June 15, 2012

Jeremy’s Case, Jordan’s Principle

Historic court case in Halifax identifies gap in health services for First Nations children

by Moira Peters

The Dominion - http://www.dominionpaper.ca

HALIFAX—In a precedent-setting case that continued in Halifax on Monday, Maurina Beadle and Pictou Landing First Nation took the Government of Canada to court over its failure to provide Beadle’s son the same level of health care that a child living off-reserve would receive from the province of Nova Scotia.

On the fourth anniversary of Prime Minister Stephen Harper's historic apology to First Nations people for the forced separation of children from their families under the residential school system, the Mi'kmaq mother was in court fighting for the health services that would allow her son Jeremy to remain at home under her care.

"All the things that were promised in Harper's apology are things they are not doing for Jeremy," said Philippa Pictou, Health Director for Pictou Landing First Nation, sitting on a bench in courtroom 501 in the Law Courts on Lower Water Street in Halifax on Monday morning. "Kids being pushed into institutions, instead of being cared for at home."

Jeremy Meawasige is a 17-year-old from Pictou Landing First Nation who was born with a complex array of disabilities and medical conditions. His mother, Maurina Beadle, had been providing all of his care without government assistance until a double stroke in May 2010 left her physically unable to meet his needs at home.

When, with help from the First Nation, Beadle applied for funding for home care health services, she found that her family's Aboriginal status caught her son in jurisdictional red tape that prevented him from receiving the same care on-reserve that he would be provided with by the province of Nova Scotia if he lived off-reserve.

With the support of Pictou, Beadle is invoking Jordan’s Principle for the first time in its history. The child-first policy passed unanimously in the House of Commons in 2007. It dictates that in the instance of a jurisdictional dispute over which level of government foots the bill for a First Nations child in need of medical care, the government first contacted must come up with the funds; any arguments over who ultimately pays for the child's care are to be argued later.

Jordan's Principle is named after Jordan River Anderson of Norway House Cree Nation, who lived all four years of his life in hospital while the governments of Manitoba and Canada fought over which level of government was responsible for paying for his home care.

Jordan's Principle has never been implemented in any province or territory.

"Should a disabled First Nations child on-reserve be entitled to the level of care available to any child off-reserve?" asked Paul Champ, the lawyer representing Beadle and Pictou Landing First Nation, in his opening comments.

Provincial governments generally provide continuing care health services in the home. But because First Nations fall under federal jurisdiction, provincial governments do not provide on-reserve health services.

The federal government, either under Health Canada or Aboriginal Affairs and Northern Development Canada (AANDC, formerly INAC), is responsible for allocating to First Nation bands the resources to provide services "reasonably comparable to those provided by the province," Champ told the court on Monday. Bands must "administer program according to provincial legislation and standards."

In her decision to deny Beadle the requested funding, AANDC official Barbara Robinson argued that Beadle and Pictou Landing First Nation were requesting services above and beyond the "normative standard of care in Nova Scotia."

Champ argued that Robinson's interpretation of the normative standard of care in Nova Scotia is flawed. She determined that Jeremy Beadle is eligible to receive $2,200 per month, "full stop," explained Champ. $2,200 per month is the standard respite cap in Nova Scotia, according to a Community Services policy document.

However, a support program available for persons with disabilities in Nova Scotia—one designed to "maintain the integrity of families," including enabling people with disabilities to live at home&mdashincludes a section in which "exceptional circumstances" allow for additional respite funding. These circumstances are defined in a number of points, and all apply to Jeremy.

Upon cross-examination, Robinson conceded that the Beadles meet all exceptional circumstances criteria, but she also said that the "exceptional circumstances" part of the policy doesn't apply to Jeremy's case. Her reasoning, explained Champ, was that she relied on what happens "in practice," not necessarily in policy or law.

According to the Social Assistance Act, the government "shall furnish assistance to all persons in need," and this includes home care. Cabinet can prescribe maximum levels of assistance. No maximum has been legally established; the $2,200 cap is, effectively, arbitrary.

On Monday afternoon, the proceedings turned to Section 15 of the Charter of Rights and Freedoms, the equality guarantee that ensures that all people have access to equal benefit of the law. Champ reminded the court that the purpose of the Charter is to entrench the goal of equality, in particular to protect those who have been historically disadvantaged.

"The disadvantage that First Nations have historically faced on reserves has never been resolved," said Champ. "Never. Never. First Nations people do not have equal access to schools, home care, or health."

Robinson, when making her decision in the Beadle case, stated that the Charter doesn't apply. Champ explained the exception to the guarantee of equality that excludes First Nations people who, because of their unique status, are not entitled to the equal benefit of the law.

First Nations people are the only legal group in Canada identified by race; they therefore fall into a "legal no-man's-land" because their situation can't be compared to anything--there is no comparative group with respect to which they can be discriminated. Therefore the Charter, and cases argued on the basis of discrimination, cannot be argued. Champ submitted that this is an improper way to interpret Section 15 of the Charter of Rights and Freedoms.

The services provided by the federal government--either by Health Canada or by Aboriginal Affairs--to people on-reserve, are not provided by legal obligation, but as a matter of policy, based on agreements and programs negotiated with First Nations band councils.

These services are policy, not law, Champ told the court. They are therefore discretionary, and provided according to the government official who interprets the policy. These agreements use such language as "Canada has elected to provide" a given service. These services are therefore a choice, provided at the discretion of the Government of Canada.

One such policy is Jordan's Principle. As an "expression of the House," it is not legally binding, but the federal government is seeking to implement the principle across the country. Where there is no formal agreement, there are dialogues premised on Jordan's Principle, said Champ. He added that in any other case he would not make the argument that Jordan’s Principle legally applies.

"But in this case, there are no statutes. We have policy manuals, funding agreements that change over time in content and funding levels essentially at the whim of the federal government. Do these policies have the form of law? Yes, because there is nothing else," said Champ. "This is, in a sense, is the best that we have."

The animated purpose of Jordan's Principle, he said, is to acknowledge the fact that First Nations people are in a unique legal situation, and also to rectify the historical disadvantage of First Nations people.

A breach of Jordan's Principle is evidence of discrimination, said Champ. "When a child is denied service for one day, as a result of a jurisdictional dispute, that is a breach of Jordan's Principle, and it is always a breach of Section 15 of the Charter."

After the Crown’s submissions and the applicants' responses, Judge Mandimen acknowledged that the case is time-sensitive. Recognizing that the Pictou Landing First Nation cannot continue to provide funding for Beadle’s home care, Mandimen said that he would move his decision through as soon as possible.

Beadle—and First Nations across the country who are watching this case—will still have to wait up to six months for a ruling, although after the trial Champ said he hopes for a ruling by the end of August.

"I know this [case] won’t necessarily change things for Jeremy, by the time it’s over," said Beadle. "But this isn’t for Jeremy. This is for children across the country. They shouldn’t have to wait while the people in power procrastinate."

Moira Peters lives and bikes in Halifax.

A version of this article was originally published by the Halifax Media Co-op as a series, including an introductory article and blog posts about Monday’s morning and afternoon court proceedings. The last post of the series covering Monday’s court proceedings will be published by the Halifax Media Co-op later today.

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