Thursday, February 12, 2015

Hamilton Health Services Corporation v D.H. et. al.

The introduction to a lousy decision by a Judge Edward of the Ontario the Court of Justice:



[1]                       The applicant hospital has brought an application under subsection 40(4) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, against the respondent children’s aid society.  It is an unusual request brought about by a very sad circumstance.  The subject child of this application is an 11-year-old girl from The Six Nations of the Grand River, named J.J.
[2]                       In August of this year, J.J was diagnosed with acute lymphoblastic leukemia (A.L.L.).  A.L.L. is a form of cancer in the bone marrow.  The applicant hospital’s position is that it is treated with chemotherapy delivered in a number of phases.  In J.J.’s case, the applicant’s initial testing indicated she had a 90 to 95% chance of being cured.  The specialists at the applicant hospital are not aware of any survivor of A.L.L. without chemotherapy treatments.
[3]                       Although J.J. had commenced chemotherapy treatment, it was discontinued in August of this year.....
The Conclusion: 
[81]                  It is this court’s conclusion, therefore, that D.H.’s decision to pursue traditional medicine for her daughter J.J. is her aboriginal right.  Further, such a right cannot be qualified as a right only if it is proven to work by employing the western medical paradigm.  To do so would be to leave open the opportunity to perpetually erode aboriginal rights....


[83]                  In applying the foregoing reasons to the applicant’s subsection 40(4) 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...
It's (unfortunate) worth noting that the judge is aboriginal. 

The mother took the kid for some worthless alternative treatment in Florida from a highly questionable practitioner--I don't know if he's a doctor. I understand the child died.

In trying to think off the top of my head for the legal frailty in this decision, which supports the proposition that law can be an ass, the following occurs to me, which involves keeping the judge's premises in tact, (that keeping intact a questionable proposition in itself but beyond my immediate knowledge and resources.)

I'd have thought that the mother would have to have shown the court what specific traditional medicine she proposed and in complete specifics especially considering:

...the applicant’s initial testing indicated she had a 90 to 95% chance of being cured.  The specialists at the applicant hospital are not aware of any survivor of A.L.L. without chemotherapy treatments...

The Florida alternative "treatment," which failed, couldn't have been part of traditional native medicine. So the judge conflated the practice of traditional native medicine with simply withdrawing J.J. from chemotherapy. It's amazing to me and a dark hole in the judge's reasoning that there's not a scrap of evidence of what the traditional practice was to be. If the answer to that was the alternative Florida treatment, then the mother's position should have failed.

It's tragic and incredibly thick headed that this little 11 hear old girl's life was sacrificed on the altar of ....the opportunity to perpetually erode aboriginal rights.... since as this judge quotes another judge for the point that...

....64]                  But before delving into defining what an aboriginal right is, Chief Justice Lamer made what I consider to be an incredibly important statement as to why aboriginal rights exist at all.  At paragraph [30], he reminds us all of the following:

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.

In my view a life has been snuffed out by the misapplication of an abstraction and by bad legal reasoning that can't sustain scrutiny, at a minimum, by references to its own premises. 

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