A Canadian judge has ruled that a constitutional right exists for certain aboriginals in Canada to choose traditional medicines over physician recommended procedures.
In August 2014, J.J. (whose identity cannot be released) was diagnosed with acute lymphoblastic leukemia (A.L.L.), a form of cancer in the bone marrow. J.J. is a member of The Six Nations of the Grand River (“Six Nations”) in the Canadian province of Ontario.
Doctors at a local hospital believed J.J. had a 90-95% chance of recovery with chemotherapy. They deferred decisions regarding her course of treatment to her mother, as J.J. was deemed not to have the required capacity to consent. J.J.’s mother initially allowed the hospital to perform chemotherapy on J.J., but withdrew consent 12 days after treatment had begun. She informed doctors of the family’s plan to treat J.J. with traditional medicines, and has since taken J.J. to Florida to pursue these treatments.
Hospital staff asked a local children’s aid society to intervene. After an investigation, the agency declined as it felt J.J.’s mother was devoted to J.J. and was doing what she felt was best for her daughter.
The hospital subsequently sought a court order against the children’s aid society requiring it to bring J.J. to a “place of safety.” The hospital argued the decision of J.J.’s mother to discontinue chemotherapy for her daughter made J.J. a child “in need of protection” under subsection 40(4)(a) of Ontario’s Child and Family Services Act.
Representatives of the Six Nations provided submissions in the case, arguing the family had a constitutionally protected right to provide their daughter with traditional medicines. Specifically, section 35(1) of the Constitution Act, 1982 (the “Constitution”) states: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby reorganized and affirmed.”
In order to qualify as a constitutionally protected aboriginal right, the Supreme Court of Canada has held that “an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.” Furthermore, the activity must have existed prior to contact with European settlers and must not have been extinguished at the time Canada’s Constitution was entrenched in 1982.
From the evidence in J.J.’s case, the application judge determined that the Six Nations had a practice of using traditional medicines prior to European settlement and that this practice remains an integral part of its activities today. He therefore recognized an aboriginal right under section 35(1) of the Constitution to pursue traditional medicine.
The judge 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 hospital’s] stated course of treatment of chemotherapy.”
To date, the hospital has not decided whether to appeal. If the decision is not appealed, it will not bind courts in other Canadian provinces as the case was decided at a court of first instance.