance to dramatically recast established rules of law. The court may not be in the best position to assess the deficiencies of the existing law, much less problems which may be associated with the changes it might make. The court has before it a single case; major changes in the law should be predicated on a wider view of how the rule will operate in the broad generality of cases. Moreover, the court may not be in a position to appreciate fully the economic and policy issues underlying the choice it is asked to make. Major changes to the law often involve devising subsidiary rules and procedures relevant to their implementation, a task which is better accomplished through consultation between courts and practitioners than by judicial decree. Finally, and perhaps most importantly, there is the long-established principle that in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform.

Considerations such as these suggest that major revisions of the law are best left to the legislature. Where the matter is one of a small extension of existing rules to meet the exigencies of a new case and the consequences of the change are readily assessable, judges can and should vary existing principles. But where the revision is major and its ramifications complex, the courts must proceed with great caution.

[19] The changes which the agency asks this Court to make to the law of tort may be summarized as follows:

1. Overturn the rule that rights accrue to a person only at birth (the “live-birth” rule);

2. Recognize a fetal right to sue the mother carrying the fetus;

3. Recognize a cause of action for lifestyle choices which may adversely affect others;

4. Recognize an injunctive remedy which deprives a defendant of important liberties, including her involuntary confinement.

[20] The proposed changes to the law of tort are major, affecting the rights and remedies available in many other areas of tort law. They involve moral choices and would create conflicts between fundamental interests and rights. They would have an immediate and drastic impact on the lives of women as well as men who might find themselves incarcerated and treated against their will for conduct alleged to harm others. And, they possess complex ramifications impossible for this Court to fully assess, giving rise to the danger that the proposed order might impede the goal of healthy infants more than it would promote it. In short, these are not the sort of changes which common law courts can or should make. These are the sort of changes which should be left to the legislature.

(a) Overturning the Rule that Rights Accrue only at Birth

[21] A child may sue in tort for injury caused before birth. However, only when the child is born does it have the legal status to sue and damages are assessed only as of the date of birth: see Montreal Tramways, supra; Duval v. Seguin, 1972 CanLII 371 (ON SC), [1972] 2 O.R. 686 (H.C.), aff’d (1973), 1973 CanLII 693 (ON CA), 1 O.R. (2d) 482 (C.A.); Cherry (Guardian ad litem of) v. Borsman, 1992 CanLII 1545 (BC CA), [1992] 6 W.W.R. 701 (B.C.C.A.).

[22] The rule that a fetus does not have a cause of action for prenatal injuries until “born alive” also governs in other common law countries such as England and Australia. In England, the Congenital Disabilities (Civil Liability) Act 1976 (U.K.), 1976, c. 28, s. 1, creates the basis of civil liability where a child is born disabled in consequence of tortious action of some person before the child’s birth. In Australia, the Supreme Court of Victoria in Watt v. Rama, [1972] V.R. 353 (Full Ct.), in permitting a claim for a prenatal injury resulting from an accident to the mother during pregnancy, explained why the right to sue does not exist before birth as follows (at pp. 360-61):

On the birth the relationship crystallized and out of it arose a duty on the defendant in relation to the child. On the facts which for present purposes must be assumed, the child was born with injuries caused by the act or neglect of the defendant in the driving of his car. But as the child could not in the very nature of things acquire rights correlative to a duty until it became by birth a living person, and as it was not until then that it could sustain injuries as a living person, it was, we think, at that stage that the duty arising out of the relationship was attached to the defendant, and it was at that stage that the defendant was, on the assumption that his act or omission in the driving of the car constituted a failure to take reasonable care, in breach of the duty to take reasonable care to avoid injury to the child. On this view the fact that damage was done to the embryo or foetus before birth, if such was sought to be established, was not an independent element in the plaintiff’s cause of action, but merely an evidentiary fact relevant to the issue of causation. [Emphasis added.]

[23] To permit intervention prior to birth in recognition of a duty of care owed to the fetus in utero would constitute a major departure from the common law as it has stood for decades. It would reverse the long-standing principle of tort law that remedies for negligent behaviour cannot be pursued until a cause of action is brought by a juridical person.

[24] This change to the law of tort is fraught with complexities and ramifications, the consequences of which cannot be precisely foretold. At what stage would a fetus acquire rights? Could women who choose to terminate a pregnancy face injunctive relief prohibiting termination, relief which this Court rejected in Tremblay v. Daigle? Alternatively, could they face an action for damages brought on behalf of the fetus for its lost life? If a pregnant woman is killed as a consequence of negligence on the highway, may a family sue not only for her death, but for that of the unborn child? If it is established that a fetus can feel discomfort, can it sue its mother (or perhaps her doctor) and claim damages for the discomfort? If the unborn child is a legal person with legal rights, arguments can be made in favour of all these propositions. Some might endorse such changes, others deplore them. The point is that they are major changes attracting an array of consequences that would place the courts at the heart of a web of thorny moral and social issues which are better dealt with by elected legislators than by the courts. Having broken the time-honoured rule that legal rights accrue only upon live birth, the courts would find it difficult to limit application of the new principle to particular cases. By contrast, the legislature, should it choose to introduce a law permitting action to protect unborn children against substance abuse, could limit the law to that precise case.

[25] Two arguments are made in favour of this Court abolishing the rule that no legal rights accrue before live birth. The first is that there is no defensible difference between a born child and an unborn child. This is essentially a biological argument. As noted above, the inquiry before this Court is not a biological one, but a legal one: Tremblay v. Daigle, supra. The common law has always distinguished between an unborn child and a child after birth. The proposition that biologically there may be little difference between the two is not relevant to this inquiry. For legal purposes there are great differences between the unborn and the born child, differences which raise a host of complexities.

[26] The second argument is that the court should overturn the “live-birth” rule because the present law does not provide a remedy for situations like the case at bar. This argument suffers from two flaws. First, it can be made in every case where a court is asked to make a major and complex change to the law. If there were a remedy, the major change would not be required. The Court rejected this argument in Watkins v. Olafson, supra, and Salituro, supra. Nor can it avail in this case. Second, the argument begs the questions of whether a remedy is required, and if so, what remedy and how finely tailored a remedy is best able to achieve the desired social consequence. It is not every evil which attracts court action; some evils remain for the legislature to correct.

(b) Recognizing a Fetal Right to Sue the Mother Carrying the Fetus

[27] Before birth the mother and unborn child are one in the sense that “[t]he ‘life’ of the foetus is intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman”: Paton v. United Kingdom (1980), 3 E.H.R.R. 408 (Comm.), at p. 415, applied in Re F (in utero), supra. It is only after birth that the fetus assumes a separate personality. Accordingly, the law has always treated the mother and unborn child as one. To sue a pregnant woman on behalf of her unborn fetus therefore posits the anomaly of one part of a legal and physical entity suing itself.

[28] It is therefore not surprising that no case has been cited to us from any jurisdiction in the world where a pregnant woman has been sued on behalf of her fetus. A few cases have accepted that a child, once born, may bring an action against his/her mother for prenatal injuries: Dobson (Litigation Guardian of) v. Dobson (1997), 1997 CanLII 9513 (NB CA), 148 D.L.R. (4th) 332 (N.B.C.A.); Lynch v. Lynch (1991), 25 N.S.W.L.R. 411 (C.A.), at p. 415. But none have accepted the proposition that a fetus might sue the woman carrying it. On the contrary, courts which have considered the notion have rejected it: Paton, supra; Re F (in utero), supra.

[29] To permit an unborn child to sue its pregnant mother-to-be would introduce a radically new conception into the law; the unborn child and its mother as separate juristic persons in a mutually separable and antagonistic relation. Such a legal conception, moreover, is belied by the reality of the physical situation; for practical purposes, the unborn child and its mother-to-be are bonded in a union separable only by birth. Such a dramatic departure from the traditional legal characterization of the relationship between the unborn child and its future mother is better left to the legislature than effected by the courts.

(c) Recognizing a Cause of Action for Lifestyle Choices Which May Adversely Affect Others

[30] If the problem of permitting an unborn child to sue its future mother could be surmounted, a further difficulty presents itself: could the unborn child sue her for lifestyle choices? The difficulty of this question may be discerned from the cases considering the right of born children to sue their mothers for prenatal injuries. To date, courts and legislatures have confined the right to the child suing its mother for prenatal injuries to injuries due to motor vehicle accidents.

[31] In the only Canadian appellate-level case to consider the issue, Dobson, supra, Hoyt C.J.N.B., speaking for the court, stated, “the narrow issue here concerns pre-natal injuries received by a child as a result of a mother’s negligent driving of her motor vehicle and not injuries occasioned as a result of a mother’s lifestyle choices” (p. 336 (emphasis added)). In Australia, the same approach was taken: Lynch v. Lynch, supra.

[32] In England, the right of infants to sue their mothers for injuries inflicted before birth is confined by statute to injuries resulting from motor vehicle accidents. The same section of the Congenital Disabilities (Civil Liability) Act 1976, that allows children to sue for prenatal injuries specifically excludes the child’s own mother as a defendant except in cases where the alleged negligence relates to the operation of a motor vehicle (s. 2).

[33] Behind the refusal of the courts and at least one legislature to permit a child to sue its mother for prenatal injuries related to her lifestyle, lies the fear that such suits would take the courts into the difficult policy issue of the extent to which a mother’s lifestyle is actionable. Leaving the special relationship between mother and unborn child aside for the moment, there is little precedent for suing any defendant in tort for damages one has suffered as a consequence of his or her lifestyle. While it is not inconceivable that the courts, proceeding properly in their incremental law-making capacity, may one day recognize such claims, the appellant agency faces the difficulty that on this point too it is asking this Court to break new ground in a controversial area. Once again, the consequences for the law of tort generally might be great. Are children to be permitted to sue their parents for second-hand smoke inhaled around the family dinner table? Could any cohabitant bring such an action? Are children to be permitted to sue their parents for spanking causing psychological trauma or poor grades due to alcoholism or a parent’s undue fondness for the office or the golf course? If we permit lifestyle actions, where do we draw the line?

[34] The difficulties multiply when the lifestyle in question is that of a pregnant woman whose liberty is intimately and inescapably bound to her unborn child. One faces, to borrow the words of Hoyt C.J.N.B. in Dobson, supra, the “spectre of mothers being sued by their children for various activities or lifestyle choices, such as smoking, drinking and the taking or refusal of medication, during pregnancy that injure the child, with the result that mothers will be unable to control their own bodies and make autonomous choices” (p. 336). There is no authority in Canada, England or Australia for the proposition that a mother can be sued for negligent behaviour relating to lifestyle choices made during pregnancy. To recognize a duty of care in such situations would constitute yet another marked extension of the common law which would affect a large segment of society. It follows that the Court must approach the issue with great caution.

[35] Before imposing a duty of care in a new situation, the court must be satisfied: (1) that there is a sufficiently close relationship between the parties to give rise to the duty of care; and (2) that there are no considerations which ought to negative or limit the scope of the duty, the class of persons to whom it is owed or the damages to which a breach of it may give rise: City of Kamloops v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2.

[36] The first criterion is met in the present case. The relationship between a woman and her fetus (assuming for the purposes of argument that they can be treated as separate legal entities) is sufficiently close that in the reasonable contemplation of the woman, carelessness on her part might cause damage to the fetus. The more difficult questions arise within the second branch of the test. A host of policy considerations may be raised against the imposition of tort liability on a pregnant woman for lifestyle choices that may affect her unborn child.

[37] Most obviously, recognizing a duty of care owed by a mother to her child for negligent prenatal behaviour may create a conflict between the pregnant woman as an autonomous decision-maker and her fetus. As the Royal Commission on New Reproductive Technologies in its final report Proceed with Care (1993), vol. 2, eloquently puts it (at pp. 957-58):

From the woman’s perspective, . . . considering the interests of her fetus separately from her own has the potential to create adversary situations with negative consequences for her autonomy and bodily integrity, for her relationship with her partner, and for her relationship with her physician. Judicial intervention is bound to precipitate crisis and conflict, instead of preventing them through support and care. It also ignores the basic components of women’s fundamental human rights -- the right to bodily integrity, and the right to equality, privacy, and dignity.

The potential for intrusions on a woman’s right to make choices concerning herself is considerable. The fetus’ complete physical existence is dependent on the body of the woman. As a result, any intervention to further the fetus’ interests will necessarily implicate, and possibly conflict with the mother’s interests. Similarly, each choice made by the woman in relation to her body will affect the fetus and potentially attract tort liability.

[38] The appellant agency argues that the potential intrusions would be minimal because the duty of care could be defined very narrowly. It submits that the duty of care should be to refrain from activities that have no substantial value to a pregnant woman’s well-being or right of self-determination and that have the potential to cause grave and irreparable harm to the child’s life, health and ability to function after birth.

[39] The problem with this test lies in the terms “substantial value” and “well-being or right of self-determination”. They are vague and broad and may not be adequate by themselves to narrowly confine the duty of care. What does substantial value to a woman’s well-being mean? What does a woman’s well-being include? What is involved in a woman’s right of self-determination -- all her choices, or merely some of them? And if some only, what is the criterion of distinction? Although it may be easy to determine that abusing solvents does not add substantial value to a pregnant woman’s well-being and may not be the type of self-determination that deserves protection, other behaviours are not as easily classified. At what point does consumption of alcohol fail to add substantial value to a pregnant woman’s well-being? Or cigarette smoking? Or strenuous exercise? No bright lines emerge to distinguish tortious behaviour from non-tortious once the door is opened to suing a pregnant mother for lifestyle choices adversely affecting the fetus. As one writer suggests:

[A woman] could . . . be held liable for any behavior during her pregnancy having potentially adverse effects on her fetus, including failing to eat properly, using prescription, nonprescription and illegal drugs, smoking, drinking alcohol, exposing herself to infectious disease or to workplace hazards, engaging in immoderate exercise or sexual intercourse, residing at high altitudes for prolonged periods, or using a general anesthetic or drugs to induce rapid labor during delivery.

(See: D. E. Johnsen, “The Creation of Fetal Rights: Conflicts with Women’s Constitutional Rights to Liberty, Privacy, and Equal Protection” (1986), 95 Yale L.J. 599, at pp. 606-7.)

[40] These difficulties would be complicated by the fact that determining what will cause grave and irreparable harm to a fetus -- the threshold for injunctive relief -- is a difficult endeavour with which medical researchers continually struggle. The difference between confinement and freedom, between damages and non-liability, may depend on a grasp of the latest research and its implications. The pregnant women most likely to be affected by such a “knowledge” requirement would be those in lower socio-economic groups. Minority women, illiterate women, and women of limited education will be the most likely to fall afoul of the law and the new duty it imposes and to suffer the consequences of injunctive relief and potential damage awards.

[41] A further problem arises from the fact that lifestyle “choices” like alcohol consumption, drug abuse, and poor nutrition may be the products of circumstance and illness rather than free choice capable of effective deterrence by the legal sanction of tort. As J. E. Hanigsberg writes in “Power and Procreation: State Interference in Pregnancy” (1991), 23 Ottawa L. Rev. 35, at p. 53:

[W]omen do not abuse drugs out of a lack of care for their fetuses. Drug abusing pregnant women, like other drug abusers, are addicts. People do not want to be drug addicts. In addition, a product of addiction is the inability to control in-take of the substance being abused. . . .

Treating pregnant substance abusers as fetal abusers ignores the range of conditions that contribute to problems like drug addiction and lack of nutrition, such as limited quality pre-natal care, lack of food for impoverished women, and lack of treatment for substance abusers.

While the law may properly impose responsibility for the consequences of addictive behaviour, like drunkenness, the policy question remains of whether extending a duty of care in tort in this particular situation as the remedy for redressing problems which are caused by addiction is a wise option. Given the lack of control pregnant women have over many of these harmful behaviours, it is doubtful whether recognizing a duty of care to refrain from them will significantly affect their choices. As a result, the general deterrent value of the proposed new duty of care is questionable.

[42] Recognizing a duty of care in relation to the lifestyle of the pregnant woman would also increase the level of outside scrutiny that she would be subjected to. Partners, parents, friends, and neighbours are among the potential classes of people who might monitor the pregnant woman’s actions to ensure that they remained within the legal parameters. Difficulty in determining what conduct is and is not permissible might be expected to give rise to conflicts between the interested persons and the pregnant woman or even between the interested persons themselves. This raises the possibility of conflict which may exacerbate the pregnant woman’s condition (and thus the fetus’) rather than improve it.

[43] If it could be predicted with some certainty that all these negative effects of extending tort liability to the lifestyle choices of pregnant women would in fact diminish the problem of injured infants, the change might nevertheless arguably be justified. But the evidence before this Court fails to establish this. It is far from clear that the proposed tort duty will decrease the incidence of substance-injured children. Indeed, the evidence suggests that such a duty might have negative effects on the health of infants. No clear consensus emerges from the debate on the question of whether ordering women into “places of safety” and mandating medical treatment provide the best solution or, on the contrary, create additional problems.

[44] Indeed, changing tort law to make a pregnant mother liable for lifestyle-related fetal damage may be counterproductive in at least two ways. First, it may tend to drive the problems underground. Pregnant women suffering from alcohol or substance abuse addictions may not seek prenatal care for fear that their problems would be detected and they would be confined involuntarily and/or ordered to undergo mandatory treatment. As a result, there is a real possibility that those women most in need of proper prenatal care may be the ones who will go without and a judicial intervention designed to improve the health of the fetus and the mother may actually put both at serious health risk. Second, changing the law of tort as advocated by the agency might persuade women who would otherwise choose to continue their pregnancies to undergo an abortion. Women under the control of a substance addiction may be unable to face the prospect of being without their addicting substance and may find terminating the pregnancy a preferable alternative. In the end, orders made to protect a fetus’ health could ultimately result in its destruction.

[45] It is not necessary for the purposes of this appeal to decide whether (assuming the difficulties discussed above involved in treating the pregnant woman and her fetus as separate entities could be overcome) the policy objections to the proposed extension of tort liability for lifestyle-related fetal damage to pregnant women, would negate the prima facie duty of care which arises under the test in City of Kamloops v. Nielsen, supra. It suffices to note that serious policy concerns to such an extension of the law exist. The proposed change to the law of tort has the potential to produce considerable uncertainty and affect many peoples’ lives adversely, without any assurance of reducing the problem of damage to unborn children from substance abuse. These considerations, as well as the problems associated with assigning separate legal status to pregnant woman and fetus, militate in favour of leaving it to the legislature to address the proper remedy for the problem.

(d) The Extension of Injunctive Relief in Civil Cases to Detention of the Person

[46] In Canada, tort law permits injunctions to detain goods (the Mareva injunction), to restrain activities such as unlawful picketing, and sometimes to mandate certain positive action to prevent the occurrence of serious damage. But the principles of tort law have never been used to justify the forcible detention and mandatory treatment of a person. The order at issue on this appeal can be upheld only by a radical extension of civil remedies into the most sacred sphere of personal liberty -- the right of every person to live and move in freedom. There exist only two ways in which the state may lawfully involuntarily confine a person: (1) by the criminal law, whose proper concern is the incarceration of those found guilty of criminal offences against society; and (2) by an order made under a provincial Mental Health Act that a person is not competent to manage his or her own affairs. It is open to Parliament and the legislature to enact new grounds for involuntary confinement, subject to compliance with the Canadian Charter of Rights and Freedoms. But to suggest that judges at common law should do so is unprecedented. To describe such a change as “major” is to understate the matter; to predict that it would have important ramifications is to state the obvious. This final change is one which, if it is to be made, must be left to Parliament or the legislature.

(e) Conclusion as to Whether the Law of Tort Should Be Extended as Proposed

[47] Taken together, the changes to the law of tort that would be required to support the order for detention at issue are of such magnitude, consequence, and policy difficulty that they exceed the proper incremental law-making powers of the courts. Whether such changes should be made, and if so, how far the law should go in making them, is a task more appropriate to the legislatures than the courts.

[48] I conclude that the order for detention cannot be upheld as an application of tort law.

B. Does the Power of the Court in Parens Patriae Support an Order for the Detention and Treatment of a Pregnant Woman for the Purpose of Preventing Harm to the Unborn Child?

[49] Alternatively, the appellant agency seeks to sustain the order for the detention of the respondent by an extension of the court’s parens patriae jurisdiction to permit protection of unborn children. Courts have the power to step into the shoes of the parent and make orders in the best interests of the child: E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388. The agency argues that this power should be extended to orders on behalf of unborn children.

[50] I would reject this submission for reasons similar to those enunciated in connection with the submission that the law of tort should be extended to the unborn. The submission requires a major change to the law of parens patriae. The ramifications of the change would be significant and complex. The change involves conflicts of fundamental rights and interests and difficult policy issues. Not surprisingly these difficulties have led all appellate courts that have considered the extension to reject it. I share their view.

[51] The law as it stands is clear: the courts do not have parens patriae or wardship jurisdiction over unborn children. This is the law in the European Community, Great Britain and Canada. In Canada, all courts which have considered the issue, save for the trial judge in this case, appear to have rejected the proposition that the parens patriae jurisdiction of the court extends to unborn children. In Re A. (1990), 1990 CanLII 6702 (ON SC), 28 R.F.L. (3d) 288 (Ont. U.F.C.), the Children’s Aid Society of Hamilton-Wentworth brought an action for a supervision order to ensure that a pregnant woman seek appropriate prenatal care deemed necessary for the welfare of the fetus. Steinberg U.F.C.J., having concluded that there was no jurisdiction to make the order under the Child and Family Services Act, S.O. 1984, c. 55, considered whether the parens patriae jurisdiction was broad enough to force the confinement of a pregnant woman to protect her fetus. He held it was not broad enough. At p. 298, he concluded:

The essence of the parens patriae power is that the court is empowered to take steps to protect the child or the fetus in the place of the parent. But here the child is actually inside of the mother. It is, therefore, impossible in this case to take steps to protect the child without ultimately forcing the mother, under restraint if necessary, to undergo medical treatment and other processes against her will. I believe that the parens patriae jurisdiction is just not broad enough to envisage the forceable confinement of a parent as a necessary incident of its exercise. Even if it were, however, the court should be very wary about using its powers in such instances, as its routine exercise could possibly lead to some abuse of pregnant mothers. [Emphasis in original.]

The New Brunswick Court of Queen’s Bench has also held that the parens patriae jurisdiction does not extend to protection of the unborn: New Brunswick (Minister of Health and Community Services) v. Hickey, N.B.Q.B. (Fam. Div.), November 4, 1996, unreported, per Young J.

[52] The English Court of Appeal has taken the same view: Re F (in utero), supra. The local authority sought a wardship order over the unborn child of a severely mentally disabled woman given to roaming and periodic disappearance. In separate judgments, all members of the court agreed that the wardship power could not be used in the manner requested. May L.J. emphasized the effect such an order would have on the liberty of the pregnant woman and the incompatibility of a wardship order with those interests (at p. 194):

In wardship proceedings the court is exercising a parental jurisdiction in which the paramount consideration is the child’s welfare. But in the case of an unborn child the only orders to protect him or her which the court could make would be with regard to the mother herself. Thus in the first place there would have to be an order authorising the local authority to find the mother. Then perhaps an order that she should live in a certain place and probably attend a certain hospital. All of these would be restrictive of the mother’s liberty. Further, there could well be medical problems which would have to be solved: the mother might wish one course of action to be taken; it might be in the interests of the child that an alternative procedure should be followed. Until the child is actually born there must necessarily be an inherent incompatibility between any projected exercise of wardship jurisdiction and the rights and welfare of the mother.

May L.J. gave four reasons for limiting the court’s jurisdiction to born children. First, a fetus does not attain legal personhood until birth and therefore, the order would be contrary to that principle: Paton, supra. Second, applying the principle that the interests of the child are to be predominant would create conflict between the existing legal interests of the mother and those of the unborn child. Third, there could be difficulties in enforcing against the mother any order in respect of an unborn child. And finally, he held that under the Supreme Court Act 1981 only “minors” could be made wards of the court and that in light of the Family Law Reform Act 1969, a “minor” could only be a person, in the sense that he or she had been born.

[53] Balcombe L.J. also emphasized the incompatibility between wardship of the unborn and the pregnant woman’s freedom. He pointed out that (as in Canada) the Mental Health Acts regulate and limit when a person may be confined against her will. If a pregnant woman was to be subject to controls for the benefit of her unborn child, Parliament should so legislate, as it had in the case of mentally incompetent persons. At pp. 200-201, he stated:

Approaching the question as one of principle, in my judgment there is no jurisdiction to make an unborn child a ward of court. Since an unborn child has, ex hypothesi, no existence independent of its mother, the only purpose of extending the jurisdiction to include a foetus is to enable the mother’s actions to be controlled. Indeed, that is the purpose of the present application. In the articles already cited Lowe gives examples of how this might operate in practice (96 LQR 29 at 30):

‘It would mean, for example, that the mother would be unable to leave the jurisdiction without the court’s consent. The court being charged to protect the foetus’ welfare would surely have to order the mother to stop smoking, imbibing alcohol and indeed any activity which might be hazardous to the child. Taking it to the extreme were the court to be faced with saving the baby’s life or the mother’s it would surely have to protect the baby’s.’

Another possibility is that the court might be asked to order that the baby be delivered by Caesarian section: in this connection see Fortin ‘Legal Protection for the Unborn Child’ (1988) 51 MLR 54 at 81 and the US cases cited in note 16, in particular Jefferson v Griffin Spalding County Hospital Authority (1981) 274 SE 2d 457. Whilst I do not accept that the priorities mentioned in the last sentence of the passage cited above are necessarily correct, it would be intolerable to place a judge in the position of having to make such a decision without any guidance as to the principles on which his decision should be based. If the law is to be extended in this manner, so as to impose control over the mother of an unborn child, where such control may be necessary for the benefit of that child, then under our system of parliamentary democracy it is for Parliament to decide whether such controls can be imposed and, if so, subject to what limitations or conditions. Thus, under the Mental Health Act 1983, to which we were also referred, there are elaborate provisions to ensure that persons suffering from mental disorder or other similar conditions are not compulsorily admitted to hospital for assessment or treatment without proper safeguards: see ss 2, 3 and 4 of that Act. If Parliament were to think it appropriate that a pregnant woman should be subject to controls for the benefit of her unborn child, then doubtless it will stipulate the circumstances in which such controls may be applied and the safeguards appropriate for the mother’s protection. In such a sensitive field, affecting as it does the liberty of the individual, it is not for the judiciary to extend the law.

[54] Staughton L.J., in rejecting the authority’s application, emphasized the inseparability of the fetus from the mother, citing the European Commission on Human Rights (at p. 201):

When the wardship jurisdiction of the High Court is exercised, the rights, duties and powers of the natural parents are taken over or superseded by the orders of the court. Until a child is delivered it is not, in my judgment, possible for that to happen. The court cannot care for a child, or order that others should do so, until the child is born; only the mother can. The orders sought by the local authority are not by their nature such as the court can make in caring for the child; they are orders which seek directly to control the life of both mother and child. As was said by the European Commission of Human Rights in Paton v UK (1980) 3 EHRR 408 at 415 (para 19): ‘The “life” of the foetus is intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman.’

[55] As the English Court of Appeal’s reasons eloquently attest, the same problems encountered in relation to extending tort jurisdiction to the unborn, surface in relation to extending the parens patriae jurisdiction of the court. The law sees birth as the necessary condition of legal personhood. The pregnant woman and her unborn child are one. Finally, to make orders protecting fetuses would radically impinge on the fundamental liberties of the pregnant woman, both as to lifestyle choices and how and as to where she chooses to live and be.

[56] It is argued that the parens patriae jurisdiction over children necessarily involves overriding the liberty of parents, and that there is nothing new in this. This argument overlooks the fact that the invasion of liberty involved in making court orders affecting the unborn child, is of a different order than the invasion of liberty involved in court orders relating to born children. The parens patriae power over born children permits the courts to override the liberty of the parents to make decisions on behalf of their children where a parental choice may result in harm to a child: B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315. The only liberty interest affected is the parent’s interest in making decisions for his or her child. By contrast, extension of the parens patriae jurisdiction of the court to unborn children has the potential to affect a much broader range of liberty interests. The court cannot make decisions for the unborn child without inevitably making decisions for the mother herself. The intrusion is therefore far greater than simply limiting the mother’s choices concerning her child. Any choice concerning her child inevitably affects her. For example, to sustain the order requested in the case at bar would interfere with the pregnant woman’s ability to choose where to live and what medical treatment to undergo. The parens patriae jurisdiction has never been used to permit a court to make such decisions for competent women, whether pregnant or not. Such a change would not be an incremental change within Watkins v. Olafson, supra, but a generic change of major impact and consequence. It would seriously intrude on the rights of women. If anything is to be done, the legislature is in a much better position to weigh the competing interests and arrive at a solution that is principled and minimally intrusive to pregnant women.

[57] I conclude that the law of parens patriae does not support the order for the detention of the respondent.

C. Constitutional Concerns

[58] The parties did not put the constitutionality of the order in issue; although some interveners raised constitutional concerns. In view of my conclusion that the common law of tort and parens patriae provide no support for the order at issue, the question of the constitutionality of the order and the procedures which gave rise to it does not arise. Of course, in the event that the legislature chooses to address the problem, its legislation in substance and procedure would fall to be assessed against the provisions of the Charter.

IV. Conclusion

[59] I conclude that the common law does not clothe the courts with power to order the detention of a pregnant woman for the purpose of preventing harm to her unborn child. Nor, given the magnitude of the changes and their potential ramifications, would it be appropriate for the courts to extend their power to make such an order. The changes to the law sought on this appeal are best left to the wisdom of the elected legislature. I would dismiss the appeal. The respondent is entitled to her costs on a party and party basis in this Court and in the courts below.

//Major J.//

The reasons of Sopinka and Major JJ. were delivered by

[60] Major J. (dissenting) -- I respectfully disagree with the conclusion of McLachlin J. that an order detaining a pregnant woman addicted to glue sniffing for which she has rejected abortion and/or medical treatment and decided to carry her child to term, would require a change to the law which cannot be properly made other than by legislation.

[61] To the extent that a change in the law in the circumstances of this case is required, the much admired flexibility of the common law has proven adaptable enough over centuries to meet exigent circumstances as they arise. That flexibility is surely needed in the appeal.

[62] Under existing Canadian law the expectant respondent at her sole discretion could have chosen an abortion. Instead she chose to continue her pregnancy and to continue her glue sniffing which in the past had resulted in two serious and permanently handicapped children being born who are now permanent wards of the state.

[63] There are three questions that arise in this appeal. What are the rights of the pregnant woman? Does the unborn foetus have independent rights? Does the state also have a separate right to intervene to prescribe proper medical treatment in the hope of achieving the birth of a healthy child as opposed to standing idly by and watching the birth of a permanently and seriously handicapped child who has no future other than as a permanent ward of the state?

[64] The respondent, a young woman, was pregnant for the fourth time. She was addicted to the inhalation of solvent fumes over a long period. Two of her previous children were born permanently disabled as a result of her addiction and are permanent wards of the state.

[65] The respondent, on becoming pregnant for the fourth time, made the decision not to have an abortion. She chose to remain pregnant, deliver the child, and continue her substance abuse.

[66] In my opinion, the state has an enforceable interest in ensuring, to the extent practicable, the well-being of the unborn child and the appeal should be allowed.

[67] Historically, it was thought that damage suffered by a foetus could only be assigned if the child was born alive. It was reasoned that it was only at that time that damages to the live child could be identified. The logic for that rule has disappeared with modern medical progress. Today by the use of ultrasound and other advanced techniques, the sex and health of a foetus can be determined and monitored from a short time after conception. The sophisticated surgical procedures performed on the foetus before birth further belies the need for the “born alive” principle.

I. Facts

A. Of the Present Case

[68] The respondent mother D.F.G. first became a client of Winnipeg Child and Family Services (“C.F.S.”) in December of 1990, at 16 years of age and pregnant with her first child. She was abusing solvents and had an unstable lifestyle. C.F.S. deemed D.F.G. “a child in need of protection” and placed her in a residential youth treatment facility. In March of 1991, following the birth of her child, she was placed in a residential facility specifically planned to assist young mothers with the care of infants.

[69] D.F.G. was unable to stabilize her lifestyle. C.F.S. obtained a permanent order of guardianship of the child in April of 1992. C.F.S. continued to offer services to D.F.G. to help her ongoing addiction problem and general instability. Social workers visited her regularly between June and August of 1992. On many occasions there was a strong smell of glue in her apartment and D.F.G. showed obvious signs of impairment.

[70] D.F.G. was 18 years of age and still addicted to solvents when her second child was born permanently disabled on August 6, 1992. She consented to a permanent order of guardianship of this child in favour of C.F.S. on February 24, 1993.

[71] D.F.G.’s third child was born on November 5, 1993. She was still using solvents and the baby was born jittery and showed symptoms of drug withdrawal. Again C.F.S. took custody of the child who was also permanently disabled.

[72] D.F.G. met with C.F.S. social workers on December 8, 1993. She smelt of solvent and admitted to continuing her addictive use of them. C.F.S. received a permanent order of guardianship with respect to the third child in February 1994.

[73] In addition to C.F.S., Winnipeg Social Services had a social worker assigned to work with D.F.G. This worker’s affidavit evidence confirmed that from 1992 to date D.F.G. has been under the influence of solvents on many occasions. She stated that she had seen dried glue on D.F.G.’s face and had detected a strong odour of glue when visiting her at her home. As well D.F.G. had consistently refused all offers of treatment to deal with her addiction problem.

[74] Developmental assessments performed on D.F.G.’s second and third children while in the custody of C.F.S. showed that both displayed signs of global developmental delay, a birth defect found in children exposed in utero to solvents.

[75] On May 28, 1996, D.F.G. went to the hospital. She complained of extreme difficulty walking, loss of balance, weakness and nausea. She was thirteen and one half weeks pregnant with her fourth child. She had not received any prenatal care. D.F.G. was admitted to the Chemical Withdrawal Unit with a diagnosis of “solvent abuse with cerebellar disease and probable cognitive impairment”. She was discharged from the hospital on June 6, 1996.

[76] D.F.G. was again admitted to hospital on June 27, 1996. She had been brought to hospital by ambulance as she had lost her coordination due to glue sniffing.

[77] After the last visit, the hospital advised C.F.S. that D.F.G. was pregnant and would deliver in December of 1996. A C.F.S. social worker met with D.F.G. at her home on July 18, 1996. D.F.G. said at that time that she would enter a residential treatment program for substance abuse. The worker returned to D.F.G.’s home on July 23, 1996 to facilitate her transport to the treatment facility. The worker’s efforts were unsuccessful because when she arrived D.F.G. was obviously intoxicated, smelled strongly of solvent and refused to attend the treatment program.

[78] On August 1, 1996, C.F.S. brought a motion before Schulman J. of the Manitoba Court of Queen’s Bench for an order compelling D.F.G. to live at a place of safety and to refrain from consuming any intoxicating substance or drug. Schulman J. heard viva voce evidence from three witnesses and C.F.S. filed five other supporting affidavits.

[79] Ms. R., D.F.G.’s sister, testified that D.F.G. visited with her and stayed at her home from time to time. During the past six years D.F.G. had been sniffing solvents, and after having “sniffed up” she was dazed and smelt of solvent. Ms. R. testified about her concern for D.F.G.’s health. In her view, D.F.G. was getting worse, and could not resist glue sniffing. She was afraid that continued sniffing would kill her sister.

[80] Another of D.F.G.’s sisters, Ms. F., gave evidence similar to that of Ms. R. She testified that D.F.G. had recently lost a lot of weight, and went days without eating. Ms. F. had recently seen D.F.G. in circumstances where she could hardly walk or talk.

[81] Sheryl Ferguson, Co-ordinator of Family Services at St. Norbert Foundation, an alcohol and substance abuse treatment centre, testified that the St. Norbert Foundation was willing to take D.F.G. into its program immediately. She described the program, and its strong cultural content for aboriginals.

[82] Dr. Laurie E. Hoeschen, the Medical Director of the Chemical Withdrawal Unit at the Health Sciences Centre in Winnipeg, testified by affidavit to the effects of glue sniffing on the abuser. She stated that substantial glue sniffing causes a multitude of acute effects such as nausea, vomiting, tremors, blurred vision, joint pain, chest pain, decreased level of consciousness, and seizures. The most severe effects are a progression to coma and respiratory or cardiac arrest, leading to death. Kidney, liver and bone marrow failure can also result from chronic use. The most important site of organ damage from glue sniffing is the brain. Substance abuse of the kind practised by D.F.G. could cause a decrease in her intellectual capacity. Dr. Hoeschen stated that there is considerable evidence that solvent abuse causes damage to the cerebellum, the part of the brain which controls motor co-ordination. The abuse could also cause peripheral neuropathy. The peripheral nerves which control the sensation and motor power in a person’s arms and legs can be damaged to the point where there is loss of sensation and generalized muscle weakness. Dr. Hoeschen further deposed that solvents take a long time to leave the body, particularly the brain. She stated that substance abuse causes considerable cognitive impairment, and it continues for some time after the abuse stops.

[83] Dr. Albert Chudley, Head of the Section of Genetics and Metabolism at the Health Sciences Centre and a Professor of the Department of Pediatrics and Child Health and the Department of Human Genetics, stated in his affidavit that organic solvents used by chronic sniffers are neurotoxic to the brain of the foetus. Children exposed in utero to such substances may exhibit central nervous system dysfunction, developmental delay, attention deficit disorder and microcephaly. Experimental studies have shown that chronic exposure to solvents can lead to retardation of fetal growth and development and to fetal death. Dr. Chudley testified that the critical period for the development of the central nervous system in humans is in the first 16 weeks after conception. The central nervous system is, however, sensitive to a variety of toxic exposures until birth. Dr. Chudley stated that any reduction of toxic exposure during pregnancy would reduce the central nervous system damage.

[84] Schulman J. granted C.F.S.’s motion, ordering that D.F.G. remain at a place of safety and refrain from the use of intoxicating substances until the birth of her child: (1996), 1996 CanLII 12453 (MB QB), 111 Man. R. (2d) 219, 138 D.L.R. (4th) 238, [1996] 10 W.W.R. 95, [1996] M.J. No. 386 (QL). On August 6, 1996, D.F.G. entered the hospital so that her withdrawal from solvents could be safely monitored. The order was stayed by Helper J.A. of the Manitoba Court of Appeal on August 8, 1996. However, D.F.G. chose to voluntarily continue treatment in the hospital, and remained there until she was discharged by her physician on August 14, 1996.

[85] After her discharge, D.F.G. went to live with her sister, Ms. R. D.F.G.’s family and the child’s father all agreed to provide support and encouragement in an effort to prevent D.F.G. from resuming solvent abuse. C.F.S. introduced a teaching homemaker to D.F.G. and arranged for a public health nurse to visit regularly. The teaching homemaker provided advice on parenting skills and encouragement in the hope that D.F.G. would remain drug free.

[86] The appeal from Schulman J.’s order was heard by the Manitoba Court of Appeal on August 20, 1996 and allowed on September 12, 1996: (1996), 1996 CanLII 12479 (MB CA), 113 Man. R. (2d) 3, 131 W.A.C. 3, 138 D.L.R. (4th) 254, [1996] 10 W.W.R. 111, [1996] M.J. No. 398 (QL).

[87] On December 6, 1996, D.F.G. delivered a baby boy who appeared to be physically healthy. She and her child were discharged from the hospital on December 18, 1996. Since that date 24-hour in-home support has been provided to assist her in parenting the child. The evidence, at the date of this hearing, was that D.F.G. no longer abused solvents.

B. Additional Facts

[88] Several of the interveners submitted material on the prevalence of mental and physical disabilities in children as a result of substance abuse by their mothers while pregnant. Some of this evidence focused on the “crisis situation” in many aboriginal communities. The following is a brief summary:

(i) There is clear and overwhelming evidence that abuse of substances (alcohol, solvents, gasoline, etc.) by pregnant women can lead to fetal alcohol syndrome (“FAS”) or fetal alcohol effects (“FAE”). Moffatt et al. in Fetal Alcohol Syndrome, Fetal Alcohol Effects and the Impact of Alcohol Exposure during Pregnancy on School Performance and Behavior in School-age Children in a First Nation Community (November 1996 (the “Moffatt Report”)), comment, at p. 4, that:

Children of women who drink heavily during pregnancy are at risk for a cluster of anomalies which include central nervous system dysfunction leading to developmental and cognitive impairment, growth deficiency and minor facial anomalies as well as a host of associated major and minor anomalies of many different systems. . . .

The tragedy of the lives of FAS children is all too well documented in the popular book “The Broken Cord” by Dorris. They have learning problems and difficulty with ordinary social relationships. They have special problems anticipating the consequences of their actions. They frequently have poor concentration and hyperactive behaviour. . . . [T]he most consistent cognitive defect is in the area of mathematical skills, but complex reasoning and visual memory are also commonly affected. . . . Their personalities often lead them into situations where they are exploited sexually and in other ways.

(ii) The Manitoba Children and Youth Secretariat in Strategy Considerations for Developing Services for Children and Youth (March 1997), describes FAS, at p. 15, as “the leading preventable cause of mental disability in the western world”. It continues, at p. 21:

It is estimated that worldwide, 2 of every 1,000 babies born are affected by FAS. Though there are no accurate figures for the incidence of FAS/FAE [fetal alcohol effects] in Manitoba. The estimate is anywhere from 2 to forty per 1,000 live births, with the highest incidence being among First Nations children, where as many as 20% may be affected.

See also Joint Statement: Prevention of Fetal Alcohol Syndrome (FAS) and Fetal Alcohol Effects (FAE) in Canada (October 1996), at p. 4; and, Foetal Alcohol Syndrome: A Preventable Tragedy, Report of the Standing Committee on Health and Welfare, Social Affairs, Seniors and the Status of Women (June 1992), at p. 2. While most of the available studies on substance abuse during pregnancy relate to alcohol abuse, the evidence is that compounds in other substances, such as the solvents to which the respondent was addicted, are known to be neurotoxic to both the adult and fetal brain.

(iii) In addition to the direct health implications that substance abuse has on the body and mind of the foetus, there are many secondary disabilities associated with children born suffering from their mother’s abuse. The University of Washington School of Medicine has documented these secondary disabilities during a recent study of 473 clients with FAS/FAE: A. Streissguth et al., Understanding the Occurrence of Secondary Disabilities in Clients with Fetal Alcohol Syndrome (FAS) and Fetal Alcohol Effects (FAE) (August 1996). They found that over 90 percent of the clients studied had mental health problems; 60 percent of those 12 years or older had been suspended or expelled from school or had dropped out of school; 60 percent of those 12 or over had been in trouble with the law; 50 percent of those 12 or over had been in “confinement”, that is, for mental health or alcohol problems or as incarceration for a crime; 50 percent of those 12 or over had exhibited inappropriate sexual behaviour; and 30 percent of those 12 or over had alcohol or drug problems. Another significant finding of the study is that only 7 of the 90 adults (age 21 or over) were able to live independently and were without employment problems. It goes without saying that the tragedy of FAS/FAE is felt not just by its immediate victims, but is also born by society as a whole.

(iv) The tragedy of FAS and FAE is particularly felt in aboriginal communities. The Manitoba Tribal Council NADAP Coordinators and Treatment Directors Committee responded to the Moffatt Report in part by stating that:

There is documented confirmation that the FAS/E rates on Reserve - 17 in 179 . . . are disturbingly higher than the provincial average of 1 in 600. . . . The information is telling use [sic] there is a crisis for these children and their families. There is no indication the rate will slow down.

The Royal Commission on Aboriginal Peoples recorded the following testimony, in vol. 3, Gathering Strength (1996), at pp. 132-33:

Children with FAS or FAE are often difficult babies, especially if they are withdrawing from the alcohol that surrounded them in the (womb). If the mothers are still actively abusing alcohol, these children are often subject to attachment breaks, abuse, and/or neglect, and they often become involved with the child welfare system as foster or adopted children.

They are hard to care for, their disability is not understood, there are many peer and social pressures, no skills to fall back on. . . . Currently we believe many adults (who were born) with FAS/FAE are either on the street or in jail.

The Manitoba Tribal Council NADAP Coordinators and Treatment Directors Committee urged “strategies to intervene and prevent FAS/E”.

(v) The interveners Southeast Child and Family Services and West Region Child and Family Services are aboriginal child and family service agencies responsible for delivering services to 18 First Nation communities in Manitoba. These parties intervened, in part, to urge upon this Court the creation of a legal remedy to use in their fight against FAS/FAE. These interveners submitted that such a remedy would be consistent with the aboriginal world view, and that the common law should be expanded to help alleviate what is particularly an aboriginal problem.

II. Judgments Below

[89] The trial judge ordered the respondent detained for treatment first as she was suffering from a medical disorder within the meaning of the Manitoba Mental Health Act, R.S.M. 1987, c. M110, and second on the court’s parens patriae power that permits it to act in place of the parent for the protection of the child.

[90] The Manitoba Court of Appeal reversed the trial judge for the reasons carefully summarized in the reasons of McLachlin J.

III. Analysis

A. Introduction

[91] The law of this country is consistent with the grant of a remedy in this case. The parens patriae jurisdiction of the superior courts is of undefined and undefinable breadth. This Court’s decision in E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388, indicates that inherent power resides in the provincial superior courts to act on behalf of those who cannot act to protect themselves. A foetus suffering from its mother’s abusive behaviour is particularly within this class and deserves protection.

[92] It has been submitted, however, that a foetus acquires no actionable rights in our law until it is born alive. In my view, the “born alive” rule, as it is known, is a common law evidentiary presumption rooted in rudimentary medical knowledge that has long since been overtaken by modern science and should be set aside for purpose of this appeal.

[93] This means that a superior court, on proper motion, should be able to exercise its parens patriae jurisdiction to restrain a mother’s conduct when there is a reasonable probability of that conduct causing serious and irreparable harm to the foetus within her. While the granting of this type of remedy may interfere with the mother’s liberty interests, in my view, those interests must bend when faced with a situation where devastating harm and a life of suffering can so easily be prevented. In any event, this interference is always subject to the mother’s right to end it by deciding to have an abortion.

[94] The arguments against state intervention are that it improperly interferes with the rights of the mother, that there are innumerable hazards to safe pregnancies, and that the state should not impose health standards on adults without consent. Those arguments are answerable.

[95] Once the mother decides to bear the child the state has an interest in trying to ensure the child’s health. What circumstances permit state intervention? The “slippery slope” argument was raised that permitting state intervention here would impose a standard of behaviour on all pregnant women. Questions were raised about women who smoked, who lived with a smoker, who ate unhealthy diets, etc. In response to the query of where a reasonable line should be drawn it was submitted that the pen should not even be lifted. This approach would entail the state to stand idly by while a reckless and/or addicted mother inflicts serious and permanent harm on to a child she had decided to bring into the world.

[96] There can be no general formula and each case must be decided on its own facts. However, as a minimum to justify intervention the following thresholds have to be met:

(1) The woman must have decided to carry the child to term.

(2) Proof must be presented to a civil standard that the abusive activity will cause serious and irreparable harm to the foetus.

(3) The remedy must be the least intrusive option.

(4) The process must be procedurally fair.

These points are expanded below.

B. Breadth of Parens Patriae Jurisdiction

[97] The order made by Schulman J. was within the court’s inherent jurisdiction in wardship matters, a subset of the parens patriae jurisdiction.

[98] In Eve, supra, this Court faced a different issue, a mother’s request for a court order authorizing the sterilization of her mentally incompetent daughter. In determining this question La Forest J. examined the history and scope of the parens patriae jurisdiction. His reasons explain the undefined and undefinable breadth of the power of the court in this area. He approved of Wellesley v. Wellesley (1828), 2 Bli. N.S. 124, 4 E.R. 1078, a case that held the inherent jurisdiction over children extended “as far as is necessary for protection and education” (p. 1083), and stated, at p. 411 that:

It continues to this day, and even where there is legislation in the area, the courts will continue to use the parens patriae jurisdiction to deal with uncontemplated situations where it appears necessary to do so for the protection of those who fall within its ambit; see Beson v. Director of Child Welfare (Nfld.), 1982 CanLII 32 (SCC), [1982] 2 S.C.R. 716.

It was argued before us, however, that there was no precedent where the Lord Chancellor had exercised the parens patriae jurisdiction to order medical procedures of any kind. As to this, I would say that lack of precedent in earlier times is scarcely surprising having regard to the state of medical science at the time. Nonetheless, it seems clear from Wellesley v. Wellesley, supra, that the situations in which the courts can act where it is necessary to do so for the protection of mental incompetents and children have never been, and indeed cannot, be defined. I have already referred to the remarks of Lord Redesdale. To these may be added those of Lord Manners who, at Bli. pp. 142‑43, and 1085, respectively, expressed the view that “It is . . . impossible to say what are the limits of that jurisdiction; every case must depend upon its own circumstances”.

[99] La Forest J. noted the comments of both the motions judge and Lord Denning, M.R., in the Court of Appeal in the case of Re X (a minor), [1975] 1 All E.R. 697. Their discussion of the parens patriae jurisdiction in wardship matters is particularly lucid. Latey J., the motions judge, characterized the jurisdiction as follows (at p. 699):

On the first of the two questions already stated, it is argued for the defendants, first, that because the wardship jurisdiction has never been involved in any case remotely resembling this, the court, though theoretically having jurisdiction, should not entertain the application, but bar it in limine. I do not accept that contention. It is true that this jurisdiction has not been invoked in any such circumstances. I do not know whether they have arisen before or, if they have, whether anyone has thought of having recourse to this jurisdiction. But I can find nothing in the authorities to which I have been referred by counsel or in my own researches to suggest that there is any limitation in the theoretical scope of this jurisdiction; or, to put it another way, that the jurisdiction can only be invoked in the categories of cases in which it has hitherto been invoked, such as custody, care and control, protection of property, health problems, religious upbringing, and protection against harmful associations. That list is not exhaustive. On the contrary, the powers of the court in this particular jurisdiction have always been described as being of the widest nature. That the courts are available to protect children from injury whenever they properly can is no modern development.

Latey J. restated the proposition that an order under parens patriae could also be made to forestall anticipated harm. He relied upon Chambers of Infancy (1842), at p. 20:

And the Court will interfere not merely on the ground of an injury actually done, or attempted against the infant's person or property; but also if there be any likelihood of such an occurrence, or even an apprehension or suspicion of it.

Lord Denning, in the Court of Appeal’s decision in the same case, agreed with Latey J.’s statement of the law, at p. 703:

No limit has ever been set to the jurisdiction. It has been said to extend ‘as far as necessary for protection and education’: see Wellesley v Wellesley by Lord Redesdale. The court has power to protect the ward from any interference with his or her welfare, direct or indirect.

[100] La Forest J. adopted these statements of the law, and considered in some detail the case law surrounding the imposition of medical treatment, particularly the forced sterilization of mental incompetents, under the parens patriae jurisdiction. In summarizing his opinion on the parens patriae jurisdiction he stated, at pp. 425-27:

From the earliest time, the sovereign, as parens patriae, was vested with the care of the mentally incompetent. This right and duty, as Lord Eldon noted in Wellesley v. Duke of Beaufort, supra at 2 Russ., at p. 20, 38 E.R., at p. 243 is founded on the obvious necessity that the law should place somewhere the care of persons who are not able to take care of themselves. In early England, the parens patriae jurisdiction was confined to mental incompetents, but its rationale is obviously applicable to children and, following the transfer of that jurisdiction to the Lord Chancellor in the seventeenth century, he extended it to children under wardship, and it is in this context that the bulk of the modern cases on the subject arise. The parens patriae jurisdiction was later vested in the provincial superior courts of this country, and in particular, those of Prince Edward Island.

The parens patriae jurisdiction is, as I have said, founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the “best interest” of the protected person, or again, for his or her “benefit” or “welfare”.

The situations under which it can be exercised are legion; the jurisdiction cannot be defined in that sense. As Lord MacDermott put it in J. v. C., [1970] A.C. 668, at p. 703, the authorities are not consistent and there are many twists and turns, but they have inexorably “moved towards a broader discretion, under the impact of changing social conditions and the weight of opinion. . . .” In other words, the categories under which the jurisdiction can be exercised are never closed. Thus I agree with Latey J. in Re X, supra, at p. 699, that the jurisdiction is of a very broad nature, and that it can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations. This list, as he notes, is not exhaustive.

What is more, as the passage from Chambers cited by Latey J. underlines, a court may act not only on the ground that injury to person or property has occurred, but also on the ground that such injury is apprehended. I might add that the jurisdiction is a carefully guarded one. The courts will not readily assume that it has been removed by legislation where a necessity arises to protect a person who cannot protect himself.

I have no doubt that the jurisdiction may be used to authorize the performance of a surgical operation that is necessary to the health of a person, as indeed it already has been in Great Britain and this country. And by health, I mean mental as well as physical health. In the United States, the courts have used the parens patriae jurisdiction on behalf of a mentally incompetent to authorize chemotherapy and amputation, and I have little doubt that in a proper case our courts should do the same. Many of these instances are related in Strunk v. Strunk, 445 S.W.2d 145 (Ky. 1969), where the court went to the length of permitting a kidney transplant between brothers. Whether the courts in this country should go that far, or as in Quinlan, permit the removal of life‑sustaining equipment, I leave to later disposition.

Though the scope or sphere of operation of the parens patriae jurisdiction may be unlimited, it by no means follows that the discretion to exercise it is unlimited. It must be exercised in accordance with its underlying principle. Simply put, the discretion is to do what is necessary for the protection of the person for whose benefit it is exercised; see the passages from the reasons of Sir John Pennycuick in Re X, at pp. 706‑07, and Heilbron J. in Re D, at p. 332, cited earlier. The discretion is to be exercised for the benefit of that person, not for that of others. It is a discretion, too, that must at all times be exercised with great caution, a caution that must be redoubled as the seriousness of the matter increases. This is particularly so in cases where a court might be tempted to act because failure to do so would risk imposing an obviously heavy burden on some other individual.

[101] While the breadth of the jurisdiction available under parens patriae is apparent from La Forest J.’s reasons in Eve, what is unclear is whether the jurisdiction to act in the best interests of a child can also include the power to act in the best interests of a foetus.

[102] It has been held to the contrary both in the Manitoba Court of Appeal’s ruling in this case, and in the English Court of Appeal in Re F (in utero), [1988] 2 All E.R. 193. Both decisions relied on the common law “born alive” rule. This rule requires that a foetus achieve personhood before it can acquire actionable rights. The child must be born alive before any rights can accrue or remedies can be sought. In my view, the reliance on this rule was misplaced. The rule is a legal anachronism based on rudimentary medical knowledge and should no longer be followed, at least for the purposes of this appeal.

[103] If a foetus is a “person” for purposes of the parens patriae jurisdiction, he or she is in a particularly vulnerable position. A foetus, absent outside assistance, has no means of escape from toxins ingested by its mother. The parens patriae jurisdiction exists for the stated purpose of doing what is necessary to protect the interests of those who are unable to protect themselves. Society does not simply sit by and allow a mother to abuse her child after birth. How then should serious abuse be allowed to occur before the child is born?

C. The “Born Alive” Rule

[104] The “born alive” rule, as its name suggests, requires a foetus to be born alive before any legal rights of personhood can accrue. The Court of Appeal relied on this rule as one resolution to the present case, but no inquiry was made into the genesis or purpose of the rule. Once the purpose of the rule is known, it becomes more apparent that it should not apply in this case.

[105] In a persuasive article on this topic, Clarke D. Forsythe has traced the genesis of the “born alive” rule as evidentiary, rather than substantive; a principle necessitated by the primitive medical knowledge and technology of the time: “Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms” (1987), 21 Val. U. L. Rev. 563.

[106] Until the early 19th century medical practitioners could not determine with confidence before quickening (the first physical sensation by the mother of the foetus in the womb) whether a woman was pregnant, or further, whether the child in utero was alive. Consequently, the common law adopted the presumption that a child was first endowed with life at quickening. Forsythe cites, at pp. 572-73, a passage from An American Practitioner, London Practice of Midwifery (6th ed. 1826), at p. 77, footnote (v), which expressed the near impossibility of determining the existence of pregnancy for purposes of legal proof before the end of the sixth month:

We have taken a wide range in the examination of ‘authorities’ on the subject, and the result is that we can find no one invariable sign, nor can form any combination of symptoms so unequivocal, as to enable us to pronounce its existence under oath, for all have occasionally proved deceptive. Before deciding, our examinations should be frequently repeated, and then, only should a final decision be seldom hazarded ‘before the end of the sixth month’. [Emphasis in original.]

[107] Limited medical knowledge also could not determine whether a child in utero was alive at the time it was subjected to an injury unless the child was also born alive, suffering from that injury. Forsythe quotes, at p. 576, from A. S. Taylor in Medical Jurisprudence (7th ed. 1861) who put the rationale for the “born alive” rule as follows, at p. 411:

It is well known that in the course of nature, many children come into the world dead, and that others die from various causes soon after birth. In the latter, the signs of their having lived are frequently indistinct. Hence, to provide against the danger of erroneous accusation, the law humanely presumes that every newborn child has been born dead, until the contrary appears from medical or other evidence. The onus of proof is thereby thrown on the prosecution; and no evidence imputing murder can be received, unless it be made certain by medical or other facts, that the child survived its birth and was actually living when the violence was offered to it.

Forsythe summarizes the medical knowledge and the legal rule that evolved therefrom, at p. 575:

As a result of this primitive knowledge of human life in utero, the health of the child in utero could not be established unless and until the child was observed outside the womb. Writers on medical jurisprudence noted that, even after quickening, it was extremely difficult to determine whether the child died before or during labor and subsequent expulsion from the womb. Moreover, it was nearly impossible to attribute the injury or death of the child to one cause or another and thus to distinguish between natural causes and inflicted injuries. As a result, live birth was required to prove that the unborn child was alive and that the material acts were the proximate cause of death, because it could not otherwise be established if the child was alive in the womb at the time of the material acts.

[108] Forsythe examined the history of the “born alive” rule from its oldest common law origins, considering among others the writings of Bracton, Coke and Blackstone. He concluded that the rule was always one of evidence, and not of substance. His analysis of the ancient authorities is found at pp. 580-92, from which the following is extracted (at p. 589):

. . . the practical application of the born alive rule also demonstrates that the rule was an evidentiary and not a substantive moral definition of a human being at common law. In practice, the born alive rule was applied to proscribe as homicide the killing of a child even if the mortal injuries were inflicted while the child was still in utero. If the rule was truly a substantive definition of human being, and a fetus only became a human being at birth, then injuring an unborn child in utero would not be injuring a human being. In that case, the death of the child out of the womb could not satisfy the corpus delicti, because the criminal agency of the defendant -- the moral connection between the infliction of the injury and the resulting death ^--would not exist. The child would not be a human being both at the time of the injury and the time of the death. If the born alive rule was a substantive rule, then homicide could only result from injuries inflicted after birth, because only then would they be inflicted on “a human being”. The common law, however, did not adopt this proposition. Rather, the common law considered the injury of the child in utero to be a constituent part of the homicide of the unborn child, as long as it died out of the womb. The law necessarily found the injury to the child in utero to be an injury to a human being in order to find the subsequent death after birth to be a homicide.

[109] Present medical technology renders the “born alive” rule outdated and indefensible. We no longer need to cling to an evidentiary presumption to the contrary when technologies like real time ultrasound, fetal heart monitors and fetoscopy can clearly show us that a foetus is alive and has been or will be injured by conduct of another. We can gauge fetal development with much more certainty than the common law presumed. How can the sophisticated micro-surgery that is now being performed on foetuses in utero be compatible with the “born alive” rule?

[110] However, there is the temptation to assume that the courts of the past that treated the “born alive” rule as one of substantive law knew as much as is known today about fetal development. Since medical technology has improved to the point of eliminating nearly all of the evidentiary problems from which the “born alive” rule sprang, it no longer makes sense to retain the rule where its application would be perverse. The blind application of the “born alive” rule in this context clearly runs afoul of Holmes’ dictum that:

It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

(Oliver Wendell Holmes, “The Path of the Law” (1897), 10 Harv. L. Rev. 457, at p. 469.)

[111] In the United States many states still retain the “born alive” rule as a substantive rule of law, usually without any assessment of its relevance in modern society. Some states, armed with today’s medical knowledge have stepped forward and distinguished the rule. In Hughes v. State of Oklahoma, 868 P.2d 730 (1994), the Oklahoma Court of Criminal Appeals, following civil precedent from its State Supreme Court, prospectively abandoned the “born alive” rule for purposes of homicide cases. In that case the accused was charged with manslaughter arising out of a drunk driving accident which resulted in the other driver’s foetus (which was in the eighth month of gestation) being stillborn. Lumpkin P.J. commented, at p. 736, that overruling the “born alive” rule “allows us to sever the umbilical cord which has linked our law of evidence with antiquity long after the light of medical knowledge has dispelled the myths of the past”. The court, however, pointed out that while ruling the “born alive” rule inapplicable in homicide cases, they wished, at pp. 734-35 to “make it absolutely clear that [the] holding shall not affect a woman’s constitutional right to choose a lawful abortion”.

[112] Hughes followed precedent from two other state appellate court decisions: that of Supreme Judicial Court of Massachusetts in Commonwealth v. Cass, 467 N.E.2d 1324 (1984), and of the Supreme Court of South Carolina in State v. Horne, 319 S.E.2d 703 (1984). Both cases determined that for purposes of state homicide statutes, the “born alive” rule should be abandoned. In Cass, Hennessey C.J. commented, at p. 1328, that:

The [born alive] rule has been accepted as the established common law in every American jurisdiction that has considered the question. But the antiquity of a rule is no measure of its soundness. . . . It is time to reexamine the grounds upon which the ancient rule was laid down.

The Cass court held that advances in medical science rendered the original purpose of the “born alive” rule irrelevant, and it should no longer be followed in homicide cases.

[113] It is no great step for this Court to hold the “born alive” rule not applicable when considering the parens patriae jurisdiction of a provincial superior court. While R. v. Sullivan, 1991 CanLII 85 (SCC), [1991] 1 S.C.R. 489, held that the wording of s. 206 of the Criminal Code adopts the “born alive” rule for purposes of criminal law, this does not bar a re-assessment of the rule in the context of this case. Here we are dealing purely with the common law, and no enactment of Parliament prevents a re-evaluation of the premises of this rule.

[114] Canadian courts have recognized the need to re-evaluate the “born alive” rule with regard to advances in medical technology. In Montreal Tramways Co. v. Léveillé, 1933 CanLII 41 (SCC), [1933] S.C.R. 456, a right was created for a child injured in utero to sue a tortfeasor; see p. 465:

There were two other matters to which our attention was called; the first was that cases similar to the present one must have arisen many times in the past, but that no decided case (or at most only one) has been found in which the child’s right of action for pre-natal injuries has been maintained. The paucity of decided cases is far from conclusive, and may be largely accounted for by the inevitable difficulty or impossibility of establishing the existence of a causal relation between the fault complained of and the injury to the child. With the advance in medical science, however, that which may have been an insuperable difficulty in the past may now be found susceptible of legal proof.

Similarly, in Duval v. Seguin, 1972 CanLII 371 (ON SC), [1972] 2 O.R. 686 (H.C.), aff’d (1973), 1973 CanLII 693 (ON CA), 1 O.R. (2d) 482 (C.A.), Fraser J. observed (at p. 702):

Some of the older cases suggest that there should be no recovery by a person who has suffered prenatal injuries because of the difficulties of proof and of the opening it gives for perjury and speculation. Since those cases were decided there have been many scientific advances and it would seem that chances of establishing whether or not there are causal relationships between the act alleged to be negligent and the damage alleged to have been suffered as a consequence are better now than formerly. In any event the Courts now have to consider many similar problems and plaintiffs should not be denied relief in proper cases because of possible difficulties of proof.

[115] There are contrary authorities to the position adopted in these reasons. In Paton v. British Pregnancy Advisory Service Trustees, [1979] Q.B. 276, the court cited the “born alive” rule as a bar to a husband obtaining an injunction preventing his pregnant wife from undergoing an abortion procedure. This same reasoning was applied with respect to Quebec civil law in Tremblay v. Daigle, 1989 CanLII 33 (SCC), [1989] 2 S.C.R. 530.

[116] In my view, there is a distinction between abortion and the case under appeal. R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, struck down this country’s criminal prohibitions against abortion. Nothing in these reasons purports to interfere with the effect of that decision. However, where a woman has chosen to carry a foetus to term, the situation is different. Having chosen to bring a life into this world, that woman must accept some responsibility for its well-being. In my view, that responsibility entails, at the least, the requirement that the pregnant woman refrain from the abuse of substances that have, on proof to the civil standard, a reasonable probability of causing serious and irreparable damage to the foetus. It is not inconsistent to place restraints upon a woman’s abusive behaviour towards her foetus that she has decided to carry to term yet continue to preserve her ability to choose abortion at any time during her pregnancy. It is not a question of a woman making a “declaration” of her intentions. Rather, the law will presume that she intends to carry the child to term until such time as she indicates a desire to receive, makes arrangements for or obtains an abortion.

[117] Tremblay v. Daigle, supra, noted that the interests of a foetus are legally protected in a number of circumstances, for example, tort law, child welfare, and inheritance rights: pp. 569-70. A child can sue to recover for damage inflicted upon it while a foetus: Montreal Tramways, supra. A gift devised by will to a foetus will not fail if the testator dies before birth. The rationale of attributing rights to the foetus in these situations is linked to protecting the interests of the child upon its birth. In this sense, the rationale of protecting the child/foetus by the exercise of the parens patriae jurisdiction is no different, as it depends on the intention of the mother to carry the child to term. As was stated in Tremblay v. Daigle, at p. 563:

A foetus is treated as a person only where it is necessary to do so in order to protect its interests after it is born.

Protecting the unborn child from having to live its life suffering from severe mental and physical disabilities should meet the test of necessity to “protect its interests after it is born”.

[118] Precedent that states that a foetus is not a “person” should not be followed without an inquiry into the purpose of such a rule. In the well-known case of Edwards v. Attorney-General for Canada, 1929 CanLII 438 (UK JCPC), [1930] A.C. 124, the Privy Council overruled precedent and a unanimous Supreme Court of Canada, 1928 CanLII 55 (SCC), [1928] S.C.R. 276, and held that women were “persons” with respect to s. 24 of the British North America Act, 1867. Rigidly applying precedents of questionable applicability without inquiry will lead the law to recommit the errors of the past.

[119] Moreover, Canada is a signatory to the United Nations Declaration of the Rights of the Child (1959), which states in its preamble that:

. . . the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth. . . .

[120] The “born alive” rule should be abandoned, for the purposes of this case, as it is medically out-of-date. It may be that the rule has continuing utility in the context of other cases with their own particular facts. The common law boasts that it is adaptable. If so, there is no need to cling for the sake of clinging to notions rooted in rudimentary medical and scientific knowledge of the past. A foetus should be considered within the class of persons whose interests can be protected through the exercise of the parens patriae jurisdiction.

D. Standard for Exercising Jurisdiction

[121] In my opinion, it is a modest expansion on La Forest J.’s statements in Eve, supra, to include a foetus within the class of persons who can be protected by the exercise of the parens patriae jurisdiction. However, clearly, the only person by law able to choose between an abortion or carrying to term is the mother. She too has the right to decide her lifestyle whether pregnant or not. The court’s ability to intervene must therefore be limited. It will only be in extreme cases, where the conduct of the mother has a reasonable probability of causing serious irreparable harm to the unborn child, that a court should assume jurisdiction to intervene.

[122] In the Court of Appeal, Twaddle J.A. grounded his decision denying jurisdiction in part upon a type of “slippery slope” argument (at p. 260 D.L.R.):

The mother’s right to sniff solvents may not seem of much importance, but I do not see how a court can select which conduct harmful to an unborn child should be restrained and which not.

This concern was expressed in a variety of ways at the appeal. Serious substance abuse that has a reasonable probability of causing serious and irreparable harm to the foetus should be restrained. Simply because there may be hard cases on other facts not before the Court does not mean we should ignore what is obvious from the evidence in this case. The damage caused to children by serious substance abuse is well documented. It seems derelict to suggest that we should not restrain this abuse because we can imagine some other cases that may not be as clear.

[123] Taking Twaddle J.A.’s argument to its logical extreme, we would be faced with some strange results. It is interesting speculation to wonder what the result of this appeal might have been, had the state been trying to restrain a pregnant mother from taking thalidomide to deal with her morning sickness.

[124] Opposition to this intervention has been strenuously argued by the respondent and her supporting interveners. Exercise of the parens patriae jurisdiction will necessarily involve an overriding of some rights possessed by the mother in order to protect her foetus. It is acknowledged that these are serious impositions, accordingly, the test is set at such a very high threshold. We are not simply denying the mother her “right” to sniff solvents but also possibly her liberty. That is why a remedy of confinement should be the final option. Before a court takes the severe step of ordering confinement, a condition precedent should be that it is certain on a balance of probabilities that no other solution is workable or effective. The least rights-diminishing option should always be sought.

[125] In cases such as this any remedy of confinement must be for purposes of treatment, and not punishment. It follows that the situs of the confinement should be a residential treatment facility or hospital which can offer a treatment program. The mother remains free to reject all suggested medical treatment. The confinement serves only to prevent her using toxins strong enough to cause serious and permanent damage to the foetus.

[126] The right of a child to sue its mother for prenatal injuries was recognized in Dobson (Litigation Guardian of) v. Dobson (1997), 1997 CanLII 9513 (NB CA), 148 D.L.R. (4th) 332 (N.B.C.A.). The extension of the parens patriae doctrine in the case on appeal should not be viewed as an implicit sanctioning of a child’s right to sue its mother for “lifestyle choices” made during pregnancy. A child initiating any action against its mother would have to prove, in this type of action as in others, all the necessary elements of a negligence claim, including causation and damages to the standard required in all tortious actions.

[127] The threshold for state intervention is high. In this case the difficult test is met but each case will have to be decided on its facts. The failure of a pregnant woman to quit smoking or act in some way that is optimum for fetal health would not meet the test for state intervention. The familiar “slippery slope” argument has some points of value, however, it cannot be raised as a principled bar to granting an injunction in this case. The “slippery slope” argument if not carefully assessed can easily become a in terrorem argument and lose whatever value it may legitimately possess.

[128] In the present case it is clear that D.F.G. has had ample knowledge of the effects of substance abuse on her foetus. She was sadly aware of giving birth to two permanently handicapped children. D.F.G. had been offered counselling and education of various kinds to no apparent avail.

[129] On the other hand, it is somewhat enlightening that once she was confined, her behaviour improved. She voluntarily remained in the hospital after the order of Schulman J. was stayed by the Court of Appeal. To the date of this hearing, she has apparently stayed free of solvents. Her child was born healthy and she is raising him primarily alone, but with the aid of C.F.S. and others.

[130] D.F.G.’s case indicates that confinement remedies need not last the entire term of the pregnancy, and would be modified as circumstances change. The treatment necessary will vary with the severity of the abuse and the subsequent conduct of the mother.

[131] It is a fundamental precept of our society and justice system that society can restrict an individual’s right to autonomy where the exercise of that right causes harm to others. Conversely, it would be unjust not to restrict one person’s right of autonomy when the exercise of that right causes harm to others. In her dissenting opinion in the final report of the Royal Commission on New Reproductive Technologies, Proceed with Care (1993), vol. 2, Dr. Suzanne Rozell Scorsone stated, at p. 1131:

Autonomy is a necessary good, but it is not an absolute. All of us have, as the report says, the right to make our own choices, but rights necessarily entail responsibilities; where our choices may or do harm others, our choices are, in fact, limited, and we are held accountable, whatever our gender. It is the suspension of that accountability with respect to pregnant women which would constitute the setting of a different (and lower) standard of behaviour.

As one American author explained:

[A] state’s compelling interest in potential life outweighs a mother’s privacy right to conduct her life as she chooses when state intervention is hardly intrusive. Moreover,

a privacy right protecting the daily conduct of a pregnant woman from interference would necessarily be far weaker than her privacy right to decide whether to have an abortion because, although it might not always be in her interest to have a child, it is never in her interest to have a child with birth defects.

(C. A. Kyres, “A ‘Cracked’ Image of My Mother/Myself? The Need for a Legislative Directive Proscribing Maternal Drug Abuse” (1991), 25 New Eng. L. Rev. 1325, at p. 1350.)

[132] When confinement is determined to be the only solution that will work in the circumstances, this type of imposition on the mother is fairly modest when balanced against the devastating harm substance abuse will potentially inflict on her child. The afflicted children may be sentenced to a permanently lower standard of life. To advocate not confining the mother to prevent this harm seems extreme and shortsighted.

[133] The mother’s continuing ability to elect an abortion and end her confinement makes the intrusion of her liberty relatively modest when weighed against the child from birth being seriously and permanently impaired.

E. Procedural Considerations

[134] In order to provide some certainty and predictability in these types of cases, procedural considerations must be developed. The important questions are: Who has standing to apply for an order of this type? On what standard should the trial judge determine the issue? What procedural rules should be used?

[135] It is not necessary to determine all parties who should have standing in cases such as this one. In my view, it is enough that C.F.S., as a governmental agency, has the requisite standing. Whether other parties may qualify for standing should be resolved on a case-by-case basis.

[136] It is only in those extreme cases, where the conduct of the mother has a reasonable probability of causing serious and irreparable harm to the unborn child, and no other reasonable means of treatment exists, that a court should assume jurisdiction to intervene. This standard must be met by evidence presented at a hearing held prior to any restriction being imposed on the mother’s liberty.

[137] Finally, there should be procedural fairness. In this case, the rules set out in The Court of Queen’s Bench Act, C.C.S.M., c. C280, and the Court of Queen’s Bench Rules, Man. Reg. 553/88, if properly applied, appear to meet that need.

F. Conclusion

[138] I do not believe our system, whether legislative or judicial, has become so paralysed that it will ignore a situation where the imposition required in order to prevent terrible harm is so slight. It may be preferable that the legislature act but its failure to do so is not an excuse for the judiciary to follow the same course of inaction. Failure of the court to act should occur where there is no jurisdiction for the court to proceed. Outdated medical assumptions should not provide any licence to permit the damage to continue. Where the harm is so great and the temporary remedy so slight, the law is compelled to act.

[139] In Montreal Tramways Co. v. Léveillé, supra, this Court set the standard for the common law world in tort actions launched by a child injured in utero by a third party. The majority of the Court recognized that in 1933 “the great weight of judicial opinion in the common law courts denies the right of a child when born to maintain an action for pre-natal injuries” (p. 460). Notwithstanding those authorities, the Court ruled that a child who suffered injury in its mother’s womb as the result of a wrongful act or default of another had the right, after birth, to maintain an action for its prenatal injuries. Lamont J. relied on the following principle:

If a child after birth has no right of action for pre-natal injuries, we have a wrong inflicted for which there is no remedy. . . . If a right of action be denied to the child it will be compelled, without any fault on its part, to go through life carrying the seal of another’s fault and bearing a very heavy burden of infirmity and inconvenience without any compensation therefor.

Lamont J. appealed to fundamental fairness:

To my mind it is but natural justice that a child, if born alive and viable, should be allowed to maintain an action in the courts for injuries wrongfully committed upon its person while in the womb of its mother. [Emphasis added.]

In my view, the general principles cited by Lamont J. have application to the case at bar. See also Dobson, supra.

[140] It seems fundamentally unfair and inexplicable for this Court to hold that a foetus, upon live birth, can sue for damages to recompense injuries suffered in utero, yet have no ability to obtain a remedy preventing that damage from occurring in the first place. This is the one of the clearest of cases where monetary damages are a singularly insufficient remedy. If our society is to protect the health and well-being of children, there must exist jurisdiction to order a pre-birth remedy preventing a mother from causing serious harm to her foetus. Someone must speak for those who cannot speak for themselves.

IV. Disposition

[141] To grant the limited intervention proposed in this appeal serves the interest of:

(a) the mother as her option for an abortion is always available,

(b) protecting the foetus from serious and irreparable harm and permits it a reasonable chance of having a normal life after birth,

(c) preventing unnecessary spending by Canadian governments to permanently care for the mentally disabled child born as a result of the mother’s unrestricted drug addiction.

[142] I would allow the appeal, and declare that Schulman J. was within his jurisdiction under parens patriae to order the respondent to refrain from the consumption of intoxicating substances, and to compel the respondent to live at a place of safety until the birth of her child.

Appeal dismissed, Sopinka and Major JJ. dissenting.

Solicitors for the appellant: Wolch Pinx Tapper Scurfield, Winnipeg.

Solicitors for the respondent: Phillips Aiello Boni, Winnipeg.

Solicitor for the intervener the Attorney General of Manitoba: The Department of Justice, Winnipeg.

Solicitors for the intervener the Government of Yukon: Wolch Pinx Tapper Scurfield, Winnipeg.

Solicitors for the interveners the Evangelical Fellowship of Canada and the Christian Medical and Dental Society: Stikeman, Elliott, Toronto.

Solicitors for the intervener the Catholic Group for Health, Justice and Life: Barnes, Sammon, Ottawa.

Solicitors for the intervener the Alliance for Life: Costigan & Costigan, Toronto.

Solicitors for the intervener the Association des Centres jeunesse du Québec: Cousineau Primeau & Associés, Montreal.

Solicitors for the interveners the Southeast Child and Family Services and the West Region Child and Family Services: Myers Weinberg Kussin Weinstein Bryk, Winnipeg.

Solicitors for the intervener the Canadian Civil Liberties Association: Tory Tory DesLauriers & Binnington, Toronto.

Solicitors for the intervener the Canadian Abortion Rights Action League: Eberts Symes Street & Corbett, Toronto.

Solicitors for the intervener the Women’s Legal Education and Action Fund: Sheilah Martin and Sharon McIvor, Toronto.

Solicitors for the interveners the Women’s Health Clinic Inc., the Metis Women of Manitoba Inc., the Native Women’s Transition Centre Inc. and the Manitoba Association of Rights and Liberties Inc.: Public Interest Law Centre, Winnipeg; Taylor McCaffrey, Winnipeg.