Wisdom has prevailed, for once. "J.J.," an 11-year-old girl who lives in the Six Nations reserve in Ontario and is suffering from leukemia, will now receive both chemotherapy and traditional aboriginal medicine, rather than becoming the subject of a long conflict in the courts.
Last November, Justice Gethin Edward of the Ontario Court of Justice made an extraordinary decision, in which – to all appearances at the time – he held that the recognition of aboriginal and treaty rights in the Constitution Act, 1982, meant that an aboriginal child, together with her parents, could refuse medical treatment for her potentially fatal disease – in direct contradiction to medical advice and to the court's own responsibility to protect children, even against the will of their parents.
For a time, J.J.'s mother took her to a commercial holistic healing centre in Florida, with little or no connection to either modern or traditional medicine.
But on its face, that section of the Constitution Act has nothing to do with medical treatment, aboriginal or conventional.
After that, Makayla Sault, another 11-year-old aboriginal girl, died in January. She had lived in another Ontario reserve, but, in an uncanny coincidence, she was also suffering from leukemia, and she and her parents did not want to continue her chemotherapy treatment at the same hospital, in Hamilton. In both cases, the regional Children's Aid Society had been unwilling to try hard to bring the children back to the hospital.
These events rightly aroused vigorous indignation. There were calls for an appeal by the provincial government, which might well have taken too long to save J.J.'s life. Meanwhile, after a time of remission, her leukemia returned in March. She and her family sensibly chose to resume the chemotherapy.
Justice Edward has now agreed to clarify his decision, so that the court's authority over children in need of protection will be reaffirmed. The reworded judgment is convoluted – as in many negotiated settlements – but there is little reason to believe that the court's "parent of the country" power will emerge severely damaged.
The episode is still partly a tragedy. J.J now has real hope, but nothing will bring Makayla Sault back to life.