ADVOCACY & POLICY ADVICE
The "G" Case: Court File No. 25508
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PROGRAMS & SERVICES: ADVOCACY & POLICY ADVICE The "G" Case: Court File No. 25508 |
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Court File No. 25508 IN THE SUPREME COURT OF CANADA (On Appeal from the Court of Appeal for the Province of Manitoba) BETWEEN: WINNIPEG CHILD AND FAMILY SERVICES (Northwest Area) Appellant (Plaintiff) - and - G. (D.F.) Respondent (Defendant) FACTUM OF THE INTERVENORS Arne Peltz Gowling, John A. Myers Henry Brown, Q.C. INDEX INTRODUCTION AND OVERVIEW . . . . . . . . . . . . . . . . . 1 PART I: PART II: PART III: A. A woman's duty to her fetus during pregnancy: moral responsibility, not legal duty . . . . . . . . . . . . . . . . . . . . . 9 i) Allowing coercive judicial orders against pregnant addicts is contrary to good healthcare provider practice and is destructive of the provider-patient relationship . 12 ii) There are "healthy public policy" initiatives which are preferable to the use of judicial orders in this area, but governments in Canada have been derelict in meeting their responsibilities for public health . . . . . . . . . . . . . . 15 iii) Addictions are a serious reproductive health problem for Aboriginal communities, but Aboriginal people are not endorsing the use of judicial orders, and child welfare agencies have no moral or cultural authority to confine aboriginal women involuntarily . . . . . . . . . . . . . . . . . . . 21 C. There is no basis for the exercise of parens patriae jurisdiction on behalf of the fetus . . . . . . . . . . . . . . . . . 26 D. The Agency's action infringes rights under Charter sections 7 and 15 . . 27 PART IV: INTRODUCTION AND OVERVIEW 1. This appeal arises from legal proceedings commenced against a pregnant woman who was sniffing solvents, but clearly the Appellant (hereafter "the Agency") is equally concerned with the danger of drug and alcohol misuse during pregnancy, and the potential for Fetal Alcohol Syndrome (FAS) and other serious harms. The Women's Health Rights Coalition shares these concerns. The Aboriginal women represented by the Coalition are particularly anxious for the health of their children and the future of their communities. 2. In determining the present case, the Court will be faced with an unusually potent mixture of emotional, scientific and social policy issues. To reach the proper result, it will be necessary to allow for a balance between emotion and reason. The image of damaged fetuses arouses our compassion and concern. Our frustration in solving the problem of drug addiction and pregnancy, of protecting the fetus from harm, drives us to solutions that identify the pregnant woman as the cause. In our haste we may find ourselves responding to the need to "do something", relying on questionable data, and turning to solutions that defeat the ultimate and legitimate purpose of caring for the woman and protecting the fetus. Pregnancy is not a voluntary state. It happens more by default than by planning, and it happens to only one of two people who allow conception to occur. Yet, society imposes on pregnant women the sole responsibility for fetal well-being. Children are the keepers of our dreams. They carry in them all our unlived lives. In a country in which many still go without homes or food, it is clear that it is the "idea" of children which holds our concerns, if not the children themselves. It is easier to punish one pregnant woman than to alleviate the lethal conditions of many. Michelle Harrison, MD, "Drug Addiction in Pregnancy: The Interface of Science, Emotion and Social Policy" (1991) 8 Journal of Substance Abuse Treatment 261 at pp. 261, 267. In the foregoing publication, Dr. Harrison puts forward the following elements of a model to address the problem of addicted women and their fetuses: declare a moratorium on legal actions against women; provide comprehensive non-coercive treatment services which include the rest of the woman's family; require that programs and research address the wider problems of women's lives, including violence, hopelessness, lack of skills, relationships and concerns about children; extend programs past pregnancy so that the problem does not repeat itself; implement new models for woman-specific treatment in order to reflect gender differences; include birth control options in any program so that women retain reproductive autonomy; and include education of men as integral to the problem of addiction and pregnancy. Ibid., at pp. 266-67. To the same effect, see also: Judith Blackwell et al., "Canadian Women and Substance Use: Overview and Policy Implications", in Women's Use of Alcohol, Tobacco and other Drugs in Canada, (Toronto, Addiction Research Foundation, 1996) pp. 228-246, esp. at pp. 242-43. Status of Women Council of the NWT, Keeping Women and Communities Strong. Women, Substance Abuse and FAS/FAE: An NWT Needs Assessment (Yellowknife, 1996). Anne George, FAS/FAE and NAS Community Prevention Guide (Vancouver: Vancouver YWCA, 1993). Iris Marion Young, "Punishment, Treatment, Empowerment: Three Approaches to Policy for Pregnant Addicts" (1994) 20:1 Feminist Studies 33. Robert G. Madden, "State Actions to Control Fetal Abuse: Ramifications for Child Welfare Practice" (Mar.-Apr. 1993) Vol. LXXII, No. 2 Child Welfare 129 at pp. 138- 39. 3. Fundamentally, the case at bar is about the limits of law. Legal process is not an appropriate response to every social problem. In 1990, the United States Department of Health and Social Services stated that "the dominant emerging view from a variety of professional specialists in health care, child welfare and the law is to approach adverse consequences of prenatal and postnatal drug use as social-medical problems, not readily amenable to punitive legal sanctions." In 1993, the Department convened a multi-disciplinary National Consensus Panel including representatives of health professions, program providers, lawyers and the judiciary, and found that the Panel "strongly supports the view that the use of alcohol and drugs by women during pregnancy is a public health issue, not a legal problem." This view is echoed in Canada by the report of the Royal Commission on New Reproductive Technologies, which emphatically preferred "the ethic of care" over judicial orders. U.S. Department of Health and Human Services, Office for Substance Abuse Prevention, "Counselling Women About Childbearing and Childrearing Risks" in Alcohol, Tobacco and Other Drugs May Harm the Unborn (Rockville, MD: DHHS, 1990) at p. 54. U.S. Department of Health and Human Services, Public Health Service, Substance Abuse and Mental Health Services Administration, Pregnant Substance-Abusing Women. Treatment Improvement Protocol (TIP) Series 2, (Rockville, MD: DHHS, 1993) at p. 2. Proceed with Care: Final Report of the Royal Commission on New Reproductive Technologies (Ottawa, 1993) Vol 1, Chapter 30 at pp. 956-965. Alberta Alcohol and Drug Abuse Commission, Fetal Alcohol Syndrome and Other Alcohol Related Birth Defects (Edmonton, 1996) at p. 46, in discussing court-ordered treatment states "[t]here is no evidence that this legal approach is either socially effective or economically sound." See also: Susan Bewley, MD, "Legal Frameworks to Prevent Harm In-Utero" (1994) 1 Medical Law International 277 at p. 285: "Despite the terrible fetal and maternal harms that drugs cause, the present law in the UK does not need radical change, unless the present, and arguably morally preferable solutions are demonstrably failing. Drug addiction in pregnancy is a complex social problem that will not be solved with simple legal remedies." Dr. Bewley is Senior Registrar in Fetal Medicine at the University College Obstetric Hospital, London. 4. Members of the Women's Health Rights Coalition are acutely sensitive to the difficulties presented by this case, but in the end, a resolution is clear. Effective protection for both fetus and woman requires an aggressive public health approach to the addiction problem, and a concerted effort to attack underlying social causes. In large measure, what has been lacking to date is political will. As noted by the Aboriginal Nurses Association of Canada, "In the past, most health and social services would have focused on the mother and worked to change the mother's behaviour. Today, more people are recognizing that the mother and baby are part of a larger circle that involves partners, families and communities - and everyone has a responsibility in preventing drinking during pregnancy." The Nurses recommend strong support for the addicted woman (but not coercion) and multi-faceted action at the community level. It is respectfully submitted that the Court should take this opportunity to remind governments of their obligations, both legal and political, to provide effective programs and to help restore damaged communities. Aboriginal Nurses Association of Canada, It Takes A Community: A Resource Manual for Community-Based Prevention of Fetal Alcohol Syndrome and Fetal Alcohol Effects (Ottawa, 1997) at p. 33-34. 5. In the end, the question must be asked: what works? Everyone agrees that our objective is to enhance the health of mothers and children. "Punitive measures are often put forth as 'solutions' to preventing FAS - including prosecuting women, incarcerating women and forcing women into treatment against their will. Punitive measures have been found to be ineffective in reducing drug use among pregnant women. These measures demonstrate a misunderstanding of the nature of addiction and the many factors in women's lives that make it difficult to reduce their use. ... When providing services for women at risk, empowerment strategies are more effective than coercion." British Columbia FAS Resource Society, Fetal Alcohol Syndrome Community Action Guide [Draft] (Ministry for Children and Families, Government of British Columbia, forthcoming June 1997) at Intro. p. 3, Action p. 3. 6. The Coalition urges reliance on the old midwifery saying, "Mother the mother, and she will mother the child". PART I: STATEMENT OF FACTS 7. The Women's Health Rights Coalition ("the Coalition") is comprised of four Manitoba-based community organizations: Women's Health Clinic Inc., a community health centre for women, the Native Women's Transition Centre Inc., a safe house for native women and children needing long-term support, the Metis Women of Manitoba Inc., an association representing Metis women on legal, political, social and economic issues, and the Manitoba Association for Rights and Liberties Inc., an organization mandated to promote civil liberties and human rights. 8. In considering the facts of this case, the Coalition submits that the form of the proceedings in the Court of Queen's Bench must be appreciated. This litigation proceeded at breakneck speed and was handled on an emergency basis. The Agency filed a Statement of Claim and Notice of Motion on Tuesday, July 30, 1996, with the motion returnable for Thursday, August 1, 1996, two days later. Expert medical evidence was filed by way of affidavits sworn on July 29 and July 31, 1996, along with other material. The motion was heard on Saturday, August 3, 1996, at which time the Court took viva voce evidence and heard oral argument. A psychiatric assessment of G. was directed, which was filed in Court on Tuesday, August 6, 1996, and thereafter the motions judge pronounced an interim order. Written reasons followed on August 13, 1996. 9. There never was a trial in this case. The Respondent G. and her counsel could not possibly respond to the technical evidentiary issues and broad policy questions raised by the Agency's motion within the available time. G.'s request for a two-week adjournment to prepare for the hearing was denied. There was virtually no cross-examination conducted by counsel for G. and no evidence was called on behalf of G. 10. Under these circumstances, the Court must exercise caution in reading the facts of this case as asserted by the Agency. The Coalition is concerned that the Agency is asking the Court to change the law in a dramatic way, resting its argument on the factual foundation established during the frantic proceedings described above. 11. G. suffered from solvent addiction for a number of years, encompassing the period of her first three pregnancies and births (1990-94). G. herself was a minor until February 1992. In due course, each of her children were apprehended by the Agency and taken from her under permanent orders of guardianship. 12. The record contains no information about G.'s personal and family history which would provide insight into her problems and allow some assessment of the appropriateness of the Agency's responses. G. was described as being of Aboriginal background, without further detail. In a 2-page affidavit, a City of Winnipeg Social Services worker who had known G. for four years deposed that G. "has consistently refused all offers of services" while continuing to abuse solvents. No further description is provided concerning the nature of the strategies considered or utilized by the Agency or others in attempting to treat G.'s addiction. The available facts suggest that the Agency's involvement was sporadic, consisting mainly of surveillance, especially after G. reached the age of majority. (Testimony of Sheryl Ferguson, Case on Appeal ("COA"), p. 51; Affidavit of Kimberley Hansen, COA, p. 18.) 13. In April 1993, during her third pregnancy, G. expressed a strong wish to enter the youth sniffing treatment program at Sagkeeng Treatment Centre, a First Nations facility on a reserve 100 km outside of Winnipeg, but apparently she did not qualify because she had turned 19 years old by then. The evidence does not disclose whether the Agency was aware of this effort by G. to obtain treatment services. A social worker from the Health Sciences Centre was advocating for G. at that time, and Southeast Child and Family Services, an Aboriginal agency, was apparently involved. (Correspondence, COA, p. 85.) 14. Early in June 1996, again with help from the hospital, G. applied voluntarily to enter the St. Norbert Foundation, an addiction treatment centre in Winnipeg. There was a waiting list of several months and G. was told to keep in touch. G. spoke by telephone with the Foundation's coordinator of family services and expressed her desire to enter the program. (Testimony of Sheryl Ferguson, COA, pp. 49, 58-60; May 28, 1996 Admission History, Chemical Withdrawal Unit, see "Discharge Plan", COA, p. 80.) 15. On June 25, 1996, the Agency learned that G. was expecting another baby in December 1996 and was using solvents. Although unstated, it appears medical confidentiality may have been breached to inform the Agency. G. was at that time in her second trimester. Her file with the Agency was re-opened. On July 18, 1996 the Agency located her and G. said that she was willing to obtain treatment for her substance abuse problem. The Agency worker accompanied G. to a pre-natal examination and made arrangements for admission to St. Norbert Foundation. (Affidavit of Marion Clement, COA, p. 34.) 16. On July 23, 1996, the Agency worker tried to take G. to St. Norbert. G. was intoxicated at the time and said she would get treatment, but "not right now". There is no indication that the Agency repeated the invitation when G. was sober or took other steps to encourage a voluntary admission. The Agency immediately prepared and filed its motion to Court for an order confining G. for treatment, pleading that G. "owes a duty of care to herself and her unborn foetus and that her actions violate that duty of care." (Affidavit of Marion Clement, COA, p. 34; Statement of Claim, COA, p. 4, Notice of Motion, COA, p. 7.) 17. In support of its motion, the Agency filed inter alia the report of Dr. Albert Chudley, head of the Section of Genetics and Metabolism at the Health Sciences Centre in Winnipeg. He addressed two questions: (1) whether extensive sniffing of solvents by a pregnant woman is likely to cause fetal damage, and (2) whether discontinuing solvent exposure in the second and third trimesters may benefit the fetus. Dr. Chudley deposed that there is some evidence of fetal harm due to solvent exposure and that he expected there would be benefits to discontinuance, although the data was incomplete and his opinions were equivocal. Dr. Chudley said it is uncertain whether the effects are similar to fetal alcohol exposure. In a 1996 study by Dr. Chudley and others, he concluded that the results did not support the existence of a fetal solvent syndrome. Triable issues of fact clearly arise here. (Report of Dr. Albert Chudley, COA, pp. 20-24.) 18. G. was examined by a psychiatrist on May 31, 1996 at the Health Sciences Centre and again, at the request of the Court, on August 3, 1996. Serious long-term risks were identified, including chronic solvent use and suicidal tendencies. However, there was no evidence of mental disorder or incompetence, and no basis for detention under the Mental Health Act, according to the examining doctors. (Psychiatric examination notes of Dr. M. Etkin, COA, p. 87; Medical Report of Dr. Michael Eleff, COA, pp. 88-92.) 19. The motions judge made an order "pursuant to the parens patriae jurisdiction of the Court of Queen's Bench" committing G. to the custody of the Director of Child and Family Services and granting to the Director authority to direct and consent to treatment on behalf of G. This order was to be effective until birth or termination of the pregnancy, or further order of the Court. The order was set aside on appeal to the Manitoba Court of Appeal, and the Agency now appeals to this Honourable Court for a determination that the motions judge had jurisdiction to make the order in question. (Interim Order, COA, pp. 96-97; Reasons for Decision of Schulman J., COA, pp. 99-100.) PART II: POINTS IN ISSUE 20. The Women's Health Rights Coalition submits that the following are the points in issue.
21. In general terms, the Coalition submits that the points in issue herein must be considered within a community health perspective, and in particular, that the health interests of mothers and children must be understood as being inherently linked, rather than opposed. Distinguishing between a woman's rights and those of her fetus is artificial and creates a false dichotomy. 22. During a pregnancy which is proceeding to term, a woman feels deeply responsible for the child to be born, and this nurturing role must be supported by government and society at large, especially where the woman is struggling to overcome addiction or other problems arising from social disadvantage or oppression. Good health care practice should be encouraged by the result of the present case, not undermined, and the autonomy and dignity of women must be respected. PART III: ARGUMENT (a) A woman's duty to her fetus during pregnancy: moral responsibility, not legal duty 23. The Women's Health Rights Coalition acknowledges the duty of a woman to nourish and care for her fetus when she has made the decision to complete her pregnancy. As noted by the Royal College of Obstetricians and Gynaecologists (United Kingdom), a woman's exercise of autonomy in reproductive decision-making "must surely be balanced by her obligation to her dependent fetus and renders her morally accountable if knowingly the child is harmed by her decision or indecision". Like the Royal College, however, the Coalition stresses the distinction between moral duty and legal duty. The College has stated that use of the law to enforce such moral responsibilities would be wrong: "…it is inappropriate, and unlikely to be helpful or necessary, to invoke judicial intervention to overrule an informed and competent woman's refusal of a proposed medical treatment, even though her refusal might place her life and that of her fetus at risk." This statement was very recently endorsed by the English Court of Appeal in Re M B. The Court observed that while ethical dilemmas arise in these cases, "Nonetheless, as has so often been said, this is not a court of morals." RCOG (U.K.) Guidelines - Ethics, No. 1, April 1994, [and supplemented December 1996] A Consideration of the Law and Ethics in Relation to Court-Authorized Obstetric Intervention at para. 3.8.10, 4.5.1, and 5.12. Re M B (March 26, 1997) U.K. (C.A.) [unreported] at pp. 19, 22. 24. Similarly, the Canadian Society of Obstetricians and Gynaecologists, in its 1995 Policy Statement on prenatal care, states that physicians "should encourage women engaged in substance abuse to seek treatment. ... Identification early in pregnancy of women with alcohol abuse and referral to supportive agencies for treatment should improve outcomes." The Royal College of Physicians and Surgeons of Canada stresses "[t]he importance of patient education and persuasion as opposed to coercion when conflict is apparent in individual cases." Society of Obstetricians and Gynaecologists of Canada, Clinical Practice Guidelines for Obstetrics (Policy Statement No. 18, December 1995) Healthy Beginnings: Guidelines for Care During Pregnancy and Childbirth, at p. 22. Royal College of Physicians and Surgeons of Canada, Biomedical Ethics Committee, presentation to the Royal Commission on New Reproductive Technologies, Reflection on the Physician's Responsibility to Mother and Fetus (Ottawa: March 19, 1992) at p. 8. See also: the Proceed with Care: Final Report of the Royal Commission on New Reproductive Technologies, supra, and commentary in Sheilah Martin and Murray Coleman, "Judicial Intervention in Pregnancy" (1995) 40 McGill L.J. 947, esp. Part IV, Civil Liability for Women's Conduct During Pregnancy at pp. 949-951. 25. The American Medical Association (AMA) has applied the same distinction between a woman's moral and legal duty of care in this context. The Association has cautioned against imposition of civil liability as a remedy for harmful behaviour by a pregnant woman, even though third parties are fully liable after birth for injury caused in utero: ... a pregnant woman and her fetus share a physical interdependency that a third-party tortfeasor and the fetus do not. The nature of the relationship between the pregnant woman and her fetus makes problematic tort liability against the mother for prenatal injuries. The AMA states that the most effective method of avoiding fetal harm is through education and treatment. Resort to legal liabilities "may be ultimately detrimental, rather than beneficial, to fetal health". The Association recognizes a theoretical basis for exceptions to the "fundamental principle against compelled medical procedures" to a woman, such as cases involving "a minimal invasion of her bodily integrity", but this clearly would not encompass a continuing civil detention order with forced addiction treatment. American Medical Association, Board of Trustees Report, "Legal Interventions During Pregnancy: Court-Ordered Medical Treatments and Legal Penalties for Potentially Harmful Behaviour by Pregnant Women" (1990) 264:20 Journal of the American Medical Association 2663 at pp. 2664, 2666-68, report adopted by the AMA House of Delegates, Annual Meeting, June 1990. 26. The precepts of good health care practice must be the Court's primary guide in this matter. Indeed, the Appellant Agency founds its case on the importance of enhancing fetal and maternal health. However, new pronouncements of law will not provide an answer to this problem. The Coalition respectfully submits that no legal duty of care should be created in the circumstances presented by the case at bar. 27. The Appellant Agency acknowledges that the present law in Canada only recognizes an actionable duty of care to the fetus after birth. It is clear that the fetus is not a person. Appellant's factum at p. 16, ll. 8-9. Daigle v. Tremblay, [1989] 2 S.C.R. 530: in both common and civil law, a fetus is not a legal person, and must be born alive in order to enjoy rights. R. v. Sullivan, [1991] 1 S.C.R. 489: a foetus is not a "person" or a "human being" for the purposes of criminal negligence provisions under the Criminal Code. Montreal Tramways v. Leveille, [1933] S.C.R. 456: although a foetus is not a legal person, a child, after birth, can recover from a third party damages for pre-natal injuries. Dehler v. Ottawa Civic Hospital (1980), 29 O.R. (2d) 677 (Ont. C.A.): no cause of action in tort arises unless and until a child is born alive. Cherry (Guardian ad Litem of) v. Borsman (1992), 16 B.C.A.C. 93 (B.C.C.A.): the court imposed liability on a negligent doctor, holding that the law is clear that while the foetus had no cause of action, a cause arose upon its live birth. Seede v. Camco Inc. (1985), 50 O.R. (2d) 218 (Ont. S.C.): in Ontario there is no right of action in an unborn child to recover damages nor in favour of an unborn child unless the child is born alive. Duval v. Seguin, [1972] 2 O.R. 686 (H.C.), affirmed (1973), 1 O.R.(2d) 482 (Ont. C.A.): a permanently handicapped infant plaintiff can recover damages from a negligent third party motorist for pre-natal injuries. Mathison v. Hofer, [1984] 3 W.W.R. 343 (Man. Q.B.): an unborn child has never been recognized as a person in the full legal sense, and is not a person under the Regulations to the Manitoba Insurance Corporation Act. Davey v. Victoria General Hospital, [1996] 3 W.W.R. 347 (Man. Q.B.): a statement of claim pursuant to the Fatal Accidents Act, issued by a plaintiff who was involved in a car accident a day before her due date, was dismissed; the stillborn foetus was not a "person" within the meaning of the Act. 28. Moreover, actions against a birth-mother for injury caused in utero have not been recognized in Canada, except for Dobson, a 1997 New Brunswick trial court decision which is presently under appeal. Dobson is an automobile injury case where a claim was filed after the child's birth, based on the mother's negligent driving while she was pregnant. It is submitted that the existence of a regime of compulsory liability insurance distinguishes that case on a policy basis from the case at bar. In Bonte, a New Hampshire case akin to Dobson, the Court held that the carrying of general insurance coverage by most motorists "decreases the likelihood that the minor's cause of action will disrupt family harmony or deplete the family exchequer". Even so, in the United States, other courts have refused to allow such actions, observing that the fetus cannot be treated as an entity entirely separate from its mother. See Stallman: A legal right of the fetus to begin life with a sound mind and body assertible against a mother would make a pregnant woman the guarantor of the mind and body of her child at birth. A legal duty to guarantee the mental and physical health of another has never before been recognized in law. Any action which negatively impacted on fetal development would be a breach of the pregnant woman's duty to her developing fetus. Mother and child would be legal adversaries from the moment of conception until birth. ... Judicial scrutiny into the day-to-day lives of pregnant women would involve an unprecedented intrusion into the privacy and autonomy of the citizens of this State. Dobson (Litigation Guardian) v. Dobson (January 20, 1997), (N.B.Q.B.) [unreported]. Bonte (Next Friend) and Bonte v. Bonte (1992), 616 A.2d 464 (Sup. Ct. N.H.) at 288. Stallman v. Youngquist (1988), 531 N.E. (2d) 355 (Illinois Sup. Ct.) at 359. 29. In sum, to allow this appeal, a radical departure from current law would be required. For a multitude of reasons, it would be wrong to alter these long-standing legal principles as urged by the Agency in this case. The Women's Health Rights Coalition submits that the Manitoba Court of Appeal correctly identified many of the flaws in the Agency's argument. From its particular perspective, the Coalition wishes to bring before this Honourable Court further grounds to support the decision of the Court of Appeal. (i) Allowing coercive judicial orders against pregnant addicts is contrary to good healthcare provider practice and is destructive of the provider-patient relationship. 30. The relationship between a healthcare provider and her patient is "a healing relationship, in which the patient trusts the clinician, there is open and confidential communication between the practitioner and the patient, and the patient's interests are primary." In legal terms (aside from contractual aspects) such relationships have been characterized as fiduciary in nature, obliging the provider to maintain a standard of utmost good faith and loyalty. H. Westley Clark, "Society, Drugs and Pregnant Women" in C.J. Morton et al., eds., Promoting Family Health in the 1990's: Strategies for Public Health Social Work, Proceedings of the 1990 Public Health Social Work Institute (Rockville, MD: DHHS, 1993) at p. 48. McInerney v. MacDonald, [1992] 2 S.C.R. 138 at pp. 148-50; Norberg v. Wynrib, [1992] S.C.R. 226 per McLachlin J. at pp. 270-71. Canadian Nurses Association, Code of Ethics for Nursing (Ottawa, 1991). Preamble, p. 1, "The nurse ... assumes a professional commitment to health and the well-being of clients." Value II, Respect for Client Choice, pp. 3-4, para 1: "The competent client's consent is an essential precondition to the provision of health care." Para. 4: "Force, coercion and manipulative tactics must not be employed in the obtaining of consent." Value III, Confidentiality, p. 5: "The nurse holds confidential all information about a client learned in the health care setting." 31. Absent a clear statutory provision or court order of production, healthcare providers must maintain confidentiality and serve their patients, not the government. By shifting away from a patient centred policy in which trust between the provider and the patient is critical, we become public-centred state agents. Even when in that new role as state agents we realize that we have inadequate resources and inadequate benefits, we respond punitively to those who present themselves to us seeking assistance. ... By discouraging open and confidential communication, we impose on the patient the need to edit what they say to us. The relationship becomes adversarial and at arms length. Patients are less willing to ask questions or to discuss intimate concerns because of this adversarial relationship. H. Westley Clark, "Society, Drugs and Pregnant Women", supra at p. 50. 32. In light of the foregoing, it is understandable that the overwhelming weight of authority among the helping professions is that coercive or mandatory judicial orders for treatment of pregnant addicts would be ill advised. See paras. 23-25, supra. Also: American Society of Addiction Medicine, Chemically Dependent Women and Pregnancy (September 1989) at p. 17: Governments "should avoid any measures defining alcohol or other drug use during pregnancy as "prenatal child abuse", and should avoid prosecution, jail, or other punitive measures as a substitute for providing effective health services for these women." As well, laws should not require physicians to violate confidentiality by reporting pregnant patients to child welfare authorities. See also: The Centre for Reproductive Law and Policy, Punishing Women for their Behaviour During Pregnancy: An Approach That Undermines Women's Health and Children's Interests (New York, 1996), which compiles the statements made by public health and public advocacy groups, including the American Academy of Pediatrics and the American Public Health Association at pp. 11-12. American College of Obstetricians and Gynaecologists, Committee on Ethics, Patient Choice: Maternal-Fetal Conflict, Committee Opinion No. 55 (Washington, D.C., 1987) at p. 1: "Actions of coercion to obtain consent or force a course of action limit maternal freedom of choice, threaten the doctor-patient relationship, and violate the principles underlying informed consent process. ... The maternal-fetal relationship remains a unique one, requiring a balance of maternal health, autonomy, and fetal needs. Every reasonable effort should be made to protect the fetus, but the pregnant woman's autonomy should be respected." Jane L. Greenlaw, R.N., J.D., "Treatment Refusal, Noncompliance, and Substance Abuse in Pregnancy: Legal and Ethical Issues", (1990) 17:3 Birth 152 at p. 156: "To use the law or the courts to force a pregnant woman to undergo a specific procedure or to confine her against her will violates societal values of autonomy and self-determination, as well as the sanctity of the provider-patient relationship." 33. The concerns of health professionals are amplified by patients/clients when the users of services are given an opportunity to be heard. Participants in a recent sharing circle organized by the Native Women's Transition Centre, all of whom had been involved in some form of substance addiction, stated that court orders would discourage women from seeking medical advice and treatment during pregnancy. They believe doctors and nurses would be obliged to report them to the Agency. "Why would you go and see your doctor when you know they will end up taking your baby away." Aboriginal people would be suspicious of further coercive powers granted to the Child and Family Services Agencies. Native Women's Transition Centre, Circle Meeting Report (Winnipeg, 1997) at pp.1-2. 34. In its factum, the Agency acknowledges the concern that court-ordered treatment may drive pregnant women away from needed prenatal care, but then blithely dismisses the problem since affected women "already under-utilise the health care system in any event", many because of guilt or shame over their use of drugs (at p. 23). This is appalling logic, especially from a public agency responsible for child and family welfare. If the Agency is willing to sacrifice the health of some women and their fetuses by scaring them away from health care, it ought to demonstrate convincingly the efficacy of court-ordered treatment, both in individual cases and systemically. But the Agency has not even attempted to meet this challenge, and the Chavkin article cited at page 23 of the Agency's factum actually supports the contrary: There is a lack of rigorous research data to substantiate the effectiveness of compulsory treatment in general. ... Data have repeatedly indicated that concern for children often motivates addicted women to seek drug treatment and that lack of services for children precludes women's ongoing participation. There are also descriptive profiles of female addicts demonstrating a high prevalence of sexual and physical abuse histories. The retention rate in treatment programs that are designed to respond to either of these needs has not been contrasted with retention associated with mandatory treatment, and we lack evidence to compare the efficacy of these different approaches. Since imposing mandatory treatment involves depriving the person of liberty, it should require demonstration of superior efficacy compared with less intrusive measures... …The children of drug-using mothers may be most effectively served by the development of available, efficacious, and welcoming services for women and families. Wendy Chavkin, MD, "Mandatory Treatment for Drug Use During Pregnancy" (1991) 266:11 Journal of the American Medical Association 1556 at p. 1560. Alberta Alcohol and Drug Abuse Commission, Fetal Alcohol Syndrome and Other Alcohol Related Birth Defects, supra at p. 45: "...judgemental and punitive interventions are counterproductive to women seeking services." Stephen R. Kandall, Substance and Shadow: Women and Addiction in the United States (Cambridge: Harvard University Press, 1996) at p. 295: "Many professionals regard pregnancy as a unique opportunity to bring women into treatment, yet mandatory drug treatment may actually drive a woman away from the health care system, with dire consequences for her and for her baby." Concerning reluctance of women to seek health care and/or addiction treatment: Sara J. Corse, PhD et al., "Enhancing Provider Effectiveness in Treating Pregnant Women With Addictions" (1995) 12:1 Journal of Substance Abuse Treatment 3 at pp. 3-4; see also Addiction Research Foundation, Substance Use and Reproduction: Risks, Rights and Responsibilities (Toronto, 1992), recommending treatment services specific to the needs of pregnant women, and concluding at p. 4 that "A comprehensive public health approach which addresses these issues is likely to be much more effective than measures directed at the individual." (ii) There are "healthy public policy" initiatives which are preferable to the use of judicial orders in this area, but governments in Canada have been derelict in meeting their responsibilities for public health. 35. This is a case which cries out for "something to be done." But precisely what should be done? The Women's Health Rights Coalition submits that changing the common law, as requested by the Appellant Agency, is wrong in principle and sends the wrong message to governments in Canada at this time. 36. Responsible public policy - "healthy public policy" - requires broad initiatives to attack the underlying social causes of addiction, as well as innovative treatment interventions which allow individual addicted women to stop using harmful substances. "Healthy public policy" is "a concept intended to recognize the array of factors, social and economic as well as medical, that contribute to well-being and to disease…" See Judith Blackwell et al., "Canadian Women and Substance Use: Overview and Policy Implications", supra at pp. 228-229. For a Parliamentary recognition of the healthy public policy approach, see the Canada Health Act, R.S.C. 1985, Chap. C-6, preamble, citing improvement in well-being through "collective action against the social, environmental and occupational causes of disease". 37. The Coalition submits that governments and legislative bodies in Canada are under positive legal obligations in this regard. Section 36(1) of the Constitution Act, 1982 declares a constitutional commitment to "promoting equal opportunities for the well-being of Canadians" and "providing essential public services of reasonable quality to all Canadians". Article 25 of the Universal Declaration of Human Rights guarantees everyone "the right to a standard of living adequate for the health and well being of himself and his family, including ... medical care and necessary social services." The Article also states that "Motherhood and childhood are entitled to special care and assistance." The Universal Declaration is arguably in force within Canada and in any event, is available to the Court for interpretive purposes in this case. Universal Declaration of Human Rights, General Assembly Resolution 217 A (III), United Nations Document A/810, signed December 10, 1948. As to domestic law enforcement in Canada, see Hugh M. Kindred et al., eds. International Law: Chiefly as Interpreted and Applied in Canada, 4th ed., (Emond Montgomery Publications Limited, 1987) at p. 644. See also William A. Schabas, International Human Rights Law and The Canadian Charter: A Manual for the Practitioner (Toronto: Carswell, 1991) at p. 47. See also Anne F. Bayefsky. International Human Rights Law: Use in Canadian Charter of Rights and Freedoms Litigation. (Toronto: Butterworths Canada Ltd., 1992) at p.10-13. 38. Under Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Canada has recognized "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health". It has been argued that the Covenant creates enforceable legal obligations "in the sense that states must match their performance with their objective capabilities". The United Nations Committee on the ICESCR has held that the guarantees in the Covenant are more than mere policy objectives for governments in Canada. Philip Alston et al., "The Nature and Scope of States Parties' Obligations Under the International Covenant on Economic, Social and Cultural Rights" (1987) 9 Human Rights Quarterly 156 at pp. 160-61, 185. Committee on Economic, Social and Cultural Rights, Concluding Observations on the Report of Canada Concerning the Rights Covered by Articles 10 to 15 of the International Covenant on Economic, Social and Cultural Rights, (1993) U.N. Doc. E/C.12/1993/19. See also: Convention on the Elimination of all Forms of Discrimination Against Women, Can. T.S. 1982 No. 31, in force January 9, 1982, Article 12, requiring elimination of discrimination in health care and equal access to health services, including pregnancy related services. 39. Unfortunately, governments in Canada are avoiding their obligation to ensure social health and well-being, and are failing to move quickly in establishing new, woman-specific addiction treatment programs. The problem is especially acute for Aboriginal communities. The Coalition submits that, if governments are going to ignore their social responsibilities, the Court should not try to solve the ensuing crisis by creating dubious new legal tools. 40. The relationship between impoverishment and addiction has been frequently documented. As noted by the Aboriginal Nurses Association, addiction "affects many people ... in all walks of life, regardless of race, culture or socio-economic standing - it does not discriminate. But it is the most vulnerable communities, with the poorest economies and all the attendant social and health problems, where alcohol abuse can have the greatest impact." The Royal Commission on Aboriginal Peoples reported that "Aboriginal addictions are part of a circle of oppression, despair, violence and self-destructive behaviour that must be addressed as a whole." The National Forum on Health has also documented the impact of economic and social policies on women's health, and highlighted the risks faced by Aboriginal women. "Poor socioeconomic conditions worsen the life chances and health status of Canadian Aboriginal women." Aboriginal Nurses Association of Canada, It Takes a Community, supra at p. vi. Report of the Royal Commission on Aboriginal Peoples, 1996, Vol. 3 at p. 162. National Forum on Health, "An Overview of Women's Health" in Canada Health Action: Building on the Legacy, Volume II (Ottawa, 1997) at p. 13. On the relationship between FAS and low socio-economic status, see Ernest L. Abel, "An Update on Incidence of FAS: FAS is Not an Equal Opportunity Birth Defect" (1995) 17:4 Neurotoxicology and Teratology 437. See also: Canadian Centre on Substance Abuse, Fetal Alcohol Syndrome: An Issue of Child and Family Health. A Policy Discussion Paper (Ottawa, 1994) at p. 4: "... FAS is not simply an issue of alcohol abuse but a complex issue rooted in the underlying social and economic conditions which influence all aspects of maternal and child health." See also: Norma Finklestein, "Treatment Issues for Alcohol- and Drug-Dependent Pregnant and Parenting Women" (1994) 19:1 Health and Social Work 7 at p. 12: "To substantially reduce the incidence of alcoholism and drug abuse in women of childbearing age ... social changes are needed in areas of financial supports, housing, health care, employment, child care, children's services, family supports, legal rights, and sexual division of labour in the family." 41. The National Forum on Health called for the development of women and family-centred health services, but found instead that "services of value to women are being curtailed: government spending cuts and structural adjustment activities may extend and deepen already existing gender inequities." National Forum on Health, An Overview of Women's Health, supra at p. 19. See also: Evidence of the House of Commons Standing Committee on Health, October 29, 1996; Keith Conn, Director of Health, Assembly of First Nations Health Secretariat at p. 19:22: "In terms of programs and services, long-term stable funding must be secured for programs that have been proven effective. We're seeing an erosion of programs that have proven to be effective." Similarly, Committee Vice-Chair Mr. Dhaliwal at p. 19:26: "I think that, in a lot of ways, we've failed as governments to deal with alcohol and drug abuse in the aboriginal community, and we have to work a lot harder to deal with those problems." E. Flagler, MD et al., "Ethical Dilemmas that Arise in the Care of Pregnant Women: Rethinking "Maternal-Fetal" Conflicts", in press, 1997 Canadian Medical Association Journal at pp. 8,9: "... state intervention to promote fetal well-being is hypocritical given the inconsistency between the aggressive efforts at rescuing a few fetuses from a few women in unfortunate situations and the widespread tolerance for the unacceptable and sometimes dangerous living conditions in which many children find themselves." 42. It is now recognized that traditional addiction treatment methods, based largely on experience with men, are not appropriate for women, especially pregnant or parenting women and women who have experienced male violence. Woman-specific services are essential, yet such services are absent or inadequate across Canada at the present time. Laurie Drabble, "Elements of Effective Services for Women in Recovery: Implications for Clinicians and Program Supervisors", and Laurie S. Markoff et al., "Retaining Your Clients and Your Sanity: Using a Relational Model of Multi-Systems Case Management", both in B.L. Underhill and D.G. Finnegan, eds., Chemical Dependency: Women at Risk, (New York: Haworth Press, 1996) at pp. 1-21 and 45-65 respectively. Cheryl Zlotnick, RN, DrPH et al., "The Impact of Outpatient Drug Services on Abstinence Among Pregnant and Parenting Women", (1996) 13:3 Journal of Substance Abuse Treatment 195 at p. 196: "To keep women with drug problems in treatment, the first prerequisite is that the program be gender sensitive and address issues related to the roles women have as parents, partners, and members in society." Margaret E. Goldberg, "Substance-Abusing Women: False Stereotypes and Real Needs" (1995) 40:6 Social Work 789. Richard R. Szuster, MD et al., "Treatment Retention in Women's Residential Chemical Dependency Treatment: The Effect of Admission with Children" (1996) 31:8 Substance Use & Misuse 1001. Report of the Royal Commission on Aboriginal Peoples, Vol. 3, supra at p. 133: "…priority [must] be given to alcohol and drug programs for pregnant Aboriginal women. Yet we have been told that treatment services are unprepared to deal with pregnant women, or with women who already have children. As well, Aboriginal women who are pregnant need culture-based prenatal outreach and support programs, designed to address their particular situation and vulnerabilities …". Diane McKenzie, "Dialogue on Aboriginal Substance Use" in Diane McKenzie, ed., Aboriginal Substance Use: Research Issues, Proceedings of a Joint Research Advisory Meeting of the Canadian Centre on Substance Abuse and the National Native Alcohol and Drug Abuse Program (Ottawa: Canadian Centre on Substance Abuse, 1994) pp. 43-59 at pp. 49-50: "The greatest barrier to getting women into treatment is that there are no child care facilities in the centres. Women end up paying for child care, a circumstance that is virtually impossible for them. Women are seen as selfish for looking after their treatment needs when they set aside their role as nurturer." Nady El-Guebaly, MD, "Alcohol and Polysubstance Abuse Among Women" (1995) 40 Canadian Journal of Psychiatry 73 at p. 76: "Supportive multidisciplinary programs for pregnant women addicts are mostly lacking, yet guidelines for care are available ...". Pamela Winquist, Issues and Recommendations Related to Fetal Alcohol Syndrome Prevention, Awareness, Care and Research in British Columbia (adapted from report submitted to B.C. Ministry of Health, June 1995) at p. 9: "Women's addictions and their reproductive health must be given greater priority. ... Waiting lists for women are lengthy (3-4 months) and there are no treatment centres that will allow women to keep their children. Many women will not enter treatment as this means putting their children into 'care' and risking not getting them back." Status of Women Council of the NWT, Keeping Women and Communities Strong, supra at p. 58: "Currently pregnant women are not a priority for NWT treatment centres. They should be, at least until specific programs are made available for pregnant women." Core Women Care, The Place to Start. Women's Health Care Priorities in Vancouver's Downtown Eastside (Vancouver Women's Health Collective: August 1995) at p. 27: "A lot of women felt despair about the long waiting lists to get into virtually any kind of residential drug treatment program." See also: Alberta Alcohol and Drug Abuse Commission, Fetal Alcohol Syndrome and Other Alcohol Related Birth Defects, supra, pp. 45-46. 43. New interdisciplinary and "advocacy style" programs are showing great promise in working with women who previously have resisted involvement in treatment, but these initiatives are struggling to obtain government support. One highly regarded model is the "Birth to 3" program pioneered in Seattle, Washington and currently being considered for funding in Winnipeg. At present, no such service exists in Manitoba. In fact, since the inception of these proceedings, a major addiction treatment centre at Selkirk, Manitoba, operated by St. Norbert Foundation and serving Aboriginal people, has been forced to shut down its beds. B.C. FAS Resource Society, Fetal Alcohol Syndrome Community Action Guide, supra, at Action pp. 16-18 describing "Real-life examples - where these methods are being used". Therese Grant et al., "When Case Management Isn't Enough: A Model of Paraprofessional Advocacy for Drug- and Alcohol-Abusing Mothers" (1996) 5:1 Journal of Case Management 3 at p. 11: "formerly "hopeless" women are able to achieve success over time." Therese Grant, The Birth to 3 Program: A Plan of Action for Washington State 1996- 1997, Prevention and Intervention with High Risk Alcohol and Drug Abusing Mothers and Their Children (Seattle: Univ. of Washington School of Medicine, 1996). See also the following two cutting-edge Canadian programs incorporating elements of the Seattle model: SHEWAY: A Community Project for Women and Children in Vancouver's Downtown Eastside; and BREAKING the CYCLE in Toronto, described in Margaret Leslie, "Breaking the Cycle: A Review of the First Year" (Winter 1996-97) 17 IMPrint, Newsletter of the Infant Mental Health Promotion Project 22. Winnipeg Free Press, "Solvent-abuse expert fumes", January 16, 1997 at p. A8 and Thompson Citizen, "Solvent abusers not receiving help quickly", January 17, 1997 at p. 2, describing unsuccessful efforts by Winnipeg's Dr. Oscar Casiro to establish a program on the "Birth to 3" model for high-risk cases. Re the Selkirk Healing Centre, see COA, p. 52, ll. 10-19. See also correspondence with St. Norbert Foundation, April 28, 1997 and May 6, 1997 relating the closure of treatment beds to lack of funds. 44. The Women's Health Rights Coalition submits that resort by governmental authorities to legal orders of confinement against women is totally unacceptable when innovative voluntary treatment approaches have barely been tried, let alone exhausted. (iii)Addictions are a serious reproductive health problem for Aboriginal communities, but Aboriginal people are not endorsing the use of judicial orders, and child welfare agencies have no moral or cultural authority to confine Aboriginal women involuntarily. 45. Fetal alcohol syndrome (FAS) and abuse of other toxic substances by pregnant women have been acknowledged by Aboriginal organizations and First Nation governments as an "urgent" health problem in some communities, but the extent to which findings can be generalized is not yet clear. Leading researchers have urged caution in accepting assertions about elevated rates of FAS for Aboriginal populations. The Royal Commission on Aboriginal Peoples was unable to reach a conclusion on this point, saying the extent of FAS in Aboriginal communities is still "unknown" (at Vol. 3, p. 132). There are methodological problems and potential cultural biases in estimating incidence. Debra L. Bray et al., "Appraisal of the Epidemiology of Fetal Alcohol Syndrome Among Canadian Native Peoples" (1989) 80 Canadian Journal of Public Health 42 at p. 45. Diane McKenzie, Fetal Alcohol Syndrome. Canadian Profile 1996 (Canadian Centre on Substance Abuse, 1997) at p. 3. Mary Jane Ashley, "Alcohol Related Birth Defects" in Diane McKenzie, ed., Aboriginal Substance Use, supra, pp. 69-73 at p. 70. Assembly of First Nations, Presentation to the Standing Committee on Health on the Review of Policies on Misuse and Abuse of Substances (October 29, 1996) Appendix A, "Briefing on Fetal Alcohol Syndrome" at p. 2. Larry Burd and Michael Moffatt M.D., "Epidemiology of Fetal Alcohol Syndrome in American Indians, Alaskan Natives, and Canadian Aboriginal Peoples: A Review of the Literature" (1994) 109:5 Public Health Reports 688. Report of the Standing Committee on Health and Welfare, Social Affairs, Seniors and the Status of Women, Foetal Alcohol Syndrome: A Preventable Tragedy, (Ottawa, June 1992) at p. 2 (evidence of higher incidence in some rural remote communities, Aboriginal communities and poor inner city neighbourhoods) and p. 27 (First Nations Health Commission recommended a special Aboriginal committee on FAS). Michael Moffatt et al., Fetal Alcohol Syndrome, Fetal Alcohol Effects and the Impact of Alcohol Exposure during Pregnancy on School Performance and Behaviour in School-age Children in a First Nation Community (Winnipeg, 1996) at pp. 4 and 9: FAS prevalence in an unidentified Manitoba First Nation community was estimated at between 28 and 72 per 1000 school children, compared to an estimated world-wide rate of 1.9 per 1000 live births. 46. What is essential for the purposes of the case at bar is this: Aboriginal communities, their leaders and their health organizations are actively engaged in responses to the fetal health problem, but resort to involuntary confinement and treatment has not been endorsed by Aboriginal peoples. In every instance, community health approaches and innovative voluntary treatment strategies are being formulated and implemented, although clearly more support from Canadian governments is needed. There has been no call for judicial intervention issuing forth from inside or outside Aboriginal communities. The Women's Health Rights Coalition notes that only two of eight Manitoba First Nation child welfare agencies have intervened in this case and respectfully submits that the position of these two agency intervenors is anomalous and unsubstantiated, and should be disregarded by the Court. Assembly of Manitoba Chiefs, Chiefs' Health Assembly, Resolution on Fetal Alcohol Syndrome/Effects, February 6, 1997. The Assembly has embarked on a 10-point action plan including public awareness, school programs, training for health professionals and youth initiatives. The Chiefs recommend at p. 3 that "Alcohol Treatment Centres treat pregnant women with priority when it comes to allocating beds to clients. Special programming must be made available for family treatment so that children can be part of the treatment process." See also Manitoba FAS News: A Publication of the Committee on Alcohol and Pregnancy, (Vol. 2 No. 3, Fall 1996), "Assembly of Manitoba Chiefs Announces Action Plan". Assembly of First Nations, Presentation to the Standing Committee on Health on the Review of Policies on Misuse and Abuse of Substances, supra at p. 6, calling for a "continuum of services" and more work in prevention and aftercare. Health Canada and co-signers including Aboriginal Nurses of Canada, Assembly of First Nations Health Commission, Native Physicians Association in Canada and Inuit Women's Association, Joint Statement: Prevention of Fetal Alcohol Syndrome (FAS) and Fetal Alcohol Effects (FAE) in Canada (October 1996) endorsing 9 prevention proposals, but not including mandatory or court directed treatment orders. Manitoba Medical Association and Alcoholism Foundation of Manitoba, Report on the Community Consultation on Fetal Alcohol Effects and Fetal Alcohol Syndrome (Winnipeg: June 3/4, 1993), esp. at pp. 34-43, presentations from the Cree Nation Tribal Health Centre. Sam Stevens, "Fetal Alcohol Syndrome - Requires a Community Solution", in Saskatchewan Institute on Prevention of Handicaps, Proceedings of the Saskatchewan Fetal Alcohol Syndrome Symposium, October 13-15, 1993 (Saskatoon, January 1994). Ann P. Streissguth, "Fetal Alcohol Syndrome: Understanding the Problem; Understanding the Solution; What Indian Communities Can Do" (1994) 18:3 American Indian Culture and Research Journal 45 at p. 60 and p. 76, urging the "3P Program" of public awareness, professional education and provision of services, and concluding that the "difficulties of FAS cannot be dealt with by denial any more than they can be dealt with by locking up pregnant women for nine months so they cannot drink." Claire E. Dineen, "Fetal Alcohol Syndrome: The Legal and Social Responses to its Impact on Native Americans" (1994) 70 North Dakota Law Review 1 for a thorough review of both fetal rights and maternal rights arguments, concluding at p. 47: "Maternal substance abuse resulting in prenatal harm is a public health issue that demands a community approach. ... A public health, community-based approach is especially appropriate in the communities of Native Americans in order to address the tragedy of FAS/FAE." The Child and Family Services Agencies (outside the City of Winnipeg) Regulation, Man. Regs. 138/91 and 87/97. The other mandated Manitoba First Nation child welfare agencies are: Anishinaabe Child and Family Services, Awasis Agency of Northern Manitoba, Dakota Ojibwa Child and Family Services and Island Lake First Nations Family Services. 47. Whether or not an agency operated by a First Nation government would have any different or greater legal powers in respect of a pregnant member of that Nation, as compared to the powers exercisable by Winnipeg Child and Family Services, is a purely hypothetical question which is not before the Court. Moreover, the relationship between self-government jurisdiction and Aboriginal women's legal rights, including the applicability of the Charter of Rights and Freedoms, is a sensitive and controversial issue within many Aboriginal communities, as well as the broader Canadian community. The Coalition submits that it would be inappropriate for the Court to become entangled in this issue in the present case. 48. The Coalition further submits that assertions concerning the existence of "culturally sensitive" or "culturally permissible" methods of imposing involuntary treatment on Aboriginal women are questionable and would require intensive examination before a Court could even entertain such notions. There are numerous Aboriginal nations in Canada, with an enormous diversity of history and culture; Manitoba alone contains the Dene, the Cree, the Ojibway or Saulteaux, the Dakota, and the Metis. No single point of view could be said to exist on the question presently before this Court. Evidentiary hearings and findings of fact would be needed as a foundation for any claimed jurisdiction over Aboriginal women. However, to the extent that the available literature and authorities provide clues, they are highly suggestive of holistic healing and helping approaches, such as the policies actually endorsed by Aboriginal political and professional leaders (supra, para. 46), rather than the use of coercion through Court orders. James B. Waldram et al., Aboriginal Health in Canada. Historical, Cultural and Epidemiological Perspectives (Toronto, 1995) at p. 222: "Culture is an amorphic entity and … Aboriginal cultures are extremely diverse; intracultural diversity is extensive, and there are those who simply do not follow Aboriginal cultural customs." For instances of traditional healing being used in a contemporary context, see pp. 204-209 describing the use of traditional healers, healing circles, sweat lodges, midwives and elders. B.C. FAS Resource Society, Fetal Alcohol Syndrome Community Action Guide, supra at Action p. 16, describing the Ktunaxa Nation/Kinbasket People Community Healing and Intervention Program, which is "grounded in an overall context of healing - processing of feelings of grief and guilt and the empowerment of taking action to prevent further generations of FAS births." Kaweionnehta Human Resource Group, First Nations and Inuit Community Youth Solvent Abuse Survey and Study, (Vernon, B.C.: 1993) at p. 116, describing "holistically and culturally based" treatment. The recommended principles include vision, respect, balance, integration, personal development, etc., all of which appear to be inconsistent with forced treatment or involuntary confinement. Patricia A. Monture-Angus, "A Vicious Circle: Child Welfare and First Nations", in Patricia Monture-Angus, Thunder in my Soul: A Mohawk Woman Speaks (Halifax: Fernwood Publishing, 1995) pp. 191-215 at p. 194: "As a First Nations woman, my worldview does not revolve around the acceptance of punishment or the validation of force and coercion. Instead, it revolves around balance. The spiritual ceremonies and traditional teachings given by the Elders involve instruction about who we are as individuals and as members of a nation. ... Holistic means to be connected. … When difficulties arise within a community, the community responds by attempting to bring the person who is the source of the difficulty back into the community." 49. In many Aboriginal nations, personal autonomy and non-interference are highly regarded values, which would preclude a culture-based resort to confinement and forced treatment. This observation has been made about Dene communities in particular. To some extent, Aboriginal culture is now being suggested as treatment in and of itself - "culture as treatment" - but there is no evidence to suggest that forced treatment is a legitimate element of any traditional approach to healing. Manitoba's Aboriginal Justice Inquiry examined Aboriginal culture at length, and cited the "ethic of non-interference" as one of the most important and widely accepted cultural values. This ethic " 'promotes positive interpersonal behaviour by discouraging coercion of any kind, be it physical, verbal or psychological.' It stems from a high degree of respect for every individual's independence and regards interference or restriction of personal freedom as 'undesirable behaviour' ". Maggie Brady, "Culture In Treatment, Culture As Treatment. A Critical Appraisal of Developments in Addictions Programs for Indigenous North Americans and Australians" (1995) 41:11 Social Science and Medicine 1487 at p. 1492. Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba, Vol. 1, The Justice System and Aboriginal People (Winnipeg, 1991) at p. 31. See also: Rupert Ross, Dancing With A Ghost: Exploring Indian Reality (Markham: Reed Books, 1992) at p. 12: "Interference in any form is forbidden, regardless of the following irresponsibility or mistakes that your brother is going to make." Also by the same author, Returning To The Teachings: Exploring Aboriginal Justice (Toronto: Penguin Books, 1996) dealing mainly with criminal justice, but citing at p. 14: "teaching and healing as cornerstones of traditional Aboriginal thought." For a case where involuntary culturally-based treatment was challenged and held illegal, see Thomas v. Norris [1992] 2 C.N.L.R. 139 (B.C.S.C.), initiation without consent into the Spirit Dance to deal with alcohol and marriage problems. 50. In conclusion, there is no basis for the judicial order sought by the Appellant Agency against G. as an Aboriginal woman. The Agency cannot show that such invasive action has been requested by Aboriginal communities, nor even that such a policy is acceptable to Aboriginal political, social and health authorities. As noted by the Aboriginal Justice Inquiry, "intrusion by child welfare authorities in the past has been paternalistic and colonial in nature, condescending and demeaning in fact, and often insensitive and brutal to Aboriginal people." This shameful history is still fresh for many Aboriginal people. However well-intentioned the Agency may be in this case, its deployment of the legal system against a sick and powerless native woman harkens back to a dark era which must never be repeated in this country. Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba, Vol. 1, The Justice System and Aboriginal People, supra at p. 509. (b) There is no basis for the exercise of parens patriae jurisdiction on behalf of the fetus 51. The motions judge based his order on an unsupported factual finding that G. was an incompetent adult. On that premise, the judge granted relief to the Agency under section 56 of the Mental Health Act, R.S.M. 1987 c. M 110, or alternatively, under the Court's parens patriae jurisdiction. In a very brief obiter dictum, the judge held that parens patriae jurisdiction could be enlarged and applied for the benefit of the fetus, although he acknowledged that there was some doubt about the Court's authority in this regard. The Court of Appeal overturned the finding that G. was incompetent, and the Agency does not contest the point. The Coalition submits that the appeal court correctly declined to enlarge or apply parens patriae jurisdiction to the fetus in this case. The Court of Appeal followed the leading cases, including Re F (in utero), [1988] 2 All E.R. 193 (C.A.), Paton v. Trustees of BPAS, [1978] 2 All E.R. 987 (Q.B.), Daigle, supra, and Sullivan, supra. 52. The issues here are similar to the points discussed earlier in this factum concerning duty of care. Since the fetus is not legally a person, the Court's protective jurisdiction is not available. Moreover, policy considerations dictate judicial restraint. The problem is more effectively addressed by public health initiatives. Judicial orders of treatment and confinement against women will be counter-productive to fetal health. In any event, this is a case which raises highly sensitive social policy issues of the kind identified by La Forest J. in Re Eve, and therefore the Court should decline to extend its ordinary discretionary jurisdiction over vulnerable persons. Re Eve, [1986] 2 S.C.R. 388 at 432, 433. 53. On similar facts, Steinberg J. would not intervene under parens patriae: However tempted I might be to intervene under the court's paternalistic powers, I reluctantly conclude that I cannot do so. The essence of the parens patriae power is thatthe court is empowered to take steps to protect the child or the foetus, in the place of the parent. But here the child is actually inside the mother. It is therefore impossible in this case to take steps to protect the child without ultimately forcing the mother, under restraint if necessary, to undergo medical treatment and other processes, against her will. I believe that the parens patriae jurisdiction is just not broad enough to envisage the forcible confinement of a parent as a necessary incident of its exercise. Re A (in utero) (1990), 75 O.R. (2nd) 82 (U.F.C.) at p. 92. (c) The Agency's action infringes rights under Charter sections 7 and 15 54. Where, as in this case, a governmental actor relies on a common law rule, that rule will be subjected to Charter scrutiny. Furthermore, this Honourable Court has held that "the judiciary ought to apply and develop the principles of the common law in a manner consistent with the Charter". This principle is relevant to private litigation as well as to government action based upon a common law rule. Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at 1166-72. R.W.D.S.U., Local 580 v. Dolphin Delivery, [1986] 2 S.C.R. 573 at 603. 55. The Appellant Agency seeks the creation of a new common law principle to permit the state to "control a pregnant woman's behaviour" in certain circumstances, while recognizing that such a principle "must entail a restriction on the rights" of pregnant women. As acknowledged by the Agency, the restraints sought to be imposed on pregnant women breach their liberty and security interests under s. 7. The Coalition submits that, for reasons set out by the Respondent, the s. 7 breach in the case at bar was not in accordance with the principles of fundamental justice and is illustrative of the inevitable s. 7 infringements which will occur if the common law permits the state and others to control pregnant women's behaviour. Appellant's Factum, paras. 69, 54 and 65; Respondent's Factum, paras. 53-62. 56. Changing the common law to protect fetuses by developing a remedy which will be imposed exclusively upon pregnant women constitutes discrimination under s. 15 of the Charter. In the context of equality guarantees under human rights legislation, Dickson C.J.C. declared: It is difficult to conceive that distinctions or discrimination based upon pregnancy could ever be regarded as other than discrimination based upon sex, or that restrictive statutory conditions applicable only to pregnant women did not discriminate against them as women. Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219 at pp. 1243-44. 57. Professor Sanda Rodgers comments in Volume 4 of the Research Studies, Royal Commission on New Reproductive Technologies, that: Each of the various forms of interference with gestation and birth evidences a willingness to place both the responsibility and the burden of gestation on women, rather than to see the responsibility as one to be shared by all members of society. Requiring women alone to bear the burden of the costs of gestation is contrary to general legal principles of non- discrimination. Sanda Rodgers, "Juridical Interference with Gestation and Birth" in Royal Commission on New Reproductive Technologies, Legal and Ethical Issues in New Reproductive Technologies: Pregnancy and Parenthood [Research Studies: No. 4] (Ottawa, 1993) at p. 91. 58. The measures proposed by the Agency clearly violate the Charter rghts of pregnant women and must therefore be subjected to s. 1 Charter scrutiny. The s. 1 analysis applied to a common law rule is more rigorous than that applied to a legislative provision. This Court has held that while Parliament need not always choose the absolutely least intrusive means to achieve its objectives, the Court must adopt the "least intrusive common law rule which will attain the objectives without disproportionately affecting rights". … "It is not enough to say that the newly formulated common law rule is less intrusive than the previous rule or even to say that the new common law rule does not limit s. 7 of the Charter. If this court is to enunciate a new common law rule to take the place of the old rule, it is obliged to consider the status of that new rule in relation to all relevant aspects of the Charter." R. v. Swain, [1991] 1 S.C.R. 933 at 984 and 989. 59. The principles above have been set out in the context of Charter challenges to existing common law rules, where the court is asked either to strike down the rule or to reformulate a less intrusive rule. The Agency's request for judicial formulation of a common law principle which is more intrusive into constitutionally protected rights and freedoms than the existing law must be approached with even greater caution. 60. The Coalition submits that the infringements on the Charter rights of
pregnant women which would follow from changes to the common law proposed by the Agency
cannot survive section 1 scrutiny. As McLachlin J. wrote,
[B]efore the state can override constitutional rights, there [must] be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement. It is the task of the courts to maintain this bottom line if the rights conferred by our constitution are to have force and meaning. RJR-MacDonald Inc. v. Canada (A.-G.), [1995] 3 S.C.R. 199 at 328-329 (emphasis in original). 61. While the objective of enhancing the health of mothers and children is clearly a pressing and substantial one under the first branch of the Oakes test, the Coalition takes the position that court-ordered treatment meets none of the proportionality requirements of the second branch. Firstly, given the weight of authority from the health professions that resort to legal process may actually be detrimental to fetal health and that coercive judicial orders would be ill advised, the measures proposed by the Agency have not been demonstrated to be rationally connected to the stated objectives. (See paras. 26-28 and 35-37 above.) Secondly, since governments have failed to provide and promote voluntary treatment approaches for women with addictions, the Agency has not demonstrated that the resort to coercive treatment constitutes a minimal impairment of Charter rights. (See paras. 42-47 above.) Finally, the Agency has failed to demonstrate a proportionality between the deleterious effects on the autonomy rights of pregnant women and the uncertain benefits of coercive treatment. PART IV: ORDER REQUESTED 62. The Women's Health Rights Coalition requests that the appeal be dismissed. All of which is respectfully submitted on behalf of the Women's Health Clinic Inc., the Native Women's Transition Centre Inc., the Metis Women of Manitoba Inc. and the Manitoba Association for Rights and Liberties Inc. this day of May, 1997. Arne Peltz John Myers Counsel for the above Intervenors Counsel for the above Intervenors PART V: TABLE OF AUTHORITIES CASES Page(s) Bonte (Next Friend) and Bonte v. Bonte (1992), 616 A.2d 464 (Sup. Ct. N.H.)11, 12 Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219. . . . . . 28 Cherry (Guardian ad Litem of) v. Borsman (1992), 16 B.C.A.C. 93 (B.C.C.A.)11 Daigle v. Tremblay, [1989] 2 S.C.R. 530. . . . . . . . . . 11, 27 Davey v. Victoria General Hospital, [1996] 3 W.W.R. 347 (Man. Q.B.)11 Dehler v. Ottawa Civic Hospital (1979), 29 O.R.(2d) 748 (High Ct.), affirmed (1980), 29 O.R. (2d) 677 (Ont. C.A.).. . . . . . . . . . . . . . . . . 11 Dobson (Litigation Guardian) v. Dobson, (January 20, 1997), (N.B.Q.B.) [unreported]. . 11, 12 Duval v. Seguin, [1972] 2 O.R. 686 (High Ct.), affirmed 1 O.R.(2d) 482 (Ont. C.A.).11 Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 28 Mathison v. Hofer, [1984] 3 W.W.R. 343 (Man. Q.B.) . . . . . . 11 McInerney v. MacDonald, [1992] 2 S.C.R. 138. . . . . . . . . . 12 Montreal Tramways v. Leveille, [1933] S.C.R. 456 . . . . . . . 11 Norberg v. Wynrib, [1992] S.C.R. 226 . . . . . . . . . . . . . 12 Paton v. Trustees of BPAS, [1978] 2 All E.R. 987 (Q.B.). . . . 27 R. v. Sullivan, [1991] 1 S.C.R. 489. . . . . . . . . . . . 11, 27 R. v. Swain, [1991] 1 S.C.R. 933 . . . . . . . . . . . . . . . 29 Re A (in utero) (1990), 75 O.R. (2nd) 82 (U.F.C.). . . . . . . 27 Re Eve, [1986] 2 S.C.R. 388. . . . . . . . . . . . . . . . . . 27 Re F (in utero), [1988] 2 All E.R. 193 (C.A.). . . . . . . . . 27 Re M B (March 26, 1997), U.K. (C.A.) [unreported]. . . . . . . .9 R.W.D.S.U., Local 580 v. Dolphin Delivery, [1986] 2 S.C.R. 573 28 RJR-MacDonald Inc. v. Canada (A.-G.), [1995] 3 S.C.R. 199. 29, 30 Thomas v. Norris, [1992] 2 C.N.L.R. 139 (B.C.S.C.) . . . . . . 26 Seede v. Camco Inc. (1985), 50 O.R. (2d) 218 (Ont. S.C.) . . . 11 Stallman v. Youngquist (1988), 531 N.E. (2d) 355 (Illinois Sup. Ct.)11, 12 AUTHORS Abel, Ernest L., "An Update on Incidence of FAS: FAS is Not an Equal Opportunity Birth Defect" (1995) 17:4 Neurotoxicology and Teratology 43718 Aboriginal Nurses Association of Canada, It Takes A Community: A Resource Manual for Community-Based Prevention of Fetal Alcohol Syndrome and Fetal Alcohol Effects (Ottawa, 1997). . . . . . . . . .3, 18 Addiction Research Foundation, Substance Use and Reproduction: Risks, Rights and Responsibilities (Toronto, 1992). . . . . . . . . . 15 Alaskan Natives, and Canadian Aboriginal Peoples: A Review of the Literature" (1994) 109: 5 Public Health Reports 68822 Alberta Alcohol and Drug Abuse Commission., Fetal Alcohol Syndrome and Other Alcohol Related Birth Defects (Edmonton, 1996)3, 15, 20 Alston, Philip et al., "The Nature and Scope of States Parties' Obligations Under the International Covenant on Economic, Social and Cultural Rights" (1987) 9 Human Rights Quarterly 156. . . . . . . . . . . . . . 17 American College of Obstetricians and Gynaecologists, Committee on Ethics, Patient Choice: Maternal-Fetal Conflict, Committee Opinion No. 55 (Washington, D.C., October 1987) . . . . . . . . . . . . . 13, 14 American Medical Association, Board of Trustees Report, "Legal Interventions During Pregnancy: Court-Ordered Medical Treatments and Legal Penalties for Potentially Harmful Behaviour by Pregnant Women" (1990) 264:20 Journal of the American Medical Association 2663. . . . . . . . . . . . . 10 American Society of Addiction Medicine, Chemically Dependent Women and Pregnancy (September 25, 1989) [Internet cite: http://members.aol.com/ asamoffice/ pubpol2.htm#Women] . . . . . . . . . . . . . . . . 13 Ashley, Mary Jane, "Alcohol Related Birth Defects" in Diane McKenzie, ed., Aboriginal Substance Use: Research Issues, Proceedings of a Joint Research Advisory Meeting of the Canadian Centre on Substance Abuse and the National Native Alcohol and Drug Abuse Program (Ottawa: Canadian Centre on Substance Abuse, 1994) pp. 69-73 . . . . . . . . . . . . . . . . . . . . 23 Assembly of First Nations, Presentation to the Standing Committee on Health on the Review of Policies on Misuse and Abuse of Substances (Ottawa, October 29, 1996). . . . . . . . . . . . . . . . . . . . . 22, 23 Assembly of Manitoba Chiefs, Chiefs Health Assembly, Resolution on Fetal Alcohol Syndrome/Effects (Resolution adopted February 6, 1997)23 Bayefsky, Anne F., International Human Rights Law: Use in Canadian Charter of Rights and Freedoms Litigation (Toronto: Butterworths Canada, 1992)16 Bewley, Susan, "Legal Frameworks to Prevent Harm In-Utero" (1994) 1 Medical Law International 277. Blackwell, Judith et al., "Canadian Women and Substance Use: Overview and Policy Implications", in M. Adrian et al., Women's Use of Alcohol, Tobacco and Other Drugs in Canada (Toronto, Addiction Research Foundation, 1996) pp. 228-246. . . . . . . . . . . . . . . . . . . . . .2, 16 Brady, Maggie, "Culture In Treatment, Culture As Treatment. A Critical Appraisal of Developments in Addictions Programs for Indigenous North Americans and Australians" (1995) 41:11 Social Science and Medicine 148725 Bray, Debra L. and Anderson, Perry D., "Appraisal of the Epidemiology of Fetal Alcohol Syndrome Among Canadian Native Peoples" (1989) 80 Canadian Journal of Public Health 42 . . . . . . . . . . . . . 22< BREAKING the CYCLE, Program Information Pamphlet (Toronto). . 21 British Columbia FAS Resource Society, Fetal Alcohol Syndrome Community Action Guide [Draft] (Ministry for Children and Families, Government of British Columbia, forthcoming June 1997) . . . . . . . . . .4, 20, 24, 25 Burd, Larry and Moffatt, Michael., "Epidemiology of Fetal Alcohol Syndrome in American Indians, Canada, House of Commons, Evidence of the Standing Committee on Health (Meeting No. 19) October 29, 1996 (Witness: Assembly of First Nations Health Secretariat) pp. 19:19 - 19:26. . . . . . . . . . . . . . . . 18 Canada, House of Commons, Report of the Standing Committee on Health and Welfare, Social Affairs, Seniors and the Status of Women, Foetal Alcohol Syndrome: A Preventable Tragedy, (Ottawa: Canada Communications Group, June 1992). . . . . . . . . . . . . . . . . . . . . . . 22 Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, Vol. 3: Gathering Strength, Chapter 3: "Health and Healing" (Ottawa: Supply and Services Canada, 1996)18, 19, 21 Canada, Royal Commision on New Reproductive Technologies, Proceed with Care: Final Report of the Royal Commission on New Reproductive Technologies, Vol. 1, Chapter 30 (Ottawa: Minister of Government Services, 1993)3, 10 Canadian Centre on Substance Abuse, Fetal Alcohol Syndrome: An Issue of Child and Family Health. A Policy Discussion Paper (Ottawa, September 19, 1994) [Internet cite: www.ccsa.ca/fasissue.htm] . . . . . . . 18 Canadian Nurses Association, Code of Ethics for Nursing, (Ottawa, November 1991).12, 13 Centre for Reproductive Law and Policy, Punishing Women for their Behaviour During Pregnancy: An Approach That Undermines Women's Health and Children's Interests, (New York, 1996). . . . . . . . . . 13 Chavkin, Wendy, "Mandatory Treatment for Drug Use During Pregnancy" (1991) 266:11 Journal of the American Medical Association 155614, 15 Clark, H. Westley, "Society, Drugs and Pregnant Women" in C.J. Morton et al., eds., Promoting Family Health in the 1990's: Strategies for Public Health Social Work, Proceedings of the 1990 Public Health Social Work Institute (Rockville, MD: Department of Health and Human Services, 1993)12, 13 Core Women Care, The Place to Start. Women's Health Care Priorities in Vancouver's Downtown Eastside (Vancouver: Vancouver Women's Health Collective, August 1995) . . . . . . . . . . . . . . . . . . . 20 Corse, Sara J. et al., "Enhancing Provider Effectiveness in Treating Pregnant Women With Addictions" (1995) 12:1 Journal of Substance Abuse Treatment 315 Dineen, Claire E., "Fetal Alcohol Syndrome: The Legal and Social Responses to its Impact on Native Americans" (1994) 70 North Dakota Law Review 123 Drabble, Laurie, "Elements of Effective Services for Women in Recovery: Implications for Clinicians and Program Supervisors" in B.L. Underhill and D.G. Finnegan, eds., Chemical Dependency: Women at Risk (New York: Haworth Press, 1996) pp. 1-21. . . . . . . . . . . . . . . . . 19 El-Guebaly, Nady, "Alcohol and Polysubstance Abuse Among Women" (1995) 40 Canadian Journal of Psychiatry 73 . . . . . . . . . . . . . 20 Finklestein, Norma, "Treatment Issues for Alcohol- and Drug-Dependent Pregnant and Parenting Women" (1994) 19:1 Health and Social Work 718 Flagler, E., Baylis, F. and Rodgers, S. "Ethical Dilemmas that Arise in the Care of Pregnant Women: Rethinking "Maternal-Fetal" Conflicts" (in press, 1997 Canadian Medical Association Journal). . . 18, 19 George, Anne, FAS/FAE and NAS Community Prevention Guide, (Vancouver: Vancouver YWCA, 1993). . . . . . . . . . . . . . . . . . . . . .2 Goldberg, Margaret E., "Substance-Abusing Women: False Stereotypes and Real Needs" (1995) 40:6 Social Work 789 . . . . . . . . . . . 19 Grant, Therese et al., The Birth to 3 Program: A Plan of Action for Washington State 1996-1997. Prevention and Intervention with High Risk Alcohol and Drug Abusing Mothers and Their Children (Seattle: Department of Psychiatry & Behavioral Sciences, University of Washington School of Medicine, Dec. 17, 1996) . . . . . . . . . . . . . . . . . . . 21 Grant, Therese et al., "When Case Management Isn't Enough: A Model of Paraprofessional Advocacy for Drug- and Alcohol-Abusing Mothers" (1996) 5:1 Journal of Case Management 3 . . . . . . . . . . . . . 20, 21 Greenlaw, Jane L., "Treatment Refusal, Noncompliance, and Substance Abuse in Pregnancy: Legal and Ethical Issues" (1990) 17:3 Birth 15214 Harrison, Michelle, "Drug Addiction in Pregnancy: The Interface of Science, Emotion and Social Policy" (1991) 8 Journal of Substance Abuse Treatment 2611, 2 Health Canada, Joint Statement: Prevention of Fetal Alcohol Syndrome (FAS) and Fetal Alcohol Effects (FAE) in Canada (October 1996) 23 Kandall, Stephen R., Substance and Shadow: Women and Addiction in the United States (Cambridge: Harvard University Press, 1996)15 Kaweionnehta Human Resource Group, First Nations and Inuit Community Youth Solvent Abuse Survey and Study (Vernon, B.C., 1993). . . 25 Kindred, Hugh M. et al., eds., International Law: Chiefly as Interpreted and Applied in Canada, 4th ed., (Emond Montgomery Publications Limited, 1987)16 Leslie, Margaret, "Breaking the Cycle: A Review of the First Year" (Winter 1996-97) 17 IMPrint, Newsletter of the Infant Mental Health Promotion Project 2221 Madden, Robert G., "State Actions to Control Fetal Abuse: Ramifications for Child Welfare Practice" (Mar.-Apr. 1993) Vol. LXXII, No. 2 Child Welfare 1292 Manitoba FAS News: A Publication of the Committee on Alcohol and Pregnancy, (Vol. 2, No. 3, Fall 1996) "Assembly of Manitoba Chiefs Announces Action Plan". . . . . . . . . . . . . . . . . . . . . . . . . 23 Manitoba Medical Association and Alcoholism Foundation of Manitoba, Report on the Community Consultation on Fetal Alcohol Effects and Fetal Alcohol Syndrome (Winnipeg: June 3/4, 1993). . . . . . . . . . 23 Manitoba, Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba, Vol.1, The Justice System and Aboriginal People (Winnipeg: Queen's Printer, 1991)25, 26 Markoff, Laurie S. and Cawley, Patricia A., "Retaining Your Clients and Your Sanity: Using a Relational Model of Multi-Systems Case Management" in B.L. Underhill and D.G. Finnegan, eds., Chemical Dependency: Women at Risk (New York: Haworth Press, 1996) pp. 45-65. . . . . . 19 Martin, Sheilah and Coleman, Murray, "Judicial Intervention in Pregnancy" (1995) 40 McGill L.J. 947. . . . . . . . . . . . . . . . . . . 10 McKenzie, Diane, "Dialogue on Aboriginal Substance Use" in D. McKenzie, ed., Aboriginal Substance Use: Research Issues, Proceedings of a Joint Research Advisory Meeting of the Canadian Centre on Substance Abuse and the National Nati |
Women's Health Clinic * Women's Health Clinic * Women's Health Clinic * Women's Health Clinic * Women's Health Clinic * Women's Health Clinic
