Critical Legal Conference

University of Sussex, United Kingdom
4–6 September 2014

Biopolitical Mor(t)alities: Canadian Law, Biomedicine, and Neocolonial Imaginaries in the Case of a Young First Nations Girl

Stuart J. Murray and Tad Lemieux

Suffering with acute lymphoblastic leukaemia, eleven-year-old Makayla Sault, a First Nations girl, refused continued chemotherapy treatments after reporting that Jesus had visited her in a vision. Her doctors reported her to the relevant Children’s Aid Society in order to determine, according to Canada’s Health Care Consent Act, whether she was “capable” of refusing treatment. This paper analyses the widespread media response to the ruling that deemed Makayla “capable,” and problematises law’s silence on the question of her religious fundamentalism and her Indigeneity. Indeed, there is legal precedence from the Supreme Court of Canada to remove a minor, and to force biomedical treatment, on the basis of religious belief rendering a minor “incapable.” In this case, however, although Makayla’s Indigeneity seems to have been a deciding factor in the case, (neo)liberal state institutions would undermine their own authority, and the mechanisms of that authority, if they were to admit that “capacity” belongs also—or perhaps even primordially—to a people on the basis of shared tradition, culture, or even ancestral heritage. If the state embarked on such a debate, it would expose the fictional nature of individual “capacity,” along with the fragile authority—and arbitrary violence—by which the state itself produces and polices individuality as an instrument of biopolitical governance, if not subjugation. This paper uses the case of Makayla Sault to critically trace the medico-legal imaginaries that were mobilized to produce, bestow, and to reify the moral fiction of a “capable” individual, rather than engage a discourse on decolonisation.