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Nelligan O’Brien Payne gratefully acknowledges the contribution of Melinda Andrews, Student-at-Law in writing this blog post.

The recent Ontario Court of Justice decision in Hamilton Health Sciences Corp v DH received considerable media coverage. The Court recognized that members of the Six Nations of the Grand River (‘Six Nations’) have a constitutionally protected Aboriginal right to practice traditional medicine. Six Nations members may choose this treatment for their children regardless of whether such practices are proven to work based on the “western medical paradigm.”

The decision has conjured up a range of contentious reactions:

  • Indigenous parents should be scrutinized for their ability to make decisions in the best interests of their own children;
  • “western” approaches to medicine are superior, while choosing alternate treatment is a refusal of proper medical care; and
  • the unique rights of Indigenous people, protected under section 35 of the Constitution Act, 1982 are irrelevant.

These reactions miss the underlying point of the decision: Indigenous people have distinct constitutional rights that protect the ability to make decisions based on their own traditional values, experiences, and practices, even where those decisions are not in line with the ideals of non-Indigenous Canadians.

The decision involves difficult circumstances

A careful read of the facts in Hamilton Health help to understand why the choice to pursue traditional medicine is available to Indigenous Canadians.

In August 2014, “JJ” was diagnosed with high-risk acute lymphoblastic leukemia, and was treated with a 32 day course of chemotherapy at McMaster Children’s Hospital. After 12 days, JJ’s mother withdrew consent to continue the chemotherapy to pursue traditional medicine.

As a member of Six Nations, JJ’s mother has a strong faith in her traditional longhouse culture. She was raised as a traditional longhouse believer and integrates these beliefs into her family’s daily life. Her family’s belief that traditional medicines work is an integral part of their life and defines who they are.

The hospital reported JJ’s mother to the Brant Family and Children’s Services (‘Children’s Services’). No protection concerns were identified by Children’s Services. Instead, JJ’s mother was found to be a devoted parent concerned only with doing the best for JJ, a view the hospital staff also shared of JJ’s mother.

Children’s Services declined to apprehend JJ, and so the hospital brought an application to compel Children’s Services to intervene. The Court had the authority to compel Children’s Services to intervene if it found reasonable grounds that JJ required protection because of her mother’s decision to discontinue the chemotherapy. If so, Children’s Services could apprehend JJ from her parents’ custody and bring her to the hospital for the duration of her treatment.

An Aboriginal right to pursue traditional medicine was recognized

The Court found that the mother’s decision to pursue traditional medicine over the hospital’s proposed chemotherapy treatment was within her Aboriginal right to practice traditional medicine. As a result, JJ did not require protection.

The use of traditional medicine by Six Nations members met the test established by the Supreme Court of Canada in R v Vanderpeet to be recognized as an Aboriginal right. Put simply, it is a practice that arose prior to European contact, and one that is still practiced today as an integral part of the Six Nations’ distinctive culture, as it has been for centuries.

What to take away from this?

Choosing traditional medicine is not a refusal of treatment.

The Supreme Court of Canada recognized in Reference re Secession of Quebec that we have constitutional protection for certain rights, such as Aboriginal rights, to “ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority.”

JJ’s mother did not refuse medical treatment for her daughter, but instead chose to pursue traditional medicine based on her culture and traditional longhouse beliefs. The Court in Hamilton Health clearly recognized this, noting that the decision was not “an eleventh-hour epiphany employed to take her daughter out of the rigors of chemotherapy, but instead was a decision by a mother, on behalf of a daughter she truly loves, steeped in a practice that has been rooted in their culture from its beginnings.”

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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