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(Attorney General) |
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Docket: |
CA027600 |
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Registry:Ý Vancouver |
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COURT OF APPEAL FOR BRITISH COLUMBIA |
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BETWEEN:
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CONNOR AUTON, an Infant, by his Guardian Ad Litem, MICHELLE AUTON, and the said MICHELLE AUTON in her personal capacity, MICHELLE TAMIR, An Infant, By Her Guardian Ad Litem, SABRINA FREEMAN, and the said SABRINA FREEMAN in her personal capacity, JORDON LEFAIVRE, an Infant, by his Guardian Ad Litem, LEIGHTON LEFAIVRE, and the said LEIGHTON LEFAIVRE in his personal capacity, RUSSELL GORDON PEARCE, an Infant, by his Guardian Ad Litem, and the said JANET GORDON PEARCE, and the said JANET GORDON PEARCE in her personal capacity
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RESPONDENTS (APPELLANTS ON CROSS-APPEAL) (PETITIONERS) |
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AND: |
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THE ATTORNEY GENERAL OF BRITISH COLUMBIA and THE MEDICAL SERVICES COMMISSION OF BRITISH COLUMBIA
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APPELLANTS (RESPONDENTS ON CROSS-APPEAL) (APPELLANTS) |
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Before: |
The Honourable Mr. Justice Lambert |
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The Honourable Mr. Justice Hall |
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The Honourable Madam Justice Saunders |
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L. Mrozinski and L. Greathead
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Counsel for the Appellant |
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C.E. Hinkson, Q.C. and B. von Krosigk
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Counsel for the Respondents, Appellants by Cross-Appeal |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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February 20 and 21, 2002 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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October 9, 2002 |
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Written Reasons by:
The Honourable Madam Justice Saunders (pp. 1-66, paras.1-100)
The Honourable Mr. Justice Hall
The Honourable Mr. Justice Lambert (pp. 67-89, paras. 101-139)
[1] This case concerns the rights of children to receive state funded health services to ameliorate the effects of a seriously disabling affliction.Ý It engages consideration of ss. 1, 7 and 15 of the Canadian Charter of Rights and Freedoms, the ancient protective parens patriae jurisdiction of the courts and modern standards of child protection evidenced, for example, in the United Nations' Convention on the Rights of the Child.
[2] A small but significant percentage of children develop autism or autism spectrum disorder (ASD), a neurobehavioural syndrome that destines almost all whom it strikes to a life of isolation and eventual institutionalization.
[3] Effective treatment for autism or ASD has been elusive.Ý Yet there is now a general mode of therapy which offers promise of reducing the pernicious effects of autism or ASD.Ý This treatment is a form of early intensive behavioural intervention, a model of which was developed by Dr. Lovaas and colleagues at the University of California.
[4] The infant petitioners have all been diagnosed with autism or ASD.Ý The adult petitioners, parents of the infant petitioners, contend in this action that treatment in the nature of that applied by Dr. Lovaas is the only form of treatment that holds a reasonable prospect of alleviating the symptoms and of allowing the infant petitioners to avoid a life of isolation and institutionalization.Ý They sought and were refused financial assistance from the Provincial Crown to fund such treatment.Ý They care not whether the assistance is offered under the health or education portfolio, but as the decision appealed addressed the issue as one of health care, that is the framework of this appeal.
[5] Certain of the petitioners commenced the proceedings as a class action, contending that the provincial refusal to fund treatment of autistic children or children with ASD breached s. 15 of the Charter of Rights and Freedoms.ÝÝ Madam Justice Allan dismissed the application for certification under the Class Proceedings Act, R.S.B.C. 1996, c. 50, and allowed an application by the respondents to deal with the proceedings summarily as if brought under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241.Ý Her reasons are reported at (1999), 12 Admin. L.R. (3d) 261 (Auton No. 1).Ý Consequent upon that order, the petitioners filed a Further Amended Statement of Claim which stands as the petition.Ý In it they sought declarations that the denial of funding for Lovaas Autism Treatment was a violation of s. 7 and of s. 15 of the Charter of Rights and Freedoms, an order in the nature of mandamus to fund both past and future treatment, damages for failure to pay the cost of Lovaas Autism Treatment, and alternatively, an order under s. 24(1) of the Charter for indemnification for the cost of past and future Lovaas Autism Treatment.
[6] As the case was heard summarily, evidence was received in the form of affidavits and expanded by cross-examination.Ý The case was heard in two stages, one dealing with issues of breach of the Charter and one dealing with remedy.Ý Madam Justice Allan, in reasons reported at (2000), 78 B.C.L.R. (3d) 55, [2000] 8 W.W.R. 227 (B.C.S.C.), (Auton No. 2), agreed that the Provincial Crown had violated the s. 15 equality rights of the infant petitioners, and so declared.Ý In her reasons on remedy, reported at (2001), 84 B.C.L.R. (3d) 259, 197 D.L.R. (4th) 165, (Auton No. 3), she ordered certain treatment to be funded and a sum paid to the adult petitioners for what she termed ìsymbolic damagesî for breach of Charter rights.Ý The entered order speaks broadly to the Provincial Crown in these terms:Ý
THIS COURT ORDERS THAT
1.ÝÝ The Petitioners be granted a declaration that the Crown has violated the infant Petitioners' rights under section 15(1) of the Canadian Charter of Rights and Freedoms by failing to provide them with effective treatment for their medical condition of autism or autism spectrum disorder in the form of early intensive behavioural intervention and that the violation is not a reasonable limit under section 1 of the Canadian Charter of Rights and Freedoms.
And:
THIS COURT ORDERS THAT
1.ÝÝ the Crown is directed to fund early intensive behavioural therapy for children with autism or autism spectrum disorder;
2.ÝÝ the adult Petitioners are each awarded $20,000.00 for monetary damages;
3.ÝÝ the proceeding against the Medical Services Commission is dismissed, and
[7] The Provincial Crown, through the named appellants the Attorney General of British Columbia and the Medical Services Commission of British Columbia, appeals the declaration and remedial order, saying that denial of funding for treatment of autism or ASD did not breach the infant petitionersí s. 15 Charter rights and that if there was such a breach, it was justified pursuant to s. 1 of the Charter.Ý Except as incidental to these questions, the Crown does not appeal the assessment of damages.Ý The petitioners cross-appeal the remedy, saying that the treatment ordered is insufficient to remedy the Charter breach and that the sums ordered to be paid as damages are insufficient.
[8] Upon hearing the appeal we asked for and have received submissions on the parens patriae jurisdiction of the courts as it may relate to this case.
[9] More must be said about the disorder, the treatment sought and the approach of the Province to treatment of the four infant petitioners before the legal issues are addressed.Ý They are ably described by Madam Justice Allan.Ý This summary is my understanding of the facts as found by Madam Justice Allan.
[10] Autism or ADS is a neurobehavioural syndrome caused by a dysfunction in the central nervous system.Ý It leads to disordered development and includes three general categories of behavioural impairment: qualitative impairments in social interaction; qualitative impairments in communication; and restricted repetitive and stereotyped patterns of behaviour, interest and activities.Ý Autism, in the words of Madam Justice Allan "may be viewed as the prototypical form of a spectrum or continuum of autistic disorders that vary in severity but share those core symptoms of behavioural impairment."
[11] She described the features of autism thus:
[10] While the etiology (or medical cause) of autism or ASD is unknown, there is substantial agreement about certain features of the affliction. Autistic disorders are complex neurological conditions affecting between 10 and 15 of every 10,000 children. They are significantly more prevalent among boys than girls. Among children with untreated autism or autism spectrum disorders, about half of all pre-school age children (ages 2 to 6) are non-verbal. Most have limited attachment to caregivers, display little interest in pleasing them, evade eye contact and resist displays of physical affection. In a group of peers, a child with autism is likely to avoid contact and remain isolated from the group. Instead of playing imaginatively with toys, autistic children often engage in repetitive behaviour such as arranging objects into neat rows or flapping their hands in front of their eyes. When these behaviours are interrupted, or when they do not get their way, many autistic children have intense tantrums that may include aggression toward others or self-injurious behaviour such as banging their heads against hard objects.
[11] Without effective treatment, autism is a lifelong affliction that results in the placement of over 90% of untreated children in group homes or other residential facilities. Only one of 64 children will show any improvement without treatment.
ÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝ (Emphasis mine.)
[12] Without successful treatment the condition almost always results in a life of "physical, emotional, social and intellectual isolation and eventual institutionalization".
[13] Symptoms of autism or ASD are thought to set in within the first three years of life.Ý The four infant petitioners in this case, in the order they are named in this action now aged 9, 14, 8 and 8, began showing loss of development between infancy and age 2 years, and all were diagnosed with autism or ASD.Ý Prior to treatment none of them were able to communicate, and all needed constant supervision.Ý Madam Justice Allan found that their behaviour ranged from odd to self-injurious:
... hand flapping, obsessing with a particular object or pattern, vocalizing or singing incessantly, screaming, biting, pinching or hitting themselves and people around them, head banging, eating inedible objects (such as sand, gravel, coins, Gyproc), plucking out their eyebrows, or smearing their faeces. All of the children suffered from severe sleep disruptions, adding to the stress and exhaustion experienced by their families
[14] After unsuccessful efforts to obtain government assistance, the adult petitioners each arranged for Lovaas Autism Treatment for their child, and all four children made significant gains.Ý As the Province declined to fund the treatment, it was paid for by the adult petitioners from private means.Ý By the time of trial one of the four children had discontinued treatment because his mother could no longer afford to continue it.Ý His behaviour then deteriorated and although he maintained some of his gains, he ceased to learn new skills.Ý One child was successfully placed in the mainstream of school in a regular grade 6 classroom.Ý Another child was attending kindergarten, had made progress in language and had learned age appropriate skills and behaviours.Ý The fourth child also successfully attended kindergarten with the assistance of a teaching aide and Lovaas therapy at home.Ý Madam Justice Allan found that the four infant petitioners made significant gains as a result of the Lovaas Autism Treatment they received.
[15] Madam Justice Allan found as fact:
1.ÝÝ without treatment an autistic child will face the likely prospect of a life of severe isolation and institutionalization;
2.ÝÝ the infant petitioners all made significant gains as a result of the Lovaas Autism Treatment they received;
3.ÝÝ Lovaas Autism Treatment is a species of early intensive behavioural intervention, an applied behavioural analysis (ABA) technique.Ý ABA was described by a clinical child psychologist and professor at Ohio State University, Dr. Mulick, in a passage adopted by Madam Justice Allan:
Applied behavioural analysis, or ABA, teaches children, especially those with neurological conditions, small, measurable units of behaviour, and builds in the child more complex and socially useful skills (e.g. attention, compliance, self-monitoring); it also reduces in the child problematic behaviours (e.g. tantrums, withdrawal, and aggression).
...
The child's ABA program is entirely individualized to address that child's strengths and deficits. Data is kept which records the child's responses which are evaluated based upon objective criteria. ...
4.ÝÝ early intervention is efficacious in assisting many children to achieve social and educational gains and there are no effective competing treatments apart from behavioural therapies based on ABA;
5.ÝÝ there is a "window of opportunity during which it is possible to treat autism and obtain, in some cases, significant results.Ý The later the intervention, the poorer the prognosis".
[16] Madam Justice Allan referred to the significant body of evidence concerning Lovaas Autism Treatment, its core ABA character and reviewed the criticisms made of Dr. Lovaas's study.Ý Ultimately she referred to the treatment she was considering as intensive ABA treatment, steering away from the academic, and to this case largely irrelevant, discussion of the nuances of the actual study done by Dr. Lovaas and its follow-up.
[17] Treatment in the style of the Lovaas method is expensive, requiring a substantial number of hours per week in one-on-one behavioural therapy.Ý The treatment is provided by or under the supervision of behavioural therapists.Ý Madam Justice Allan found that the treatment costs between $45,000 and $60,000 per year per child.
[18] The four families who launched this action in 1998 were described by Madam Justice Allan as encountering a myriad of problems in their efforts to access government assistance for their children.Ý All services for pre-school children with special needs, which autistic children are, came within the jurisdiction of the Ministry of Children and Families.Ý The numerous programs and services provided by that Ministry fell mainly under the rubric of respite and home-care services or counselling for parents.Ý Only one program was available that attempted to treat the condition of autism, and it could not be described as approaching intensive ABA.Ý The Ministry of Health provided no treatment for autism although diagnosis of the disability comes under its jurisdiction.Ý The waiting period for a referral and diagnosis was as long as two and a half years.Ý Once diagnosed, jurisdiction for assistance passed to the Ministry of Children and Families.Ý Indeed all mental health programs for children come under that portfolio, rather than the Health portfolio which administers the mental health programs for adults.Ý Autistic children are not eligible for educational services provided under the School Act, R.S.B.C. 1996, c. 412 until they are of school age, reached long after the onset of autism or ASD.Ý
[19] Madam Justice Allan described the Ministry of Children and Families as operating "on a social services model that has neither the mandate nor the expertise to deliver treatment".Ý It contracted with certain agencies to provide services to autistic children.Ý These services focused on teaching techniques to the family to help them work with the autistic child.Ý Madam Justice Allan held:
[66] It is ironic that the very limited treatment services provided by the Crown not only fail to meet the gold standard of scientific methodology; they are positively discredited by one of the Crown's own expert witnesses.
[20] In May 1999, a year after this action was commenced, the Ministry of Children and Families announced an Autism Action Plan and an Autism Action Implementation Plan, which acknowledged the importance of early intervention, diagnosis and assessment.Ý However, the funding and policy constraints were such that it was found to offer little hope for future treatment and no hope for those children who were young enough to benefit from ABA therapy.Ý This situation is unlike several other Canadian jurisdictions which, at the time of trial, had instituted state-supported early intensive intervention programs for autistic children, notably Alberta, Ontario and Prince Edward Island.
[21] Madam Justice Allan concluded that the Crown had breached the infant petitioners' rights to equality guaranteed by s. 15 of the Charter of Rights and Freedoms, and made the orders earlier set forth.Ý Finding that the case was really between the petitioners and the Provincial Crown, she dismissed the action against the Medical Services Commission.
Issues on Appeal.
[22] The Crown, on appeal, contends that Madam Justice Allan erred in finding that the lack of government funded treatment for the infant petitioners violated s. 15(1) of the Charter, and in determining that any infringement of s. 15(1) of the Charter was not justifiable under s. 1 of the Charter.
[23] The respondents say, as they did in the Supreme Court of British Columbia, that not only did the Crown breach the infant petitioners' s. 15 rights, it also breached their s. 7 rights.Ý Further, they cross-appeal, saying that the remedies granted were inadequate because they failed to require certain features in the ordered treatment program and damages were limited to $20,000 per adult petitioner.Ý They seek this order:
1.ÝÝ An Order awarding the Petitioners damages to reimburse them for their expenses for intensive behavioural intervention therapy, using applied behavioural analysis techniques with discrete trial training, based on the methods developed by Dr. Ivar Lovaas ("Lovaas Autism Treatment"), from the commencement of their Lovaas Autism Treatment to the date of judgment herein;
2.ÝÝ A Declaration that the Respondents pay to the Petitioners their full expenses for future Lovaas Autism Treatment:
(a)Ý from the date of judgment herein and continuing as long as it is recommended by a medical practitioner or psychologist licensed to practice in British Columbia with the intensity recommended by such medical practitioner or psychologist; and
(b)Ý that the Respondents may, on 60 days' notice, apply to vary this judgment by application supported by a competing medical opinion from a medical practitioner or psychologist licensed to practice in British Columbia; and
1.ÝÝ Section 15
[24] Section 15(1) of the Charter provides:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[25] Despite its constitutional youth, considerable jurisprudence has spoken to the values addressed by s. 15 and the appropriate shape of court analysis in assessing an impugned law or impugned governmental measure against the standard of s. 15(1).Ý This jurisprudence starts with Law Society of B.C. v. Andrews, [1989] 1 S.C.R. 143, 34 B.C.L.R. (2d) 273, and leads to Granovsky v. Canada, [2000] 1 S.C.R. 703, 186 D.L.R. (4th) 1, [2000] S.C.C. 28.Ý Along that path significant cases developed our present understanding of s. 15: McKinney v. University of Guelph, [1990] 3 S.C.R. 229, 76 D.L.R. (4th) 545; Miron v. Trudel, [1995] 2 S.C.R. 418, 124 D.L.R. (4th) 693; Egan v. Canada, [1995] 2 S.C.R. 513, 124 D.L.R. (4th) 609; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, 142 D.L.R. (4th) 385; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, 38 B.C.L.R. (3d) 1; Vriend v. Alberta, [1998] 1 S.C.R. 493, 156 D.L.R. (4th) 385; M. v. H., [1999] 2 S.C.R. 3, 171 D.L.R. (4th) 577 and Law v. Canada, [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1.
[26] In Law v. Canada the Supreme Court of Canada braided together the various threads of approach to s. 15 in order to set out guidelines for the analysis of most s. 15(1) issues.Ý This approach, applied in Granovsky and appropriate for this case, starts with the reminder that equality analysis must be purposive and contextual, bearing always in mind that the fundamental purpose of s. 15 is protection of human dignity.Ý In the context of this case, concerned with the rights of children and their ability to access a benefit program (health care) provided by the state, the description offered by Justice Sopinka in Eaton at para. 67 is apt:
The principal object of certain of the prohibited grounds is the elimination of discrimination by the attribution of untrue characteristics based on stereotypical attitudes relating to immutable conditions such as race or sex. In the case of disability, this is one of the objectives. The other equally important objective seeks to take into account the true characteristics of this group which act as headwinds to the enjoyment of society's benefits and to accommodate them. ...
ÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝ (Emphasis mine.)
So too are the comments of Justice La Forest in Eldridge at para. 54:
ÝÝÝÝ In the case of s. 15(1), this Court has stressed that it serves two distinct but related purposes. First, it expresses a commitment -- deeply ingrained in our social, political and legal culture -- to the equal worth and human dignity of all persons. As McIntyre J. remarked in Andrews, at p. 171, s. 15(1) "entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration". Secondly, it instantiates a desire to rectify and prevent discrimination against particular groups "suffering social, political and legal disadvantage in our society"; see R. v. Turpin, [1989] 1 S.C.R. 1296, at p. 1333 (per Wilson J.); see also Beverley McLachlin, "The Evolution of Equality" (1996), 54 Advocate 559, at p. 564.
[27] Bearing in mind this purpose, it is appropriate that this Court ask, as did the Court in Granovsky, whether there is differential treatment for the purpose of s. 15(1), whether this treatment is based on one or more of the enumerated or analogous grounds, and whether the differential treatment brings into play the purpose of s. 15(1).Ý This is the framework of principles referred to by Madam Justice Allan and on which she focused her discussion.
[28] Madam Justice Allan drew two main conclusions in her s. 15 considerations: that the appropriate comparator groups were non-autistic children or mentally disabled adults, and that in comparison to both groups, discriminatory differential treatment of the infant petitioners had been established on the enumerated ground of mental disability.Ý She reached these conclusions by referring to the general plan for mental health care in British Columbia, discussing the purpose of health care, moving to the appropriate comparator groups, and then addressing the issues of differential treatment and discrimination:
[105] The 1998 B.C. Mental Health Care Plan (the "Mental Health Care Plan") prepared by MOH sets out the principles of mental health care for British Columbians. The stated purpose of the Mental Health Care Plan is to assist health authorities to develop mental health care systems "which would help people with mental illness and their support networks access the services they require to restore and maintain optimal functioning and health." Core mental health services include preventative measures such as early identification and psychosocial rehabilitation.
[106] In the Mental Health Care Plan, MOH sets out a Mental Health Mandate that includes "core mental health services" such as residential services and assistance in accessing housing, income assistance and rehabilitation services and benefits. Those services would seem to fall farther down the spectrum of "medical services" than intensive behavioural therapy.
...
[126] The purpose of the legislation is relevant to a determination of whether Charter rights have been breached. Here funding appropriate treatment for autism is entirely consistent with the ameliorative purpose of the health legislation. The Medical Services Plan is designed to assist people with health care needs. As stated in Eldridge, supra, the values of the health care system are to promote health, prevention and treatment of illness and disease and to realize those values through a publicly funded health care system. Having created a universal medicare system of health benefits, the government is prohibited from conferring those benefits in a discriminatory manner. In the case of children with autism, their primary health care need is, where indicated, early intensive behavioural intervention. In failing to make appropriate accommodation for their health care needs, the Crown has discriminated against them. It is not the medicare legislation that is discriminatory or defective but the Crown's overly narrow interpretation of it.
...
[128] The Crown seeks to justify its discretion in allocating expenditure among children with special needs by comparing autistic children with other groups of disabled children or comparing differing degrees of disability. That approach, which pits groups of disadvantaged people against each other to determine who is more disadvantaged, was expressly disavowed in Granovsky, at para. 67.
[129] In this case, the appropriate comparative groups are non-autistic children or mentally disabled adults. In comparison to both non-autistic children and mentally disabled adults, the infant petitioners are subject to differential treatment based on the enumerated ground of mental disability. Indeed, as children and mentally disabled, they are doubly vulnerable.
...
[132] In my opinion, there is no need to consider adverse effects discrimination. The petitioners are the victims of the government's failure to accommodate them by failing to provide treatment to ameliorate their mental disability. That failure constitutes direct discrimination. Further, the petitioners' disadvantaged position stems from the government's failure to provide effective health treatment to them, not from the fact that their autistic condition is characterized, in part, by an inability to communicate effectively or at all.
...
[136] Similarly, the fact that autism can't be "cured" is no reason to withhold treatment. Often cancer cannot be cured but it is unthinkable that treatment designed to ameliorate or delay its effects would not be forthcoming. Further, the Crown's argument that behavioural therapies will not assist all autistic children to overcome their functional limitations does not justify a failure to provide those therapies to any of them.
[137] Depression is a mental disability on a spectrum from mildly impairing to life threatening. On diagnosis and referral by a physician to a psychiatrist, treatment is provided through medicare. Numerous other conditions that presently defy a "cure", such as cerebral palsy, are provided with treatment to ameliorate their effects.
[29] The appellants contend that the learned chambers judge erred in concluding that the denial of therapeutic treatment in the nature of early intensive behavioural intervention or Lovaas style therapy denied the infant petitioners their s. 15(1) right to receive equal benefit of the law without discrimination.Ý In particular, they contend that she erred in her finding that there was differential treatment, that the treatment was based on one or more of the enumerated grounds, and that it constituted discrimination.
a)ÝÝ Differential Treatment
[30] The appellants contend that Madam Justice Allan erred in the comparator groups she chose, adults with mental disabilities or non-autistic children, and in concluding that direct differential treatment was established.Ý As a comparator they propose on appeal the group of all members of the Medical Services Plan, and say that on that comparison, differential treatment is not established because other members of that group do not have all of their health care needs met by the publicly funded system.Ý In essence, the Crown says that the comparator groups advocated by the petitioners and accepted by the learned chambers judge are too narrow, and that the infant petitioners are not unlike others whose entire health care needs are not entirely funded by the Medical Services Plan, and are like other members in that health care for a covered illness or disability is funded.
[31] On the subject of comparator groups, Justice Binnie in Granovsky observed in paras. 46-47:
... while a s. 15 complainant is given considerable scope to identify the appropriate group for comparison, "the claimant's characterization of the comparison may not always be sufficient.Ý It may be that the differential treatment is not between the groups identified by the claimant, but rather between other groups." (Law, supra, at para. 58)
ÝÝÝÝ Such identification has to bear an appropriate relationship between the group selected for comparison and the benefit that constitutes the subject matter of the complaint ...
[32] In my view, the comparator group proposed by the appellants is too broad to permit adequate comparison.
[33] The complaint has been expressed as discrimination on the basis of mental disability.Ý In essence it is a complaint of underinclusiveness.Ý In assessing the complaint it is appropriate to compare the benefit provided to the infant petitioners with the benefits provided other children.Ý The complaint is also characterized by the age of the complainants; their youth is central to their need for treatment.Ý It is thus appropriate, in my view, to compare the health care available to them for their mental disability to the health care provided to adults with mental disabilities.Ý Either way, viewed from the lens of mental disability or the lens of age, there is the necessary appropriate relationship between the comparator group and the benefit (treatment for an autistic child) that constitutes the subject matter of the complaint.Ý On the other hand, adults who are not mentally disabled (being those persons whom the appellants wish to include in a comparator group) are, for the purposes of this discussion, more advantageously situated than the infant petitioners and a comparison with them does not engage the appropriate relationship between them and treatment for autism.
[34] The second aspect of the issue of differential treatment is the actual comparison of the treatment of the infant petitioners to the treatment of members of either of the comparator groups.Ý In determining whether that treatment was substantially inferior, it is useful to look at the comparator groups separately.Ý
[35] That there is differential treatment on the basis of mental disability I consider apparent from a comparison of the health care available to the complainants, with health care available to similarly situated people who do not have the distinguishing characteristic, other children.Ý
[36] The Medicare Protection Act, R.S.B.C. 1996, c. 286, contemplates delivery of universal health care, including to children:
Preamble
WHEREAS the people and government of British Columbia believe that medicare is one of the defining features of Canadian nationhood and are committed to its preservation for future generations;
WHEREAS the people and government of British Columbia wish to confirm and entrench universality, comprehensiveness, accessibility, portability and public administration as the guiding principles of the health care system of British Columbia and are committed to the preservation of these principles in perpetuity;
WHEREAS the people and government of British Columbia recognize a responsibility for the judicious use of medical services in order to maintain a fiscally sustainable health care system for future generations;
AND WHEREAS the people and government of British Columbia believe it to be fundamental that an individual's access to necessary medical care be solely based on need and not on the individual's ability to pay.
...
2 The purpose of this Act is to preserve a publicly managed and fiscally sustainable health care system for British Columbia in which access to necessary medical care is based on need and not an individual's ability to pay.
...
3 (3) The Medical Services Plan established under the former Act is continued and the function of the commission is to facilitate, in the manner provided for in this Act, reasonable access, throughout British Columbia, to quality medical care, health care and diagnostic facility services for residents of British Columbia under the Medical Services Plan.
[37] In furtherance of these provisions, the Act gives the Medical Services Commission authority to determine whether a service is a benefit and to determine whether a person is a health care practitioner.Ý It defines health care practitioners, allowing for additional professions to be added by regulation.Ý The persons who would deliver the treatment sought by the petitioners are neither included in the definition nor designated health care practitioners by regulation although, as found by Madam Justice Allan, early intensive behavioural intervention was, and is still, the only effective treatment for these children who suffer from autism or ASD.Ý I accept as accurate her assessment of this treatment as necessary medical care.Ý
[38] Differential treatment exists where, as here, neither treatment nor funding for treatment was provided, yet the scheme provides necessary medical services for non-autistic children.Ý
[39] Although the appellants contend that there is no differential in health care because the service needed by these children is not provided by a health care practitioner under the Act and other children do not receive therapy from such persons, this submission overemphasizes the present designation of health care professional and underemphasizes the focus in the Act upon provision of medically necessary care.
[40] I consider the issue of differential treatment is answered by a longer view on the nature of the required service; to say that these children do not receive the only treatment they greatly need is to say they are treated differently than other children.
[41] The other comparison is based on age, between adults with a mental disability and these infants with a mental disability.Ý Madam Justice Allan referred to some of the treatments and rehabilitative therapies available to adults with mental disabilities.Ý In contrast, these children received no government supported therapy for their autism or ASD.Ý It appears on my reading of the facts found by the chambers judge, and on review of the evidence, that the infant petitioners were treated differently than adults with mental disabilities in that the health care service they needed for their affliction was not available to them.Ý In reaching this conclusion I recognize that certain social services were made available to the parents, e.g. respite care.Ý But those services were not in the nature of treatment for the child.Ý
[42] Looking at either comparator group, I am satisfied that Madam Justice Allan was correct in finding differential treatment.Ý
[43] The appellants contend that Madam Justice Allan erred in finding direct differential treatment.Ý Denial of therapy for a mental disability, in my view, directly differentiated between the infant petitioners and those in the comparator groups.Ý But if it should be said that the impugned action was not a direct denial of treatment because it arose from the decision not to name the providers of the treatment as health care practitioners under the Act, the exclusion of those professions from the listed health care practitioners could be said to have adversely affected the infant complainants in a way that satisfies this arm of a s. 15 analysis.Ý
b)ÝÝ Enumerated Ground
[44] I turn then to the question of whether the differential treatment is on an enumerated ground.Ý The answer, in my view, is yes.Ý The infant petitioners were either denied necessary treatment unlike those children without the mental disability, or were denied treatment unlike adults with a mental disability.Ý Both age and mental disability are enumerated grounds.Ý As Madam Justice Allan said, "as children and mentally disabled, they are doubly vulnerable."
c)ÝÝ Discrimination
[45] The last broad issue in determining whether s. 15 rights have been violated is whether the differential treatment discriminated against the infant petitioners in a substantive sense.Ý This is a contextual question, requiring an understanding of the benefit scheme and the children's circumstances.
[46] The appellants urge upon the court the view that the health care system does not serve all health care needs and is not designed to do so.Ý They say that the administration of the system does not discriminate against the infant petitioners because s. 15 is not intended to eliminate the functional limitations created by the affliction but rather that the prohibition of discrimination on an enumerated ground is intended to prevent socially constructed handicaps, which autism or ASD are not.Ý
[47] The respondents reply that the extent of the government's obligation under the health care scheme is more properly addressed under s. 1, and that the denial of this treatment had about it the quality that s. 15 was intended to address.
[48] While it is true that the extent of the health care scheme is properly a s. 1 consideration, it also bears, in my view, upon the root question of discrimination.
[49] There is no doubt that not all refusals to treat a health care problem will be seen as discrimination.Ý The complaint here, however, is in the context of a severe condition which, untreated, will very likely lead to an adult life of isolation and institutionalization, and in which the individual's development has been so compromised that he or she likely will be unable to access service programs such as education, and likely will require one-on-one assistance to access other services such as health care for physical ailments.Ý It is also in the context of a treatment method which holds a realistic prospect of substantial improvement in communication and behavioural skills, no alternate treatment program offered, and the certain knowledge that other serious, and indeed less serious, conditions are treated by state funded therapies.Ý This is unlike Granovsky in which the complainants were less disadvantaged than some of those in the comparator group who received more state assistance.Ý Here the complainants are greatly disadvantaged with the prospect that without treatment, they are likely to so remain for the duration of their lives.
[50] In Eldridge, a case of disability and non-provision of a translation service found essential for the deaf community to access what was otherwise a universal program, Justice La Forest stated at p. 77:
75ÝÝ In support of the view that the state has no obligation to remedy pre-existing disadvantage in providing benefits to the general population, the respondent relies on this Court's decision in Symes v. Canada, [1993] 4 S.C.R. 695. ... [Iacobucci J.] stated the following, at pp. 764-65:
ÝÝÝÝ If the adverse effects analysis is to be coherent, it must not assume that a statutory provision has an effect which is not proved. We must take care to distinguish between effects which are wholly caused, or are contributed to, by an impugned provision, and those social circumstances which exist independently of such a provision.
76ÝÝ While this statement can be interpreted as supporting the notion that, in providing a benefit, the state is not required to eliminate any pre-existing "social" disadvantage, it should be remembered that it was made in the context of determining whether the legislation made a distinction based on an enumerated or analogous ground. In Symes, the appellant was unable to show that the allegedly adverse effect created by the legislation was suffered by members of such a group. There was no relationship, in other words, between the benefit provided by the government and the social disadvantage suffered by women in child-rearing. In the present case, in contrast, the alleged adverse effect is suffered by an enumerated group. The social disadvantage borne by the deaf is directly related to their inability to benefit equally from the service provided by the government. As a result, I do not believe that Symes is helpful to the respondent.
77ÝÝ This Court has consistently held, then, that discrimination can arise both from the adverse effects of rules of general application as well as from express distinctions flowing from the distribution of benefits. Given this state of affairs, I can think of no principled reason why it should not be possible to establish a claim of discrimination based on the adverse effects of a facially neutral benefit scheme. Section 15(1) expressly states, after all, that "[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination . . ." (emphasis added). The provision makes no distinction between laws that impose unequal burdens and those that deny equal benefits. If we accept the concept of adverse effect discrimination, it seems inevitable, at least at the s. 15(1) stage of analysis, that the government will be required to take special measures to ensure that disadvantaged groups are able to benefit equally from government services. As I will develop below, if there are policy reasons in favour of limiting the government's responsibility to ameliorate disadvantage in the provision of benefits and services, those policies are more appropriately considered in determining whether any violation of s. 15(1) is saved by s. 1 of the Charter.
[51] I conclude that the failure of the health care administrators of the Province to consider the individual needs of the infant complainants by funding treatment is a statement that their mental disability is less worthy of assistance than the transitory medical problems of others.Ý It is to say that the community was less interested in their plight than the plight of other children needing medical care and adults needing mental health therapy.Ý This is a socially constructed handicap within the oversight, in my view, of s. 15 of the Charter.
[52] I conclude that the petitioners have established a violation of s. 15 (1) of the Charter.
2.ÝÝ Section 1
[53] Section 1 of the Charter provides:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[54] The analytical framework for determining whether an impugned measure is reasonable and demonstrably justified in a free and democratic society was set out in R. v. Oakes, [1986] 1 S.C.R. 103, 24 C.C.C. (3d) 321, and restated in Egan v. Canada, supra, by Justice Iacobucci at para. 182:
... A limitation to a constitutional guarantee will be sustained once two conditions are met. First, the objective of the legislation must be pressing and substantial.
Second, the means chosen to attain this legislative end must be reasonable and demonstrably justifiable in a free and democratic society. In order to satisfy the second requirement, three criteria must be satisfied: (1) the rights violation must be rationally connected to the aim of the legislation; (2) the impugned provision must minimally impair the Charter guarantee; and (3) there must be a proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right. In all s. 1 cases the burden of proof is with the government to show on a balance of probabilities that the violation is justifiable.
[55] Madam Justice Allan discussed s. 1 in these terms:
[143] The Crown is entitled to judicial deference in performing its difficult task of making policy choices and allocating finite resources among myriad vulnerable groups. However, in M. v. H., [1999] 2 S.C.R. 3 at para. 78, Iacobucci J. emphasized that deference "is not a kind of threshold inquiry under s. 1" and made the following observation:
As a general matter, the role of the legislature demands deference from the courts to those types of policy decisions that the legislature is best placed to make. The simple or general claim that the infringement of a right is justified under s. 1 is not such a decision. As Cory J. stated in Vriend, supra, at para. 54 "The notion of judicial deference to legislative choices should not ... be used to completely immunize certain kinds of legislative decisions from Charter scrutiny.
...
[145] The Crown makes the irrefragable statement that its health care resources are limited and argues that the effect of funding treatment for autistic children would direct resources away from other children with special needs. In response, the petitioners employed an economist to prepare a cost-benefit analysis of Lovaas Treatment for Autism and ASD, and adduced evidence of another cost-benefit analysis conducted in the U.S. In my opinion, it is not possible to estimate accurately either the additional immediate costs of a treatment programme or the inevitable savings in the long run.
...
[147] In a broad sense, it is apparent that the costs incurred in paying for effective treatment of autism may well be more than offset by the savings achieved by assisting autistic children to develop their educational and societal potential rather than dooming them to a life of isolation and institutionalization.
[148] In any event, the petitioners do not seek full funding for Lovaas Autism Treatment for all autistic children. They seek government funded treatment where it has been requested and recommended by the appropriate health care practitioner familiar with the children, their diagnoses, and their needs.
[149] The Crown also submits that an order constitutionalizing a particular method of treatment will lead to a checkerboard effect in the medicare system. They predict that some services will be de-listed, some new services added and other services will be constitutionally entrenched, regardless of their efficacy relative to other treatments for the same condition. The Crown expressed similar predictions of disaster in Eldridge. They suggested the government might have to provide interpreters for all non-official language speakers and predicted that recognition of the appellants' claims would have a ripple effect throughout the health care field. La Forest J. quoted the Crown's submission:
Virtually everyone in the health care system who is denied a service will either be medically disadvantaged or could argue that a medical disadvantage will arise from the lack of service.
[150] Those submissions were resoundingly rejected by the Court. As it turns out, accommodation for the deaf has been made without catastrophic results to the health care system. In Eldridge, as here, if there is a constitutional violation that must be redressed, a remedy can be fashioned without the wholesale destruction of the government's medicare system.
[151] The exclusion of effective treatment for autistic children undermines the primary objective of the medicare legislation, which is to provide universal health care. The additional stated objective of the statute, to make "judicious use" of limited health care resources, does not justify a violation of the petitioners' section 15 rights. Further, the state's failure to accommodate the petitioners cannot be classified as a minimal impairment of their rights. It follows that the Crown's submissions, which characterize the objective of the medicare legislation as funding core medical services that do not include ABA, cannot withstand the scrutiny of a proportionality analysis.
[152] Accordingly, I conclude that the violation of s. 15(1) cannot be justified under s. 1 of the Charter.
[56] In this Court the appellants reiterated the arguments made in the Supreme Court of British Columbia that the choice made by those administering health care services in the province was a rational allocation of resources, i.e. reasonable and demonstrably justified in a free and democratic society.Ý They voice concern that a decision in favour of the petitioners will impel the necessarily complex administrative choices required to be made in the course of balancing the myriad and competing demands for health care, into the courts for decision on the allocation of scarce resources on a case by case basis, rather than on a comprehensive and systematic basis.Ý They refer to the age-old reluctance of the courts to allocate the scarce resources of the taxpayer and urge us to defer in this matter to the Crown on the constitutional principle that the expenditure of funds is a parliamentary responsibility.
[57] This concern, eloquently expressed by counsel for the Crown, is not without weight.Ý However, the principle that government monies should be allocated only by the legislature, while strong, does not always prevail when the issue is compliance with the Constitution.Ý So, for example, in Eldridge, it was found that the failure to provide interpreters for the deaf was not a justified limit on equality rights, with the inevitable consequence that the Crown would be required to pay for translation services.Ý Likewise in Schachter v. Canada, [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1, Chief Justice Lamer observed at p. 709 (S.C.R.):
Any remedy granted by a court will have some budgetary repercussions whether it be a saving of money or an expenditure of money. Striking down or severance may well lead to an expenditure of money. The respondent in this case pointed out that this Court's decision in TÈtrault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, wherein an exclusion under the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, based on age was found to contravene the Charter, necessarily led to an expenditure of government funds in that persons previously not entitled to benefits were thereafter free to apply for them. It has also been pointed out that a wide variety of court orders have had the effect of causing expenditures (see Lajoie, "De l'interventionnisme judiciaire comme apport ý l'Èmergence des droits sociaux" (1991), 36 McGill L.J. 1338, at pp. 1344-45). In determining whether reading in is appropriate then, the question is not whether courts can make decisions that impact on budgetary policy; it is to what degree they can appropriately do so. A remedy which entails an intrusion into this sphere so substantial as to change the nature of the legislative scheme in question is clearly inappropriate.
[58] I do not consider that the inevitable expenditure of funds consequent on a decision in favour of the petitioners to be so extraordinary that this Court must conclude that s. 1 justifies the state's failure to fund treatment for autism or ASD.
[59] Nor do I consider that a decision in favour of the petitioners will open Pandora's Box.Ý While there has been debate as to whether the Charter, in application, can impose a positive duty to ameliorate pre-existing and non-state caused conditions of disadvantage, for example Ferrell v. Ontario (Attorney General) (1998), 42 O.R. (3d) 97, 168 D.L.R. (4th) 1 (C.A.) and Lovelace v. Ontario (1997), 33 O.R. (3d) 735, 148 D.L.R. (4th) 126 (C.A.), the discussion has not addressed a failure to provide treatment to a child, in the context of a universal program, to ameliorate a gravely debilitating affliction.Ý In this circumstance, it is appropriate for the Court to look both to the past and to the present for assistance in determining whether the underinclusiveness of the Province's health care scheme, creating a gap for treatment of children with autism or ASD, is reasonable and demonstrably justified in a free and democratic society.
[60] One tool still present in our legal system and relevant to this discussion is the parens patriae jurisdiction of the courts.Ý This ancient jurisdiction which took from the monarch, as its calling card, consideration and protection of children, is still a vibrant jurisdiction today: Beson v. Newfoundland (Director of Child Welfare), [1982] 2 S.C.R. 716, 142 D.L.R. (3d) 20.Ý No legislation in this Province removes that broad remedial prerogative of the courts.Ý It was described by Chitty in his Treatise on the Law of the Prerogatives of the Crown at p. 155-6:
The King is in legal contemplation the guardian of his people; and in that amiable capacity is entitled, (or rather it is his Majesty's duty, in return for the allegiance paid him,) to take care of such of his subjects, as are legally unable, on account of mental incapacity, whether it proceed from lst, non-age: 2. idiocy: or 3. lunacy: to take proper care of themselves and their property.
Ý1, This superintending power over infants was originally in the King by the common law, and was by his Majesty delegated to the Lord Chancellor, ...
...
ÝÝÝÝ The Chancellor may, generally speaking, cause the performance of any thing essential to the welfare or benefit of infants and their properties;
And in E.(Mrs.) v. Eve, [1986] 2 S.C.R. 388, 31 D.L.R. (4th) 1, Justice La Forest, in a case concerning the prevention of a medical procedure said at para. 74:
ÝÝÝÝ The parens patriae jurisdiction is, as I have said, founded on necessity, namely the need to act for the protection of those who cannot care for themselves.Ý The courts have frequently stated that it is to be exercised in the "best interest" of the protected person, or again, for his or her "benefit" or "welfare".
[61] Classically, the parens patriae jurisdiction has been applied in medical situations to prevent performance of a procedure, or to allow the state to compel a procedure that in its considered view should be performed over the objection of the parents.Ý I query whether, absent the Charter, the courts would boldly compel the provision of treatment for autism or ASD, by the state, where a family could not provide the treatment itself.Ý Perhaps in the spirit of Roncarelli v.ÝÝÝ DuPlessis, [1959] S.C.R. 121, 16 D.L.R. (2d) 689, a court might so order, along with whatever other temporary orders might be required.Ý But that is not the question here.Ý It appears to me, however, that the underlying thesis that the law works for the protection and advantage of children strongly argues against finding s. 1 justification for the discriminatory administration of the health care scheme at issue in this case.
[62] Aside from considerations of the welfare of children manifest in the common law, there is modern emphasis on the development of children, illustrated by the high values contained in the Convention on the Rights of the Child passed by the United Nations in 1990 and ratified by Canada in 1992.Ý The Convention provides:
1.ÝÝ States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.
2.ÝÝ States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child.
3.ÝÝ Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.
[63] The Convention has moral force relevant on an assessment of the application of s. 1 of the Charter to a breach of s. 15(1), even though it is an international commitment by Canada and the impugned measure is in a subject area within provincial constitutional competence.Ý A similar conclusion was reached in Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416, wherein Chief Justice Dickson, writing for the majority, recognized the force of international obligations to a s. 1 analysis, at pp. 1056-7:
ÝÝÝÝ (c)Ý Deleterious effects
ÝÝÝÝ It is clear to me that the effects of the measures are not so deleterious as to outweigh the objective of the measures.Ý The importance of the above-discussed objective cannot be over-emphasized.Ý There are many diverse values that deserve protection in a free and democratic society such as that of Canada, only some of which are expressly provided for in the Charter.Ý The underlying values of a free and democratic society both guarantee the rights in the Charter and, in appropriate circumstances, justify limitations upon those rights.Ý As was said in Oakes, supra, at p. 225, among the underlying values essential to our free and democratic society are "the inherent dignity of the human person" and "commitment to social justice and equality".Ý Especially in light of Canada's ratification of the International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200 A (XXI), 21 U.N. GAOR, Supp. (No. 16) 49, U.N. Doc. A/6316 (1966), and commitment therein to protect, inter alia, the right to work in its various dimensions found in art. 6 of that treaty, it cannot be doubted that the objective in this case is a very important one.Ý In Reference Re Public Service Employee Relations Act (Alta.), supra, I had occasion to say at p. 349:
The content of Canada's international human rights obligations is, in my view, an important indicia of the meaning of the "full benefit of the Charter's protection".Ý I believe that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.
Given the dual function of s. 1 identified in Oakes, Canada's international human rights obligations should inform not only the interpretation of the content of the rights guaranteed by the Charter but also the interpretation of what can constitute pressing and substantial s. 1 objectives which may justify restrictions upon those rights.Ý Furthermore, for purposes of this stage of the proportionality inquiry, the fact that a value has the status of an international human right, either in customary international law or under a treaty to which Canada is a state party, should generally be indicative of a high degree of importance attached to that objective. ...
[64] In Slaight the international commitments supported the impugned governmental measure.Ý In contrast, in this case the international commitment does not support the impugned measure, thereby weighing against justification under s. 1.
[65] The overall objectives of advancing health care and developing a rational administrative scheme by which to determine the respective priorities of medical treatments and aspects of health care are important.Ý However, accepting that the legislative scheme does not prohibit such treatment but rather establishes an administrative framework which did not provide for the treatment, the impugned measure of denying funding or effective treatment for autism or ASD is not a government objective.Ý Rather it is a manifestation of the administration of the current scheme and the ranking in priority given to treatment for these autistic children or, perhaps, the overlooking of their dominant health care need entirely.Ý This leads, I think, to consideration of the Crown's position that a decision of this Court in favour of the petitioners will undermine the scheme and render all choices for funding or treatment made by the Crown less certain, a contention which is answered by recognizing the significant place of children in the priorities of the law to which I have earlier referred and considering the particular facts of this case.Ý Those facts include the immediate need of the children, the potential benefit to them and the community, including financial, of treatment, and the terrible consequences for such children who do not receive treatment when young enough to benefit from it.
[66] In this context it is useful to compare this case to Cameron v. Nova Scotia Attorney General) (1999), 177 D.L.R. (4th) 611 (N.S.C.A.) in which the Nova Scotia Court of Appeal concluded that denial of funding for a specialized form of in vitro fertilization infringed s. 15 equality rights, but was justified under s. 1 of the Charter.Ý In Cameron, however, the claimants had already received some government supported treatment for infertility, whereas in the case at bar no government supported treatment has been provided ñ indeed there is no known effective treatment for autism or ASD except early intensive behavioural intervention, for which financial help was refused.
[67] In the circumstances, I do not consider that the Crown has met its burden of establishing a rational connection between the objective and the measures, or proportionality between the deleterious and salutary effects of the measures:Ý I agree on this issue with Madam Justice Allan and find no basis to interfere with her conclusion on s. 1.
3.ÝÝ Section 7
[68] Section 7 of the Charter provides:
7. 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.
[69] Madam Justice Allan declined to deal with s. 7 on the basis that the case fell to be decided on s. 15.
[70] While I would not disturb her conclusion on s. 15, I consider that a few words should be said on the s. 7 issue.
[71] The petitioners contend that the Crown breached the rights of the infant petitioners to liberty and security of the person contrary to the principles of fundamental justice.Ý They refer to the children's likely loss of the benefits of education and the opportunity to make and articulate decisions. ÝThey refer to the high probability such children will be institutionalized with attendant loss of liberty.Ý They also refer to the loss of physical integrity through self-injurious behaviours and lack of communication skills, along with loss of psychological integrity through loss of privacy, disruption of family life and stigmatisation.Ý They refer to New Brunswick (Ministry of Health and Community. Services) v. G.(J.), [1999] 3 S.C.R. 46, 177 D.L.R. (4th) 124.
[72] The Crown contends that denial of funding for early intensive behavioural intervention for children with autism or ASD does not deny life or liberty, or security of the person.Ý Nor, it says, does it violate any principle of fundamental justice.
[73] When the Charter was first presented considerable debate ensued as to whether it could apply to provide a positive entitlement to health care.Ý In my view, in the context of this case, it does not.Ý The impugned measure does not impinge on the right to life.Ý Jurisprudence to date suggests that the right to liberty concerns physical liberty or "an irreducible sphere of personal autonomy": Godbout v. Longevil, [1997] 3 S.C.R. 844, 152 D.L.R. (4th) 577, circumstances which do not result from the funding and treatment decision at issue in this case.Ý And while there may be room for debate as to whether the right to security of the person may be infringed in circumstances such as are here presented, see for example Rodriguez v. British Columbia, [1993] 3 S.C.R. 519, 82 B.C.L.R. (2d) 273; Re Morgentaler (No. 2), [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385; New Brunswick v. G.(J.), supra, I consider that the underinclusiveness of the health system, even as it relates to children, would not violate a principle of fundamental justice.Ý I find that absent the s. 15 breach, the petitioners have not established legal principles, either substantive or procedural, that have been violated.
[74] In my view, a case for relief based on s. 7 of the Charter has not been established.
4.ÝÝ Remedies
[75] Madam Justice Allan, in Auton #3, made these orders that are said by the petitioners to be inadequate to remedy the Crownís Charter breach of the rights of the infant petitioners:
1.ÝÝ the Crown is directed to fund early intensive behavioural therapy for children with autism or autism spectrum disorder;
2.ÝÝ the adult Petitioners are each awarded $20,000.00 for monetary damages;
[76] In their cross-appeal the petitioners contend that the order directing the Crown to provide future treatment should be an order in the nature of mandamus, that it should be augmented to particularize the treatment required to be provided as Lovaas Autism Treatment, and that it should specifically include the four infant petitioners.Ý They also cross-appeal the damage award, seeking an order for reimbursement of all past costs of treatment.Ý
[77] The Crown has not appealed the quantum of damages, and in the event this Court dismisses the appeal, supports the remedial orders made.
a)ÝÝ The Form of the Remedy
[78] The question on this issue is whether the broad direction addressed to the Provincial Government, rather than an order of mandamus directed to a specific person or body, is an appropriate remedy.Ý I have had the privilege of reading in draft the reasons for judgment of my colleague Mr. Justice Lambert.Ý I agree with his observations on this issue, and with his proposed disposition.Ý
b)ÝÝ The Content of the Direction
i.ÝÝ The Type of Treatment Ordered
[79] The petitioners contend that the remedial order requiring the Crown to fund early intensive behavioural therapy is inadequate, and that an order requiring the provision of Lovaas Autism Treatment should be made, saying the distinction between early intensive behavioural therapy and Lovaas Autism Treatment is not warranted by the evidence and is a reviewable error.Ý The Crown defends the order, saying that the alleged error is one of fact to which the well known limitation on this Court's power of review, described in Stein v. The Ship "Kathy K" (1975), [1976] 2 S.C.R. 802, 62 D.L.R. (3d) 1 and other cases, applies and has not been met.
[80] The issue engages these portions of the reasons for judgment on Charter breach:
[24] Lovaas Autism Treatment is a highly intensive form of one-on-one behavioural therapy administered for up to 40 hours a week for two to three years. ...
...
[28] Dr. McEachin described the intensive behavioural modification treatment used in Lovaas therapy as the intensive application of applied behavioural analysis (ABA) techniques for the amelioration of abnormal behavioural patterns and skills deficits typically found in autistic children. ...
ÝÝÝÝ Applied behavioral analysis, or ABA, teaches children, especially those with neurological conditions, small, measurable units of behaviour, and builds in the child more complex and socially useful skills (e.g. attention, compliance, self-monitoring); it also reduces in the child problematic behaviors (e.g. tantrums, withdrawal, and aggression).
...
ÝÝÝÝ The child's ABA program is entirely individualized to address that child's strengths and deficits. Data is kept which records the child's responses which are evaluated based upon objective criteria. ...
...
[30] The Crown contends that the studies purporting to demonstrate the effectiveness of Lovaas Autism Treatment have serious flaws and that it is still an experimental therapy. Two related criticisms can be dealt with summarily.
[31] First, it is said, incorrectly, that Lovaas and his followers purport to claim that Lovaas Autism Treatment "cures" autism. In fact, neither Lovaas nor those who support him have ever claimed that Lovaas therapy "cures" autism. Further, the fact that many (but not all) autistic children have benefited from Lovaas Autism Treatment and made substantial observable gains without being "cured" is irrefutable.
[32] Second, it is suggested that advocates of Lovaas Autism Treatment claim it is the only appropriate treatment for all autistic children. The petitioners and their expert witnesses do not make that suggestion. They recognize that, just as the condition of autism spans a spectrum, so do the needs of the autistic children and their responses to treatment.
[33] Dr. Frank Gresham is a Professor and Director of the School Psychology Program in the School of Education at U.C.L.A. He was retained by the Crown to provide an opinion "regarding the designation of the so-called 'Lovaas Method' of intensive discrete trial training as a medically necessary treatment for children diagnosed with ASD including Autism." (Discrete trial training refers to the process of repetitively teaching a child a skill and reinforcing the child's response.) ...
...
[35] Although Dr. Gresham agreed that ABA is the treatment of choice for autism, he described ABA as much broader than the intensive discrete trial training used in Lovaas Autism Treatment. He also agreed that Lovaas Autism Treatment is appropriate for some, but not all, children with autism or ASD. ...
...
[50] The parties adduced the evidence of several expert witnesses who were advocates of, or detractors from, Lovaas Autism Treatment. However, as I have concluded that the Court cannot direct the Crown to specifically provide Lovaas Autism Treatment regardless of the outcome of these proceedings, it is unnecessary to descend further into the ongoing debate that appears to have occupied several thousand pages of print in medical and scientific journals.
[81] In her reasons for judgment on remedy Madam Justice Allan discussed the terminology:
[4] The Crown submits that the only appropriate remedy flowing from the judgment in Auton #2 is a declaration coupled with a direction by the Court that, in order to comply with its constitutional obligations, the Crown must fund early intensive behavioural intervention treatment ("Early IBI") for autism (including autism spectrum disorder). That treatment has also been described in the literature as Intensive Behavioural Intervention ("IBI") or Applied Behavioural Analysis ("ABA"). ...
And:
[25] I determined in Auton #2 that by failing to provide Early IBI treatment to autistic children, the Government breached its constitutional obligations to them. Such treatment was, according to overwhelming expert opinion, the only chance these children have to overcome the devastating effects of an autistic disorder. However, I concluded that the Court cannot direct the Government to fund or provide Lovaas Autism Treatment, the specific treatment desired by the petitioners, and in the amount they request. I venture the opinion, albeit with some hesitation, that the Government's failure to at least include Lovaas Autism Treatment in its arsenal of effective treatment techniques appears to result from some antipathy to the petitioners and the vehemence and effectiveness of their cause. Certainly the evidence established that Lovaas Autism Treatment has been embraced as an integral part of many government programmes in Canada, the U.S., and abroad and is supported by numerous family doctors, pediatricians, psychologists and child psychiatrists in B.C. However, as I have stated above, it remains within the competence of Government, not this Court, to determine, upon appropriate professional advice, the nature and extent of the Early IBI it will provide. Nor can the Court direct that Government provide Early IBI treatment when it is recommended by a physician or psychologist, rather than by a multi-disciplinary diagnostic team.
[82] Although the class action sought to be commenced by the petitioners was not allowed, in effect the order concerning future treatment addresses itself to treatment in general, and not to the treatment in particular of the infant petitioners.ÝÝ As Mr. Justice Lambert has observed, on the authority of Eldridge, such a general order directed to the Crown is appropriate in a s. 15 Charter case.Ý It does not, however, address the particular needs of the infant petitioners whose treatment and continuing needs has been the focus of the case.Ý
[83] I address firstly the petitionersí complaint that the order does not require funding for Lovaas Autsim treatment.Ý On my reading of the reasons for judgment, Madam Justice Allan accepted that Lovaas Autism Treatment or Lovaas-style Autism Treatment was one example of early intensive behavioural intervention, a sub-set of it.Ý However, after full consideration of the evidence, she was not prepared to agree that it was the only effective model such that all autistic children should receive Lovaas Autism Treatment to the exclusion of other models of early intensive behavioural intervention.
[84] A review of the affidavits filed and the cross-examinations shows that this conclusion was sufficiently supported by the evidence that one cannot say it is an error in the findings of fact.Ý I would not accede to this aspect of the cross appeal.Ý I would add, to the extent that this point in the cross-appeal appears founded on concern that the treatment proposed by the Crown is not sufficiently intensive or does not contemplate sufficient one-on-one repetitive therapy, that on my reading of the reasons for judgment the treatment required to be funded is intended by Madam Justice Allan to contain the hallmark of intensity she described.Ý In the event it does not, application may be made to the Supreme Court of British Columbia for enforcement of the order.Ý I further note that the Alberta program referred to in her reasons for judgment refers to early intensive behavioural intervention rather than Lovaas Autism Treatment, as does the program provided in Ontario.Ý In the United States, intensive behavioural therapy is the treatment of choice.Ý The entered order relating to treatment made accords with the standard that appears to be developing for state funded programs.
[85] Entwined in the Crown's submission on the nature of treatment referred to in the order is a thread of concern that the court has singled out one form only of treatment for constitutional protection.Ý That concern, in my view, mischaracterizes the decision.Ý The Court has ordered this treatment because, under its more generic name, it is the only known form of effective treatment for children with autism or ASD, the treatment having passed out of the experimental stage.Ý Should the happy day arrive when easier, less costly and perhaps more helpful treatments than early intensive behavioural intervention are discovered, the Crown can apply for relief from the details of the order, recognizing that treatment is required to be provided for autistic children so long as treatment is provided to appropriate comparator groups for their ailments.Ý In this case, the apparent and regrettable intransigence on the issue of this therapy by those administering the province's programs for children justifies an order beyond the usual Charter remedy of a mere declaration.Ý
ii. The Effect of the Crown's Action Plan
[86] The petitioners contend that Madam Justice Allan erred in accepting the Crown's assertions that it would provide genuine treatment.Ý This ground of appeal cannot succeed.Ý It was open to Madam Justice Allan to accept those statements of intention, which are within the expectations that the Crown will comply with the language and spirit of a decision.Ý Should it fail to do so, application may be made to the Supreme Court of British Columbia for enforcement of the order.Ý
iii. The Availability of Treatment
[87] Wrapped up with the petitionersí concern about the Crownís intentions addressed above are concerns about access to and duration of the treatment which will be provided under the terms of order.Ý The petitioners contend that the order errs in that it exposes autistic children to the prospect of diagnosis at a government approved, multi-disciplinary center and restrictions to treatment based on age.Ý They refer to evidence that the program the government expects to fund would be available to children aged 5 or younger.Ý
[88] Madam Justice Allan stated on the issue of governmental compliance with its obligation to provide treatment of funding for treatment:Ý
[25] ... However, as I have stated above, it remains within the competence of Government, not this Court, to determine, upon appropriate professional advice, the nature and extent of the Early IBI it will provide. Nor can the Court direct that Government provide Early IBI treatment when it is recommended by a physician or psychologist, rather than by a multi-disciplinary diagnostic team.
And in para. 27:
[27] While the Government's programmes and policies are subject to review by the Courts to ensure constitutional compliance, the judiciary cannot dictate what treatment programmes should or should not be implemented, nor can it dictate how limited financial resources should be allocated. It is not the role of the Courts to undertake the nature and degree of supervision of the delivery of Early IBI treatment suggested by the petitioners. An overly robust judicial approach may interfere with legitimate policy making choices.
[89] On the issue of the age limitation Madam Justice Allan said:
[31] The Government's proposed programme contemplates treatment for children between the ages of two and six. On this application, the petitioners submit that treatment for an autistic child should not be discontinued when that child reaches the age of six. They argue that, because a child is not "cured" of autism when he or she reaches the age of six, (indeed an autistic person is never "cured"), it is unreasonable to cut off treatment at the age of six where that treatment is beneficial. They seek an order compelling the Government to provide Early IBI to the infant petitioners, all of whom are six or older.
And:
[37] In Auton #2, I considered the most compelling argument for Early IBI, advanced by experts for both the petitioners and the Government, to be that autistic children have a "narrow window of opportunity" to benefit from early intensive treatment. That period of time extends from the time they are first diagnosed with autism (usually at age two or three) until the age of six, approximately.
[38] There was extensive material before the Court describing Lovaas Autism Treatment. At para. 24 of my reasons in Auton #2, I stated: "Lovaas Autism Treatment is a highly intensive form of one-on-one behavioural therapy administered for up to 40 hours a week for two to three years." (emphasis added) The original treatment by Dr. Lovaas was designed to permit very young autistic children to catch up with their normal peers by first grade. High priority is given in Early IBI to moving the children into a more typical environment (e.g. school) wherever possible. It became clear that, as the infant petitioners grew up during the course of this litigation, and at least one of them, [R], no longer required further treatment, a judgment favourable to the petitioners could benefit autistic children who had not yet entered the "window of opportunity" for treatment but might not assist the petitioners.
[39] The Crown submits that the imposition of age limits is reasonable and the proposed age limit of six years is not arbitrary; it is based on the evidence and the reasons for judgment and, indeed, on the petitioners' own submissions as to the effectiveness of treatment for young children.
[40] One of the petitioners' complaints in Auton #2 was that treatment for children between the ages of two and six "fell between the cracks" because the Ministry of Health refused to recognize their need for treatment as a health issue and the Ministry of Education took the position they lacked jurisdiction over children under school age.
[41] The P-CARD programme contemplates a transitional period to integrate children into the school system, after which time it would be the responsibility of the school districts to provide appropriate educational programmes.
[42] The petitioners framed the issues in this litigation as whether the denial of Lovaas Autism Treatment violated sections 7 and 15 of the Charter and whether the Government could be compelled to pay the costs of past and future Lovaas Autism Treatment. It was determined that the Government's failure to provide early IBI violated s. 15. In view of those issues, that determination, and the evidence adduced, I do not consider it appropriate to determine here whether or not the Government will breach its obligations to autistic children by failing to accommodate their disabilities after they reach school age.
[90] The order made does not incorporate an age limitation, although the passage above show that Madam Justice Allan considered and rejected a submission that the order expressly direct treatment not be discontinued at age 6.Ý In terms of the order in its general application, she was correct, in my view, to avoid particularizing details of the program that must be funded.Ý She correctly referred to the thrust of the case, and the evidence she accepted, as revealing a window of opportunity, and she correctly, in my view, held back from opining on appropriate programming once the children are past the age of that window, as it was described, and of school age.Ý While I accept that the efficacy of treatment is unlikely to end at the crisp attainment of school age, issues of funding programs for children of school age may involve additional considerations not before the Court, either in evidence or submissions.Ý As the duration of treatment is not amenable, in my view, to a broad direction applicable to all autistic children, I would direct that disputes concerning the duration of treatment should be decided through an appropriate dispute resolution process, or in the absence of such a process, in proceedings before the Supreme Court of British Columbia.Ý
[91] This is, however, not of particular help to these four infant petitioners who have succeeded in establishing a breach of their right to equality, but who have all, now, reached school age.Ý The treatment of one child, C.A., was discontinued for lack of financial resources, and the evidence is that his behaviour has deteriorated.Ý Two children, age 12 and 6 at the time of trial, were continuing with treatment and one child was said to no longer require treatment.
[92] Section 24 of the Charter provides, in my view, ample scope for an order to address the wrong done these children: New Brunswick (Minister of Health) v. G.(J.), supra; Operation Dismantle v. R. (1985), [1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481.Ý I would modify the order to direct that the four infant petitioners are each entitled to government funded treatment in the nature of that which they have been receiving (or in the case of a petitioner whose treatment has been discontinued, to the intensity of that which the petitioner has in the past received), if such treatment should still be useful to them.Ý I would modify the order to direct that the Crown fund such treatment, from the time of the order declaring a breach of the Charter rights of the infant petitioners (Auton No. 2), provided that the petitioners establish the requisite usefulness by a written opinion from the childís family physician supported by a written opinion from an appropriately qualified paediatrician or psychologist, to continue until the medical view is that no further significant benefit in alleviating the autistic condition can reasonably be expected from a continuation of the treatment.Ý The Crown, being responsible for funding the treatment, must have an opportunity to challenge its efficacy, intensity and duration.Ý In my view, that should best be addressed by a process worked out by consent, or failing agreement, through a hearing in the Supreme Court of British Columbia.Ý
c)ÝÝ The Quantum of Damages
[93] Madam Justice Allan canvassed the legal authorities and ordered "symbolic damages" in the amount of $20,000 to each of the four adult petitioners, saying:
[60] It would seem that an award of monetary damages may be more appropriate in the case of a violation of Charter rights of a single person or identifiable group of persons (as in Krznaric). In this case, the petitioners represent but four families of a large and unidentified group of autistic children and their parents, all of whom could presumably claim an infringement of their s. 15 rights. To compensate the petitioners for all of their expenses for Lovaas Autism Treatment could open the "floodgates" to a much larger group seeking reimbursement for the past and future costs of Lovaas Autism Treatment or other autism treatment that they have funded privately. On the other hand, is it appropriate and just that these petitioners recoup their treatment expenses and those who have not sued the Crown for compensation do not, despite the breach of their rights?
[61] The petitioners submit that compensatory damages would restore them to the economic position they would have been in but for the Charter violation. I do not agree that fully reimbursing the petitioners for the costs of Lovaas Autism Treatment would place them in that position. The evidence unequivocally establishes that had the Government provided Early IBI, such treatment would not have been in the form of Lovaas Autism Treatment.
[62] In Schachter, the Court held the Employment Insurance Act that provided some benefits to adoptive parents that were not given to biological parents to be under-inclusive. The benefit was not one the government was constitutionally obligated to provide to either group. However, by virtue of the section 15 Charter violation, Parliament was obliged to equalize the provision of the benefit if it was to be provided at all. The Court stated at page 725:
The classic doctrine of damages is that the plaintiff is to be put in the position he or she would have occupied had there been no wrong.
The Court considered two possibilities. The plaintiff could have received the benefit equally with the other beneficiaries, or Parliament could have failed to provide the benefit to anyone. It was likely that the group of biological parents to whom the benefit was previously excluded vastly outnumbered the group of adoptive parents to whom the benefit had been provided. Since it could not be assumed that Parliament would have enacted the benefit to include biological parents, the plaintiff could not show that she was in a worse position than had there been no wrong. An award of damages was therefore inappropriate.
[63] The family of [M.T.] has apparently spent in excess of $240,000 on Lovaas Autism Treatment. To their credit, they made that decision to expend those moneys in their daughter's best interests. But it cannot be assumed that had the Government offered Early IBI to autistic children, including [M.], at all relevant times, it would have expended that sum of money on a single child. A just and appropriate award cannot be determined by reference to the petitioners' outlay of funds for Lovaas Autism Treatment.
[64] While each case must be determined individually, I see no reason in principle why an award of damages cannot be made in an appropriate case to advance the twin remedial purposes of governmental behaviour modification and compensation for an applicant whose Charter rights have been breached. I conclude that it is appropriate and just to award a symbolic sum of damages of $20,000 to each of the four adult petitioners who have shouldered the financial and emotional burdens of litigation on behalf of, and for the benefit of, a wider community of autistic families. These relatively modest awards make no attempt to quantify any damages suffered by the petitioners and do not reflect actual costs incurred for autism treatment to the infant petitioners. They symbolize, in some tangible fashion, the fact that the petitioners have achieved a real victory on behalf of all autistic children whose rights were infringed. A symbolic figure also avoids an inquiry into what expenses the Government would have funded had it complied with its constitutional requirements to treat the infant petitioners' disability. In sum, a symbolic award provides partial, albeit minimal, compensation to the petitioners and acknowledges the intransigence of Government in responding to long-standing requests and demands for autism treatment.
[94] Section 24(1) of the Charter provides:
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
[95] The basis for an award of damages to remedy a Charter breach is subject to differing views.Ý On one view, damages should be awarded where it is shown that a breach has caused harm to the litigant; on another view, the law of damages for Charter breach should be informed by the law of Crown immunity.Ý
[96] It is clear, however, that a remedy under s. 24 is discretionary. This Court has held that the granting of a remedy for a Charter breach is a matter of discretion for the trial judge, and without an error in law and with proper consideration for the relevant principles, this Court ought not to interfere with the exercise of discretion: R. v. Waller (1997), 89 B.C.A.C. 257.Ý Damages are one such remedy.Ý Unlike an action in tort or contract in which a party is entitled to damages proved to have been occasioned by the wrongdoing, damages are not automatic for a breach of Charter rights.Ý In my view the last ten words of s. 24(1), "as the court considers appropriate and just in the circumstances" entitle a trial judge to considerable deference as to the remedy fashioned.
[97] Here the application of s. 15(1) to the unsatisfied need of a treatment program for children with autism or ASD, while perhaps apparent to the petitioners, was not obvious on the authorities as they pre-dated Vriend, Eldridge and Granovsky.Ý This case has raised, for the first time within this jurisdiction, the issue of provision of health care treatment, and while it did so on behalf of those whom the law has traditionally protected, children, it brought before the courts the issue traditionally left to Government, allocation of public funds.Ý Madam Justice Allan did not find bad faith of government administrators or misfeasance in their performance of public responsibilities.Ý She noted that many other children and families were in the same situation as the petitioners before her.Ý In these circumstances, I consider that she was acting within the proper scope of her discretion in concluding that compensatory damages were not appropriate.Ý
[98] Madam Justice Allan chose to describe the damages awarded as "symbolic".Ý A similar lack of specificity is found in the term ìmoral damagesî awarded in Du-Lude v. Canada, [2001] 1 F.C. 545 (C.A.).Ý While the term ìsymbolic damagesî indicates a lack of definitive criteria for assessment of the quantum of damages, I do not consider that the generality of the term establishes an error in law entitling the petitioners to additional damages.Ý A modest sum is, perhaps, an adequate way to recognize the breach of Charter rights, treating the petitioners alike, partially offsetting the out of pocket costs of the adult petitioners, and recognizing the policy reasons that often negate any award of damages for a Charter breach and which may have supported an order dismissing the entire claim for damages, an issue which is not before us.Ý
[99] In all the circumstances, I would not interfere with the quantum of damages awarded.
Conclusion
[100] In conclusion, I would dismiss the appeal.Ý I would allow the cross-appeal only to the extent of affirming the continuing jurisdiction of the Supreme Court to entertain an application for an order in the nature of mandamus as proposed by Mr. Justice Lambert, of providing for dispute resolution concerning treatment as described above and of ordering treatment for the infant petitioners as described above.Ý The petitioners are entitled to their costs, the level of which
may be addressed by written submission should the parties fail to agree.ÝÝÝ
ìThe Honourable Madam Justice Saundersî
I AGREE:
ìThe Honourable Mr. Justice Hallî
Reasons for Judgment of the Honourable Mr. Justice Lambert:
I
Introduction
[101] I have had the advantage of reading the reasons of Madam Justice Saunders in draft form.Ý
[102] I agree substantially with Madam Justice Saundersí reasons on the appeal to the effect that a Charter infringement has been established under s-s.15(1) which is not justified by s.1.Ý I prefer not to reach any conclusion on whether an infringement of s.7 has been established.
[103] With respect to the cross-appeal on remedy, I agree with Madam Justice Saunders that we ought not to interfere with the conclusion of Madam Justice Allan, the trial judge, to the effect that Early Intensive Behavioural Intervention, including Lovaas Autism Treatment, but not confined to Lovaas Autism Treatment, is the appropriate description of the type of treatment which the Government of British Columbia should be directed to fund for autistic children generally, though the treatment directed to be funded for the four infant petitioners should continue to be Lovaas Autism Treatment.Ý I prefer to express my own conclusions on the terms and mandatory nature of the direction to the Government of British Columbia with respect to the funding of treatment for autistic children.Ý I prefer also to express my own conclusions about the financial aspects of the remedy for the Charter breach.Ý I agree with Madam Justice Saundersí disposition with respect to costs of the appeal.Ý I would allow the petitioners their costs of the cross-appeal.
[104] Madam Justice Saundersí exposition of the circumstances of this appeal makes it possible for me to be concise.Ý I will try to take advantage of that opportunity.
II
Two Important Points about the Remedies Available in these Proceedings
[105] The first notable point about the available remedies is that the proceedings were brought by writ of summons; that an application for certification as a class action was refused; and that an order was made converting the proceedings to a petition under the Judicial Review Procedure Act.Ý As a petition under the Judicial Review Procedure Act the way is open for an order in the nature of mandamus, but also, under s.13 of the Act, as I read it, for an award of damages or other financial relief, if appropriate.
[106] The second notable point about the available remedies is that the proceedings are very similar to the proceedings in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, where two plaintiffs applied for a declaration that the failure by the Government of British Columbia to provide American sign language interpretation services for deaf people as a medical benefit under the B.C. Medical Services Plan was contrary to s-s.15(1) of the Charter.Ý The action was not a class action.Ý Nonetheless, the order made by the Supreme Court of Canada was in these terms (see the unanimous reasons of Mr. Justice La Forest, at p.691):
Remedy
ÝÝÝÝ I have found that where sign language interpreters are necessary for effective communication in the delivery of medical services, the failure to provide them constitutes a denial of s. 15(1) of the Charter and is not a reasonable limit under s. 1.Ý Section 24(1) of the Charter provides that anyone whose rights under the Charter have been infringed or denied may obtain "such remedy as the court considers appropriate and just in the circumstances".Ý In the present case, the appropriate and just remedy is to grant a declaration that this failure is unconstitutional and to direct the government of British Columbia to administer the Medical and Health Care Services Act (now the Medicare Protection Act) and the Hospital Insurance Act in a manner consistent with the requirements of s. 15(1) as I have described them.
ÝÝÝÝ A declaration, as opposed to some kind of injunctive relief, is the appropriate remedy in this case because there are myriad options available to the government that may rectify the unconstitutionality of the current system.Ý It is not this Court's role to dictate how this is to be accomplished.
ÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝ (my emphasis)
[107] In that case, as in this case, there were named plaintiffs suing on their own behalf for a declaration of their rights.Ý The constitutional remedy granted by the Supreme Court of Canada was not confined to the named plaintiffs but extended, both in the declaration and in the direction to the government, to all persons who required sign language interpretation for effective communication in the delivery of medical services.Ý And it is notable as well that the Supreme Court of Canada ordered that a direction be given to the government of British Columbia to administer the legislation in a manner consistent with the requirements of s-s.15(1) of the Charter, even though the proceedings were not brought under the Judicial Review Procedure Act and were therefore inappropriately brought for an order in the nature of mandamus.
[108] The constitutional remedies awarded by the Supreme Court of Canada in the Eldridge case, at the suit of two individual plaintiffs, must surely be available for consideration in this very similar case.
III
The Appeal
[109] As I have said, I am in substantial agreement with the reasons of Madam Justice Saunders on the Crownís appeal.Ý I particularly wish to say that I attach the same significance that Madam Justice Saunders attaches to the relevance to the s.1 analysis of the parens patriae responsibilities of the Crown and of the United Nations Convention on the Rights of the Child.
[110] However, as I have also indicated, I do not regard it as necessary in this case to consider the alternative argument of the petitioners which rests on s.7 of the Charter.Ý Since it is not necessary to do so, I prefer not to express any opinion with respect to that argument.
[111] I would like to say also that I agree with the train of reasoning set out in paras. 87 to 110 of Madam Justice Allan's reasons under the heading "The Legislative Framework".Ý She finds on the evidence that Early Intensive Behavioural Intervention for autistic children is a medically necessary service (para. 102).Ý And I agree with her conclusion that behavioural therapists could be scheduled as health care practitioners under the definition in the Medicare Protection Act and so bring Early Intensive Behavioural Intervention for Autism within the medically necessary services authorized and paid for under the legislative framework for health in British Columbia.
[112] As in the Eldridge case, it is not the legislation itself, but a failure to give relevant effect to the legislation by appropriate policy and by appropriate legislative and administrative action which has raised the question of the violation of Charter rights.Ý The application of the legislation is said by the petitioners to be wrongly under-inclusive and through being wrongly under-inclusive, a violation of their Charter rights.
[113] Finally, I would like to add that one of the symptoms of Autism and of Autism Spectrum Disorder is an inability to communicate effectively.Ý In the case of autism it is only one of the symptoms.Ý But Early Intensive Behavioural Intervention may well alleviate that symptom or even suppress it completely in some cases.Ý That characteristic symptom of Autism and of Autism Spectrum Disorder prevents effective communication between autistic people and their medical advisers and medical care givers.Ý That fact does not make this case the same as the Eldridge case.Ý Here the issue is an issue of the right to treatment, not an issue of the right of access to treatment.Ý But the common feature of inability to communicate for health purposes (as well, incidentally, as for other purposes) shared by this case and the Eldridge case would reveal a grave flaw in the application of s-s.15(1) and s.1 of the Charter if government assistance with American sign language interpretation for medical access is a Charter right, but government treatment for Autisms or Autism Spectrum Disorder is excluded from Charter protection.
IV
The Cross Appeal:Ý The Issues
[114] The cross appeal was brought in relation to the orders made following the remedy hearing (Auton # 3), but the order made following the liability hearing (Auton # 2) gives the context of the remedy orders.Ý The two orders are in these terms:
Liability Hearing
THIS COURT ORDERS THAT
1.ÝÝ The Petitioners be granted a declaration that the Crown has violated the infant Petitioners' rights under section 15(1) of the Canadian Charter of Rights and Freedoms by failing to provide them with effective treatment for their medical condition of autism or autism spectrum disorder in the form of early intensive behavioural intervention and that the violation is not a reasonable limit under section 1 of the Canadian Charter of Rights and Freedoms.
Remedy Hearing
THIS COURT ORDERS THAT
1.ÝÝ The Crown is directed to fund early intensive behavioural therapy for children with autism or autism spectrum disorder;
2.ÝÝ The adult Petitioners are each awarded $20,000.00 for monetary damages.
3.ÝÝ The proceeding against the Medical Services Commission is dismissed, and
4.ÝÝ The parties are at liberty to address the matter of costs at a later date.
ÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝ (my emphasis)
[115] In their factum, as appellants in the cross-appeal, the petitioners raise these issues:
1.ÝÝ The Learned Trial Judge erred in distinguishing between Lovaas Autism Treatment and Early Intensive Behavioural Intervention.
2.ÝÝ The Learned Trial Judge also erred in failing to grant the mandatory relief sought by the Petitioners.
3.ÝÝ The Learned Trial Judge also erred in awarding only "symbolic" damages.
[116] At the conclusion of their factum, the petitioners set out the Nature of the Order Sought in both the appeal and cross appeal.Ý For purposes of cross-reference, I will retain the petitionersí paragraph numbers from their factum:
201. That this Court uphold the Learned Trial Judgeís ruling that the Crown had violated the infant Petitionersí section 15(1`) rights under the Charter by failing to provide effective treatment for their condition of autism or autism spectrum disorder and that this violation was not justified under section 1 of the Charter;
202. That this Court uphold the Learned Trial Judgeí ruling that the Crown is constitutionally obliged to fund early intensive behavioural intervention for children with autism or autism spectrum disorder in the Province;
203. That this Court add to the above ruling by specifying that:
(a)Ý there can be no age limit to the right to early intensive behavioural treatment;
(b)Ý there can be no requirement to first establish eligibility through a government specified multi-disciplinary diagnostic centre;
(c)Ý Lovaas Autism Treatment, as defined by the Petitioners, means intensive behavioural intervention using applied behavioural analysis-discrete trial techniques and that there is therefore no distinction between Lovaas Autism Treatment and genuine ìEIBIî,
204. That this Court award the Petitioners the mandatory Order in the form set out in the Notice of Motion:
[I donít know what is meant by ìthe mandatory Orderî, but the notice of motion requested these two remedies:
1.ÝÝ An Order awarding the Petitioners damages to reimburse them for their expenses for intensive behavioural intervention therapy, using applied behavioural analysis techniques with discrete trial training, based on the methods developed by Dr. Ivar Lovaas (ìLovaas Autism Treatmentî), from the commencement of their Lovaas Autism Treatment to the date of judgment herein;
2.ÝÝ A Declaration that the Respondents pay to the Petitioners their full expenses for future Lovaas Autism Treatment:
(a)Ý from the date of judgment herein and continuing as long as it is recommended by a medical practitioner or psychologist licensed to practice in British Columbia with the intensity recommended by such medical practitioner or psychologist; and
(b)Ý that the Respondents may, on 60 days notice, apply to vary this judgment by application supported by a competing medical opinion from a medical practitioner or psychologist licensed to practice in British Columbia; and
ÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝ . . .]
205. That this Court vary the award of damages made by the Learned Trial Judge to accurately reflect the actual expenditures on Lovaas Autism Treatment made by the adult Petitioners, and
206. That this Court find that the Crown, through its conduct, has violated the Petitionersí rights under section 7 of the Charter and that this violation is not justified under section 1 of the Charter.
[117] Paragraphs 201 and 202 deal with the appeal and not with the cross appeal and, as I have said, I would dismiss the appeal and uphold the order of the trial judge referred to in those paragraphs.Ý Paragraph 206 deals with the argument under s.7 of the Charter and, as I have indicated, I do not propose to deal with that argument.
V
The Cross Appeal:Ý Para 203:Ý The Treatment
ÝÝÝÝ (a)Ý Early Intensive Behavioural Intervention
[118] As I understand the evidence and the reasons of Madam Justice Allan, all Lovaas Autism Treatment is Early Intensive Behavioural Intervention Treatment.Ý But, there can be forms of Early Intensive Behavioural Intervention Treatment that are not Lovaas Autism Treatment.Ý The petitioners say that there is no distinction between Lovaas Autism Treatment and genuine ìEIBIî.Ý I believe that Madam Justice Allan was dealing with genuine ìEIBIî and, for the reasons given by Madam Justice Saunders, I conclude that Madam Justice Allan considered the evidence and made her decision about the appropriate treatment and about the appropriate terminology to describe that treatment on a basis supported by the evidence.Ý I would not interfere with her choice of the terminology, ìEarly Intensive Behavioural Therapyî in the paragraph of her order which reads:
The Crown is directed to fund Early Intensive Behavioural Therapy for children with Autism and Autism Spectrum Disorder.
[119] While the direction adopted in the order made by Madam Justice Allan from the order made in the Eldridge case should not, in my opinion, be interfered with in its general application, the particular cases of the four infant petitioners require particular consideration.Ý All four infant petitioners received Lovaas Autism Treatment at the adult petitioners' expense.Ý To the extent that the continuation or resumption of Lovaas Autism Treatment continues to be medically necessary or desirable, I would order that the four infant petitioners receive not simply Early Intensive Behavioural Intervention Therapy but the specific form of that therapy properly called Lovaas Autism Treatment.
(b)Ý Age Limit
[120] The petitioners have asked that this Court specify that there can be no age limit on the right to Early Intensive Behavioural Intervention Treatment.Ý The evidence is that the treatment can begin as soon as the autism is diagnosed, perhaps at age two or even earlier.Ý There is no purpose in specifying a minimum age.Ý The minimum age can be determined by the medical practitioners involved.Ý The maximum age to come under the direction to the government to provide treatment for autism could also be said to be a matter to be determined by medical practitioners.Ý But the evidence in this case was limited to childhood autism, as I understand that evidence.Ý The treatment is most effective if it is begun early and continued intensively and consistently.Ý But, again, as I understand the evidence, it is not suggested that there is any specific age in childhood when the treatment is no longer effective at all.Ý I would set a limit on the order I would make in this case at the fourteenth birthday of the child in question.Ý That limit is not dictated by any question of the effectiveness of the treatment, but rather by my understanding of the age of the infant petitioners in this case and of the scope of the evidence that was led on their behalf.Ý I am not excluding the possibility of a form of autism treatment being a medically necessary treatment for children and others over the age of thirteen.Ý
(c)Ý Authorization, Type, Intensity, and Duration of Treatment
[121] In the course of argument, the Crown suggested that selection of autistic children for Early Intensive Behavioural Intervention therapy should take place through the processes of a government selected multi-disciplinary diagnostic centre.Ý The petitioners argued that selection should be by a single medical practitioner or psychologist.Ý The process should fuse the requirements of accurate diagnosis with relatively speedy access to treatment where treatment will be most effective.
[122] In my opinion an autistic child should qualify for the funding of treatment upon the written opinion of the childís physician, supported by the written opinion of a neurologist or psychologist.Ý The type and intensity of Early Intensive Behavioural Intervention that is to be administered and funded should be specified in the letters.Ý The treatment should continue for so long as the physician and neurologist or psychologist consider that it is being efficacious.
[123] The government which will be providing the funding, must have an opportunity to dispute any treatment decision as to its inauguration, type, intensity and duration, on sixty days notice to the guardian of the autistic child through a process to be worked out by consent, or through a hearing in court.Ý
VI
The Cross-Appeal:Ý Para. 204:Ý The Mandatory Order
[124] Madam Justice Allan said in her reasons that, having regard to the conduct of the Crown in relation to treatment of autism, and having regard to the declaration made in her reasons, it was unnecessary or premature to make an order of mandamus directed to the Crown.
[125] Madam Justice Allan said nothing in her reasons about giving a direction to the Crown in the form of the direction ordered by the Supreme Court of Canada in Eldridge.Ý Then, when the order was entered, nothing was added to the declaration under the liability judgment, but a specific direction was made in the remedy order directing the Crown to fund Early Intensive Behavioural Intervention.
[126] In the cross-appeal brought by the petitioners, the factum of the petitioners sets out the arguments why a declaration is not a sufficient remedy in this case and asks for an order in the nature of mandamus against the Crown.Ý But the factum says nothing of the fact that a direction has already been made as part of the entered order, nor does it suggest why an order in the nature of mandamus directed to the Crown would be required when there is already a declaration and a direction made against the Crown.
[127] The form of order made by the Supreme Court of Canada in the Eldridge case is authority for the proposition that a declaration of rights under s.15 of the Charter may be accompanied by a direction to "the government" to remedy the violation of the right.Ý But we have not been referred to any case where an order in the nature of mandamus has been made directly to "the Crown" or "the Government".Ý My understanding of orders in the nature of mandamus is that they must be directed against an identified public officer by name or by office, preferably both, to perform a statutory duty or other duty constitutionally mandated for the office that the person holds, in circumstances where the duty has not been performed when it should have been performed.Ý
[128] The "direction" made by the Supreme Court of Canada in Eldridge directed to "the government" is a new form of constitutional remedy.Ý In my opinion it is not an order in the nature of mandamus. ÝI do not see at the moment why it should not be effective.Ý But if the process of enforcement requires the use of the contempt power of the courts and if it is thought necessary first to obtain an order in the nature of mandamus, then I would think that the application for that order would have to specify the public officer, by name or by office, against whom the order is to be directed.Ý
[129] I would affirm the continuing jurisdiction of the Supreme Court, in these proceedings, to entertain an application for an order in the nature of mandamus against a public officer, by name and office, if a direction to the government is not complied with.
VII
The Cross Appeal:Ý Para. 205:Ý The Financial Award
[130] In their further amended statement of claim, treated as a petition under the Judicial Review Procedure Act, the petitioners asked, in relation to the financial remedy, for this relief:
(c)Ý an order for damages to be paid to the Petitioners by the Minister of Health covering:
(i)Ý the cost of the Lovaas Autism Treatment received to date, with interest, and
(ii) the cost of the Lovaas Autism Treatment yet to be received;
[131] The financial remedy awarded by Madam Justice Allan, after consideration of the authorities on financial remedies under s-s.24(1) of the Charter, was an award to each of the four adult petitioners of $20,000 as ìsymbolicî damages.Ý The advantage of that award is that it treats the four adult petitioners the same way as each other.Ý Their outlays have not been the same as each otherís outlays but they have shared in equal measure in the tribulations of the proceedings and it is really in relation to those tribulations that the ìsymbolicî damages must be regarded as having been awarded.
[132] I suppose it is possible for a coherent set of principles to be developed in relation to awards of ìsymbolicî damages as a Charter remedy under s-s.24(1), but there is no such set of principles at the moment and I am not eager to play a part in developing one.
[133] I have considered the competing interests set out, and the recommendations for balancing them, in Professor Pilkingtonís article ìDamages as a Remedy for Infringement of the Canadian Charter of Rights and Freedomsî (1984), 62 Can. Bar Rev. 517.Ý I have considered Madam Justice Wilsonís reasons in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, Mr. Justice Walshís reasons in Crossman v. The Queen (1984), 9 D.L.R. (4th) 588 (F.C.T.D.) and Madam Justice Parduís reasons in Krznaric v. Chevrette (1997), 154 D.L.R. (4th) 527 (Ont. Ct. Gen. Div.).
[134] I have also considered the policy reasons for limiting the liability of the Crown for negligent breach of statutory duty, see Just v. British Columbia, [1989] 2 S.C.R. 1228, and for acts done under an unconstitutional statute, see Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347.Ý On the other side of the scale there is a developing body of law on the award of compensatory damages for misfeasance in public office, see Sanders v. Snell (1998), 157 A.L.R. 491 (H. Ct.A.) and Bourgoin v. Ministry of Agriculture, [1985] 3 All E.R. 585 (Eng. Q.B.); [1986] 1 Q.B. 716 (Eng. C.A.), particularly per Oliver, L.J. at pp. 777-779.
[135] The four adult petitioners were consistently denied or refused funding for Lovaas Autism Treatment for a significant period, measurable in years and not in months, from when they were first told by their medical advisors that the infant petitioners ought to be receiving Lovaas Autism Treatment, or the equivalent, and from when the four infant petitioners were first started on the treatment at the expense of the four adult petitioners, respectively.
[136] After some time, during which the Crown was persistently asked to fund the treatments, the decision of the Supreme Court of Canada was handed down in Eldridge.Ý In my opinion, a fair assessment of the effect of that case, by Crown officers and their legal advisers, should have made the Crown officers aware that in continuing to refuse to fund Lovaas Autism Treatment for the infant petitioners they were breaching the Charter rights of all four infant petitioners.Ý A further year passed, and on 14 August, 1998 the petitioners started these proceedings.Ý At that stage a refusal on the part of the Crown to fund Lovaas Autism Treatment for the four infant petitioners, who, through the adult petitioners, had asserted their Charter rights in circumstances not readily distinguishable from the circumstances in the Eldridge case, gave rise to what can be called either a state of inertia or a state of stubborn recalcitrance on the part of Crown officers, sufficient, in my opinion, in its prolonged obstructiveness, to engage the necessity for some form of financial award as part of an effective remedy under s-s.24(1) of the Charter.
[137] In the result, balancing the respective interests of the parties as well as I can, I would substitute for the awards of ìsymbolicî damages in the sum of $20,000 for each adult petitioner, an amount of financial reimbursement to each of the adult petitioners calculated in this way:
(a)Ý a determination should be made of the amount that would have been paid under these reasons with respect to each infant petitioner, if the declaration and direction affirmed by these reasons had been in effect for ìtreatments within the relevant periodî;
(b)Ý a determination should be made of the actual outlays of the adult petitioners for ìtreatments within the relevant periodî;
(c)Ý ìtreatments within the relevant periodî for the purposes of sub-paras. (a) and (b) are all the Lovaas Autism Treatments that were or will be administered between 14 August, 1998, the date of issuance of the writ, and the date when the government fully funds treatment for each of the infant petitioners in accordance with these reasons;
(d)Ý the capital amount of the award for each adult petitioner should be the lesser of the amounts determined under sub-paras. (a) and (b);
(e)Ý the amount determined under sub-para. (d) should carry interest at the Registrarís rate from the date when the treatment was administered until the date of reimbursement;
(f)Ý if the total of the capital amount determined under sub-para. (d) and the interest amount determined under sub-para. (e) is less than the ìsymbolicî damage award of $20,000 plus interest at the post-judgment interest rate from the date of Madam Justice Allanís judgment, then the ìsymbolicî damage award of $20,000 plus interest should be awarded.Ý (The Crown did not appeal this ìsymbolicî award).
[138] That remedy is a remedy of financial indemnification, not a remedy of wider financial compensation for breach of the Charter rights of the infant petitioners.Ý I am trying to make the remedy reflect the losses suffered by the adult petitioners in the period when those losses were attributable to the recalcitrance or inertia of the Crown in the face of the Eldridge case and the commencement of these proceedings.
VIII
Disposition
[139] In summary,
(a)Ý I would dismiss the appeal;
(b)Ý I would dismiss the cross-appeal with respect to the direction that the treatment to be funded, generally, is Early Intensive Behavioural Intervention;
(c)Ý I would allow the cross-appeal with respect to the treatment of the four infant petitioners, by directing the government that they are to receive and be funded for Lovaas Autism Treatment to the extent such treatment is actually received by them;
(d)Ý I would allow the cross-appeal with respect to the process for settling the Authorization, Type, Intensity, and Duration of the Early Intensive Behavioural Intervention as described under Part V, division (c) of these reasons;
(e)Ý I would allow the cross-appeal by affirming the continuing jurisdiction of the Supreme Court, in these proceedings, to entertain an application for an order in the nature of mandamus against a public officer, by name and office, if a direction to the government in these proceedings is not complied with;
(f)Ý I would allow the cross-appeal by ordering financial indemnification of the four adult petitioners in the amounts determined under Part VII of these reasons, with any differences with respect to the determination of those amounts to be decided by the Registrar of this Court; and
(g)Ý I would award the costs of this appeal, and the cross-appeal, to the petitioners at a level agreed to by the parties, or, failing agreement, to be determined by this division of the Court on the basis of responsive written submissions.
ìThe Honourable Mr. Justice Lambertî
October 16, 2002
Counselís name was corrected to read B. von Krosigk.