May 2015 Māori Law Review
Life or death, and traditional medicine – primacy of indigenous rights in the Canadian case of Hamilton Health Sciences Corp
Hamilton Health Sciences Corporation v DH
Ontario Court of Justice, Canada 2014 ONCJ 603
14 November 2014
Hamilton Health Sciences Corporation v DH
Ontario Court of Justice, Canada 2015 ONCJ 229
24 April 2015 (endorsement)
This case involved a child protection application made by the applicant hospital. The hospital's application arose from an aboriginal mother’s refusal to treat her daughter’s cancer with chemotherapy; instead, the mother wanted to use traditional medicine. The Court decided that it was the mother’s aboriginal right, as the child’s substitute decision maker, to use traditional forms of medicine. Subsequent to the Court’s 2014 judgment the family decided to utilise both traditional and Western medicine and the 2014 decision was amended by the Court after a further application by the parties.
Overview and result
|Life or death, and traditional medicine – primacy of Indigenous rights|
|Date||14 November 2014 and 24 April 2015|
|Case||Hamilton Health Sciences Corp v DH; Hamilton Health Sciences Corp v DH (2015 endorsement)|
|Citation||2014 ONCJ 603; 2015 ONCJ 229|
|Court||Ontario Court of Justice, Canada|
|Legislation cited||Canadian Charter of Rights and Freedoms, s 1 (Canada); Child and Family Services Act, RSO, c C 11, 1990, s 37, s 40, s 72 (Canada); Constitution Act, 1982, being Schedule B to the Canada Act 1982, s 35 (Canada); Health Care Consent Act, 1996, SO 1996, c 2, Sch A, s 4 (Canada); United Nations Declaration on the Rights of Indigenous Peoples, Art 24.|
|Cases cited||R v Van der Peet  2 SCR 507, 1996 CanLII 216 (SCC); Children’s Aid Society of Ottawa v S(C)  OJ No 5060 (Div Ct); Children’s Aid Society of Toronto v P(L) 2010 ONCJ 320; H(T) v Children’s Aid Society of Metropolitan Society of Metropolitan Toronto  OJ No 5607 (CJ); Church v. Church, 2003 CanLII 1942 (ON SC).|
|Overview and result||The applicant hospital made a child protection application given a mother’s refusal to treat her daughter’s cancer with chemotherapy; instead, the mother wanted to use traditional medicine. The Court decided that it was the mother’s aboriginal right, as the child’s substitute decision maker, to use traditional forms of medicine. Subsequent to the Court’s 2014 judgment the family decided to utilise both traditional and Western medicine.|
JJ, an 11 year-old girl from the Six Nations of the Grand River (an indigenous Indian band in Canada) was diagnosed with acute lymphoblastic leukemia. JJ’s initial testing indicated that she had a 90 to 95 per cent chance of being cured with chemotherapy. The specialists at the applicant hospital were not aware of any survivors of acute lymphoblastic leukemia who did not receive chemotherapy treatment. Initially, JJ undertook chemotherapy treatment, however after 12 days of treatment, JJ’s mother, DH, withdrew consent for the continuation of that treatment and proposed to pursue treatment in accordance with traditional medicine.
The applicant hospital took the position that JJ lacked the capacity to make such a life and death decision and it brought a child protection application under the relevant Canadian legislation, s 40(4) of the Child and Family Services Act (“the Act”).
The first question for the Court was whether the Court was the appropriate forum for such a dispute.
The respondent argued that JJ was not a child in need of protection, but rather a child in need of a diagnosis. As such, the case should be heard before the Consent and Capacity Board. Additionally, the respondent argued that JJ’s capacity was never properly assessed, nor was the specialist’s finding of incapacity ever properly articulated to JJ or DH.
The applicant hospital said that it had determined that JJ was not capable of making an informed decision. Further, as DH was JJ’s substitute decision-maker, by deciding to discontinue JJ’s chemotherapy, that decision placed JJ at medical risk and thus JJ was a child in need of a protection.
Justice Edward accepted that the specialists were correct in concluding JJ lacked capacity to make such a life and death decision as to discontinuation of chemotherapy. This was because the specialists said that JJ lacked the ability to understand her diagnosis, its therapy, and the consequences of stopping chemotherapy. Based on Canadian precedent, the Court held that the Court, rather than the Consent and Capacity Board, was the appropriate forum.
In applying s 40(4) of the Act, the Court stated that the real issue was whether there were reasonable and probable grounds to believe that JJ was a child in need of protection. The Court noted that the only applicable part of the s 37(2) definition section of “child in need of protection” was s 37(2)(e) which states that:
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 applicant hospital held that JJ was a child in need of protection in light of this definition.
The evidence was that DH, when discontinuing her daughter’s chemotherapy treatment, expressed her strong faith in her native culture and believed that pursuing traditional medicine would help to heal JJ. Additionally, the family comprised committed traditional longhouse believers who integrated their culture in their day-to-day living. As Edward J summarised: “their longhouse adherence is who they are and their belief that traditional medicines work is an integral part of their life”, not just an “11th-hour epiphany employed to take her daughter out of the rigors of chemotherapy”.
Justice Edward said, to assess the claim, the Court needed to consider the application of s 35(1) of the Constitution Act 1982 that states, “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
Therefore, Edward J was required to assess whether DH’s decision to pursue traditional medicine, as JJ’s substitute decision-maker, was in fact an aboriginal right to be recognised and affirmed.
Before answering this question, Edward J affirmed the following statement of Lamer J in the Supreme Court case of R v Van der Peet, 2 SCR 507 at :
In my view, the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status.
Justice Edward held, based on R v Van der Peet, that what was required is a practice, custom or tradition that is integral to its distinctive culture today, and that this practice, custom or tradition has continuity with the practice, customs and traditions of pre-contact times. His Honour held that in this case, the use of traditional medicines by Six Nations peoples was practiced prior to European contact and that it continues to form an integral part of who the Six Nations are today. As a result, Edward J held that it was an aboriginal right.
In a powerful conclusion, Edward J confirmed:
 ... [DH]’s decision to pursue traditional medicine for her daughter [JJ] is her aboriginal right. Further, such a right cannot be qualified as a right only if it is proven to work by employing the Western medical paradigm. To do so would be to leave open the opportunity to perpetually erode aboriginal rights.
As Edward J recognised in Hamilton Health Sciences Corporation v DH, the case involved the difference between life and death. However, in the end deference was given to the mother’s aboriginal right to use traditional medicine in the treatment of her daughter’s cancer. Importantly, Edward J recognised that it was inappropriate in moulding the scope of recognition of an aboriginal right, or upholding its application, to base that on a “Western medical paradigm”.
There has been a massive amount of media and legal interest in this case; while some purport it is a triumph of indigenous rights, others have claimed it was wrongly decided in light of binding precedent. While I do not purport to be an expert on Canadian constitutional law, some brief comments are made here before I go on to outline the 2015 addendum that Edward J issued to augment his 2014 judgment.
Some academics have criticised that the case ignored the Supreme Court of Canada case of B(R) v Children’s Aid Society of Metropolitan Toronto  1 SCR 315. That case involved an infant who required a life-saving blood transfusion; however, the Jehovah’s Witness parents refused such treatment. The Supreme Court of Canada held that relevant provisions of the Child Welfare Act 1980 (now the Child and Family Services Act) imposed a reasonable limit on parents’ religious beliefs and parents’ right to raise their child in accordance with those beliefs under the Canadian Charter of Rights and Freedoms (“Canadian Charter”).
Justice Edward was right to state that s 35 of the Constitution Act is not subject to s 1 of the Canadian Charter, which is the Charter’s “reasonable limits clause”. While s 35 is outside of that framework, this does not mean that the aboriginal rights affirmed and recognised by s 35 are absolute.
The Canadian Supreme Court in R v Sparrow recognised a two-step “justificatory scheme” whereby the government is required to bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected under s 35(1).
The first question is whether the legislation in question has the effect of interfering with an existing aboriginal right. This first question involves asking whether the “limitation is unreasonable”, whether it imposes “undue hardship” and whether it denies “the holders of the right their preferred means of exercising that right”.
If a prima facie infringement is found, the second step requires the government to prove justification for any limitations. The inquiry involves considerations such as: whether there is a valid legislative objective; that the legislative objective is implemented consistently with the honour of the Crown in dealing with aboriginal peoples; whether there is minimal impairment of the aboriginal right; and whether there has been consultation with aboriginal people.
As to the first step of finding whether there is a prima facie breach one may argue that the limitation imposed by the Child and Family Services Act is not unreasonable; instead, it promotes a fundamental objective of promoting the welfare and best interests of the child. This objective is not only a cornerstone of many jurisdictions' child welfare laws, but is also an objective affirmed as fundamentally important by art 3(1) of the United Nations Convention on the Rights of the Child. Thus, it could be argued that there was no prima facie infringement of the right.
As to the second step, even if there was a prima facie infringement, it might be argued that such an infringement is justifiable. Another commentator, Joshua Shaw, has provided an analysis of whether it is justifiable. Shaw argues that the infringement could be justified for various reasons: first, the Act has a valid legislative objective of promoting the wellbeing and biological integrity of children; secondly, the Act is not implemented in a manner that arbitrarily takes children from their homes, thus violating the honour of the Crown and the Crown’s fiduciary relationship to the aboriginal people; thirdly, it is minimally impairing, since aboriginal heritage would play a significant component later in the best interests test.
One criticism of Shaw’s analysis is that it places so much weight on the Western medical paradigm in the justificatory analysis of any justified limitation of the aboriginal right to use traditional medicine that, in effect, it places the Western paradigm in a privileged and, ultimately, superior space. A question remains whether a medical technique being proven to work according to the Western medical paradigm is the right standard for limiting a child’s aboriginal right to use traditional medicine. One of the dangers is that a child’s aboriginal right to practice traditional medicine is only exercisable insofar as it fits the Western medical paradigm – this significantly curtails the right.
Regardless of the outcome of the justificatory scheme introduced by the Supreme Court of Canada in R v Sparrow, it is concerning that Edward J made no mention of this case. It is therefore arguable that the case was decided per incuriam (through lack of care). Instead of claiming that DH’s aboriginal right was absolute as it was not subject to s 1 of the Canadian Charter, Edward J was required to undertake a more careful and nuanced analysis under the test created in R v Sparrow. While Edward J can be commended for championing aboriginal rights, he did so in such a way that was contrary to binding authority.
Application to New Zealand
Section 20 of the New Zealand Bill of Rights Act 1990 affirms the rights of minority groups to practice their culture and to profess and practice their religion. However, s 4(1)(b) of the Care of Children Act 2004 (COCA) makes the “welfare and best interests” of the child the paramount consideration when making all orders under the Act.
Section 31 of the COCA allows for an eligible person to apply to the court for an order placing a child under the guardianship of the court or appointing any named person to be the agent of the court, either generally or for any particular purpose.
In light of the New Zealand statutory context, and as illuminated in cases dealing with medical procedures and children of Jehovah’s Witnesses, it is the author’s view that the result reached in Hamilton Health Sciences Corporation v DH may not be possible in New Zealand.
The case of Auckland District Health Board v Z (2007) 25 FRNZ 596 (HC) involved Jehovah’s Witness parents and their ill daughter. While Baragwanath J recognised a parent’s power as to decision-making in relation to a child’s medical treatment, his Honour noted that the COCA “emphasises that the welfare and best interests of the child are the sole focus of the consideration by the Court which may override parental rights” (at ). Additionally, as recognised in another case involving Jehovah’s Witnesses, Auckland District Health Board v E  NZHC 2154, although parents have a right under s 15 of the New Zealand Bill of Rights to manifest their religion, under s 4 of the COCA, that right does not allow acts or omissions likely to place the child’s life, health or welfare at risk (at ).
If Māori parents refused consent for their child to undergo chemotherapy (in circumstances similar to JJ’s) in favour of more traditional medicine (rongoā Māori), a New Zealand court may override their wishes. A court may conclude that while Māori guardians have a right under s 20 of the New Zealand Bill of Rights Act to practice their culture and use rongoā Māori, that right does not extend to permitting acts or omissions likely to place a child’s life, health or welfare at risk. Again, such an analysis risks placing the Western conception of “life, health or welfare” in a superior position to Māori conceptions of hauora (wellness).
On 24 April 2015, Justice Edward took the rare step of releasing an addendum to his decision in Hamilton Health Sciences Corp v DH (labelled an “endorsement”). The judge agreed to an application by parties to the case to add two paragraphs to his earlier judgment to clarify its meaning.
In his addendum decision Edward J made a number of points, including: first, the recognition and implementation of the right to use traditional medicines must remain consistent with the principle that the best interests of the child remain paramount; secondly any aboriginal right to use traditional medicine must be respected in any analysis of the best interests of the child; thirdly, the concept of the best interests of the child being paramount is consistent with the recognition of an aboriginal right to use traditional medicine; and fourthly, recognizing aboriginal rights correctly considers the principle of reconciliation between Indigenous and non-Indigenous Canadians.
In terms of JJ, after the original judgment the Government of Ontario became involved. Further, JJ’s health team was expanded to include a senior paediatric oncologist and a traditional Haudenosaunee Chief who is also a practitioner of traditional medicine. In March 2015, after a period of remission, JJ’s cancer returned and her family decided to continue using traditional medicine and to resume chemotherapy.
The Court’s April 2015 endorsement decision concludes with the following (at ):
The joint submission, that has been read into the record, notes how the province and the family collaboratively worked to form a health care team to bring the best both had to offer to address J.J.’s ongoing treatment. This approach recognizes the province’s acceptance of the family’s right to practice traditional medicine and the family’s acceptance western medicine will most certainly help their daughter. It is simply a recognition of what is in J.J.’s best interest. Such an approach bodes well for the future. It is also an approach that is reflected in Article 24 of the United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295, which states in part:
1. Indigenous peoples have the right to their traditional medicines and to maintain their health practices . . . Indigenous individuals also have the right to access, without any discrimination, to all social and health services.