Rights of Parents and Children Re-explored as SCC Orders Retrial of Case Against Alberta Parents



This week, the Supreme Court of Canada (SCC) ordered a new trial for the parents of a toddler who died from meningitis in 2012. When their son fell ill, the Stephans, an Alberta couple, chose to treat him with natural remedies including “olive leaf extract, garlic, hot peppers, and horseradish,” and sought out medical assistance only when their son stopped breathing. They argue that the cause of their son’s death was the ambulance’s lack of appropriate pediatric equipment, while the Crown alleges that the fault belongs to the parents for failing to provide the necessaries of life.[1] Although the parents were convicted at trial, the SCC this week ordered a retrial, holding that the trial judge failed to properly explain the relevant law to the jury, which influenced the conviction. The parents will now stand trial again, with the possibility of conviction or acquittal. The Stephans remain adamant that they did no wrong, and as the Globe and Mail reported, “Mr. Stephan has insisted that the case is fundamentally about parental rights—that parents have the final say on what care is appropriate for their children.”[2]

Their claim is reminiscent of a seminal SCC decision from 1995, entitled B (R) v Children’s Aid Society of Metropolitan Toronto[3], in which the Children’s Aid Society was granted temporary wardship over an ill child in order to allow the child to undergo a blood transfusion, despite the parents’ religious objection as Jehovah’s Witnesses. Much of the legal debate arose over the interpretation of section 7 of the Canadian Charter of Rights and Freedoms,[4] which states that “Everyone has the right to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” In this case, the SCC held that while “[t]he right to nurture a child, to care for its development, and to make decisions for it in fundamental matters such as medical care, are part of the liberty interest of a parent,”[5] this right is also limited by the child’s right to life and security of the person.[6] As held by Justices Cory, Iacobucci, and Major, “[a]n exercise of parental liberty which seriously endangers the survival of the child should be viewed as falling outside s. 7 of the Charter.”[7]

While the Stephans’ claim focuses on the general rights of parents to make decisions about the wellbeing of their children, rather than incorporating religious freedom arguments as in Children’s Aid Society, the SCC’s pronouncement that parental rights are limited in situations where the child’s right to life and security is at stake likely still applies to their claim. However, given more than 20 years have passed since this decision, it will be interesting upon retrial to see whether the Courts uphold the approach set out in Children’s Aid Society, or whether the passage of time has led to a different analysis of the conflict between the respective rights of parents and children under section 7 of the Charter.

This blog post was written by a CCLA Volunteer. Opinions expressed do not necessarily reflect the views of the CCLA.

[1] As per section 215 (1) (a) of the Criminal Code, RSC 1984, c C-46.

[2] Andre Picard, “Supreme Court Orders New Trial for Alberta Parents of Boy Who Died of Meningitis,” The Globe and Mail (16 May 2018).

[3] [1995] 1 SCR 315, 122 DLR (4th) 1 [Children’s Aid Society]

[4] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11, s 7.

[5] Children’s Aid Society, supra note 3 at page 317.

[6] Ibid at page 318.

[7] Ibid at page 319.

Photo by: D. Gordon E. Robertson