Posted By Chris Laliberté
When illness threatens to steal a child from their community, tensions can reach their limits as time runs out. Parents, doctors, social services, and others clash over how best to care for someone too young to comprehend what is happening to them. In the past, courts have grappled with complex issues where religious freedoms conflicted with life-saving operations, compelling parents to withhold consent. In the fall of 2014, the Ontario Court of Justice had these cases in mind as Justice Edward J. was tasked with deciding whether an eleven year-old First Nations girl (J.J.), suffering from acute lymphoblastic leukemia (ALL), would be taken into custody for chemotherapy treatment. The decision in this tragic case concerned a child’s capacity to consent to care, the applicability of Aboriginal rights claims to traditional practices, and whether parents choosing alternative treatments in good faith can be deemed to be endangering their child.
The girl at the center of this case, J.J., was diagnosed with A.L.L. on August 13, 2014. She began chemotherapy treatment with the hospital (applicant), whose doctors estimated a 90% chance that J.J. would be cured. D.H., J.J.’s mother and the respondent in this case, pulled her daughter out of treatment to pursue a traditional alternative in keeping with their Six Nations heritage. The hospital, fearing that J.J. would almost certainly die without chemotherapy, filed an application under ss. 40(4) of the Child and Family Services Act (CFSA) to have her brought into the hospital’s care by court order. Justice Edwards J, presiding, had to decide whether the court served as the proper forum to decide this case, and whether D.H. has a valid Aboriginal right to practice traditional medicine pursuant to s. 35 of the Constitution Act, 1982.
Justice Edward J. found that the court was the proper forum to hear the claim, and that the Health Care Consent Act would not override the CFSA, consistent with the rulings in Children’s Aid Society of Toronto v. L.P. and Children’s Aid Society of Ottawa v. C.S. and J.S.. In deciding whether there was reasonable grounds to believe J.J was a child in need of protection for the purposes of the CFSA, the judge relied on the Van der Peet test to determine whether the practice of traditional medicine qualified as an Aboriginal right pursuant to s. 35 of the Constitution. Finding that the Six Nations and Haudenosaunee cultural practice of traditional medicines satisfied the test, and that s. 35 falls outside the scope of s. 1 of the Charter, Justice Edward J. concluded that D.H. had a constitutional right to pursue traditional treatments for J.J. As a result, the court ruled that J.J. was not a child in need of protection, dismissing the application.
This case has only further obfuscated the already murky intersection between religious or traditional beliefs and the capacity of a child to consent or withhold consent to medical care. It is worthy of note that the court’s focus is only on the child’s capacity to consent to medical procedures, with no attempt to grapple with the child’s capacity to understand and apply the beliefs or traditions that would compel them to seek alternatives. Although the law purports the purpose to serve the best interests of our most vulnerable, children especially, courts seem reluctant to interfere with parental agency where actions are taken out of genuine concern for the child’s well-being, even if the associated risk is higher.
Further, the judge may have erred in the application of the Van der Peet test, allowing concerns regarding the erosion of Aboriginal rights to result in what the Court of Appeal may have deemed an overbroad accommodation. Justice Edward J. finds that the practice of traditional medicine qualifies as an Aboriginal right, but in the conclusion equates this with the pursuit of alternative treatments. The judge also never inquired into or specified which traditional treatments were protected under s. 35, a potentially erroneous application of Van der Peet that grants Six Nations peoples the right to practice alternative medicine generally, rather than those medicinal practices developed within their own traditions. Where a restrictive application may have limited the s. 35 right to the practice of medicinal traditions unique to Six Nations cultures, Justice Edward J.’s analysis extends the right to both practice and receive any form of alternative health treatment.
Rather than Appeal the decision, however, the Attorney General of Ontario collaborated with each of the parties to set a more promising precedent. In Justice Edward J’s clarification of his reasons for judgement, he recognized the Haudenosaunee peoples’ right to practice traditional medicine as in conjunction with, rather than in opposition to, all social and health services available to them. This clarification flows from the joint submission of the parties that J.J., whose cancer returned in March of 2015, would undergo chemotherapy treatments to supplement the traditional Haudenosaunee medicine she had been receiving. Through respectful discussion, all parties arrived at the most equitable and effective approach to the heart of this issue: J.J.’s best interest for a happy, fulfilling life. Perhaps a matter more of policy than of law, the example set by the Government of Ontario’s response to this case should guide other provinces to engage in dialogue and co-operation with First Nations communities as we continue down the path towards reconciliation.
To read more about this case and this topic, check out some of our other blog posts: How We Talk About Medicine: Pushing the Boundaries and Aboriginal Self-Determination and Institutional Healthcare: Building Trust and Collaboration.