The Ontario Court of Justice ordered that the Reasons for Judgment in this proceeding, issued on 14 November 2014, be amended to clarify that the best interests of the child remains the paramount concern. Such amendments were made on the motion of the Attorney General of Ontario, and supported by all other parties. Justice Edward concluded that the Court was not functus officio and that the proposed amendments would do no mischief to the earlier decision.

In the underlying proceeding, the Court held that an 11-year old Aboriginal girl named J.J. was not a “child in need of protection” within the meaning of the Child and Family Services Act as a result of the girl’s mother choosing to pursue “traditional medicine” over the applicant Hospital’s stated course of treatment (chemotherapy). The Court held that it was the mother’s Aboriginal right to pursue traditional medicine for her daughter. The decision of Mr. Justice Edward, indexed at 2014 ONSC 603, was summarized in our e-Newsletter of 27 November 2014.

There was no appeal of the order made in November 2014. According to the joint submission of the parties, the family and the Government of Ontario started working together to expand the “integrated health care team” for J.J., and such team was ultimately expanded to include a senior pediatric oncologist and a Haudenosaunee chief who is a practitioner of traditional medicine. JJ’s cancer returned in March 2015 and the family concluded that chemotherapy, along with traditional Haudenosaunee medicine, would be the next best step.

The parties asked the Court to clarify its November 2014 decision so that it is properly understood. The proposed amendments referred to best interests of the child as being paramount.

Edward J. concluded that such amendments could be made to the Reasons for Judgment, as the formal court order had not yet been entered, and that the relief sought by the parties did no mischief to his original Reasons. He held that one of the most telling pieces of evidence from the trial was the statement by JJ’s mother that “I will not let my baby die”. Implicit in those words was that JJ’s best interests were paramount. Edward J. also referred to a passage in Van der Peet about the principles underlying the doctrine of aboriginal rights. This passage not only explains why aboriginal rights exist, but speaks to “the enduring legacy of aboriginal peoples and how the core tenets of their culture and society have allowed them to flourish for centuries”. Children are considered gifts from the Creator. It therefore does no mischief to the November 2014 decision to recognize that the best interests of the child remain paramount.

The Court referred to the joint submissions of the parties and the collaborative approach taken. Edward J. stated:

This approach recognizes the province’s acceptance of the family’s right to practice traditional medicine and the family’s acceptance [that] western medicine will most certainly help their daughter. It is simply a recognition of what is in JJ’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 …

The Court allowed the motion and added the following paragraphs 83(a) and 83(b) to the Reasons for Judgment dated 14 November 2014:

[83(a)] But, implicit in this decision is that 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. The Aboriginal right to use traditional medicine must be respected, and must be considered, among other factors, in any analysis of the best interests of the child, and whether the child is in need of protection. Taking into account the Aboriginal right, and the constitutional objective of reconciliation and considering carefully the facts of this case, I concluded that this child was not in need of protection.

[83(b)]  In law as well as in practice, then, the Haudenosaunee have both an Aboriginal right to use their own traditional medicines and health practices, and the same right as other people in Ontario to use the medicines and health practices available to those people. This provides Haudenosaunee culture and knowledge with protection, but it also gives the people unique access to the best we have to offer. Facing an unrelenting enemy, such as cancer, we all hope for and need the very best, especially for our children. For the Haudenosaunee, the two sets of rights mentioned above fulfill the aspirations of the United Nations Declaration on the Rights of Indigenous Peoples, which states in Article 24, that “Indigenous peoples have the right to their traditional medicines and to maintain their health practices … Indigenous individuals also have the right to access, without discrimination, to all social and health services”.

The original order to dismiss the Hospital’s application, without costs, was not changed.

No link located. We thank Daphne Jarvis of BLG’s Toronto’s office, counsel for the applicant Hospital, for providing us with a copy of the Endorsement of Mr. Justice Edward and the joint submission of the parties.