Apr 28, 2015

Lawyers say aboriginal judge behind unusual chemotherapy ruling has reputation as 'very fair'

Tom Blackwell 
National Post
April 28, 2015

It was, from the start, a strange case, involving a hospital suing a children’s aid society to force an aboriginal child with leukemia back into chemotherapy.

It ended on a no-less unorthodox note Friday, when Justice Gethin Edward agreed to modify his original ruling — five months after the fact — and then wandered down from the bench and did a meet-and-greet with the young patient and various other figures involved in the drawn-out case.

“I see the gang’s all here,” he had said to them with a smile earlier.

Edward was assigned the case by chance last year, but it seems to have been a natural fit for a judge who has quietly built a reputation in Brantford, Ont., as fair, intelligent and attuned to the area’s large aboriginal population — even if it sometimes means courting controversy.

Not only is he an actual member of the Six Nations reserve where the cancer patient — an 11-year-old known as J.J. — lives, but he helped found a special court for First Nations people caught up in the criminal justice system, and once oversaw a native rehab facility.

Edward also ushered in the holding of eagle feathers as an alternative to swearing on the bible in Brantford, and caused a stir when he temporarily banished Canadian and Ontario flags from his courtroom to placate an aboriginal witness.

“The same old, same old, regardless of whether you’re aboriginal or non-aboriginal, isn’t really working,” Edward was quoted as saying when the native court opened last year. “We’ve tried putting people in jail and throwing away the key but, at the end of the day, is there any evidence that it works?”

What brought the small-town judge to national attention, though, was his decision last November that J.J.’s mother had a constitutional right to seek traditional aboriginal remedies — even if it meant pulling the girl from chemotherapy.

It would not have been an easy ruling to deliver, suggests Howard Staats, who gave Edward his first job at a Brantford law firm and worked beside him for 14 years.

“I think it took a lot of fortitude, intestinal fortitude to come up with the decision,” Staats said Monday. “I think he knew it was not going to be a popular decision. But I think that’s the way he saw the law, and a judge is there to enforce the law.”

Indeed, the judgment outraged many observers in the non-native world, while being hailed as an overdue recognition of traditional ways in First Nations communities.

Also revealed Friday was that J.J.’s leukemia had returned, and she was again being treated both with chemo and traditional medicine. Another native girl, from a reserve next to Six Nations, died earlier this year after she similarly pulled out of chemotherapy in favour of alternative health care. Edward was not involved in that case.

The latest hearing came after the Ontario government belatedly got involved in J.J.’s case five months ago.

Lawyers for the province, the family, Six Nations and others hammered together a deal — accepted by the judge — that modified the ruling to state the interests of the child must be paramount, but aboriginal healing still respected.

Edward stickhandled the complex case authoritatively both in the months after his ruling, and during the original trial, said Mark Handelman, a lawyer who represented the local children’s aid society.

“This was a very emotionally charged case, when you think of the issues and the parties,” he said. “He was able to keep tensions and emotions from boiling over in the courtroom.”

According to the University of Saskatchewan’s Program for Legal Studies for Native People, the judge’s path into law began with the program’s eight-week summer course in 1977, designed to prepare aboriginal students for the rigours of legal education.

It was a few years after he graduated from Western University’s law school in London, Ont., that he officially was granted First Nations status, thanks to changes in the Indian Act, according to one online biography. The Act had stripped certain people of First Nations status, including women who married non-natives.

Yet as Edward settled into a combined criminal and family-law practice with Staats, his First Nations identity seemed to play little role, said the lawyer.

“I don’t know if everybody knew that he was, in fact, aboriginal,” said Staats, who is also of native background.

Even when Edward joined the bench in 1996, his nods to the First Nations community were likely more a recognition of the major aboriginal presence in the area than a product of his own heritage, suggested his former partner. Six Nations is Canada’s largest reserve.

The 1998 flag removal did prompt an Ottawa Citizen editorial to call Edward a “rogue judge” who had agreed to “exile the symbols of his own legitimacy.” As president of the National Citizens Coalition then, Stephen Harper reportedly urged that Edward be fired.

The judge, however, said at the time that he had meant no offence, feels deep pride in the flag and only wanted to ensure the court heard from an important witness who refused to testify otherwise.

Last year, he spearheaded the opening of a so-called Gladue Court, versions of which exist in several other cities, too. They stem from a 1999 Supreme Court of Canada ruling that said judges should consider the often-tumultuous personal backgrounds of aboriginal accused, and seek alternatives to prison time if possible.

Staats now appears before his former acolyte and, while not always agreeing with his decisions, says his local reputation is rock solid.

“He’s considered to be very fair, very reasonable. And he knows the law.”

• Email: tblackwell@nationalpost.com | Twitter: tomblackwellNP


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