Sandra J. Harris

The Attorney General of Ontario brought a motion to clarify the court's previous decision regarding a child with leukemia whose parents sought to pursue traditional Haudenosaunee medicine alongside or instead of chemotherapy.

The court had previously found that the mother's constitutionally protected right under section 35 of the Constitution to pursue traditional medicine meant the child was not in need of protection.

The Attorney General, rather than appealing, engaged in dialogue with all parties, resulting in a joint submission.

The court clarified its decision by adding paragraphs confirming that while the aboriginal right to traditional medicine must be respected, the best interests of the child remain paramount, and that the family could pursue both traditional and Western medicine collaboratively.

An 11-year-old First Nations child from Six Nations of the Grand River was diagnosed with acute lymphoblastic leukemia with a 90-95% cure rate with chemotherapy.

The child's mother withdrew consent for chemotherapy to pursue traditional medicine consistent with their longhouse beliefs.

The hospital applied under section 40(4) of the Child and Family Services Act seeking a protection order.

The court dismissed the application, finding that the mother's decision to pursue traditional medicine constituted an exercise of an aboriginal right protected under section 35(1) of the Constitution Act, 1982.

The court held that the child could not be found in need of protection when the substitute decision-maker exercised a constitutionally protected right.