Magazine article Herizons

Supreme Court Refuses to Order Confinement of Pregnant Women [Winnipeg Child & Family Services V DFG & Intervenors (Supreme Court of Canada, October 31, 1997)]

Magazine article Herizons

Supreme Court Refuses to Order Confinement of Pregnant Women [Winnipeg Child & Family Services V DFG & Intervenors (Supreme Court of Canada, October 31, 1997)]

Article excerpt

In a 7-2, decision the Supreme Court of Canada ruled that Canadian courts do not have jurisdiction to order the confinement of a pregnant woman addicted to glue sniffing. In speaking for the majority, Justice Beverley McLachlin concluded 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."

The case arose due to Ms G's addiction to solvent fumes during her pregnancy with her fourth child. Winnipeg Child and Family Services obtained an order from the Manitoba Court of Queen's Bench in the summer of 1996 that would have confined the woman, known as Ms G, to a health care facility until the birth of her child. Two days later, the order was overturned by the Manitoba Court of Appeal, and Child and Family Services appealed to the Supreme Court.

The agency argued that because the woman had already given birth to two children with developmental disabilities believed to be related to her addiction to sniff, (all three of her children are permanent wards of the state), the court should intervene to protect the fetus. While the court battle was being waged, Ms G voluntarily entered a drug rehabilitation program and five months later gave birth to a healthy boy in December 1996.

In dismissing Child and Family Services' appeal, the Supreme Court concluded that their case could not succeed because it required the Court to make three radical changes to Canadian law:

(1) establish fetal rights;

(2) allow a new kind of law suit involving "harmful lifestyle" allegations; and

(3) permit a defendant's confinement as damages in a civil case.

On the issue of fetal rights, McLachlin stated: "the fetus on whose behalf the appellant [WCFS purported to act was not a legal person and possessed no legal rights. There was thus no legal person in whose interests Winnipeg Child and Family Services could act or in whose interests a court order could be made". This reflects an established principle in Canadian law.

McLachlin further observed that there was no authority under Canadian law to sue a woman over her behaviour during pregnancy. To allow the action against Ms G would, potentially, open up a whole new category of cases where children could sue their parents for harm caused by second-hand smoke, spanking, or excessive work. Citing a litany of public policy reasons, the Court was not prepared to allow an action for "harmful lifestyle."

Finally, and perhaps most notably, the Court concluded that--even barring all the other problems with the Winnipeg Child and Family Services case--there was simply no legal basis on which a defendant could be forcibly detained as a remedy in a civil case. McLachlin noted that Justice Perry Schulman, the judge who originally granted the order against Ms G, was alone in all of Canada, Great Britain and the European Community in making such an order. …

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