The Ontario Court of Justice held that an 11-year old Aboriginal girl was not a “child in need of protection” within the meaning of the Child and Family Services Act as a result of the girl’s mother choosing to pursue “traditional medicine” over the applicant Hospital’s stated course of treatment (chemotherapy). The Court held that it was the mother’s Aboriginal right to pursue traditional medicine for her daughter.

This application involved J.J., an 11-year old girl from The Six Nations of the Grand River, who had been diagnosed in August 2014 with acute lymphoblastic leukemia, a form of cancer in the bone marrow. J.J. began the induction phase of chemotherapy treatment. On 27 August 2014, J.J.’s mother DH withdrew consent for the continuation of the chemotherapy treatment.

The treating physician, a pediatric oncologist, contacted the respondent Brant Family and Children’s Services, a designated children’s aid society under the Act (the “Society”). The doctor subsequently wrote to the respondent Society about the “medical neglect” of J.J., and that the decision of DH to terminate chemotherapy treatment puts J.J.’s life at risk. The doctor noted that this form of leukemia has a 90% cure rate with the recommended treatment, and stated her opinion that J.J. is not able to provide informed consent to withdraw from chemotherapy.

In early September, the Hospital became aware that DH had plans to take J.J. to Florida for an alternative treatment plan. The respondent Society advised the Hospital that it had no plans to intervene.
The Hospital filed this application under s. 40(4) of the Child and Family Services Act on 16 September 2014, returnable the following day. The Court made an order on 17 September that J.J. not be removed from Ontario without further order of the Court, and also ordered that J.J.’s parents and the Six Nations Band be added as respondents. Around that time, J.J. and her mother DH left for Florida.

As a preliminary matter, the Court rejected the submissions of the respondent Society that this matter should be adjudicated before the Consent and Capacity Board pursuant to the Health Care Consent Act, 1996,rather than as part of a s. 40(4) application under the Child and Family Services Act. The Court was satisfied that J.J. lacked capacity to make such a life and death decision as the discontinuation of chemotherapy. The decision of DH, as substitute decision maker, to discontinue the treatment is a child protection issue and properly adjudicated under the Child and Family Services Act.

The provisions of s. 40(4) of the Child and Family Services Act relevant to this application are:

Where the court is satisfied, on a person’s application upon notice to a society, that there are reasonable and probable grounds to believe that,

(a) a child is in need of protection …
(b) the child cannot be protected adequately otherwise than being brought before the court

the court may order

(d) … a child protection worker employed by the society bring the child to a place of safety.

Edward J. held that the real issue in this application is whether there are reasonable and probable grounds to believe that J.J. is in need of protection. Section 37(2)(e) of the Child and Family Services Act provides that a child is in need of protection when:

the child requires medical treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, the treatment

The Hospital submitted that DH’s decision to discontinue chemotherapy made J.J. a child in need of protection.

The evidence indicated that DH has a strong faith in her native culture, and that she believed that discontinuing chemotherapy to pursue traditional medicine would help heal J.J. DH and her family are “committed traditional longhouse believers”, and adhere to the belief that traditional medicines work.

The Court considered the scope of section 35 of the Constitution Act, 1982. He cited a passage from Professor Hogg’s text in which it is noted that section 35 falls outside the Charter of Rights and is “not qualified by s. 1” and, in consequence, section 35 rights are not subject to “such reasonable limits prescribed by law and can be demonstrably justified in a free and democratic society”. The same passage from Professor Hogg’s text noted that section 35 rights are subject to reasonable regulation according to principles similar to those applied to section 1.

The Court concluded that DH’s decision, as substitute decision maker for J.J., to pursue traditional medicine is an Aboriginal right protected by section 35. Justice Edward reviewed the Van der Peet test for defining Aboriginal rights. He also noted the dicta of Chief Justice Lamer in that case that the rules of evidence be relaxed when proving s. 35 rights. The Six Nations practice of using traditional medicine existed in the pre-Contact period, and was integral to the distinctive society of the Six Nations. The use of traditional medicines in the pre-Contact period was indicated by a Haudenosaunee creation story (as recited in an academic paper before the Court). In regards to the “integral nature” of such practices, the Court cited an academic paper stating that traditional ceremonies and practices have enabled Indian people to survive, and are an enduring and indispensable “life raft”.  Justice Edward also referred to the evidence of Dr. Karen Hill, a medical doctor and member of the Six Nations community, who testified during the hearing. Dr. Hill operates a medical practice with a colleague who practices traditional medicine. The Court stated:

The point is traditional medicine continues to be practiced on Six Nations as it was prior to European contact, and in this Court’s view there is no question it forms an integral part of who the Six Nations are.

The Court also addressed the issue of “integrity”. The evidence indicated that DH was deeply committed to her belief that traditional medicines work, and that this is “not an eleventh hour epiphany employed to take her daughter out of the rigors of chemotherapy”. It is a decision made by a mother “steeped in a practice that has been rooted in their culture from its beginnings”.

The Court then held:

It is this Court’s conclusion therefore, that DH’s decision to pursue traditional medicine for her daughter J.J. is her aboriginal right. Further, such a right cannot be qualified as a right only if it is proven to work by employing the western medical paradigm. To do so would be to leave open the opportunity to perpetually erode aboriginal rights.

Further, as Professor Hogg reminds us, section 1 of the Charter does not apply to a s. 35 analysis. Nor am I satisfied that there has been an extinguishment of DH’s right to practice traditional medicine apart from the dark history of our country’s prosecution of those who practiced traditional medicine …

The Court therefore held that J.J. was not a “child in need of protection”, and the Hospital’s application was dismissed.

Daphne Jarvis and Meghan Lindo of BLG’s Toronto Office represented the Hamilton Health Sciences Corporation on this application.

http://www.canlii.org/en/on/oncj/doc/2014/2014oncj603/2014oncj603.html

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law