Aboriginal rights are an elemental part of Canadian law. They are also a complicated part, a fact never made more clear than last week when an Ontario judge ruled that an innocent aboriginal girl must be allowed to die in the defence of those rights.
The decision is appalling and cries out for reversal. It is tainted by an overwrought defensiveness about the value of aboriginal culture. It runs counter to the traditions of Canada, whose statutes and court rulings have consistently placed the protection of children above the rights and personal beliefs of parents. And it leaves any rational person aghast.
The case involves an 11-year-old aboriginal girl, identified only as "J.J.," with acute lymphoblastic leukemia. She was 10 days into chemotherapy when her mother pulled her out and took her to a commercial holistic healing centre in Florida. The treating hospital went to court to force the local Children's Aid Society to take the girl from her family so it could continue the chemo treatment. With chemo, the hospital says J.J. has a 90 to 95 per cent chance of survival. Without it, she will die. But because she is native, Ontario Court Justice Gethin Edward refused the application.
"I cannot find that J.J. is a child in need of protection when [her mother] has chosen to exercise her constitutionally protected right to pursue their traditional medicine over the [hospital's] stated course of treatment of chemotherapy," he said.
The judge is referring to Section 35 of Constitution Act, which enshrines aboriginal rights that existed prior to contact with Europeans. Normally, that means the right to occupy and use land. Now Judge Edward has stretched the section to create an aboriginal right to traditional medicine, arguing that because 16th-century native Canadians treated illnesses with slippery elm and turkey rhubarb root, 21st-century natives must be allowed to do the same, regardless of any medical advances in the interim.
In fact, said the judge, it is not even relevant that traditional medicine is not effective compared with modern medical outcomes. "A right cannot be qualified as a right only if it is proven to work by employing the western medical paradigm," he said. "To do so would be to leave open the opportunity to perpetually erode aboriginal rights."
It is hard to believe that anyone could be so determined to protect a right that they cannot see the agony J.J. will endure. Without chemotherapy, a young girl's life is going to be ended by an entirely treatable medical condition. Would a parent in 16th-century Canada whose child was dying from a painful ailment have turned down the opportunity to save her, had it existed?
A previous version of this editorial said incorrectly that the judge was referring to Section 35 of the Charter of Rights and Freedoms. In fact, it is Section 35 of the Constitution Act of 1982.