{"id":1269,"date":"2014-12-01T19:58:38","date_gmt":"2014-12-01T19:58:38","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=1269"},"modified":"2018-08-31T18:53:23","modified_gmt":"2018-08-31T18:53:23","slug":"a-questionable-ruling-on-aboriginal-rights","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/a-questionable-ruling-on-aboriginal-rights\/","title":{"rendered":"A Questionable Ruling on Aboriginal Rights"},"content":{"rendered":"

As has been widely reported, an Ontario court has ruled that native parents have a right to deny their children life-saving medical treatment. The case of Hamilton Health Sciences Corporation v. D.H<\/em>.<\/a> concerned an 11-year-old child, J.J., who was diagnosed with leukemia in August 2014. Her treatment team determined that she had a 90%-95% chance of being cured with chemotherapy, but would almost certainly die without it. Shortly after the chemotherapy treatment began, J.J.\u2019s mother, D.H., withdrew consent for the treatment and sought to have J.J. treated solely with traditional aboriginal medicine. The hospital applied, pursuant to the Child and Family Services Act<\/em>, for an order that J.J. was \u201ca child in need of protection,\u201d which the act defines as including circumstances where \u201cthe child requires medical treatment to cure, prevent or alleviate physical harm or suffering and the child\u2019s parent \u2026 refuses \u2026 the treatment.\u201d<\/p>\n

 
\nThe case came before Justice Edward of the Ontario Court of Justice, who dismissed the hospital\u2019s application. Despite the clear wording of the statute, the court found that J.J. was not a child in need of protection because D.H. had a \u201cconstitutionally protected right\u201d to \u201cpursue traditional medicine over \u2026 chemotherapy.\u201d The consequence of the ruling, according to every knowledgeable medical professional, is that J.J. will most likely die.<\/p>\n

 
\nThere will always be cases that produce disagreeable results, and Hamilton Health<\/em> is undoubtedly one of them. But what makes this decision especially problematic is that it was arguably a misapplication of the law that could have been avoided.<\/p>\n

 
\nFirst, the decision completely ignores binding precedent from the Supreme Court of Canada that is directly on point. In B.(R.) v. Children\u2019s Aid Society of Metropolitan Toronto<\/em><\/a>, two parents refused to consent to a life-saving blood transfusion for their infant daughter on the basis that it violated their religious beliefs as Jehovah\u2019s Witnesses. The Supreme Court found that the relevant provisions of the Child Welfare Act (now the Child and Family Services Act) imposed a reasonable limit on the parents\u2019 religious beliefs and their right to raise their child as they saw fit.<\/p>\n

 
\nJustice Edward did not address the precedent in B.(R.).<\/em> Instead, the decision is based entirely on section 35 of the Constitution Act, 1982,<\/em> which affirms \u201cexisting aboriginal \u2026 rights.\u201d His honour found that utilizing traditional medicine is an \u201cintegral\u201d component of aboriginal culture, and should therefore be recognized as a constitutionally protected right.<\/p>\n

 
\nThe flaw in this analysis is that D.H. had not been denied traditional medicine. In fact, the hospital had supported the use of traditional medicine in conjunction with chemotherapy. The right that D.H. sought, and that has now been granted, was not to practice traditional medicine for herself; it was to refuse modern Western medicine for her daughter. There was no evidence before the court that eschewing scientifically based medicine is itself an \u201cintegral\u201d aspect of aboriginal culture, to say nothing of eschewing it on behalf of one\u2019s child where near-certain death is the alternative.<\/p>\n

 
\nEven if section 35 does include some right to provide one\u2019s child with traditional medicine, that right must be read in light of section 15 of the Charter, which guarantees equality under the law and equal protection of the law without discrimination. Any other child in J.J.\u2019s position would have been deemed \u201cin need of protection\u201d under the Child and Family Services Act<\/em>, and the necessary implication of Hamilton Health<\/em> is that native children are not afforded the same protection under the statute as non-native children. Constitutional provisions must be read in harmony with one another, and it simply cannot be the case that section 35 enshrines a \u201cright\u201d that would deny equality to a most vulnerable segment of society, and thereby strike at the very core of what section 15 protects. The Constitution cannot implicitly permit what it expressly forbids.<\/p>\n

 
\nThe other flaw in Justice Edward\u2019s analysis is that he treats section 35 as conferring \u201cabsolute\u201d rights simply because section 35 is outside the Charter and is therefore not subject to the \u201creasonable limits\u201d imposed by section 1. To be sure, the Supreme Court has never treated section 35 rights as being absolute and has even established a test for when the government may fairly \u201cextinguish\u201d an aboriginal right. Justice Edward does not discuss or apply this test and, instead, reasons from the false premise that if a right is not expressly limited by section 1 of the Charter, then it is not subject to any limits at all.<\/p>\n

 
\nEarly indications are that the hospital will not be appealing the decision, which is certainly its prerogative. There are a number of reasons why parties opt not to appeal, most commonly because of the added legal costs. In the present case, there may be an added consideration: by the time an appeal is heard, J.J.\u2019s health may have further deteriorated such that the prospect of chemotherapy would no longer provide the same assurances. But should the hospital choose not to pursue an appeal, it will certainly not be for lack of a good legal argument.<\/p>\n

 <\/p>\n

This article was originally published<\/a> by the National Post and is being reprinted courtesy of the National Post: www.nationalpost.com
\n<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

As has been widely reported, an Ontario court has ruled that native parents have a right to deny their children life-saving medical treatment. The case of Hamilton Health Sciences Corporation v. D.H. concerned an 11-year-old child, J.J., who was diagnosed with leukemia in August 2014. Her treatment team determined that she had a 90%-95% chance …<\/p>\n","protected":false},"author":2,"featured_media":1274,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[35],"tags":[124,58,45,134,137,136,135],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/1269"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=1269"}],"version-history":[{"count":6,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/1269\/revisions"}],"predecessor-version":[{"id":1278,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/1269\/revisions\/1278"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/1274"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=1269"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=1269"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=1269"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}