Rosie DiManno at the Star is repulsed by the rejoicing over the “clarification” by Justice Edward. She is rude enough to point out that it’s a good outcome for JJ but not for her predecessor.
It is nothing less than a tragedy that a second family lost their own similarly afflicted 11-year-old daughter, Makayla Sault, after chemotherapy was spurned.
The two cases are linked because, in both instances, Brant Children and Family Services refused to intervene and compel chemo by taking the girls into agency care.
In the J.J. matter, Justice Gethin Edward ruled last November that the child was not in need of removal from the bosom of her loving family and, further — shockingly — that the aboriginal right to practise traditional medicine is protected under Section 35 of the Constitution, even when ineffective. Essentially, the cultural rights of a historically maltreated minority trumped society’s obligations to ensure a child’s optimal chance of life.
Yesterday, Edward revisited his decision, although he didn’t call it that. He called it a “clarification,” as sought by all parties concerned, and an amendment or an adjustment.
In truth, it was a retreat.
A retreat that came too late for Makayla, whose case never went to court.
But the lawyers didn’t want to talk about that. They brushed off questions about it, saying this isn’t the time to “exhume that case.”
This is precisely the place to exhume that case — which is now being examined by a committee that reports to the Chief Coroner of Ontario.
The lawyer continued: “Let’s just leave things as, this is resolved for J.J.’s benefit and we’ll proceed without the need for further litigation, which isn’t in anybody’s best interest, and be glad for a collegial result.”
Oh yes, they were all in a self-congratulatory mood, the legion of lawyers representing J.J.’s family, Six Nations, Brant Children’s Aid, the Children’s Office of Ontario, McMaster Hospital — which had sought “clarification’’ on the original ruling — the Attorney General’s office, and (no lawyer needed) the judge, who, when the procedure was over, stepped down from his bench to speak personally with the child and her parents.
No acknowledgment, from Edward, that he’d got it alarmingly, even fatally, wrong back in November’s precedent-setting ruling that declared, solely in J.J.’s case, that the “mother’s decision to pursue traditional medicine for her daughter is her aboriginal right’’— even when it’s worthless and futile.
What if the parents had a “tradition” of torturing their children, or depriving them of water and food as punishment, or selling them into slavery? Would that too be ruled an aboriginal right? We’re all aboriginals of somewhere, we all descend from people with traditions we no longer want anything to do with.
Edward told court yesterday: “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 the mother was what was in her daughter’s best interest.”
Yet there was no clarification, then, on what constituted the child’s best interest. And for four months, those best-interest provisos were not followed by the family as they pursued shaman remedies.
Precious months wasted, they were, for J.J. At least she got a second chance. Makayla didn’t.
Because there has been no appeal of Edward’s original ruling — the parties involved arrived at a mediated consensus for treatment, with J.J.’s care team now including a senior pediatric oncologist and a practitioner of traditional medicine — the legal heft of the judge’s decision will not be weighed by a higher court.
Until the next case comes along.
The next aboriginal child in need of protection — which was not given to Makayla and not compelled for J.J.
What in the world are these people applauding themselves for?
A narrow escape?