Aboriginal medicine ruling sparks instant controversy

In 14 words, the decision of a Brantford judge changed the life of an 11-year-old Six Nations girl with leukemia, and sparked a controversy about Aboriginal rights and the rights of children in Canada.

The ruling has been supported by Aboriginal communities and met with concern by non-Aboriginal legal experts who question whether the decision adequately considered the rights of the girl and the duty of the government to protect the best interest of the child.

D.H.s decision to pursue traditional medicine for her daughter J.J. is her aboriginal right, wrote Justice Gethin Edward in his Nov. 14, 2014 decision.

And so Edward did not force the Brant Childrens Aid Society to apprehend the girl and undergo the chemotherapy her doctors at the McMaster Childrens Hospital said gave her a 90 to 95 per cent chance of survival her only chance of survival. He, instead, established that Section 35 of the Constitution protects the Aboriginal practice of using traditional medicine and the right of the mother to have her child treated with traditional medicine over chemotherapy.

The hospital has said it has no plans to appeal the decision. This is a world of competing sorrows, because no matter what you do somebody is going to be hurt or harmed or upset, says Margaret Somerville, the founding director of the Centre of Medicine, Ethics and Law at McGill University.

The case is distinct from other instances where courts have intervened to force medical treatment on minors not considered capable of making their own decisions often because of religious objections, such as in the case of Jehovahs Witnesses refusing to accept blood transfusions.

In those cases the courts essentially say to parents, your Charter right to freedom of religion does not override your childs right to life, says Cheryl Milne, the executive director of the David Asper Centre for Constitutional Rights at the University of Toronto. She adds that Canada, as a signatory of the UN Convention on the rights of a child, also has obligations to protect the life and health of children.

Edwards decision has left many legal experts in constitutional and family law questioning whether the rights of the child were properly weighed in this case.

What I find the decision is a little unclear on is the right of her child herself and seeing her rights as separate, says Milne. This is very much a decision based on rights of the aboriginal community as opposed to the right of the individual child and the right of parent to make decisions about the child.

If you look at the cases in this area which are not involving Aboriginal children, in almost every case including ones with similar facts to this one, the courts would take the decision-making authority away from the parents, says Somerville.