Legal wrangling stalls review of treatment of Jehovah’s Witness parents
VANCOUVER – A judge has postponed until at least July a judicial review into the treatment of a Jehovah’s Witness family whose four surviving sextuplets were apprehended so they could be given blood transfusions against the parents’ wishes.
When Monday, the first day of what was to be a two-day hearing, was taken up with procedural wrangling, B.C. Supreme Court Chief Justice Donald Brenner adjourned the matter so new dates can be set.
Brenner had been expecting to hear affidavit evidence from the various parties.
But Monday’s session stalled when the family’s lawyers asked him to order various government officials and the doctors who performed the transfusions to appear in court so they could be cross-examined on their written testimony.
Lawyers for the provincial government, including George Copley, the province’s leading expert on Canadian constitutional issues, opposed the application, saying there was no need for cross-examination on any of the affidavits.
The family’s lawyers also wanted to bring in witnesses to testify about the purported medical necessity of transfusing the infants and the parents’ contention that the blood transfusions given the surviving sextuplets were not necessary.
But Brenner said he “had enough information” in the affidavits and was concerned that allowing cross-examination would unnecessarily broaden the scope of the judicial review, which is being conducted in chambers.
Two of the prematurely born babies died shortly after their Jan. 7 birth.
The four surviving children — two boys and two girls — were given one blood transfusion each. Three of the babies are now living at home, with one boy remaining in hospital but expected to be sent home soon.
The parents are being represented by Ontario lawyers Shane Brady and John Burns. The father of the infants was in court. The family’s identity is protected by a court-imposed ban on publicity.
Burns said he would be seeking instruction from the family on an appeal to the B.C. Court of Appeal in an attempt to have Brenner’s decision concerning cross-examination overturned.
The family, which requested the judicial review, has filed three actions in B.C. Supreme Court concerning medical treatment orders used by staff at B.C. Women and Children’s Hospital to transfuse their children and the apprehension orders used by the ministry to seize the children.
Brady said the family will argue that ministry’s actions contravened the parents’ constitutional rights and ignored a 1995 Supreme Court of Canada ruling that in the case of a disagreement between parents and the state regarding medical treatment of their children, a court hearing should be held to decide the issue.
Outside the court, Brady said most other provinces had changed their child protection legislation to accommodate this Supreme Court ruling, with B.C. being the exception.
“In the case of two of the children there were no court proceedings. A social worker just walked in and told the parents ‘we are going to apprehend your children and do blood transfusions’ and the parents had no opportunity to test that.
“There were two court proceedings [for the other children] that took place ex parte — that is without notice — by telephone with the judge and there was no opportunity to test that either. Very simply, this case is about the right to have a fair hearing,” said Brady.
“Our clients didn’t refuse medical treatment. They were choosing medical treatment that respected their religious conscience,” he said.
He said the parents were upset with what the government did.
“The parents love their children and are not going to change the way they feel about them. But they are upset with how the government treated them and they want this court to say that this isn’t the way to treat parents in Canadian society,” he said.
Brady said if the parents are successful, it will set a precedent for how B.C. deals with similar issues.
“In media we’ve seen statements that not everyone agrees with these parents’ religious views. But that’s not what this case is about. Any parent would be upset to learn that the government could apprehend their child and interfere with the parent relationship in important matters without having to justify it in advance,” he said.