In order to understand the judge reasoning and the position of the Six Nations community, it is important to view the decision through a historical lens, says Shin Imai, a law professor at Osgoode Hall who has spent the past four decades working in the area of indigenous rights.
She argues that one way to see the decision is that the interest in having Aboriginal rights upheld is outweighing the right to life for this child and I don see how they could have justified that because in the law there is a basic presumption in favour of life.
The judge wrote that a medical doctor on Six Nations, Dr. Karen Hill, works with Alba Jamieson, a traditional medical practitioner, demonstrating that traditional healing continues to be practiced on the reserve. He also wrote that the mother sought treatment for the child at an alternative care facility in Florida over the course of the hearing, though it unclear whether that facility provides traditional medicine.
Edward decision has left many legal experts in constitutional and family law questioning whether the rights of the child were properly weighed in this case.
courts have said the purpose of Section 35 is to reconcile First Nations or Aboriginal communities with the rest of Canada, says Imai. what has been obvious to non indigenous people as good ended in total disaster. (In residential schools) it was good to beat them when they spoke their own language . . . It was obvious in the sixties when all these children were taken off the reserves.
Refusing chemotherapy a decision made by a mother, on behalf of a daughter she truly loves, steeped in a practice that has been rooted in their culture from its beginnings, wrote Edward.
The judge notes that Section 35 of the Constitution is not part of the Charter of Rights and Freedoms. As such, it is not governed by Section 1 of the Charter which places limits on rights like freedom of expression or freedom of religion. Then he stopped which was wrong, says Ryder.
And so Edward did not force the Brant Children Aid Society to apprehend the girl and undergo the chemotherapy her doctors at the McMaster Children Hospital said gave her a 90 to 95 per cent chance of survival her only chance of survival. He, instead, established that Section 35 of the Constitution protects the Aboriginal practice of using traditional medicine and the right of the mother to have her child treated with traditional medicine over chemotherapy.
In those cases the courts essentially say to parents, your Charter right to freedom of religion does not override your child right to life, says Cheryl Milne, the executive director of the David Asper Centre for Constitutional Rights at the University of Toronto. She adds that Canada, as a signatory of the UN Convention on the rights of a child, also has obligations to protect the life and health of children.
I find the decision is a little unclear on is the right of her child herself and seeing her rights as separate, says Milne.
The case is distinct from other instances where courts have intervened to force medical treatment on minors not considered capable of making their own decisions often because of religious objections, such as in the case of Jehovah Witnesses refusing to accept blood transfusions.
The main and obvious flaw in decision is that the judge doesn address possible limitations on Aboriginal rights, says Bruce Ryder, a law professor at Osgoode Hall specializing in constitutional law.
a First Nations child to undergo unwanted, mainstream medical treatment is an affront to the dignity and autonomy of the child, our cultures, and our nations, says a statement from the Six Nations of the Grand River and the Mississaugas of New Credit praising the decision. our children been forced into treatment, it would have Canada Goose Camp Down Hooded Jacket Australia Sale had a disastrous effect on their emotional, psychological, and spiritual well being.
The ruling has been supported by Aboriginal communities and met with concern by non Aboriginal legal experts who question whether the decision adequately considered the rights of the girl and the duty of the government to protect the best interest of the child. is her aboriginal right, wrote Justice Gethin Edward in his Nov. 14, 2014 decision.
The Supreme Court of Canada has clearly said that rights are absolute, all rights are subject to limits that have to be justified by the government, he said. question that the judge didn even consider is whether the process put in place for imposing treatments on a child, when it in the best interest of child, might be a justified limit on Section 35.
The hospital has said it has no plans to appeal the decision. This is a of competing sorrows, because no matter what you do somebody is going to be hurt or harmed or upset, says Margaret Somerville, the founding director of the Centre of Medicine, Ethics and Law at McGill University.
In choosing not to unilaterally order the child taken from her parents and community, Imai notes that the judge considered that in addition to loving and caring parents, the Six Nations community was actively involved and concerned about the care of the child.
In the decision, Edward refers to the history of our country prosecution of those who practiced traditional medicine. Every decision from the outside that says is good for you and whether you think so or not we going to do it has to consider that perspective, Imai said.
think it important to note that these parents were not proposing to not have their daughter receive any treatment, says Katherine Hensel, a prominent lawyer with extensive experience representing First Nations people. was receiving traditional medicines which, to the best of their knowledge, can and should be used. And are always used.
Aboriginal medicine ruling sparks instant controversy