J.J. is thriving, no thanks to courtâs belated âclarificationâ: DiManno
BRANTFORD—Amid the puzzlement and the what-just-happened? queries from journalists and the all-around back-slapping among a cavalcade of lawyers, there was this singularly heart-lifting spectacle: A little girl who looks healthy and happy.
J.J., the aboriginal girl whose parents rejected life-saving chemotherapy last summer in favor of indigenous medicine — a right conferred on them by an Ontario Court judge — appears to have bounced back from acute lymphoblastic leukemia.
On Friday, the youngster was all smiles as she played with her younger sister and infant niece.
She lives. She laughs.
“Good,” said J.J. when a reporter asked how she’s doing, and that’s all anybody from the family offered the media, otherwise speaking only through their lawyer.
But good, as became abundantly clear, because she resumed chemo treatment in March, as soon as hospital tests confirmed that the cancer had returned.
The cancer that her parents claimed, early this year, was no longer in evidence, as the child was treated with traditional indigenous medicine, and after the family had returned from a quack therapy regime at a Florida establishment that preaches curing cancer with a positive attitude and a raw plant-based organic diet.
But J.J. wasn’t “cured,” and to her parents’ credit, they turned back to the conventional if debilitating chemo treatment they’d fought so hard to avoid.
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.
Indeed, when the Brant agency’s director, Andrew Koster, was asked afterwards outside court about whether a conciliatory approach towards melding traditional and “Western” medicine might not have save Makayla, the society’s lawyer stepped in to avoid a response. “I don’t think that’s a fair question. Of course, everybody is sad when a child dies. But this isn’t the place 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. “Such a right cannot be qualified as a right only if it is proven to work by employing the western medical paradigm,” he wrote. “To do so would be to leave open the opportunity to perpetually erode aboriginal rights.”
It was manifestly that — ineffective. Which is why J.J. has been receiving both indigenous medicine and chemo since March. Which is doubtless why she’s alive today and obviously responding well.
What Edward did was add a crucial “clarification,” on consent of all counsel, that indigenous does not take precedence over conventional and scientific. “Implicit in this decision is that recognition and implementation of the right to use traditional medicine 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.”
Edward had never stated, in November, that the family shouldn’t pursue chemo if they chose. But he did say they didn’t have to do so, a conclusion that sparked intense controversy.
Now Edward tells us that he always knew, instinctively, the parents would do what was best for J.J. He took that comforting view from the testimony of an intake manager with the Brant child welfare agency, in which she quoted the child’s mother as saying, “I will not let my baby die.’’
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?
Rosie DiManno usually appears Monday, Wednesday, Friday and Saturday.
