Court finds indigenous family has constitutional right to utilize indigenous medicine

BRANTFORD – Among tears of joy and quiet sobs of relief this morning, a Brantford Judge announced his ruling that a Six Nations mother has the constitutional right to administer indigenous medicines to her child.

Justice Edward read aloud the Haudenosaune creation story and affirmed the belief of the Haudenosaune people – that all indigenous medicines spring forth from Skywoman and her subsequent final resting place on earth.

He also referred to a previous finding at the Supreme Court of Canada that established that in considering cases of First Nations rights that pre-contact evaluation of the culture at hand is imperative within proceedings to verify that the judgement does not infringe on a person’s constitutional right according the Constitution Act, 1982.

Justice Edward read aloud that the child’s mother is “deeply committed to her longhouse beliefs and her belief is that traditional medicines work. She has grown up with this belief. This is not an eleventh hour epiphany employed to take her daughter out of the rigors of chemotherapy. Rather it is a decision made by a mother, on behalf of a daughter she truly loves, steeped in a practice that has been rooted in their culture from the very beginning.”

Edwards also found that it was the family’s aboriginal right to pursue indigenous medicine, saying “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.”

He concluded by stating, “I cannot find that [the child] is in need of protection when her substitute decision-maker has chosen to exercise her constitutionally protected right to pursue their traditional medicine over the Applicant’s stated course of treatment of chemotherapy.” With that, the case was dismissed.

There were fears that the child could be apprehended and forced back into chemotherapy at McMaster Children’s Hospital, however the the judge dismissed the case – a victory for the family but also setting a precedence for other potential cases regarding the constitutional rights of indigenous people within the borders of the nation-state of Canada.

After just 11 days of chemotherapy the child experienced severe side effects, prompting the family to withdraw from chemo and initiate a holistic/indigenous treatment plan. Following that decision, staff at McMaster Children’s Hospital attempted to compel the child back into chemotherapy on their own. When that failed they contacted CAS, citing “medical neglect” of the child.

Brant CAS-Native Services Branch did their official investigation and did not find a child neglected or in need of protection. After informing McMaster Children’s Hospital of that finding, McMaster Health Sciences filed an application to the Ontario Court to seek the court to order CAS to apprehend the child.

The child has been doing well and continues on her course of treatment today.

McMaster Children’s Hospital released a statement this evening saying, “Hamilton Health Sciences (HHS) would like to acknowledge that this court case has been a difficult circumstance for everyone involved. Our motivation has always been and remains that this child receives life-saving medical treatment in a timely manner. The judgment today acknowledged that the process we chose was appropriate. We have always supported this family’s decision to use traditional aboriginal healing practices in conjunction with conventional medical treatment. We remain committed to support this child’s treatment with compassion and respect.”

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