Healthcare and First Nations
Shortly before final exams, the paranoia of crafting the perfect outline, and a rush to complete legal memos (I’m looking at you Torts) a landmark decision, that’s sure to land on a future public law exam, was handed down in Hamilton Health Services Corporation v. DH, 2014. In this case McMaster Children’s Hospital requested that Brant Family and Children’s Services execute an order to forcibly remove an 11 year old girl (referred to in court documents as JJ) with acute lymphoblastic leukemia from her parents who had withdrawn her from conventional medical treatment at their facility to pursue traditional healing.
The element that differentiated this case from other precedents such as A.C. v. Manitoba (Director of Child and Family Services), 2009 where parents who denied their children life-saving treatment saw them forcibly removed and then subjected to that treatment is that JJ and her parents are members of the Six Nations of the Grand River Reserve and have Indian Status. During the trial both sides agreed on the majority of concerns including whether JJ’s parents were loving and/or legitimately wanted her to receive treatment and argued on a sole point of contention regarding whether or not section 37 (2)(e) of The Child and Family Services Act, 1990 was applicable in this scenario.
Justice Gethin Edward examined the issue through a two-pronged test based partially on a formula established in Delgamuukw. British Columbia, 1997 that asked whether the disputed practice (traditional healing) was integral to First Nations identity and if it pre-dated European colonization in Canada. When giving his decision he stated that First Nations communities should be allowed to engage in traditional healing options that fell outside the “Western medical paradigm” and claimed that the First Nation’s people’s right to refuse medical treatment was an extension of section 35 of the Constitution Act, 1982.
Since McMaster Children’s Hospital has stated that it does not intend to appeal the decision this may very well set a new precedent in Ontario that would be part of a growing trend of controversial judicial decisions that extend First Nations rights. Within the last twenty years cases regarding: land title (Tsilhqot’in Nation v. British Columbia, 2014), resource development (Grassy Narrows First Nation v. Ontario (Natural Resources), 2014), fishing rights (R v. Marshall, 1999), and the establishment of a formula for determining if First Nations people have rights outside of Aboriginal title (Delgamuukw case v. British Columbia, 1997) have sided with First Nations claimants.
Although this decision is sure to foster debate about the legitimacy of extending section 35 of the Constitution Act, 1982 and in allowing parents to engage in alternative medical treatment to cure their child it will also force the Canadian public and federal government to address First Nations concerns. While it is easy to trot out statistics regarding comparative poverty rates, missing persons, incarceration, homelessness, and media misrepresentation it is incredibly difficult to encourage people to actually engage with and develop solutions to these issues. Historically, Canadian political parties and major figures ranging from Diefenbaker to Trudeau and Mulroney have only pursued selective policies of equitable treatment for First Nations people as an attempt to access/develop raw materials or undermine Quebec’s secession efforts. Indeed the few times where First Nations issues have been addressed independent of these have followed either national political controversy (residential school systems and the Meech Lake Accord) or paramilitary standoffs (the Oka Crisis).
This is the main value of this case. Although potentially polarizing, the fact of the matter is that this case (amongst many others) forces important issues within the First Nations community to gain traction in the contemporary Canadian mindset that might otherwise be ignored and pressures members of the legislature to (attempt) to address these problems. While it is overly optimistic to claim that this case will create a discourse on the subject, it may assist in an awareness of some of these issues.
James Omran (1L) is a contributor to Juris Diction.
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