Thursday, March 20, 2014

Youth Medical Rights


A person can encounter many healthcare problems over the course of his or her life. From broken arms, mental health needs, to unwanted pregnancies, there are many scenarios in which youth require healthcare services. While many believe that youth health issues are up to their parents and/or legal guardians, young people have many rights that they should be aware of.

Healthcare Decisions

In general, minors (under the age of 18 in Ontario) have the legal right to make their own healthcare decisions. These decisions can include dental care, surgery, substance addiction treatment, etc. The law presumes that minors are capable of understanding the treatment, the treatment process, as well as the risks and benefits associated with the treatment. It is up to the healthcare practitioner (i.e. doctors, nurses, therapists, etc.) to make the decision regarding the minor's capabilities. If the doctor finds that the minor is not capable of understanding the proposed treatment, a substitute decision-maker must act on the minor's behalf; and the minor has a legal right to challenge the finding of incapacity.

Under the Health Care Consent Act, all medical treatments must not be administered until consent has been acquired:

No treatment without consent
10.  (1)  A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,
(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or
(b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act. 1996, c. 2, Sched. A, s. 10 (1).


Under the Personal Health Information Protection Act, minors over the age of 16 can act on their own behalf over the collection, use, or disclosure of their medical information, provided that they are capable of understanding the information.

Persons who may consent
23.  (1)  If this Act or any other Act refers to a consent required of an individual to a collection, use or disclosure by a health information custodian of personal health information about the individual, a person described in one of the following paragraphs may give, withhold or withdraw the consent:
1. If the individual is capable of consenting to the collection, use or disclosure of the information,
i. the individual, or

Children under the age of 16 have less freedom over their decisions, but still have the right to make decisions over certain issues.

23. (2) If the individual is a child who is less than 16 years of age, a parent of the child or a children’s aid society or other person who is lawfully entitled to give or refuse consent in the place of the parent unless the information relates to,
i. treatment within the meaning of the Health Care Consent Act, 1996, about which the child has made a decision on his or her own in accordance with that Act, or
ii. counselling in which the child has participated on his or her own under the Child and Family Services Act.

Conflict if child capable
23. (3)  If the individual is a child who is less than 16 years of age and who is capable of consenting to the collection, use or disclosure of the information and if there is a person who is entitled to act as the substitute decision-maker of the child under paragraph 2 of subsection (1), a decision of the child to give, withhold or withdraw the consent or to provide the information prevails over a conflicting decision of that person.

There are exceptions to this principle, however. For example, disclosure of health information may be justifiable to reduce risks of serious harm:

40.  (1)  A health information custodian may disclose personal health information about an individual if the custodian believes on reasonable grounds that the disclosure is necessary for the purpose of eliminating or reducing a significant risk of serious bodily harm to a person or group of persons. 2004, c. 3, Sched. A, s. 40 (1).

Thursday, March 6, 2014

R v Todorovic: Does The Age Of A Child Matter When Determining If She Was “Detained”?

Guest post by Brock Jones, Crown Counsel

On February 27, 2014, the Ontario Court of Appeal released its decision in R v Todorovic 2014 ONCA 153. The central issue on the conviction appeal was whether Todorovic`s statements to the police on the night of her arrest were properly admissible pursuant to the requirements of section 146 of the Youth Criminal Justice Act (S.C. 2002, c. 1)

The Court of Appeal ruled the statements were properly admitted by the trial judge and upheld the appellant`s conviction for first degree murder. Key to this outcome was the Court of Appeal`s deference to the trial judge`s finding that Todorovic was not “detained” when she was first questioned by the police, thus not triggering any duty on the police to inform her of her rights under the YCJA (and the Charter of Rights and Freedoms). After a lengthy interrogation, Todorovic ultimately confessed that she told her boyfriend she wanted the victim dead due to jealously over his past relationship with her.

Curiously absent from the decision however is any significant discussion of what role, if any, Todorovic’s status as a young person should have played in the trial court’s assessment of whether or not she was “detained” for the purposes of the YCJA.

A Brief Review of the Facts

The facts of this case have received widespread attention in the media and only some of them need be reviewed here. On January 1, 2008, David Bagshaw, then 17, stabbed Stefanie Rengel to death outside her home. He was dating Todorovic (then 15), at the time. The Crown alleged Todorovic encouraged Bagshaw to kill the victim due to an obsessive jealously she had over Baghshaw’s prior relationship with the victim several years earlier.

Bagshaw confessed his role in the crime to a friend that same night. Officers began their investigation and learned of his relationship to Todorovic. They interviewed her with her mother at a police station beginning around 3:05 am on January 2, 2008. Before they began questioning her, they gave Todorovic a standard “K.G.B.” warning and she was told she could choose whether to make a statement or not. As the police did not believe she was a suspect at the time, they did believe they had to caution her about her rights under the YCJA or the Charter.

She ultimately gave an incriminating statement to the effect that she had asked Bagshaw to kill the victim. At that point, she was formally arrested and read her rights.

Section 146 of the YCJA

Section 146 of the YCJA governs the admissibility of statements made to persons in authority by young persons. In order for those protections to become available, however, the young person must be arrested or detained, or the police must have reasonable grounds to believe the young person has committed an offence. It does not apply to the questioning of young persons who are simply witnesses, or persons of interest.

In R v LTH 2008 SCC 49 the Supreme Court of Canada explained the purpose behind this section was to recognize that “’[y]oung persons, even more than adults, are inclined to feel vulnerable when questioned by police officers who suspect them of crime and can influence their fate.” (LTH at para 1.) These protections are required because “young persons… are presumed on account of their age and relative unsophistication to be more vulnerable than adults to suggestion, pressure and influence in the hands of police interrogators.” (LTH at para 3.)

Todorovic’s Interrogation and the Test for Detention

The Court of Appeal held the test for determining if someone is “detained” was established by the Supreme Court of Canada in R v Grant 2009 SCC 32. One can be detained psychologically, in circumstances where a “reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.” (Grant at para 44.) Both the nature of the police conduct and the circumstances of the individual are relevant, including the individual’s age. (Grant at para 44.)

In Todorovic’s case, the police knew before questioning began that her boyfriend had killed the victim and about an incident three months earlier in which Baghsaw had attended at the victim’s house and told her that his girlfriend wanted him to stab her.

The police called Todorovic’s mother just before 3 am and told her she could come to the station with her daughter or the police could come and pick them up. She offered to cooperate and attended at the station with her daughter. During questioning, the door to the interview room was shut but not locked. The appellant was told she was not under arrest and was not obligated to give a statement. She was never told she could leave, however.

In rejecting Todorovic’s argument that she was detained at this early stage of the interrogation, the Court of Appeal noted that she was free to leave at any time. But nowhere in the decision does the Court consider whether or not her status as a young person was relevant to making this determination.

A Reasonable Young Person?

Surely a child’s age would affect how a “reasonable person” in her position would perceive her freedom to leave in these circumstances. By definition, s. 146 of the YCJA requires an analysis of the “reasonable young person.” Behaviour and perception are very different at an early age; indeed, as the Supreme Court of the United States observed in JDB v North Carolina (131 S. Ct. 2394 (2011)), it is folly for courts to mistakenly view children as simply “miniature adults.” (JDB at 2404.)

Ignoring those “very real differences between children and adults” could have the effect of disenfranchising children from their enhanced procedural safeguards. (JDB at 2408) Thus in JDB, the Supreme Court of the United States held that courts must consider the age of a detainee when assessing if his or her Miranda rights were triggered.

Yet nowhere in the Todorovic decision is any such consideration explored. Perhaps it would not have made any difference. Todorovic was ultimately sentenced as an adult.

It will now be for a future Canadian court to determine whether or not in certain circumstances, detention may be found for a child where it would not be found for an adult, as the Supreme Court of the United States found in JDB.

This guest post was written by Brock Jones: Crown counsel, Crown Law Criminal; Adjunct Prof. Of Law, University of Toronto. The opinions expressed herein are those of the author and do not reflect those of the Ministry of the Attorney General.