Ontario Court rules that family of aboriginal girl with cancer can seek traditional medicine

The case of an aboriginal girl whose family elected to pursue traditional medicine instead of chemotherapy was decided in favour of the family's choice to pursue the treatment of their choice. Interestingly, although the case was framed as a contest between the application of either child welfare legislation or health care consent legislation, the case was decided on the basis of what the Applications Judge found to be the family's "Constitutional right" to pursue traditional medicine.

The application involved J.J., an 11 year old girl from the Six Nations of Grand River. As was widely reported, Hamilton Health Sciences Centre (the "Hospital") applied to the Ontario Court of Justice for an order finding J.J. to be a child in need of protection, and directing Brant Family and Children's Services, a children's aid society (the "Society") to apprehend J.J. The basis for the Hospital's application was that J.J had been diagnosed with acute lymphoblastic leukemia, which had a 90 to 95% chance of being cured with chemotherapy, but that J.J. had discontinued chemotherapy treatment in order to pursue traditional medicine. Accordingly, J.J. met the definition of a child in need of protection under subsection 37(2)(e) of the Child and Family Services Act, which reads as follows:

(e) 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 respondent Society argued that if J.J. was incapable of consenting to treatment, her mother D.H., as substitute decision-maker, was required to give or refuse consent according to the decision-making regime set out in section 21 of the  Health Care Consent Act, 1996. Accordingly, the Society argued that the case should be referred to the Consent and Capacity Board ("CCB"), to determine whether D.H.’s decision to discontinue chemotherapy treatment was an appropriate course of treatment for a substitute decision-maker to make.

Following previous cases, the Applications Judge determined that the Court, rather than the CCB, was the appropriate forum in which to determine the case. The Judge then noted that  subsection 35(1) of the Constitution Act, 1982 provides that "the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby reorganized and affirmed", and that this has been interpreted to mean that if a First Nation's practice is integral to its distinctive culture today, and that this practice arose during pre-contact times, the community will have demonstrated that the practice is an aboriginal right for the purposes of s.35(1). The Applications Judge ultimately concluded that traditional medicine, which continues to be practised on Six Nations as it was prior to European contact "forms an integral part of who the Six Nations are."

The Judge concluded therefore, that D.H.’s decision to pursue traditional medicine for J.J. was her aboriginal right. Whether such medicine could be "proven to work by employing the western medical paradigm" was immaterial. The Judge's concluded:

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.