Court File and Parties
Brantford Registry No.: C287/14E Date: 2015-04-24 Ontario Court of Justice
Between: Hamilton Health Sciences Corporation Applicant
— And — D.H., P.L.J., Six Nations of the Grand River Child and Family Services Department and Brant Family and Children's Services Respondents
— And — The Attorney General of Ontario Moving Party
Before: Justice Gethin B. Edward
Endorsement inscribed on: 24 April 2015
Counsel
- Daphne G. Jarvis — for the applicant hospital
- Paul C. Williams — for the respondent parents D.H. and P.L.J.
- Eliza J. Montour — counsel for the respondent Six Nations of the Grand River Child and Family Services Department
- Mark Handelman and M. Elizabeth Capitano — counsel for the respondent children's aid society
- Sandra J. Harris — counsel for the Office of the Children's Lawyer, legal representative for the child J.J.
- M. Wilson / M. Fancy / S. Mathai — The Attorney General of Ontario
Previous Proceedings
For previous proceedings, see Hamilton Health Sciences Corp. v. D.H., P.L.J., Six Nations of the Grand River Child and Family Services Department and Brant Family and Children's Services, 2014 ONCJ 603, 123 O.R. (3d) 11, [2015] 1 C.N.L.R. 189, per Justice Gethin B. Edward
Endorsement
[1] Functus Officio
JUSTICE G.B. EDWARD (endorsement):—In considering the Attorney General of Ontario's motion and the joint submission signed by all the parties supporting the relief sought, I accept that cases such as Church v. Church, 40 R.F.L. (5th) 43, stand for the proposition that where no formal order has been signed by the court embodying its decision, the court is not functus officio. This court to date has signed no formal order and as such is not functus officio.
[2] The Mother's Commitment to Her Child
As to whether the relief sought and agreed to by the parties does mischief to my reasons given on 14 November 2014, I start my analysis by recalling one of the most telling pieces of evidence from the trial. It was recounted by Kim Martin, the intake manager from Brant Family and Children's Services. Ms. Martin testified that, in August of last year when mother had received that horrible news no parent ever wants to hear, that her daughter had cancer, and when information and diagnosis and outcomes were coming at mother at the speed of light, and when she saw in her daughter's eyes the pain she was enduring, mother said to the manager "I will not let my baby die". Implicit in those seven words was that regardless of what this court said or did, or anyone else for that matter, what was paramount for mother was what was in her daughter's best interests.
[3] Aboriginal Rights and Section 35 of the Constitution
In constructing its reasons, it was this court's view that section 35 of the Constitution afforded the mother the constitutionally protected right to pursue traditional medicine in the treatment of her daughter. In interpreting section 35, this Court was struck by then Chief Justice Antonio Lamer's comment at paragraph [30] of The Queen v. Van der Peet, [1996] 2 S.C.R. 507, which bears repeating:
[30] In my view, the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status.
[4] Core Tenets of Aboriginal Culture
In this court's view, this historical recital not only explains the reason aboriginal rights exist, it also speaks to the enduring legacy of aboriginal peoples and how the core tenets of their culture and society have allowed them to flourish for centuries. One of these core tenets, and something this court is reminded of regularly in dealing with child protection cases involving the Haudenosaunee, is the ultimate respect accorded to their children. They are considered gifts from the Creator. So it is then that, in considering both the facts of this case as expressed by the mother and the history as it relates to aboriginal peoples, it does no mischief to my decision to recognize that the best interests of the child remains paramount.
[5] Dialogue and Reconciliation
Written reasons given in a case seek to explain how a court has resolved an issue between parties who appear before it. Sometimes such reasons attract a wider audience. The Attorney General of Ontario was in that audience in this case. There were many calls for the Attorney General of Ontario to pursue litigation; however, the Attorney General chose to engage in a dialogue with the parties that ultimately led to an approach that spoke more to what joins us as opposed to what separates us. The joint submission, that has been read into the record, notes how the province and the family collaboratively worked to form a health care team to bring the best both had to offer to address J.J.'s ongoing treatment. This approach recognizes the province's acceptance of the family's right to practice traditional medicine and the family's acceptance western medicine will most certainly help their daughter. It is simply a recognition of what is in J.J.'s best interest. Such an approach bodes well for the future. It is also an approach that is reflected in Article 24 of the United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295, which states in part:
Article 24
- Indigenous peoples have the right to their traditional medicines and to maintain their health practices . . . Indigenous individuals also have the right to access, without any discrimination, to all social and health services.
[6] Amendment to Reasons
So no, there is no mischief in endorsing the joint submission of the parties and adding paragraphs 83(a) and 83(b) to this court's reasons for judgment dated 14 November 2014 and I so order such an amendment. But I would again then dismiss the original application with no order as to costs.
Dated at Brantford, Ontario This 24th day of April 2015.
The Honourable Justice Gethin B. Edward
Appendix: Joint Submission of the Parties
Brantford Registry No.: C287/14E Ontario Court of Justice
Between: Hamilton Health Sciences Corporation Applicant
— And — D.H., P.L.J., Six Nations of the Grand River Child and Family Services Department and Brant Family and Children's Services Respondents
— And — The Attorney General of Ontario Moving Party
Counsel
- Daphne G. Jarvis — for the applicant hospital
- Paul C. Williams — for the respondent parents D.H. and P.L.J.
- Eliza J. Montour — counsel for the respondent Six Nations of the Grand River Child and Family Services Department
- Mark Handelman and M. Elizabeth Capitano — counsel for the respondent children's aid society
- Sandra J. Harris — counsel for the Office of the Children's Lawyer, legal representative for the child J.J.
- M. Wilson / M. Fancy / S. Mathai — The Attorney General of Ontario
Background and Collaborative Approach
After the release of this court's decision, the family and the Government of Ontario started working together to expand the integrated health care team for J.J., the young girl with leukemia, to provide Indigenous and non-Indigenous treatment.
The child's core health care team initially consisted of a doctor and a traditional Haudenosaunee health care provider. This health care team was further supplemented by 2 additional participants: a senior pediatric oncologist recommended by Ontario, and a Haudenosaunee chief, who is also a practitioner of traditional medicine, invited by the family.
In March 2015, J.J.'s cancer, which had gone into remission, returned. The family met and concluded that chemotherapy, along with traditional Haudenosaunee medicine, which J.J. had already been receiving, would be the best next step.
This court's decision recognized that Haudenosaunee medicine is an integral aspect of Haudenosaunee identity as a people. It has the protection of the Canadian constitution, as an aboriginal right, and must be respected.
By choosing not to appeal the decision, and instead engaging in a respectful conversation with the family and their community, the Government of Ontario has chosen dialogue and co-operation.
Request for Clarification
The parties are asking this court to clarify its decision in accordance with the draft order. The parties all accept that the jurisprudence permits a court to clarify its decision in order to ensure that it is properly understood. The parties also agree that the best interests of the child are paramount and the aboriginal right to use traditional medicine must be respected. Such a clarification will allow the family to proceed, with peace of mind and privacy, with treatment using the best that both medicines have to offer. This will also allow governments, agencies, hospitals and practitioners to continue having this conversation.
Specifically, the parties are asking this court to include the following clarification to its decision:
Clarifying Paragraphs
[83] In applying the foregoing reasons to the applicant's subsection 40(4) of the Child and Family Services Act application, I cannot find that J.J. is a child in need of protection when her substitute decision-maker has chosen to exercise her constitutionally protected right to pursue their traditional medicine over the applicant's stated course of treatment of chemotherapy.
[83a] But, implicit in this decision is that recognition and implementation of the right to use traditional medicines must remain consistent with the principle that the best interests of the child remain paramount. The aboriginal right to use traditional medicine must be respected, and must be considered, among other factors, in any analysis of the best interests of the child, and whether the child is in need of protection. Taking into account the aboriginal right, and the constitutional objective of reconciliation and considering carefully the facts of this case, I concluded that this child was not in need of protection.
[83b] In law as well as in practice, then, the Haudenosaunee have both an aboriginal right to use their own traditional medicines and health practices, and the same right as other people in Ontario to use the medicines and health practices available to those people. This provides Haudenosaunee culture and knowledge with protection, but it also gives the people unique access to the best we have to offer. Facing an unrelenting enemy, such as cancer, we all hope for and need the very best, especially for our children. For the Haudenosaunee, the two sets of rights mentioned above fulfill the aspirations of the United Nations Declaration on the Rights of Indigenous Peoples, which states in article 24, that "Indigenous peoples have the right to their traditional medicines and to maintain their health practices . . . Indigenous individuals also have the right to access, without any discrimination, to all social and health services."
[84] The application is dismissed. This is not an appropriate case to consider costs.
[85] I wish to thank all counsel for their efforts in this very difficult case.
Dated at Brantford, this 24th day of April, 2015
Signatures:
Attorney General for Ontario
Hamilton Health Sciences Corporation
Children's Aid Society of Brant
Six Nations of the Grand River Child and Family Services
D.H., P.L.J. (Paul Williams)
Office of the Children's Lawyer