Canada’s Legal Obligations in Relation to Jordan’s Principle

            Jordan River Anderson was an Aboriginal boy from Norway Cree House located in Manitoba. He was born in 1999 with multiple disabilities. As a result of his condition, Jordan stayed in the hospital after his birth for some time. When Jordan was 2 years old his care team determined he was able to be moved into the home, provided that he have special home care available. Both the federal and provincial governments disputed which body should be responsible to fund Jordan’s special home care. While the dispute took place, Jordan had no funding available to support his transition to home care and remained in the hospital. The dispute lasted several years. Meanwhile Jordan remained in the hospital where he died at the age of 5, not ever having been present in his family home.[1]

What is Jordan’s Principle?

            Jordan’s Principle is a child-first principle implemented to ensure that First Nations children have access to public services on the same terms as other children in Canada. [2]

            The division of powers in the Canadian Constitution give both the federal and provincial levels of government authority over different aspects of First Nations children’s services. Jordan’s Principle was developed in order to make sure the level of government that first receives a request to fund a required service for a First Nations child is the one to foot the bill in light of any dispute over whether or not they deem it to be within their jurisdictional responsibility. Dispute resolution must occur after funding is provided in order to ensure there is no delay in receiving services.

            Jordan’s Principle has evolved over time to apply to more than just simple jurisdictional disputes, being emphasized as a broad principle aimed at ensuring substantive equality.

The Legal Evolution of Jordan’s Principle

February 2, 2005

            Jordan River Anderson dies in the hospital not having ever set foot in his family home.

December 12, 2007

             Jordan’s Principle passes unanimously in the House of Commons through a Private Members Motion which, although a strong moral statement, is not legally binding on the government in any way.[3]

2012

            The Canadian Paediatric Society and UNICEF note in independent reviews that implementation of Jordan’s Principle is extremely limited in scope.

April 4, 2013

            In Pictou Landing Band Council v. Canada,[4] the Federal Court Rules for the first time that Jordan’s Principle is not to be read narrowly and is binding.

            This case involved a young boy living at the Pictou Landing First Nation in Nova Scotia. His name was Jeremy Meawasige and he had disabilities that required around the clock home care, which was provided for many years by his mother, Maurina Beadle. Maurina suffered a stroke and was unable to provide the same level of care she once could.

            The Pictou Landing Band Council (PLBC) initially began to fill the gap and provide home care for Jeremy as needed using the healthcare budget for the First Nation. The cost became too high for the existing budget and the PLBC asked the federal government to reimburse them for associated expenses. If additional funding was not available, Jeremy would have to be institutionalized. Considering the support and value he was able to receive in his own home and cultural community, institutionalization was not in his best interest. It was argued that this case was one where Jordan’s Principle was applicable, as Jeremy would have been granted funding to provide this type of care if he were a child living outside of the reserve.

            The Manager of Social Programs with Aboriginal Affairs and Northern Development Canada (AANDC) denied the request for reimbursement for home care, stating that Jordan’s Principle did not apply and indicating that there was no jurisdictional dispute at hand between the two levels of government. Therefore, Jeremy would be entitled to the same maximum monthly budget allowance for children on or off reserve, which in this case would not be enough. An application for judicial review filed by the PBLC and Maurina Beadle was granted.

            The court ruled that it was unreasonable to deny the request. Provincial policy provided that exceptional circumstances would warrant funding over the maximum budget for children living off reserve in need of home care, therefore First Nations children ought to have access to the same additional funding or else inequality in the delivery of services would occur, contrary to Jordan’s Principle.

            The Federal Court applied Jordan’s Principle to hold that PLBC is entitled to be reimbursed for the expenses related to Jeremy’s care and allowed to access further funding.

January 26, 2016

            In a landmark ruling, the Canadian Human Rights Tribunal (CHRT) decides that the federal government is racially discriminating against 165,000 First Nations children and their families in its failure to provide equitable services, including the proper implementation of Jordan’s Principle. The CHRT issues a series of legally binding orders that Canada must fulfill regarding Jordan’s Principle:[5]

• Jordan’s Principle must apply to all First Nations children living on and off reserve.

• Jordan’s Principle must be applied based on the needs of the child (not just limited to a normative standard of care) in order to guarantee substantive equality.

• It must be ensured that administrative processes do not delay service provision.

• Most cases must be responded to within 48 hours.

February 10, 2016

            The CHRT sets out four areas for further clarification from the parties. One of the areas is Jordan’s Principle. They order Indigenous and Northern Affairs Canada (INAC) to stop applying its narrow definition of Jordan’s Principle and to immediately implement the full meaning and scope of Jordan’s Principle.[6]

April 26, 2016

            The CHRT issues a remedial order and calls out the government for dragging its feet in implementing Jordan’s Principle: “the order is to ‘immediately implement’, not immediately start discussions to review the definition in the long-term. There is already a workable definition of Jordan’s Principle that has been adopted by the House of Commons...the Panel sees no reason why the current definition cannot be implemented now.”[7]

            In the remedial order, the CHRT orders Canada to immediately consider Jordan’s Principle as including all jurisdictional disputes (this means even between different federal departments) and involving all First Nations children (not only children with multiple disabilities who live on reserve). The government organization first contacted should pay for the service right away without the need for policy review or case conferencing first.

            Canada is ordered to comply by May 10, 2016.[8]

May 9, 2016

            The day before the deadline to comply with the remedial order, Canada makes an announcement that they have budgeted up to $382 million for Jordan’s Principle, saying that it is available to children with disabilities and short-term illnesses who live on reserve. The government refuses to give any more details, such as which children are eligible for the funding or how they will ensure First Nations children do not face any additional delays in accessing public services.[9]

            This announcement is problematic because the government did not consult with the Caring Society or any other First Nations entity when they made this plan and are still avoiding the obligations imposed on them by the CHRT, namely that Jordan’s Principle is supposed to be available to First Nations children living on and off reserve.

September 15, 2016

            The CHRT issues a second remedial order, asking the government for more information regarding how it is implementing Jordan’s Principle and calling them out on again narrowing the definition of Jordan’s Principle.[10]

            The CHRT issues this order because they found that INAC was only applying Jordan’s Principle to First Nations children living on reserve who had disabilities and short-term illnesses and not to all First Nations children. Additionally, the complicated application process that INAC had implemented was resulting in service delays and possible unnecessary service denials. To make matters worse, the CHRT found that INAC was still fighting First Nations children and their families who were seeking equitable health services in court.

May 26, 2017

            The CHRT releases its third remedial non-compliance order because the government is still not complying with the definition of Jordan’s Principle and continues to implement discriminatory policies and practices: “Over the past year, the Panel has given Canada much flexibility in terms of remedying the discrimination...Reform was ordered. However, based on the evidence...Canada seems to want to continue proffering similar policies and practices to those that were found to be discriminatory.”[11]

            Despite the landmark ruling which created legal obligations and the two previous sets of remedial orders, there is clearly still a need for more specific orders from the CHRT. Another issue is that INAC is not tracking the number of Jordan’s Principle applications that are currently being processed or that had been denied. This is problematic because Jordan’s Principle is meant to cover gaps in federal funding to First Nations children. If Canada is not tracking what kinds of applications are coming forward, then they have no way to determine what those gaps are. Canada is ordered to start tracking and collecting data immediately.[12] Additionally, there are too many delays with the new application process and there is no formal appeals process for Jordan’s Principle applications that get denied.[13]

            The CHRT orders Canada to publicize the correct definition of Jordan’s Principle, especially with INAC and Health Canada.[14] The CHRT reminds Canada of its obligations towards Aboriginal Peoples, including the fiduciary relationship, the honour of the Crown, and the constitutional duty to consult the affected groups before making decisions. All of these obligations must inform the implementation of Jordan’s Principle.[15]

            In order to ensure that Canada will fulfill its obligations once and for all, the CHRT announces that they will retain jurisdiction over all of the remedial orders until May 25, 2018. It will revisit the need to retain jurisdiction beyond that date.

June 23, 2017

            Canada files an application for judicial review on the third set of remedial orders.

November 2017

            The Caring Society, the Assembly of First Nations (AFN), Health Canada, and INAC reach an agreement regarding Jordan’s Principle and Canada revokes its application for judicial review.

            The CHRT issues a fourth remedial order based on this agreement.[16] This agreement is what informs the Jordan’s Principle process we have today.

            Currently, Canada’s legal obligations with respect to Jordan’s Principle are:

• Jordan’s Principle is defined as “a child-first principle that applies equally to all First Nations children, whether resident on or off reserve. It is not limited to First Nations children with disabilities, or those with discrete short-term issues creating critical needs for health and social supports or affecting their activities of daily living.”

• Jordan’s Principle is about ensuring that there are no gaps in government services to First Nations children. It can address gaps in services such as mental health, special education, speech therapy, etc., not just in services related to disabilities or short-term illnesses.

• With regard to avoiding delays in the process of assessing a Jordan’s Principle application, Canada will consult with relevant professionals before approving the service only when it is reasonably necessary in determining the clinical needs of the applicant.

• Canada will only involve professionals that weren’t already involved with the applicant’s case in cases where the professionals already involved are unable provide the necessary clinical information.

• In cases where the service requested is beyond the normative standard of care, the government agency of first contact will continue to evaluate the individual needs of the child to see if the requested service should still be provided in order to guarantee substantive equality.

• While Jordan’s Principle was invented to apply to jurisdictional disputes between governments or jurisdictional disputes between departments within the same government, neither is a necessary requirement to invoke Jordan’s Principle, as the point of the law is to fill the gaps in services for First Nations children.

February 1, 2018

            The CHRT issues a fifth remedial non-compliance order with regard to Canada’s continued piecemeal approach to equality. No orders specifically regarding Jordan’s Principle are made.

            The CHRT chastises Canada for using the same type of approach that fostered the discrimination in the first place: “It is important to look at this case in terms of bringing Justice and not simply the Law, especially with reconciliation as a goal. This country needs healing and reconciliation and the starting point is the children and respecting their rights. If this is not understood in a meaningful way, in the sense that it leads to real and measurable change, then, the TRC and this Panel’s work is trivialized and unfortunately the suffering is born by vulnerable children.”[17]

February 21, 2019

            During the adjudication of compliance orders from the CHRT, the Caring Society requests clarification with respect to Canada’s definition of “First Nations child” for the purpose of applying Jordan’s Principle.

            The Caring Society submits that without direction or action made towards addressing urgent requests from First Nations children without Indian Act status and who are not ordinarily resident on reserve, the effectiveness of the CHRT’s remedial orders will be compromised. Canada argues that using the current definition under the Indian Act allows the application of consistent, objective parameters regarding eligibility for Jordan’s Principle.

            The panel orders that “pending the adjudication of the compliance with this Tribunal’s orders and of Canada’s definition of “First Nations child” for the purposes of implementing Jordan’s Principle, and in order to ensure that the Tribunal’s orders are effective, Canada shall provide First Nations children living off-reserve who have urgent and/or life-threatening needs, but do not have (and are not eligible for) Indian Act status, with the services required to meet those urgent and/or life-threatening service needs, pursuant to Jordan’s Principle.

This interim relief order applies to:

1. First Nations children without Indian Act status who live off-reserve but are recognized as members by their Nation, and

2. Who have urgent and/or life-threatening needs”[18]

            This is an interim relief order and a full hearing on the issue of Jordan’s Principle eligibility based on status versus non-status will take place.

Jordan’s Principle Today

What Does it Apply To?

            Services that have been funded in accordance with Jordan’s Principle include health services, social services, and education services. Jordan’s Principle applies to all public services, this includes services that are beyond the normative standard of care in order to ensure substantive equality.[19]

            The following are examples from the government of Canada as to what has been funded under Jordan’s Principle:[20]

HEALTH

• Mobility aids

• Wheelchair ramps

• Addiction services

• Services from Elders

• Mental health services

• Specialized hearing aids

• Traditional healing services

• Services for children in care

• Assessments and screenings

• Transportation to appointments

• Medical supplies and equipment

• Long-term care for children with specialized needs

• Therapeutic services for individuals or groups (e.g., speech therapy, physiotherapy, occupational therapy)

SOCIAL

• Social worker

• Land-based activities

• Personal support worker

• Specialized summer camps

• Respite care (individual or group)

• Specialized programs based on cultural beliefs and practices

EDUCATION

• School supplies

• Tutoring services

• Teaching assistants

• Specialized school transportation

• Psycho-educational assessments

• Assistive technologies

• Electronics

Who does it apply to?

            Jordan's Principle is exclusively available to First Nations children. Any First Nations child (i.e., person under the age of majority) in Canada can access Jordan’s Principle.[21]

            As per the interim order set out by the CHRT on February 1, 2019, a hearing regarding the definition of “First Nation child” for the purpose of the application of Jordan’s Principle will take place. In the meantime, First Nations children who do not have status, and live off reserve can access Jordan’s Principle if immediate urgent care is necessary.

How do I make a Request for Jordan’s Principle to be Applied?

STEP 1

            Contact the Jordan’s Principle Call Centre, which is open 24/7, at 1-855-JP-CHLD (1-855-572-4453). When you call, having the following information ready is very helpful:

• The registration number for the child or parent under the Indian Act.

• The specific product or service needed.

• How often the product or service will be needed (e.g., one time, many times or on an ongoing basis).

• The estimated costs of the product or service.

• Copies of related prescriptions, referrals from a health, social or educational professional (if you have them), medical, educational, or social assessments identifying the need for the product, service, or support.

• A summary of the child’s history and unique needs that should be considered to support the request.

• If the request has been submitted in the past, then the name of the provincial or federal program or service where the request was submitted, and copies of documents submitted.

STEP 2

            The Jordan’s Principle representative in your region will review the completed request. A decision will be sent to you in writing after the request is processed.

• Urgent requests, where the child’s current health or safety is a concern, are processed within 12 hours of receiving all necessary information.

• All other requests are processed within 48 hours of receiving all necessary information.

• If they do not have enough information to confirm what the child needs, more time may be necessary to get this information.

• If the child requires an assessment of their needs, this can be paid for immediately under Jordan’s Principle.

• Requests for a group of children from multiple families or guardians.

• Urgent requests are processed within 48 hours of receiving all necessary information

• All other requests are processed within one week of receiving necessary information.

• When a request is approved, the Jordan’s Principle representative will try to arrange for the products, services, or supports to be provided directly to the child. If this is the case, there is no cost to the family as reimbursement is arranged directly with the service provider or vendor. If the family has already paid for the approved product, service, or support, then reimbursement of these expenses will be provided.

STEP 3

            If your request is denied, you may appeal the decision up to one year from the date the request was denied. To do so, you must send in a written request to the regional Jordan’s Principle representative.

References

[1] Government of Canada, Legacy of Jordan River Anderson (2018), online: <www.canada.ca/en/indigenous-services- canada>.

[2] Government of Canada, Jordan’s Principle (2019), The Boy Behind Jordan’s Principle (2018), definition of Jordan Principle from the Canadian Human Rights Tribunal ( 2018), online: <www.canada.ca/en/indigenous-services-canada>.

[3] Private Member’s Motion M-296, 2007

[4] Pictou Landing Band Council and Maurina Beadle v. Attorney General of Canada, 2013 FC 342

[5] 2016 CHRT 2

[6] 2016 CHRT 2

[7] 2016 CHRT 10 at para 32

[8] 2016 CHRT 10 at para 33

[9] FN Caring Society Timeline

[10] 2016 CHRT 16 at paras 107-120

[11] 2017 CHRT 14 at para 73

[12] 2017 CHRT 14 at paras 85 and 107

[13] 2017 CHRT 14 at paras 94-100

[14] 2017 CHRT 14 at para 112

[15] 2016 CHRT 10 at para 116

[16] 2017 CHRT 35

[17] 2018 CHRT 4 at Para 451

[18] 2019 CHRT 7 at paras 89 and 90

[19] Pictou Landing Band Council and Maurina Beadle v. Attorney General of Canada, 2013 FC 342; First Nation Health Authority, Jordan’s Principle, online: <www.fnha.ca>.

[20] Government of Canada, Submit a request under Jordan’s Principle (2018), Step 1. What is covered, online: <www.canada.ca/en/indigenous-services-canada>.

[21] Government of Canada, Submit a request under Jordan’s Principle (2018), Step 2. Who is covered, online: <www.canada.ca/en/indigenous-services-canada>.