An incoherent ruling
The bad news out of Brantford, Ont., is that J.J., a young girl from the Six Nations of the Grand River, is once again fighting leukemia. The good news is that she is receiving chemotherapy treatment, which her mother had abandoned in the past in favour of traditional aboriginal medicine and various brands of decidedly nonaboriginal quackery. And back to the bad news: Judge Gethin Edward’s ludicrous court ruling enabling that decision still stands. The deadline for appealing it has expired.
It is difficult to assess the news that Judge Edward has “clarified” his ruling to the effect that “recognition and implementation of the right to use traditional medicines must remain consistent with the principle that the best interests of the child remain paramount.” He issued this clarification Friday, in response to a joint submission by all parties and an intervention from the provincial Attorney General.
“In law as well as in practice,” Edward wrote, “the Haudenosaunee [Iroquois] have both an aboriginal right to use their own traditional medicines and health practices, and the same right as other people in Ontario to use the medicines and health practices available to those people.”
On their own, the two new paragraphs are welcome common sense. In the context of the ruling they ostensibly clarify, however, they make no sense at all. Indeed they completely repudiate it.
No one was questioning or in any way impeding the right of J.J.’s mother to pursue traditional treatments for her daughter. Rather, McMaster Children’s Hospital challenged Brant Child and Family Service’s decision to allow J.J.’s parents to withhold chemotherapy. Edward dismissed that challenge, surrendering J.J. to the mercies of scientifically unproven treatment, precisely on grounds that access to traditional medicine constitutes an “aboriginal right” under Section 35 of the Constitution — one not subject to a reasonableness test under Section 1 of the Charter of Rights and Freedoms.
“I cannot find that J.J. is a child in need of protection when her substitute decision-maker has chosen to exercise her constitutionally protected right to pursue their traditional medicine over the applicant’s stated course of treatment of chemotherapy,” the ruling read. As updated, it now segues directly into a “clarification” that the best interests of the child must always be paramount. Are we to conclude reaching her next birthday did not meet that standard?
In his ruling, Edward relied on the 1996 Van der Preet case, in which then-Chief Justice Antonio Lamer set out criteria for determining what is and what isn’t an aboriginal right. Aboriginal fishing rights were the matter at hand; the majority held they did not extend to commercial as opposed to sustenance catches. But in their separate dissents, neither Claire Heureux-Dubé nor Beverley McLachlin implied that any aboriginal right was absolute or immune from a test of justification. Quite the opposite.
“Any right, aboriginal or other, by its very nature carries with it the obligation to use it responsibly,” McLachlan wrote. “It cannot be used, for example, in a way which harms people, aboriginal or non-aboriginal.”
Had Judge Edward quoted that part, he could only have come to the opposite, obvious conclusion: That it’s neither legally tenable nor in any way conscionable to deny an aboriginal child the protections we would automatically afford a non-aboriginal child. That he decided the opposite imposed on the Attorney General an absolute imperative to appeal. In abdicating that responsibility, he has allowed an incoherent ruling to stand as jurisprudence. Now we are left to hope an equally incoherent two additional paragraphs are enough to protect aboriginal children from harm.
All in all, a job very poorly done by all.