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By Bob Kuhn
CASES involving a Jehovah Witness’ right to
refuse a blood transfusion have struggled with some of the most difficult
religious rights issues in Canada.
While we are accustomed to some of the traditional
arguments these cases deal with, the case of Hughes
(Estate) v Brady, 2007 ABCA 277 has brought
an entirely different – and potentially explosive – issue to
the forefront of religious freedoms.
In February 2002, 16 year old Bethany Hughes was
diagnosed with leukemia; she refused a blood transfusion for religious
reasons. She was apprehended by the government, and became the subject of
many court applications. It seemed almost overnight she had come to
symbolize many religious freedom issues which trouble this nation.
In the process, Bethany’s father, Lawrence
Hughes, changed his mind – and elected to agree to the transfusions.
As a result of his decision, he left the Jehovah’s Witnesses, and he
and his wife separated. By September of 2002, Bethany had sadly died
– but the conflict surrounding her life had not.
Lawrence Hughes has since been appointed the
administrator of the estate. Among others, he has sued the church and the
lawyers who acted for his wife and daughter. The lawyers were also,
at the time, lawyers for the church society and elders of the
Jehovah’s Witness congregation.
Hughes has argued the church and lawyers imposed their
own system of belief on Bethany, and took away her ability to make
independent decisions. He argued the lawyers misrepresented the
nature of the treatment to Bethany. He also alleged they were in conflict
of interest: “Because of their own beliefs they were unable to give
Bethany fully informed and impartial advice, which would enable her to
provide an informed consent to medical treatment.”
This raises two important issues: Can anyone, lawyer or
not, counsel another about a religious issue if it could jeopardize their
life? Is this situation different if the person counselled is a child?
Secondly, when is a lawyer who is involved with – or acts for –
a church in a conflict of interest, if they assist its congregants with
decisions that involve their consent?
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The Alberta Court of Appeal has not ruled on whether or
not the lawyers acted wrongly in this case. What they did say was that
these were appropriate questions to be heard.
The Court commented that the Charter and subsequent
cases have made it clear that the test for religious belief is subjective.
It stated: “Freedom of religion does not include any right to impose
religious beliefs on third parties . . . It is not at all clear to what
extent a religious adherent can convince another person to take actions for
religious reasons that will cause him or her bodily harm or even death,
even if the religious belief is sincerely held.”
The Court said the Charter may protect actions if they
are honestly held or may determine that there is never justification for a
member of a religion to counsel another about this kind of medical advice.
One solution may be that members may only share their
beliefs when it does not involve matters involving life and death. Yet,
people of many religious backgrounds will tell you their religious beliefs
are all about life
and death.
As for the interaction of a lawyer’s religious
belief and his duty as a lawyer, where is the line?
The facts of what happened between Bethany and her
lawyers have not come out yet. Maybe they did encourage her to stand
by the church’s position on blood transfusions. If they genuinely
believed this was in Bethany’s best interests, would that be wrong?
Would they have to have specifically encouraged Bethany
to refuse the treatment, in order for their actions to be wrong? Or
would the fact they were elders in a church which overtly practiced this
belief be enough to influence Bethany?
This case asks serious questions about how people with
shared faith interact with one another. Its outcome could send ripple
effects across every religious community in Canada.
Bob Kuhn is an Abbotsford lawyer.
December 2007
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