Protecting the health of the child is a justifiable infringement of aboriginal right

As reported by CCLA RightsWatch blogger Oluwatobi, in Hamilton Health Sciences Association v D.H., et al., 2014 C297/14E the Ontario Court of Justice ruled that an aboriginal parent’s decision to remove her daughter from chemotherapy was protected by the mother’s aboriginal rights. The mother believed the chemotherapy to be toxic and wanted her child to begin healing consistent with her longhouse traditions. Doctors testified that the child would have a 85-90% chance of recovery with chemotherapy and that in the absence of treatment there was a probability the child would die. Nonetheless, the Ontario Court of Justice said the child was not in need of protection as understood by section 40(4) of the Child and Family Services Act, because the mother’s decision was shielded by section 35 of the Constitution Act, 1982. While this is heralded as an advancement of aboriginal rights under the Canadian constitution, affirming the significance of aboriginal healing practices, the risk of a child’s death appears galling.

The right to refuse consent to medical treatment is fundamental to our legal system and medical practice, regardless of the reason that treatment is refused. But where that consent to treatment is refused by a parent on behalf of a child — especially where that child is young — it raises significant concerns. Dealing with a child necessarily invokes a ‘best interests’ test in our judicial system, which is not concerned with the interests of the parent; rather it is concerned with the interests of the child. While there are obvious, fundamental interests in protecting the relationship of the child to one’s familial heritage, including religious or cultural practices, a high risk of harm or death will militate against a mother’s refusal of consent. That would have to be assessed on a case-by-case basis, even where the child appears with a similar underlying condition (e.g., cancer). We see this reflected by numerous cases where parents refuse treatment for a child due to religious reasons.

I can conceive of cases, especially where the risk of death is low, where the best interests of the child would actually be better served by alternative medical practices. This could be due to its importance to a child’s relationship to his or her parents’ culture, especially aboriginal heritage, even though that alternative care might not be empirically proven to have salubrious effects. A child’s connection to their familial heritage and culture is an integral component of the best interests test that needs to be duly respected.

However, the court did not proceed to the best interests test. Instead, it struck the case down at the first stage where it determines whether a child is in need of protection. Only after a child is in need of protection under the Child and Family Services Act will the court consider the best interests of the child. The best interests tests guides the court with assessing how he or she should be treated while in the protection of Child and Family Services. Normally, as provided by section 37(2) of the same act, where a parent refuses or is unable to consent to a child’s treatment resulting in the risk of harm or death, a child could be considered in need of protection. What was determinative for the court in this case was the mother’s aboriginal rights under the Constitution Act, 1982.

The fact that the mother is aboriginal renders this a totally different beast, legally. That is because section 35 of the Constitution Act, 1982 protects aboriginal and treaty rights from violation by the government or private parties. It reflects the sovereignty of the aboriginal people, attracting distinct legal and constitutional status over other minority groups. As the Supreme Court stated at paragraph 46 of R. v Van der Peet, an aboriginal right is protected if: “[the] activity … [is] an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.” The court was satisfied that aboriginal healing practices was such a practice or tradition “integral to the distinctive culture” of the Six Nations of the Grand River Valley that was also central and significant part of the longhouse aboriginal peoples’ distinctive culture. The court ruled that because aboriginal rights could not be limited like rights found under the Canadian Charter of Rights and Freedoms, the court found the aboriginal right trumped any suggestion that the child was in need of protection. To suggest that the risk of death trumped the aboriginal right to carry out longhouse traditions would be a limit.

Nonetheless, I find it hard to reconcile this with the jurisprudence on section 35. In determining whether an infringement has occurred, the Supreme Court in R. v Sparrow and Nova Scotia Court of Appeal in R. v Bernard make it clear that we should look to whether the limitation is reasonable, among other factors. As the court stated in R. v PaulR. v Seward, and R. v Badger, where a law is designed for the purpose of enhancing safety it will usually be found to be a reasonable limitation. It could be similarly argued that the purpose for limiting the aboriginal right to traditional healing practices is to enhance the safety of children who face a significant risk of harm or death when a parent refuses or is unable to consent to medical treatment. This should attract a characterization of being reasonable suggesting there is no infringement.

Further, assuming there is a prima facie infringement perhaps due to undue hardship or denial of a preferred means of exercising the aboriginal right, prima facie infringements can be justified in certain circumstances. As the court stated in R. v Bernard and R. v Sparrow, aboriginal rights can be infringed where the court has considered if:

  1. there is a valid legislative objective;
  2. that legislative objective is implemented in a manner consistent with the honour of the Crown in dealing with aboriginal peoples;
  3. there is minimal impairment of the aboriginal right;
  4. where there is fair compensation if there is expropriation; and
  5. there has been consultation with aboriginal people.

Unlike the cases that have informed this analysis, we are not dealing with a criminal case in which the accused invokes section 35 to argue there was no actus reus; however, I believe the test can be analogously applied to the objective and effects of the Child and Family Services Act. In doing so, we might be able to determine that the infringement — of considering a child in need of care — is reasonable and thus not a prima facie infringement. If I am wrong and it does constitute a prima facie infringement, we might be able to determine that the infringement is justified because:

  1. It has a valid legislative objective of promoting the wellbeing and biological integrity of children;
  2. The Act is not implemented in a manner that arbitrarily takes children from their homes, thus violating the honour of the Crown; and
  3. It is minimally impairing, since aboriginal heritage would play a significant component later during the best interests test.

After having undergone that analysis and concluded that section 35 does not bar a determination that the child is in need of protection, the court can begin a best interests test that I believe would be carried out similarly to what I described above.

In light of this, admittedly, brief analysis it is hard for me to see this right succeeding if it is appealed. While the rights of aboriginal peoples are deservingly paramount in Canadian society, invocation of the right will not always be determinative. The wellbeing of a child is better dealt with under the best interests test, where the analysis is conducted from the perspective of the child and not the parents. If we insist upon section 35 trumping this analysis, we risk putting aboriginal children outside of the Canadian legal system. Such a move seems irreconcilable with the rights of children in Canadian society. For that reason I think the interest of protecting the health of the child is a justifiable infringement of the aboriginal right, if there has been an infringement at all.

The written decision can be found here.