Uncertainty and Indecision in the Legal Regulation of Children: The Albertan Experience

In this article, the author uses Alberta legislation and case law to test two common perceptions held in relation to the historical treatment of children’s (legal) status in Canada: first, that legal regulation oscillates between welfare- and rights-oriented perspectives; second, that the same uncertainty in approach applies in relation to all regulation contexts, including child welfare and youth justice. These perceptions are often used as the baseline of analysis from one explores (any number of) recent developments in Canada, federally or provincially. Yet, examination of the Albertan experience calls into question the accuracy of this view of the shifting approach to the legal regulation of children’s status.

Using definitive cases from the Alberta courts, the author argues that neither of these perceptions accurately reflects the narrative of children’s status in Alberta. The article reveals the greater complexity of the changing approach to legal regulation of children’s lives. In addition, the article suggests that the nature of the uncertainty and ambivalence evidenced in court decisions and legislative reforms is context-dependent, but ultimately driven by tensions inherent within the modern conception of childhood. Consideration of the Albertan experience is particularly revealing because it was the Alberta courts that both introduced the concept of the “mature minor” into Canadian common law in the mid-1980s and then determined that child welfare legislation superseded the child’s common law status as decision-maker.

This paper is published in (2007) 23(2) Canadian Journal of Family Law 159, and available here.

Trial by Proxy: How Section 15 of the Charter Removes Age from Adolescence

The issue of age-based discrimination under s.15 of the Charter most usually arises in relation to older Canadians. There has been little discussion as to how the s. 15 right to equal protection and equal benefit of the law regardless of age applies to minors. This article seeks to counter this trend, in particular in relation to adolescents’ autonomy right to make medical treatment decisions. There is little serious consideration given to the question of age discrimination against adolescents who wish to refuse critical medical care because adolescents are perceived as different from adults, different not just because of their youth, but because of their lack of maturity; a minimum age for entitlement to rights protection is employed as a proxy for this immaturity.

This article disagrees with this historical understanding of the relationship between adolescents’ maturity and their ability to exercise their own legal rights. Age is not always an adequate proxy for a minor’s maturity to make her own decisions, which is why the use of age in this way, in certain cases, violates a minor’s s. 15 equality right. The first section of this article articulates this argument in relation to the right to refuse critical health care. I argue that the four governing legal doctrines — health care and consent legislation, the common law “mature minor” doctrine, child welfare legislation, and the parens patriae jurisdiction — together fail to respect adolescents’ decision-making maturity.

Section two uses the current state of the literature within psychology and medical philosophy to develop a more realistic assessment of what it means to make a mature decision. I argue that when an adolescent satisfies this reworked maturity standard, it infringes her s. 15 equality right if her treatment decision is overridden by legislation or the court. I propose a set of guidelines to determine the appropriateness of using age as a proxy for maturity in relation to a selection of legal doctrines, and when such usage violates a minor’s s. 15 equality right.

The third section explores broader issues raised by this argument. I argue that a proper understanding of adolescents’ decision-making maturity directly affects the constitutionality of other legal doctrines such as those governing access to birth control and abortion, and those that determine the legal age of criminal responsibility. My analysis suggests that we will have to rethink how we regard adolescents as citizens. Given that prospect, what impact will this have on our current models of how the law interacts with individual family members, and how the notion of equality impacts upon individual family members? I propose that the development of a new language of children’s rights is central to ensuring that minors are not wrongly denied the exercise of their Charter rights, as current legal doctrine permits in the case of adolescents who refuse critical health care.

This paper is published in (2005) 4 Journal of Law and Equality 84-102, and also available here.