Dr. Stacy Marjerisson paediatric oncologist at McMasters Childrens Hospital leaves the Ontario Court of Justice in Brantford behind a few First Nation supporters.Glenn Lowson/The Globe and Mail
Two weeks ago I met the mother of J.J., the Six Nations child suffering from leukemia, who had won a court battle to treat her daughter with traditional plant-based native medicines. Speaking at a hastily arranged late-afternoon session at the inaugural Indigenous Health Conference at the University of Toronto, she was powerful, articulate, intelligent and ferocious in her pride.
Speaking first in her own language before a sympathetic audience, as one might expect at a conference subtitled Challenging Health Inequities, she explained that she was a mother of 12 children and a healer, who knew what was best for her family. Three of her daughters, including J.J., were there to support her.
From the beginning I had been troubled by the hospital trying to set up a confrontation between the family and the Children's Aid Society, because it raised the horrific spectre of residential schools.
To me, this case was about respect and culture clash, not simply a situation in which a sick child needed protection from a neglectful, abusive or incompetent parent.
After all, J.J. was undergoing chemotherapy in hospital before the mother balked, took offence at what she felt were dismissals of aboriginal knowledge and powers, and withdrew her child.
The potential tragedy for J.J. is she might not get the life-saving treatment she needs in time for it to be effective. That is compounded by all the future aboriginal children who might be caught in a similar situation because of Justice Gethin Edward's precedent-setting legal decision acknowledging the constitutional rights of First Nations to practise traditional healing, not only on themselves, but their minor children. Is there a way to move forward?
In challenging J.J.'s mother's decision to end her daughter's medical treatment, I thought the pediatric oncologist should have gone to the Consent and Capacity Board instead of the local Children's Aid Society.
Established under Ontario's Health Care Consent Act, the CCB is unique in Canada as a third-party arbitration panel for disputes among incapacitated patients, their substitute decision makers and health-care providers. The CCB became briefly famous when two critical-care doctors at Sunnybrook Hospital determined further treatment of a patient named Hassan Rasouli was futile and wanted to remove him from life support against the wishes of his wife.
The case went all the way to the Supreme Court of Canada in 2013, where the doctors lost in a 5-2 decision because they had not taken the dispute to the CCB.
In fact, the Children's Aid Society agreed that the J.J. case should have gone to the CCB. Mark Handelman, the lawyer for the CAS, argued that very point before Edward in Family Court. The judge disagreed and instead made his now famous ruling. It is possible that somebody could appeal that part of the judge's ruling and take the case to a higher court.
More likely, says lawyer Anita Szigeti, an expert in consent and capacity law, is an appeal based on another part of Edward's "thoughtful, lengthy and complex" ruling. "This is an extremely complicated case in law, on the facts," she said in an e-mail, "because of the friable atmosphere of the politics of First Nations communities and aboriginal rights." However, she thinks, Edward in effect "struck down" a section of Ontario's Child and Family Services Act in relation to a First Nations parent or guardian choosing traditional healing or treatment, and he did so without inviting or allowing legal arguments on the issue or giving notice to the provincial Attorney-General that part of the legislation was being challenged. The "most efficient and definitive way" for these legal issues to be resolved, she says, would be for the Attorney-General, who has been silent in the wake of the decision, to refer the issue to the Court of Appeal for Ontario.
Meanwhile, J.J.'s mother, has agreed to consult with a new pediatric oncologist at a different hospital about the little girl's cancer treatment.
"This time," she told a small group session at the end of the conference, "I will be respected. The Court decision gave that to me."