These are the details of a case that was recently argued in the Ontario Court of Justice. There is precedent in the Canadian legal system for disregarding the express wishes of parents who are also a child’s surrogate decision maker. For example, children of Jehovah’s Witnesses will continue to receive blood transfusions despite the fact that the tenets of their parents’ faith prohibit such a procedure. Why not override the mother’s decision in this case then, which seems so similar?
J.J. and her mother, D.H., are both members of The Six Nations of the Grand River, the largest First Nation band in Canada. In Canada, the rights of aboriginal peoples are protected under Section 35 of the 1982 Canada Act. The text of this act states:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “Aboriginal Peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
35(1) has been understood to encompass all rights that existed prior to the creation of the Canada Act that can be demonstrated to be centrally important to the continued culture and lifestyle of aboriginal peoples. That is, those rights possessed before European settlement of Canada that are central to the traditions of aboriginal peoples are to be both recognized and affirmed. ...
D.H. withdrew J.J. from treatment in order to pursue a course of traditional aboriginal medicine [1]. Given that the use of traditional medicine is a centrally important and continuing practice, it was deemed to be protected under 35(1) of the Canada Act. For this reason, the case to have J.J.’s status changed to a child in need of protection was dismissed. No party in the dispute believes that D.H. is an unloving mother or that other aspects of J.J.’s life could warrant such a status. The only concern—and it is clearly a big one—is that the result of D.H.’s rejection of chemotherapy is the likely death of her child.
The obvious question is: Should the Ontario Court have ruled in the way it did? I think the answer is No, but it’s important to be careful. The history of Canada’s treatment of aboriginal peoples is abhorrent, and some feel that any other ruling would have been a step towards the erosion of rights that are justifiably protected under the Canada Act. It is easy to see why one might worry about this. The traditional medical practices of The Six Nations are centrally important to their culture. If the court had overridden the wishes of the mother, that might have been seen as a legal precedent for denying traditional medical practices more generally. That would surely be unjustified.
But it is important to acknowledge that we know how the Court would have responded if the cultural practices in question were those of any non-aboriginal group. The parents’ decision as a surrogate would not have been respected and the child would have been treated. The understandable caution taken in this case (if we want to call the judge’s reading of 35(1), which is undoubtedly an extension of previous interpretations, caution) is a result of the awareness of previous wrongdoing. But, the overriding of parents’ decisions in other cases doesn’t amount to some form of legal prohibition on the practice of the tradition the tenet of which was in conflict with the proposed treatment. Nor does it diminish the capacity of the parents to bring the child up in their faith or cultural tradition. Nor does it indicate any malice towards the group in question. Rather, overriding the parents’ decisions amounts to the state asserting that, in the case in question, it is the child’s wellbeing that matters most. And this is just as it should be.