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Xavier’s Story

Told by his mother, Shayla

“My son, Xavier Mena, was born on January 7th, 2018. I had a complicated pregnancy, and had to be on bed rest from twenty weeks onwards due to placental bleeds. After Xavier was born, I noticed a few things that worried me a lot. For example, he couldn’t lie on his back for more than a couple of minutes without crying as if he was in pain. I mentioned this to my doctor several times, but he dismissed my concerns.

I used to take Xavier to my sister’s house all the time, to visit with her and my niece. In March of 2018, my two year-old niece became extremely sick, and was diagnosed with a rare cold that affects the blood cells associated with leukemia. Fast forward to the end of March – Xavier was also showing some worrisome symptoms, so I took him to a walk-in clinic. He was very congested, so they listened to his chest. They told me to take him home and try a steam, and to go to the ER if his symptoms changed or got any worse.

I took him to the ER around 2:00 pm the next day. He had thrown up the only bottle he had had all day, and his head was boiling hot. His eyes were glazed, and there was a strong raspiness in his breathing. When we got to the ER, the first resident doctor we spoke with was quite concerned, and even called my sister to request her permission to look at my niece’s bloodwork. When the training doctor came in, she refused to do this unless it was deemed a serious illness. Even though he was completely pale, dazed, had glazed eyes, and was clinging to me, she stated that he didn’t look sick to her. I asked about taking a swab or doing bloodwork, but the doctor refused to do any tests. She listened to his chest and mentioned that he had a questionable raspiness in the left side of his chest, but sent us home with no information as to what might be causing it, or what signs I should watch for.

I had an appointment with our family doctor in the middle of April, and explained what happened. Xavier had still not fully recovered – any time he would teethe or become upset, his head would boil hot, and the raspiness never went away. Again, my family doctor dismissed all of my concerns, saying that this was most likely because his trachea was not yet fully formed. He did not follow up with any tests, even though my niece had been very ill the month before and Xavier’s symptoms were not improving.

On May 6th, 2018 my world came crashing down. I had laid Xavier down for a nap. When I went to check on him about twenty minutes later, I found him blue and not breathing. I panicked and ran him out to my sister, who immediately started CPR as I called 911. Around 3:00 am on May 7th, a doctor from the Pediatric ICU at Sick Kids Hospital in Vancouver gave me the news that no mother wants to hear – we could risk the flight from Prince George to Vancouver, but there was over a 50% chance of him suffering another cardiac arrest on the flight. She then told me that he had not had any brain activity for about seven hours, and declared him brain dead. I was told that even if he was able to survive the flight to Vancouver, there was a slim chance that they could do anything to help him.

My husband and I had to make the horrendous decision to remove life support at 2:45 pm that day. After three years of trying and three miscarriages, I lost my precious son in the blink of an eye.

Since his passing, I have collected all of Xavier’s medical records, as well as my own. I discovered that I was lied to by my family doctor, my gynecologist and the ER doctor. I found out that during my pregnancy, when I had to beg my doctor to put me on medical leave because of my placental bleed, I was actually on the verge of a placental hemorrhage. It’s a miracle that Xavier even survived the pregnancy. I also found out that my son had dropped sixty percentiles on the growth chart within a month a half. None of this was ever discussed with me.

When I received Xavier’s autopsy results on May 4th, 2020, I found out that he had an enlarged heart (cardiomegaly), which was likely the result of a probable cardiac arrhythmia. He died of complications from a viral respiratory tract infection, which exacerbated his heart condition. Both the ER doctor and my family doctor refused to do any tests to find out what was causing my son’s symptoms. Both his viral infection and his heart condition went undetected, and untreated.

After receiving these records and discovering all of the things I was never told about my son’s health, I strongly believe that his death was the result of medical negligence. I spoke to a lawyer who confirmed that because my son had passed away, no legal action could be taken. This would only be possible if he were injured, but still alive. My heart aches because there may be no justice for what happened to my little boy. The doctors, who refused to perform tests on my son, who lied to me and neglected to tell me things that I should have known about my son’s health, may never see any consequences. I am so beyond frustrated and sickened by our legal system. This is my son Xavier Mena’s story; I hope that it can help to bring about change.”

Media Coverage

Prince George Citizen: Ceremony to pay tribute to lost babies


About the BC Wrongful Death Law Reform Society

‘In Their Name’ is the campaign of ‘The BC Wrongful Death Law Reform Society’ – a BC registered non-profit organization comprised of volunteer families who have lost a loved one to wrongful death in BC and were denied access to justice. In response to the biggest human rights issue facing the province today, our goal is to modernize British Columbia’s antiquated wrongful death legislation, which predates confederation (1846). Under current legislation, the value of a human life is measured only by the deceased’s future lost income, so long as they had dependents.

As a result of the province’s antiquated law, access to justice has been denied to the families of the wrongfully killed who do not meet this discriminatory criteria. This has affected especially vulnerable groups, namely children, seniors, the disabled, and anyone without dependents when they are killed by the negligent or intentional acts of another.

BC is presently the last of all the provinces, yet to have undertaken this critical legislative modernization to allow for dignity, value, and protections for all its citizens under the law.

When it’s ‘free’ to kill in BC, wrongdoers are not held accountable. This lack of general deterrence holds the province back in terms of incentivizing innovation of safety measures and protocols to prevent wrongful deaths in the first place.

Here’s How You Can Get Involved…

The Premier of British Columbia, David Eby, is responsible for the modernization of BC’s wrongful death laws. Our Society provided David Eby with the drafted ‘Wrongful Death Accountability Act’ when he was acting as the Attorney General for British Columbia for 6 years between 2017-2022. The new Attorney General, Niki Sharma, also shares responsibility as she is the Minister responsible for the ‘Family Compensation Act’ – the current guiding piece of legislation that the civil courts must follow in cases of wrongful death. Minister Sharma receives feedback from the regional ‘Members of the Legislative Assembly’ (MLAs) and follows orders from the Premier, David Eby, who is ultimately responsible for modernization.

Reform is presently at a standstill, as the BC NDP government does not presently view access to justice for the surviving family members of the wrongfully killed as a priority in this province. This is despite the fact that the families behind our Society have been fighting for modernization for over two decades. And despite the fact that all other provinces, including the Yukon, have already modernized in most cases long ago.

The only way to move this forward is by creating massive public awareness and outcry for legislative modernization. Only under the scrutiny of the public and the media will our politicians be forced to take this necessary, and long overdue action.

How many more people will need to die from the same preventable wrongful actions before our politicians will do their job?

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Petition Your MLA Now

Unlike other Canadian provinces, BC has not made any significant amendments to its wrongful death legislation—ever. The current BC Family Compensation Act only values the lives of income-earners. This neglect must stop. Petitioning your local MLA, the Attorney General, and Premier with our automated tool can make a lasting difference to the lives of British Columbians for generations to come.

Dear Local MLA, Attorney General Niki Sharma, Premier David Eby, Minister of Health Adrian Dix, Minister of Public Safety & Solicitor General Mike Farnworth,

I am writing to you about the preventable death of 4-month-old Xavier Mena and British Columbia’s woefully outdated wrongful death laws; which are still based on colonial era legislation from 1846.

BC’s current Family Compensation Act only takes into account the direct financial losses resulting from the wrongful death of a loved one. As a result, only the families of deceased breadwinners see the inside of a courtroom in cases of wrongful death.

Children, seniors, people with disabilities, or anyone who does not meet the discriminatory criteria of having both an income and dependents are classes of people whose lives are not valued or respected when they are killed in BC.

This is a human rights issue.

Investigations into the wrongful death of these classes of citizens most often do not occur because there is no ‘loss of earnings’ to cover civil trial costs.

Accordingly, families have been denied the ability to right the wrong and ensure that the same preventable actions which resulted in the wrongful death would not happen to another.

Unlike other provinces in Canada, which in most cases have modernized long ago, many of your constituents are considered “worthless” under the discriminatory law in British Columbia.

Xavier Mena, sadly, is one of these cases where no accountability can be brought against wrongdoers who were negligent in their duty of care. His story can be read here –

The BC Wrongful Death Law Reform Society is comprised of families who have been fighting for over two decades to see our laws modernized. They have drafted legislation that can solve this problem now.

These families, based on each individual personal experience of loss, have demanded that the legislation include the following tenets:

#1 The value of human life must not be based merely on whether the wrongfully killed was a breadwinner with dependants. There must be a legal recognition for the value of each life and the loss of love, guidance, care, companionship, and affection wrongfully taken from surviving family members.

#2 The value of human life must not be arbitrarily capped by legislation. Damages for the loss of life must be assessed individually by constitutionally independent superior courts, in recognition of the distinct relationship that existed between each of the surviving family members and the wrongfully killed loved one.

#3 All forms of non-pecuniary damages, including aggravated and punitive damages must be available under the legislation to be awarded in appropriate cases. Financial penalty assessed by a civil court when a wrongdoer maliciously, or recklessly kills another person is essential when criminal prosecution is not pursued or fails. General deterrence of future wrongdoing is an important objective.

#4 If an individual is not initially killed by a wrongful act, but later dies before the conclusion of litigation, this should not be a windfall for the wrongdoer. There should not be a perverse incentive for the wrongdoer to delay, or prolong litigation. Damages relating to conscious pain, suffering, and disability during the period between the wrong and the decedent’s death, including damages for loss of expectation of life, pain and suffering, physical disfigurement, or loss of amenities must remain available under the legislation.

#5 Families deserve the right to have their day in court with the ability to obtain professional legal representation on a contingency basis. No other piece of legislation in the province should bar the pursuit of an at-fault wrongful death claim against a negligent party. The contingency fee system does not discriminate socioeconomically, and it ensures the family can obtain the best representation necessary to obtain truth, justice, and accountability against a wrongdoer, no matter how big and powerful that wrongdoer might be. Families also deserve the right to have the case decided by a jury of their peers. This fundamental aspect of our democracy must be preserved.

What will you do to create a fair and adequate wrongful death law in BC?

Yours Truly,

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cc: Liberal Leader Kevin Falcon, Liberal Critic for Attorney General Mike de Jong, Liberal Critic for Public Safety & Solicitor General Mike Morris, BC Greens Leader Sonia Furstenau

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