An 11-year-old girl has been condemned to die. A second will likely follow suit. And then how many more?
How does anyone dare to call this a victory?
On Friday, Ontario Court Justice Gethin Edward rejected the pleas of McMaster Children's Hospital to compel child-welfare authorities to intervene and force J.J., a member of the Six Nations of the Grand River community who is suffering from leukemia, to resume chemotherapy. Without the treatment, the hospital argued, she has no chance of survival; with chemo, she has a good chance of being cured.
The judge ruled that, because of her aboriginal status, J.J.'s mother D.H. has a constitutional right to refuse chemotherapy and "pursue traditional medicine" on the child's behalf. (The family cannot be identified because of a publication ban.)
This is being hailed as a precedent-setting decision for First Nations. It may be a legal victory of sorts, an affirmation and expansion of Section 35 of the Constitution Act of 1982, which guarantees aboriginal rights, but it's a hollow one if a child will suffer and die.
What we should retain from this case – a case that never should have ended up in court – is that everyone failed to protect a child in need and, by extension, we have failed every child. (There is another eerily similar case unfolding, that of 11-year-old Makayla Sault of New Credit First Nation, but in the court of social media.)
In August, when J.J. was diagnosed with acute lymphoblastic leukemia, she began treatment and underwent 10 days of the planned 32-day course of chemotherapy before her parents rejected the "Western paradigm of medicine" and declared chemo to be poison.
Indeed, chemotherapy is poison – poison that kills cancer cells. It's horrible for every child, aboriginal or otherwise. It looks like the hospital did not adequately assuage the parents' fears and could have been more culturally sensitive. When it sought to force the girl back into treatment by legal means, it set up an adversarial relationship.
But say this for McMaster Children's: They put the child first, even though they knew pursuing the case would cause them untold grief. Hopefully, they will appeal the ruling.
The child welfare agency, Brant Family and Children's Services, failed J.J. too. They decided she was not a "child in need of protection" because she had loving parents, and tried to fob off the decision about forced treatment to others. But a child welfare agency has one job: to protect the welfare of children. Anything else is a dereliction of duty.
The court failed J.J. too, and spectacularly.
In similar cases, where parents have refused life-saving medical interventions for religious reasons (such as Jehovah's Witnesses refusing blood transfusions) or because they reject mainstream medicine for whatever reason, the courts have been quick to intervene and compel treatment.
But in this case, the court decided that the parents' aboriginal rights take precedence over the life, liberty and security of an individual child. A judge's role is often to find the proper balance between conflicting rights; in this case, the scales of justice tipped the wrong way.
Worse yet, the court afforded the parents the right to opt for "traditional medicine" without defining that term. In fact, Judge Edward said the details of treatment (such as whether it actually works) are irrelevant; he essentially gave the parents carte blanche to do as they please. That's wrong because a child's life hangs in the balance. (And one of the more disturbing aspects of this case is that J.J.'s alternative "treatment" has been at Florida's Hippocrates Health Institute, a "holistic healing centre," with a regime of massage and organic vegetables.)
There is no question that horrible abuses and injustices have been rained upon First Nations and their children, in particular – consider the residential schools and the gross overrepresentation of aboriginal children in Canada's child welfare and foster care systems.
But treating children like J.J. and Makayla for cancer – even though it evokes those horrific images of children being snatched from their parents once again – is not one of those abuses. On the contrary.
If a non-aboriginal child had been in the same situation as J.J., she would almost certainly be getting treatment now. Every child needs to be protected from blatantly unreasonable acts by their parents, even well-intentioned ones.
The affirmation of aboriginal rights should not condemn children to second-class treatment and death.
A previous version of this story incorrectly stated Section 35 of the Charter of Rights and Freedoms. This has been changed to Section 35 of the Constitution Act of 1982.
André Picard