Law Canada: A Place to Discuss the Professional Legal Experience in Canada
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I was doing some research the other day and came across a recent decision by a judge I dislike. As usual for him, it was filled with turgid prose, was badly reasoned and the final decision was nonsense. As decisions go, it was pretty bad, and it will likely be overturned on appeal. But not the worst case I've ever seen, not by a long shot.
And then a thought occurred to me: what are the worst decisions in Canadian history? There are a lot of bad decisions to pick from, so many that it's difficult to choose. Some cases are so dreadful that even the government takes notice, and passes legislation to correct the error, and in my view cases like that are on the short list of bad decisions.
But to my way of thinking, the worst cases are the ones that actually kill people. Such cases definitely should make the short list of bad decisions, and my personal candidate is Hamilton Health Sciences Corp. v. D.H., 2014 ONCJ 603, a case so dreadful, so shocking that when it came down it made the news not only Canada-wide, but around the world.
The case involved an eleven-year old girl who had a treatable form of cancer and was receiving appropriate treatment at the hospital. But the chemo was dreadfully hard on the child (as chemo often is), and so her mother decided to stop that treatment, and instead wanted to take her daughter to Florida to be treated by a charlatan with no medical degree. So she went to court, saying it was her constitutional right to take away her daughter's chemo. The mother was aboriginal, so the judge (The Honourable Mr. Justice Edwards) did a deep dive into the contitution, into aboriginal rights, into traditional medicine v. western medicine. He took a lot of things into account, including the fact that the child would probably die if the mother had her way. After weighing all the evidence, the judge made the decision based not on the child's right to life, but the mother's right to choose:
" 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. " (emphasis added)
So the mother won, and the child lost. The chemo stopped, and the child instead received treatment from the Florida quack who claimed he could treat cancer with a vegan diet: https://nationalpost.com/news/world/the-head-of-a-florida-alternative-health-clinic-has-been-fined-for-practising-medicine-without-a-licence
The child died, of course, and the decision of the Honourable Mr. Justice Edwards is infamous, because he more or less sentenced the child to death.
There's other famous cases where legal errors killed someone, the Coffin murder case being an example. But there was a strong element of lawyer's negligence the Coffin case, quite unlike the unforced error of The Honourable Mr. Justice Edwards.
Don't get me wrong; I'm all for Aboriginal rights. I wish the feds would take that large stack of recommendations from the multiple inquiries that have been held over the last fifty years, and actually implement them. But I think Edwards J. was way off base here. I don't think he moved the needle one iota in favour of Aboriginal rights; his decision is never cited by other judges, and the case is met only with shock and derision.
So that's my personal candidate, for what it's worth. Glad I'll never have to appear before Edwards J.
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