Junk law and junk science could mean girl's death

By Terry Glavin
Ottawa Citizen
Nov 20, 2014

In the long struggle that First Nations have been forced to wage in order to wrench recognition of their aboriginal rights from Canada’s courts, it has been commonplace for benchmark victories to be met with hysterical alarums about rights based on race, judge-made law, political correctness gone mad and other such hogwash. 

It is some small comfort, then, that sober reflection has tempered the shock of last week’s finding by the Ontario Court of Justice that an aboriginal right to pursue “traditional medicine” permits a Grand River Six Nations woman to withdraw her 11-year-old daughter from life-saving chemotherapy treatment.

But in the confusion the case has thrown up — is it really possible that Canadian law will uphold an aboriginal right to impose a death sentence upon a cancer-ridden child? — quite a lot that is directly relevant to the controversy has gone almost wholly unnoticed and unreported.

The judge in the case, Justice Gethin Edward, is himself a member of the Grand River Six Nations in Brantford. Aboriginal rights’ arguments came before him only because he’d ordered the Six Nations Band to appear as a respondent in the case. Edward is also an advocate of alternative sentencing through Brantford’s aboriginal persons court, which the Six Nations’ council also supports, along with increased powers over child welfare.

This is not to say Edward acted improperly or should have recused himself from the case, but you’d need to know these things to properly understand how aboriginal rights got read into the case, and how it came to pass that an 11-year-old girl who has been denied the only known cure for her otherwise fatal form of leukemia has been deemed not “a child in need of protection” under the law.

Where things appear to have gone sideways is in Edward’s reading of the only higher court aboriginal-rights ruling he relied upon to reach his decision. Edward cited at length from the Supreme Court of Canada’s 1996 fishing-rights ruling known as Van der Pete vs. the Queen, but he left out this part: “Any right, aboriginal or other, by its very nature carries with it the obligation to use it responsibly. It cannot be used, for example, in a way which harms people, aboriginal or non-aboriginal.”

A reasonable person will be forgiven for noticing that sickness unto death falls well within the meaning of the word “harm.” Edward conceded that chemotherapy is successful at least 90 per cent of the time in treating cases of acute lymphoblastic leukemia — the cancer afflicting the child at the centre of the trial — and that no child is known to have survived it without chemotherapy.

Judge Edward relied on the Van der Pete decision’s tests to determine whether “precontact” practices give rise to contemporary, constitutionally protected aboriginal rights. He found that the evidence in the case before him (owing to a publication ban, the girl is called only “J.J.”) showed that the belief in Six Nations’ traditional healing methods had persisted down through the years in the child’s family.

All this adds up to J.J.’s mother (called “D.H.”) being constitutionally entitled to pursue a course of “traditional” medicine for her daughter. That’s straightforward enough. What isn’t at all clear is where Edward found a precontact tradition so integral to Six Nations’ society that it gives rise to an enforceable right to unnecessarily condemn an innocent child to a slow and painful death from an otherwise curable disease.

Neither is there some irreconcilable contradiction between aboriginal customs and what Edward called the “western medical paradigm.” There is nothing “western” about chemotherapy. Science is science. McMaster Children’s Hospital in Hamilton, where J.J. was diagnosed, was fully prepared to incorporate traditional Six Nations remedies in the girl’s treatment in any case, but as hospital president Peter Fitzgerald put it, unless J.J. undergoes chemotherapy, “there is no chance of survival.”

Deyoyonwatheh, a Six Nations medical specialist trained at McMaster University, puts it this way: “The real clash here is between superstition and modern medicine, pure and simple ... This is not about culture, it is about physiology.”

J.J.’s mother pulled her out of the hospital anyway, and took her to something called the Hippocrates Health Institute of West Palm Beach, Florida, where for a fee of $18,000 cancer patients are treated with naturopathic massage, ionic footbaths and aromatherapy. You don’t need to be a judge, a doctor or an anthropologist to suspect that hocus-pocus is being passed off as some kind of augmented Six Nations’ medicinal tradition here.

The Hippocrates Health Institute is the same place another 11-year-old aboriginal leukemia patient ended up earlier this year. Makayla Sault from the nearby Mississaugas of the New Credit First Nation underwent chemotherapy at McMaster, and the girl’s leukemia appeared to be in remission. But her parents, both Christian “pastors,” were happy to let her drop out of treatments after she claimed that Jesus came to see her at the hospital. There have been conflicting reports about the state of Makayla’s health.

The Children’s Aid Society that declined to intervene in Makayla Sault’s case is also the same outfit involved in J.J.’s case. McMaster Children’s Hospital wanted the court to order the society to intervene on J.J.’s behalf but Edward said no, and a cursory assessment of the judge’s reasoning, published by the Canadian Civil Liberties Association, finds it severely flawed in some very interesting ways.

The CCLA’s Joshua Shaw, a doctoral student at the University of Manitoba’s law school, points out that higher courts have already found that aboriginal rights can be restricted for purposes that would readily encompass “significant risk of harm or death when a parent refuses or is unable to consent to medical treatment.”

Aboriginal rights can also be infringed for a valid legislative objective. If saving the lives of aboriginal children isn’t a valid objective, then one might well wonder what is.

First Nations have not fought their way through the courts of this country to exercise their constitutional rights in a way “which harms people, aboriginal or non-aboriginal,” or to establish legally enforceable entitlements to substitute Floridian wheatgrass enemas for the medical procedures necessary to save the lives of their kids.

Edward’s decision isn’t about rights based on race or political correctness gone mad. But it does look every bit like junk law in aid of junk science. 

It shouldn’t be allowed to stand.