Justice Edward confirms family’s right to use traditional medicines

On November 14th, 2014 in the Brantford Ontario Court of Justice, to an overflowing courtroom, Justice Gethin Edward read aloud his reasons for judgment in the case that felt like it should have been named Hamilton Health Sciences Corporation versus “Everything that we know to be good and right in this world. “

At both the beginning and the end of his reasons, Justice Edward acknowledged that this was a very challenging case. The story was one of a beautiful young Kanienkehake girl whose life changed suddenly this past summer when she was diagnosed with acute lymphoblastic leukemia.
The judge emphasized that at no time throughout the case had anybody challenged or questioned this child’s mother’s dedication or love for her child or her ability to care for her daughter. The only issue was that this mother had to make life and death decisions for her daughter and the hospital did not agree with the decision to end chemotherapy to pursue treatment through use of traditional Onkwehonwe medicines.

The doctor’s letter that commenced the involvement of Brant Families and Children’s Services is quoted as saying, “It is with grave concern that I report the medical neglect (of this child).” The judge states that for his consideration in this case were the questions of “whether this Court is the appropriate forum and what effect section 35 of the Constitution Act, 1982 has in this Court’s deliberations.”

Justice Edward ruled that, given the evidence provided by the paediatric oncologist, this child did not have capacity to make the life and death decisions that needed to be made. As such, this establishes the mother as the substitute decision maker. In exploring whether this court was the proper forum to hear this case, he referred to the case of T.H. v. Chldren’s Aid Society of Metropolitan Toronto et al, which establishes that given the life and death nature and often limited time frames of these types of decisions, the proper forum is the Ontario Court (Provincial Division). Brant CAS had felt that this was not a child protection case and that the matter needed to be heard before the Consent and Capacity board as outlined in the Health Care Consent Act 1996.

The judge had to decide whether this child was in need of protection given the hospital’s perception of “medical neglect.” This was not an issue of a mother refusing to seek medical treatment for an ill child. At issue was the clash between two very different worldviews. The hospital believed that the child was at risk of dying from a curable disease, but the cure is chemotherapy. The mother tried chemotherapy but the side effects of injecting poison into her daughter’s body were unbearable.

The family made an informed choice to remove the child from chemotherapy and to utilize traditional medicines, which are known by our people to aggressively fight cancers without the same harsh side effects as chemotherapy. To mainstream doctors, it was a challenge for them to accept this mother’s perspective given that there was no scientific evidence to substantiate her belief that traditional medicines work. The Court in this case was asked to consider whether the use of traditional medicines could be understood to be an existing aboriginal and treaty right protected under S. 35 of the Constitution Act, 1982.

Justice Edward summarized the evidence he heard that established that traditional medicines have long been an integral part of Haudenosaunee culture. He noted that the medicines are mentioned in the creation story. He was further informed that the on-reserve, mainstream-trained physicians today continue to rely on the support of traditional medicine practitioners in their practice.

Justice Edward’s voice shook a little as he read an excerpt from Christopher Jock’s article “Spirituality for Sale: Sacred Knowledge in the Consumer Age” that had been used as evidence of the integral nature of the use of medicines. That excerpt is worth quoting here. Jock writes, “Traditional ceremonies and spiritual practices…. are precious gifts given to Indian people by the Creator. These sacred ways have enabled us as Indian people to survive – miraculously – the onslaught of five centuries of continuous effort by non-Indians and their government to exterminate us by extinguishing all traces of our traditional ways of life. Today, these precious sacred traditions continue to afford American Indian people of all [nations] the strength and vitality we need in the struggle we face every day; they also offer us our best hope for a stable and vibrant future. These sacred traditions are an enduring and indispensable “life raft” without which we would be quickly overwhelmed by the adversities that still threaten our survival. Because our sacred traditions are so precious to us, we cannot allow them to be desecrated and abused.”

Justice Edward concluded that the use of traditional medicines satisfied the test set out in R. v. Van der peet 109 CCC (3d) 1, and that the right to use traditional medicines is therefore an aboriginal right that must be protected in this case. Justice Edward further noted, in paragraph 80 of his reasons, that “…I would reiterate how the evidence points to D.H. as being deeply committed to her longhouse beliefs and her belief 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 is rooted in their culture from its beginnings.”

Justice Edward is a seasoned judge with roots at Six Nations. He is near retirement and has recently put great effort into establishing the Gladue Court in Brantford. The Gladue Court has already made significant strides in affording opportunity to First Nations offenders to have their unique circumstances heard and accommodated through the sentencing process.

This case is being discussed nationwide and is said to be precedent setting. I would submit that the outcome is proof that our medicines do work.

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