Monday, July 20, 2009

Justice Abella's less than impressive reasoning

Why in this case did Justice Abella go on and on to talk so much and so diffusely about how much say kids under 16 can have on their medical treatment? Why did she talk so much about balancing their evolving autonomy against the state's need to look out for them better sometimes than they can? Why did she go on and on about how the legislation in question was not arbitrary? In sum, why did she go to such exhausting lenghts when, after it all, she laid it down as an inflexible rule that in matters of life and death no kid under the age of 16 (or whatever age the relevant legislation sets in which ever province) can decide to reject life saving treatment. Abella cited the answer she coud not herself see clearly. Her cite is what her judgment boils down to, all her endless commentary failing to say something quite different notwithstanding:

"...[79] The difficulty and uncertainty involved in assessing maturity has prompted some experts to suggest that children should be entitled to exercise their autonomy only insofar as it does not threaten their life or health. As John Eekelaar remarks:

We cannot know for certain whether, retrospectively, a person may not regret that some control was not exercised over his immature judgment by persons with greater experience. But could we not say that it is on balance better to subject all persons to this potential inhibition up to a defined age, in case the failure to exercise the restraint unduly prejudices a person’s basic or developmental interests?

(“The Emergence of Children’s Rights” (1986), 6 Oxford J. Legal Stud. 161, at pp. 181-82)..."

Justice Binnie reached a deplorable conclusion: that the state will let a 14 year old kid decide to die by respecting her rejection of a life saving transfusion of blood. But he was right to note more than once in his reasons that Abella never once met squarely the kid's argument.

As a side note, this case highlights the need for a more sophisticated analysis of what "arbitrary" means as a constitutional matter given the inescapability of line drawing in framing, defining and applying rules and principles and tests and standards in deciding cases.

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