Jordan’s Principle: Canada and its False Promises

Osgoode Health Law Association: Perspectives in Health

 

 

 

With tragic cases such as those of Tina Fontaine and Colten Boushie recently coming to a close, Canadians are becoming aware of the effects that governments and their institutions have on Indigenous people, and in these cases specifically, Indigenous youth. These two cases illustrate the failure of government, its institutions, and Canadian society as a whole in protecting Indigenous youth.

 

A specific institution that has been failing Indigenous youth is Canada’s healthcare system. We repeatedly hear about lack of access issues and inadequate care for Indigenous youth. However, Canada seems to have made some progress with the implementation of Jordan’s Principle.

 

Jordan’s Principle was created in memory of Jordan River Anderson, an Indigenous child from Norway House Cree Nation in Manitoba.  Jordan was born with a host of disabilities and complex medical needs. Sadly, Jordan spent his entire life in hospitals due to disagreements between the provincial and federal governments. The Manitoba provincial government and the federal government spent years arguing over who was to pay for Jordan’s homecare, while he was confined to a hospital room. At the age of five, Jordan died in the hospital. In the span of his short life, he never spent a single day in his family home. Jordan’s tragic story sparked the implementation of a principle that would prevent Indigenous children from getting caught in the crossfire between quarrelling governments.

 

Stories like Jordan’s are disturbingly common for Indigenous youth, who often bear the brunt of intergovernmental conflicts. Such youth are left without access to vital health services, either because they are left waiting, or because they are flat-out denied these services. Jordan’s Principle aims to put children first and alleviate the intergovernmental conflicts that put Indigenous youth at risk:

 

“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.”

 

Jordan’s Principle was unanimously passed in the House of Commons on December 12, 2007. On its face, this seemed like a landmark decision for Canada and a huge step forward for Indigenous communities. Unfortunately, Canada continued to fail Indigenous youth with its application of Jordan’s Principle.

 

On January 26, 2016, the Canadian Human Rights Tribunal found that the federal government had been applying a limited and discriminatory definition of Jordan’s Principle. They ordered that the federal government immediately stop applying this definition and implement the full meaning of the principle.

 

In both April and September of 2016, the Tribunal had to issue two remedial orders against Canada for failing to adhere to the January 2016 decision. Due to Canada’s continuing failure to properly implement Jordan’s Principle, the Caring Society, Assembly of First Nations, and other interested parties filed motions against Canada stating that the government failed to comply with the Tribunal’s decisions and subsequent remedial orders.

 

In its May 2017 ruling, the Tribunal found that “Canada ha[d] repeated its pattern of conduct and narrow focus with respect to Jordan’s Principle.” The Tribunal thus issued a third set of compliance orders. The Tribunal made a fifteen-point order, the first four points being:

 

1. As of May 26, 2017, Canada shall cease using definitions of Jordan’s Principle that do not comply with the Tribunal orders.
2. As of May 26, 2017, Canada will start using a definition based on the following principles:
3. Jordan’s Principle applies equally to all First Nations children both on and off reserve and is not limited to First Nations children with disabilities, or short-term issues creating critical needs for health and social supports.
4. Jordan’s Principle applies to all government services and ensures that there are no gaps in government services to First Nations children.

• The government department of first contact will pay for the service to a First Nations child without engaging in administrative procedures before funding is provided.

1. In cases when a government service is not necessarily available to all other children, or is beyond the normative standard of care, the government of first contact will still evaluate the needs of the child to determine if the provision of services should be provided to ensure substantive equality.
2. A jurisdictional dispute between departments or between governments is not a necessary requirement for the application of Jordan’s Principle.
3. Canada shall not use or distribute a definition of Jordan’s Principle that is in any way contrary to the orders listed above.
4. By November 1, 2017, Canada shall review previous requests (dating from April 1, 2009) for funding, whether made pursuant to Jordan’s Principle or otherwise.

 

The Tribunal’s 2017 ruling is a positive step toward providing essential healthcare services to Indigenous youth. However, there is a real need for continuing assessment of healthcare and access to services, as highlighted by the brief timeline of legal events in the decade since the creation of Jordan’s Principle. It seems that Canada is more interested in appearances rather than actual systemic change. Jordan’s Principle was meant to provide a measure of protection for Indigenous youth, yet Canada’s actions continuously leave Indigenous youth unprotected and underserved.

 

All things considered, one can hope that this third compliance order issued by the Tribunal will be the final push Canada needs to adequately implement Jordan’s Principle. It will be interesting to watch what will happen in the coming years if Canada remains rigid in its application of Jordan’s Principle. In 2018, we can no longer afford to constantly be moving one step forward and two steps back when it comes to Indigenous health issues.

 

If you would like more information on Jordan’s Principle, please visit https://fncaringsociety.com/jordans-principle.  All information in this article was taken from this website and its publicly-available documents.

 

Madison Santos received her Honours B.A. in Pre-Law from the Political Science program at Lakehead University.

 

This article is part of the Osgoode Health Law Association’s Perspectives in Health column. Keep up to date with the HLA on Facebook (Osgoode Health Law Association, Osgoode Health Law Association Forum) and Twitter (@OsgoodeHLA). If you would like to write with the Osgoode HLA, please contact Adrienne Shnier (AdrienneShnier2016@osgoode.yorku.ca).