First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada)

First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada)
Collection
Canadian Human Rights Tribunal
Date
2017-05-26
Neutral citation
2017 CHRT 14
File number(s)
T1340/7008
Decision-maker(s)
Marchildon, Sophie; Lustig, Edward P.
Decision type
Ruling
Decision status
Final
Grounds
National or Ethnic Origin
Race
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2017 CHRT
14
Date:
May 26, 2017
File No.:
T1340/7008
Between:
First Nations Child and Family Caring Society of Canada
- and -
Assembly of First Nations
Complainants
- and -
Canadian Human Rights Commission
Commission
- and -
Attorney General of Canada
(Representing the Minister of Indigenous and Northern Affairs Canada)
Respondent
- and -
Chiefs of Ontario
- and -
Amnesty International
- and -
Nishnawbe Aski Nation
Interested Parties
Ruling
Members: Sophie Marchildon and Edward Lustig
Outline
I. Motions for immediate relief related to Jordan’s Principle 1
II. Findings and orders with respect to Jordan’s Principle to date 2
III. Canada’s further actions in relation to Jordan’s Principle 4
IV. Analysis 5
A. Legal arguments 7
(i) Burden of proof and compliance 7
(ii) Separation of powers 10
B. Further orders requested 11
(i) Definition of Jordan’s Principle 11
(ii) Changes to the processing and tracking of Jordan’s Principle cases 29
(iii) Publicizing the compliant definition and approach to Jordan’s Principle 37
(iv) Future reporting 41
V. Orders 44
I. Motions for immediate relief related to Jordan’s Principle
[1] Jordan River Anderson of the Norway House Cree Nation was born with a serious medical condition. Because of a lack of available medical services in his community, Jordan’s family turned to provincial child welfare care in order for him to get the medical treatment he needed. After spending the first two years of his life in hospital, Jordan could have gone to a specialized foster home close to his medical facilities in Winnipeg. However, for two years, Indigenous and Northern Affairs Canada (“INAC”), Health Canada and the Province of Manitoba argued over who should pay for Jordan’s foster home costs. Ultimately, Jordan remained in hospital until he passed away, at the age of five, having spent his entire life in hospital.
[2] In recognition of Jordan, Jordan’s Principle provides that where a government service is available to all other children, but a jurisdictional dispute regarding services to a First Nations child arises between Canada, a province, a territory, or between government departments, the government department of first contact pays for the service and can seek reimbursement from the other government or department after the child has received the service. It is a child-first principle meant to prevent First Nations children from being denied essential public services or experiencing delays in receiving them. On December 12, 2007, the House of Commons unanimously passed a motion that the government should immediately adopt a child-first principle, based on Jordan's Principle, to resolve jurisdictional disputes involving the care of First Nations children.
[3] The Complainants and Interested Parties (with the exception of Amnesty International) have each brought motions challenging, among other things, Canada’s implementation of Jordan’s Principle in relation to this Panel’s decision and orders in First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 (“the Decision”). Canada and the Commission filed submissions in response to the motions. The motions were heard from March 22 to 24, 2017 in Ottawa. As with the hearing on the merits, the hearing of these motions was broadcasted on the Aboriginal Peoples Television Network.
[4] This ruling deals specifically with allegations of non-compliance and related requests for further orders with respect to Jordan’s Principle. Other aspects of the parties’ motions not dealt with in this ruling will be determined as part of a separate ruling.
II. Findings and orders with respect to Jordan’s Principle to date
[5] In the Decision, this Panel found Canada’s definition and implementation of Jordan’s Principle to be narrow and inadequate, resulting in service gaps, delays and denials for First Nations children. Delays were inherently built into the process for dealing with potential Jordan’s Principle cases. Furthermore, the Canada’s approach to Jordan’s Principle cases was aimed solely at inter-governmental disputes between the federal and provincial government in situations where a child had multiple disabilities, as opposed to all jurisdictional disputes (including between federal government departments) involving all First Nations children (not just those with multiple disabilities). As a result, INAC was ordered to immediately implement the full meaning and scope of Jordan's Principle (see the Decision at paras. 379-382, 458 and 481). The Decision and related orders were not challenged by way of judicial review.
[6] Three months following the Decision, INAC and Health Canada indicated that they began discussions on the process for expanding the definition of Jordan’s Principle, improving its implementation and identifying other partners who should be involved in this process. They anticipated it would take 12 months to engage First Nations, the provinces and territories in these discussions and develop options for changes to Jordan’s Principle.
[7] In a subsequent ruling (2016 CHRT 10), this Panel specified that its order was to immediately implement the full meaning and scope of Jordan’s Principle, not immediately start discussions to review the definition in the long-term. We noted there was already a workable definition of Jordan’s Principle, which was adopted by the House of Commons, and saw no reason why that definition could not be implemented immediately. INAC was ordered to immediately consider Jordan’s Principle as including all jurisdictional disputes (including disputes between federal government departments) and involving all First Nations children (not only those children with multiple disabilities). The Panel further indicated that the government organization that is first contacted should pay for the service without the need for policy review or case conferencing before funding is provided (see 2016 CHRT 10 at paras. 30-34). Again, the ruling and related orders were not challenged by way of judicial review.
[8] Thereafter, INAC indicated that it took the following steps to implement the Panel’s order:
· It corrected its interpretation of Jordan’s Principle by eliminating the requirement that the First Nations child on reserve must have multiple disabilities that require multiple service providers;
· It corrected its interpretation of Jordan’s Principle to apply to all jurisdictional disputes and now includes those between federal government departments;
· Services for any Jordan’s Principle case will not be delayed due to case conferencing or policy review; and
· Working level committees comprised of Health Canada and INAC officials, Director Generals and Assistant Deputy Ministers will provide oversight and will guide the implementation of the new application of Jordan’s Principle and provide for an appeals function.
[9] It also stated it would engage in discussions with First Nations, the provinces and the Yukon on a long-term strategy. Furthermore, INAC indicated it would provide an annual report on Jordan’s Principle, including the number of cases tracked and the amount of funding spent to address specific cases. INAC also updated its website to reflect the changes above, including posting contact information for individuals encountering a Jordan’s Principle case.
[10] While the Panel was pleased with these changes and investments in working towards enacting the full meaning and scope of Jordan’s Principle, it still had some outstanding questions with respect to consultation and full implementation. In 2016 CHRT 16, the Panel requested further information from INAC with respect to its consultations on Jordan’s Principle and the process for dealing with Jordan’s Principle cases. Further, INAC was ordered to provide all First Nations and First Nations Child and Family Services Agencies (“FNCFS Agencies”) with the names and contact information of the Jordan’s Principle focal points in all regions.
[11] Finally, the Panel noted that INAC’s new formulation of Jordan’s Principle once again appeared to be more restrictive than formulated by the House of Commons. That is, INAC was restricting the application of the principle to “First Nations children on reserve” (as opposed to all First Nations children) and to First Nations children with “disabilities and those who present with a discrete, short-term issue for which there is a critical need for health and social supports.” The Panel ordered INAC to immediately apply Jordan’s Principle to all First Nations children, not only to those residing on reserve. In order for the Panel to assess the full impact of INAC’s formulation of Jordan’s Principle, it also ordered INAC to explain why it formulated its definition of the principle as only being applicable to First Nations children with “disabilities and those who present with a discrete, short-term issue for which there is a critical need for health and social supports” (see 2016 CHRT 16 at paras. 107-120). This third ruling was also not challenged by way of judicial review.
III. Canada’s further actions in relation to Jordan’s Principle
[12] In response to the present motions, Canada states that its definition of Jordan’s Principle now applies to all First Nations children and is not limited to those residing on reserve or normally resident on reserve. It also applies to all jurisdictional disputes, including those between federal government departments.
[13] According to Canada, its revised interpretation of Jordan’s Principle aims to ensure that anytime a need for a publicly-funded health, education or social care service or support for a First Nations child is identified, it will be met. Any jurisdictional issues that might arise will be dealt with after ensuring the need is met. New processes have been created so that the services needed for any Jordan's Principle case are not delayed due to case conferencing or policy review. Urgent cases are addressed within 12 hours; other cases within 5 business days; and, complex cases which require follow-up or consultation with others within 7 business days.
[14] Canada states it has also taken the necessary steps to ensure the requisite funding and human resources are available to implement the expanded definition of Jordan’s Principle. In this regard, it has undertaken new policy initiatives to improve health and social service needs for First Nations children. According to Canada, the Child-First Initiative (the “CFI”) supports the expanded application of Jordan’s Principle by providing mechanisms for Canada to prevent or resolve jurisdictional disputes and gaps, before they occur. Canada submits the CFI identifies First Nations children at risk, through enhanced service coordination, and provides a source of funds to meet children’s needs in cases where those needs cannot be met through existing publically available programs. Canada also points to the 2016/17 First Nations and Inuit Health Branch regional operation plan as supporting the correct interpretation of the application of Jordan’s Principle. That plan calls for $64 million for First Nations mental health programs and services in Ontario, in addition to regular mental health programs.
[15] In addition, Canada submits that it is also focusing on enhancing its communication efforts to ensure its First Nations partners are informed of the new approach, aware of new resources available and given an opportunity to get involved and share their views.
[16] Finally, Canada states that while Jordan’s Principle cannot fund everything, firm lines regarding what is recoverable are not being drawn. Any publicly-funded service that is available to other Canadian children is eligible under Jordan’s Principle and has been covered when brought forward.
IV. Analysis
[17] The Complainants and the Interested Parties believe Canada has failed to comply with the Panel’s orders to date, or certain aspects of those orders. Generally, each of their respective submissions focused on a different aspect of the complaint and made requests for immediate relief orders related to that focus. Based on statements made in their submissions and at the hearing, the Complainants and the Interested Parties are generally supportive of each other’s positions and requested orders.
[18] The Commission believes that, despite a number of positive and encouraging developments, Canada is not yet in full compliance with this Panel’s orders and, therefore, it is open to the Panel to provide additional clarification and/or guidance with respect to its orders.
[19] With respect to Jordan’s Principle, the First Nations Child and Family Caring Society of Canada (the “Caring Society”) and the Commission request that additional orders be made in relation to the definition of the principle, the dissemination of that definition to the public and stakeholders, and the process for dealing with Jordan’s Principle cases and the tracking of those cases.
[20] The Assembly of First Nations (the “AFN”) was originally concerned about its lack of involvement in Health Canada’s Jordan’s Principle activities given it has an Engagement Protocol with the First Nations and Inuit Health Branch. Health Canada has since invited the AFN to co-chair a working group on Jordan’s Principle, which the AFN accepted. The AFN’s submissions echo many of the concerns raised by the Caring Society and the Commission in terms of the definition and process surrounding Jordan’s Principle.
[21] The Chiefs of Ontario’s (the “COO”) and the Nishnawbe Aski Nation’s (the “NAN”) submissions with respect to Jordan’s Principle focus mainly on the provision of mental health services under the Memorandum of Agreement Respecting Welfare Programs for Indians (“the 1965 Agreement”) in Ontario. While this ruling will deal with Jordan’s Principle generally, specific issues with respect to the 1965 Agreement, along with other requests, will be dealt with in a separate ruling.
[22] In addition, the Panel highlights that NAN’s motion had also sought a “Choose Life” order that Jordan’s Principle funding be granted to any Indigenous community that files a proposal identifying children and youth at risk of suicide. Health Canada has since committed to establishing a Choose Life Working Group with NAN aimed at establishing a concrete, simplified process for communities to apply for Child-First Initiative (Jordan’s Principle) funding. As such, and at NAN’s request, the Panel adjourned the request for a “Choose Life” order (see 2017 CHRT 7).
A. Legal arguments
(i) Burden of proof and compliance
[23] In general, and in deciding all aspects of the motions now before the Panel, the Caring Society and the AFN submit that Canada bears the burden of demonstrating to the Tribunal that it has complied with the orders for immediate relief made to date. Canada is in possession of the necessary information to show whether the immediate relief ordered by the Tribunal has been provided. Furthermore, it would be unjust, having proved that Canada has discriminated against First Nations children and their families in a systemic way, to bear a “burden of proof” to show that discrimination is continuing in the absence of further orders.
[24] In the absence of evidence clearly demonstrating that Canada has fully addressed the immediate relief items ordered by the Tribunal, the Complainants and the Interested Parties have, among other things, asked the Tribunal to find that Canada continues to discriminate, that it has not complied with the Panel’s orders to date, and, in some cases, asked that the Tribunal issue an order declaring Canada non-compliant.
[25] The Commission submits that, where the Tribunal has retained jurisdiction to facilitate implementation of an order, and a dispute subsequently arises, it is open to the Tribunal to reconvene the hearing to: (i) make findings about whether a party has complied with the terms of the original order, and (ii) clarify and supplement the original order, if further direction is needed to address the discriminatory practice identified in the original order. In its view, despite a number of positive and encouraging developments, Canada has not yet brought itself into full compliance with the Tribunal’s rulings regarding Jordan’s Principle. It is therefore open to the Tribunal to provide additional clarification and/or guidance.
[26] Canada submits that there is no established legal test governing a motion for non-compliance before this Tribunal. The test to be met on this motion must accordingly be derived from the general principles that guide human rights law. According to Canada, the law is clear that the moving parties have the legal burden to prove their allegations on a balance of probabilities: in this case, allegations of non-compliance. In Canada’s view, the moving parties have not met their burden and, therefore, their motions should be dismissed. In any event, Canada states it has complied with the Tribunal’s orders.
[27] Once it is established that discrimination or a loss has been suffered, the Tribunal must consider whether an order is appropriate (see s. 53(2) of the Canadian Human Rights Act [“the Act”]). In this regard, the Tribunal has the duty to assess the need for orders on the material before it; or, it can refer the issue back to the parties to prepare better evidence on what an appropriate order should be (see Canadian Human Rights Commission v. Canada (Attorney General), 2010 FC 1135 at paras. 61 and 67, aff’d 2011 FCA 202 [“Walden”]). In determining the present motions, this is the situation in which the Panel finds itself.
[28] In the Decision, while the Panel made general orders to cease the discriminatory practice and take measures to redress and prevent it, it also explained that it required further clarification from the parties on the relief sought, including how immediate and long-term reforms can best be implemented on a practical, meaningful and effective basis (see para. 483). Indeed, while the Panel was able to further elaborate upon its orders in its subsequent rulings based upon additional information provided by the parties, the Panel continued to retain jurisdiction over the matter pending further reporting from the parties, mainly from Canada (see 2016 CHRT 10 and 2016 CHRT 16). That is to say that, as opposed to determining the merits of a complaint, the Tribunal’s determination of appropriate remedies is less about an onus being on a particular party to prove certain facts, and more about gathering the necessary information to craft meaningful and effective orders that address the discriminatory practices identified.
[29] Consistent with this approach, and as this Panel has previously stated, the aim in making an order under section 53 of the Act is to eliminate and prevent discrimination. On a principled and reasoned basis, in consideration of the particular circumstances of the case and the evidence presented, the Tribunal must ensure its remedial orders are effective in promoting the rights protected by the Act and meaningful in vindicating any loss suffered by the victim of discrimination. However, constructing effective and meaningful remedies to resolve a complex dispute, as is the situation in this case, is an intricate task and may require ongoing supervision (see 2016 CHRT 10 at paras. 13-15 and 36).
[30] It is for these reasons that, absent a gap in the evidentiary record, the Panel does not consider the question of burden of proof to be a material issue in determining the present motions. As the Federal Court of Appeal stated in Chopra v. Canada (Attorney General), 2007 FCA 268, at paragraph 42 (“Chopra”), “[t]he question of onus only arises when it is necessary to decide who should bear the consequence of a gap in the evidentiary record such that the trier of fact cannot make a particular finding.” While discrete issues regarding the burden of proof may arise in the context of determining motions like the ones presently before the Panel, where the evidentiary record allows the Panel to draw conclusions of fact which are supported by the evidence, the question of who had the onus of proving a given fact is immaterial.
[31] In the same vein, the Panel’s role in ruling upon the present motions is not to make declarations of compliance or non-compliance per se. Rather, in line with the remedial principles outlined above, the Panel’s purpose in crafting orders for immediate relief and in retaining jurisdiction to oversee their implementation is to ensure that as many of the adverse impacts and denials of services identified in the Decision are temporarily addressed while INAC’s First Nations child welfare programing is being reformed. That said, in crafting any further orders to immediately redress or prevent the discrimination identified in the Decision, it is necessary for the Panel to examine the actions Canada has taken to date in implementing the Panel’s orders and it may make findings as to whether those actions are or are not in compliance with those orders.
[32] As the Federal Court of Canada stated in Grover v. Canada (National Research Council) (1994), 24 CHRR D/390 (FC) at para. 32, “[o]ften it may be more desirable for the Tribunal to provide guidelines in order to allow the parties to work out between themselves the details of the [order], rather than to have an unworkable order forced upon them by the Tribunal.” This statement is in line with the Panel’s approach to remedies to date in this matter. In order to facilitate the immediate implementation of the general remedies ordered in the Decision, the Panel has requested additional information from the parties, monitored Canada’s implementation of its orders and, through its subsequent rulings, provided additional guidance to the parties and issued a number of additional orders based on the detailed findings and reasoning already included in the Decision.
[33] While that approach has yielded some results, it has now been over a year since the Decision and these proceedings have yet to advance past the provision of immediate relief. The Complainants, the Commission and the Interested Parties want to see meaningful change for First Nations children and families and want to ensure Canada is implementing that change at the first reasonable occasion. The Panel shares their desire for meaningful and expeditious change. The present motions are a means to test Canada’s assertion that it is doing so and, where necessary, to further assist the Panel in crafting effective and meaningful orders.
[34] This is the context in which the present motions have been filed. The Tribunal’s remedial discretion must be exercised reasonably, in consideration of this particular context and the evidence presented through these motions. That evidence includes Canada’s approach to compliance with respect to the Panel’s orders to date, which evidence can be used by the Panel to make findings and to determine the motions of the parties.
(ii) Separation of powers
[35] In crafting further orders, Canada urges the Tribunal to bear in mind general principles regarding the appropriate separation of powers. That is, the Tribunal should leave the precise method of remedying the breach to the body charged with responsibility for implementing the order. According to Canada, the Tribunal would exceed its authority if it were to make orders resulting in it taking over the detailed management and coordination of the reform currently being undertaken.
[36] Canada submits deference must be afforded to allow it to exercise its role in the development and implementation of policy and the spending of public funds. Absent statutory authority or a challenge on constitutional grounds, courts and tribunals do not have the institutional jurisdiction to interfere with the allocation of public funds or the development of public policy. To the extent the Tribunal is being asked to make additional remedial orders that would require it to dictate policies or authorize the spending of public funds, Canada contends those requests should be denied as they would exceed the Tribunal' s jurisdiction.
[37] Canada’s separation of powers argument lacks specificity. Aside from one specific order requested by the Caring Society, which the Panel will address in a separate ruling, Canada has not pointed to any other orders requested by the other parties to which this argument would apply. For the purposes of this ruling, it has not identified any requested orders related to Jordan’s Principle that may offend the separation of powers. In any event, as explained in the reasons below, any further orders made by the Panel are based on the findings and orders in the Decision and subsequent rulings, which Canada has accepted; the evidence presented on these motions; and, the Panel’s powers under section 53(2) of the Act. In performing this analysis, Canada’s generalized separation of powers argument is not particularly helpful.
B. Further orders requested
(i) Definition of Jordan’s Principle
[38] Despite Canada’s assurances that its definition of Jordan’s Principle now applies to all First Nations children, regardless of their condition or place of residency, the Caring Society submits that government officials have been promulgating a restrictive definition of Jordan’s Principle that still focuses on children with disabilities or with a critical short-term condition requiring heath or social services. The Caring Society adds that INAC has yet to undertake a review of past Jordan’s Principle cases where services were denied. While Health Canada is engaged in a process of looking at past Jordan’s Principle cases where services were denied, the Caring Society and the AFN are unclear about the number of years into the past this process is considering.
[39] Moreover, the Caring Society is concerned that the definition of Jordan’s Principle is limited to children as defined by provincial legislation. In some provinces, a child is defined as being under the age of 16. Such an approach is unacceptable to the Caring Society because Jordan’s Principle is not restricted to services provided under a province’s child and family services legislation. Similarly, the Caring Society submits that Jordan’s Principle requires an outcome-based, and not process-based, approach to access to services. That is, the provincial/territorial normative standard of care is an inadequate measure when designing programs and initiatives to provide substantive equality to First Nations children.
[40] The Commission generally agrees with the Caring Society that the Tribunal should provide additional guidance by clarifying the exact definition of Jordan’s Principle that is to be applied, going forward, to redress the discriminatory practices identified in the Decision. Considering the rulings already made by the Panel to date, the Commission suggested certain key principles that any definition of Jordan’s Principle must include.
[41] While Canada has done some work to implement Jordan’s Principle since the Decision, it still has not implemented its full meaning and scope. As mentioned above, in 2016 CHRT 16, the Panel indicated that a definition of Jordan’s Principle that applies to First Nations children with “disabilities and those who present with a discrete, short-term issue for which there is a critical need for health and social supports” appeared to be more restrictive than formulated by Parliament. Following the Panel’s request for further information, and pursuant to the evidence presented in the course of these motions, the Panel can now confirm that Canada has indeed been applying a narrow definition of Jordan’s Principle that is not in compliance with the Panel’s previous orders.
[42] Canada put forward three witnesses in response to the motions of the Complainants and the Interested Parties:
· Ms. Robin Buckland, Executive Director of the Office of Primary Health Care within Health Canada’s First Nations and Inuit Health Branch;
· Ms. Cassandra Lang, Director, Children and Families, in the Children and Families Branch at INAC; and,
· Ms. Lee Cranton, Director, Northern Operations in Ontario Region within Health Canada’s First Nations and Inuit Health Branch.
[43] Each of these three witnesses swore an affidavit and was cross-examined thereon by the other parties, all of which was put before the Panel in the context of these motions. Generally, the three witnesses presented similar testimonial evidence in support of Canada’s position. However, as the Panel will explain in the pages that follow and with a primary focus on the evidence of Ms. Buckland, their testimony in relation to Jordan’s Principle was not corroborated by the bulk of the documentary evidence emanating from Canada and dated over the last year since the Decision.
[44] Ms. Buckland is the federal government official responsible for implementing Jordan’s Principle. She has been involved in doing so since the Decision’s release (see Gillespie Reporting Services, transcript of Cross-Examination of Robin Buckland, Ottawa, Vol. I at p. 15, lines 21-23 [Transcript of Cross-Examination of Ms. Buckland]).
[45] In her affidavit, Ms. Buckland states that the previous restrictions found in the definition of Jordan’s Principle have now been eliminated, including the requirement that First Nations children must have multiple disabilities that require multiple service providers or that they must reside on reserve. Despite this, she states that families are often not coming forward to request support. In this regard, she indicates proactive efforts in partnership with service delivery organizations on the ground will need to continue and that Canada has commenced various engagement activities to help facilitate the broader application of Jordan’s Principle (see affidavit of Ms. Robin Buckland, January 25, 2017, at paras. 3, 16-17).
[46] Ms. Buckland further explained that the current definition of Jordan’s Principle, which applies to First Nations children with “disabilities and those who present with a discrete, short-term issue for which there is a critical need for health and social supports”, was to focus efforts on the most vulnerable children:
[I]t's more about looking for the highest area of need and, and trying to focus our efforts.
Transcript of Cross-Examination of Ms. Buckland at p. 17, lines 12-13.
[A] child living on reserve with an interim, a condition or short-term condition or a disability affecting their activities of daily living was a focus of our efforts, was and is a focus of our efforts in terms of Jordan's Principle.
Transcript of Cross-Examination of Ms. Buckland at p. 39 lines, 17-21.
Whenever you're working on a complex health issue, you always take a multi-modal approach to it. There's always different angles from which you need to be able to address the problem if you are going to make a difference. The focus on First Nations children on reserve with a disability or a short-term condition with -- that affects their activities of daily living is an effort, is our effort to try to get at a segment of the population, a subset of the population where we feel there is an opportunity to make -- where we feel there is the greatest need and where we feel there is an opportunity to make the greatest difference.
So I think as I said earlier, we were -- it was unfortunate that our communications in the beginning did not -- were not properly prefaced, indicating that Jordan's Principle applies to all First Nations children.
Transcript of Cross-Examination of Ms. Buckland at p. 40, lines 10-25.
We're trying to focus, we're trying to start somewhere and trying to -- where are we likely to find the greatest number of jurisdictional disputes.
Transcript of Cross-Examination of Ms. Buckland at p. 41, lines 4-6.
Children with disability or critical interim need is, is a particular focus. Jordan`s Principle, as I mentioned just moments ago, applies to all first nations kids and who have an unmet need in terms of health and social needs.
Transcript of Cross-Examination of Ms. Buckland at p. 275, lines 19-23.
[47] As the Caring Society points out at paragraph 24 of its December 16, 2016 submissions, the Decision found Canada’s similarly narrow definition and approach to Jordan’s Principle to have contributed to service gaps, delays and denials for First Nations children on reserve. Specifically, the evidence before the Panel in determining the Decision indicated Health Canada and INAC’s approach to Jordan’s Principle focused mainly on “inter-governmental disputes in situations where a child has multiple disabilities requiring services from multiple service providers” (see Decision at paras. 350-382). Indeed, the Panel specifically highlighted gaps in services to children beyond those with multiples disabilities. For example, an INAC document referenced in the Decision, entitled INAC and Health Canada First Nation Programs: Gaps in Service Delivery to First Nation Children and Families in BC Region, indicates that these gaps non-exhaustively include mental health services, medical equipment, travel for medical appointments, food replacement, addictions services, dental services and medications (see Decision at paras. 368-373).
[48] As the Panel also highlighted in the Decision, the Federal Court likewise found Health Canada and INAC’s focused approach to Jordan’s Principle to be narrow and the finding that the principle was not engaged with respect to Jeremy Meawasige, a teenager with multiple disabilities and high care needs, to be unreasonable (see Pictou Landing Band Council v. Canada (Attorney General), 2013 FC 342 [“Pictou Landing”]).
[49] The justification advanced by Ms. Buckland for the focused approach to Jordan’s Principle is the same one advanced by Canada in the past and underscored by the Panel in the Decision (see paras. 359 and 368-369). Specifically, in a Health Canada PowerPoint presentation from 2011, entitled Update on Jordan’s Principle: The Federal Government Response (Exhibit R-14, Tab 39 at p. 6), Canada indicated:
This slide presents an overview of the federal response to Jordan’s Principle. We acknowledge that there are differing views regarding Jordan’s Principle. The federal response endeavors to ensure that the needs of the most vulnerable children at risk of having services disrupted as a result of jurisdictional disputes are met.
[…]
The Government of Canada’s focus is on children with multiple disabilities requiring services from multiple service providers whose quality of life will be negatively impacted by jurisdictional disputes. These are children who are the most vulnerable – children like Jordan.
[50] Despite the findings in the Decision, Canada has repeated its pattern of conduct and narrow focus with respect to Jordan’s Principle. In February 2016, a few weeks after the release of the Decision, Canada considered various new definitions of Jordan’s Principle. Those new definitions and their implications are found in a document entitled The Way Forward for the Federal Response to Jordan’s Principle – Proposed Definitions, dated February 11, 2016 (Exhibits to the Cross-Examination of Ms. Cassandra Lang on her affidavit dated January 25, 2017, February 7-8, 2017, at tab 4):
Proposed Definition Options
Key Elements and Considerations
Option One:
Jordan’s Principle is a child-first approach to address the needs of First Nation children assessed as having disabilities/special needs by ensuring cross jurisdictional issues to not disrupt, delay or prevent a child from accessing services. Under Jordan’s Principle, in the event that there is a dispute over payment of services between or within governments, First Nation children living on reserve (or ordinarily on reserve) will receive required social and health supports comparable to the standard of care set by the province (normative standard). The agency of first contact will pay for the services until there is a resolution.
Key Elements
Similar to the criteria and scope as original JP response but broader than original definition (which was limited to “children with multiple disabilities requiring services from multiple service providers), this approach maintains a focus on children with special needs.
Broadens the definition of jurisdictional dispute to include intergovernmental disputes (not just federal/provincial) this responds
Considerations:
May draw criticism due the continued focus on special needs (while broader) as the original JP response.
Maintaining the notion of comparability to provincial resources may not address the criticism of the Tribunal regarding the need to ensure substantive equality in the provision of services.
The focus on a dispute does not account for potential gaps in services where no jurisdiction is providing the required services.
Option Two:
Jordan’s Principle is a child-first approach to address the assessed needs of First Nation children by ensuring cross jurisdictional issues to not disrupt, delay or prevent a child from accessing services. Under Jordan’s Principle, in the event that there is a dispute over payment of services between or within governments, First Nation children living on reserve (or ordinarily on reserve) will receive required social and health supports comparable to the standard of care set by the province (normative standard). The agency of first contact will pay for the services until there is a resolution.
Key Elements:
Similar to Option One with the exception of broadening the scope to include all First Nation children on reserve rather than limited to special needs.
Maintains original focus on:
jurisdictional disputes
normative standards set by province (with a modification to move away from specific reference to geographical comparability
Considerations:
Responds to the key direction of the Tribunal by broadening the scope beyond children with special needs. However, the broader scope may also dilute the focus on some of the most vulnerable children.
May have significant resources implications and may go beyond current policy authorities and/or program mandates.
Option Three:
Jordan’s Principle is a child-first approach to address the assessed needs of First Nation c children by ensuring cross jurisdictional issues to not disrupt delay or prevent a child from accessing services. In the event that there is a dispute over payment of services between or within governments, First Nation children will receive required social and health supports. The agency of first contact will pay for the services until there is a resolution.
Key Elements:
Broader scope – does not limit the response to First Nation children living on reserve.
A dispute between governments or within government is still required in order to trigger JP.
Considerations:
The inclusion of all First Nation children may have far reaching resource implications and will require additional policy and program mandates.
The continued focus on instances where there is a dispute may limit the ability for JP to respond to gaps in service (where no jurisdiction is providing the required service).
Option Four:
Jordan’s Principle is a child-first approach to address the assessed needs of First Nation children by ensuring cross jurisdictional issues to not disrupt, delay or prevent a child from accessing services. Under Jordan’s Principle, First Nation children will recei