Jurisdictional Disputes and Indigenous Health: The Emergence of Jordan’s Principle

Contributed by: Maya Gunnarsson

Introduction

In 2005, Jordan River Anderson, a child from Norway House Cree Nation, died at the age of five without ever having lived at home.  Jordan was born with a rare muscular disorder that required him to be placed in a hospital in Winnipeg, approximately 800 km away from his home.  After two years of care in the hospital, Jordan’s doctors cleared him to be discharged to a specialized foster home to receive at-home care.  Unfortunately, Jordan never made it to the foster home.  The provincial and federal governments disputed who should pay for Jordan’s homecare for over two years, until Jordan’s death.

Neither the provincial nor the federal governments were willing to pay for Jordan’s home care, due to the jurisdictional ambiguities in the Constitution’s division of powers.  Sec 92(7) of the Constitution Act, 1867 assigns exclusive powers over hospitals to the provinces, while sec 91(24) assigns legislative authority over Indians to the federal government.  The legal term Indians has traditionally referred to First Nations people, with the federal government’s fiduciary duty only extending to “status Indians”.  In 2016, the Supreme Court of Canada expanded this definition, declaring that non-status Indians and Métis were to be considered “Indians” under sec 91(24).  As this expanded definition is relatively new, and many of the decisions referenced in this post used the previously accepted definition, the term “First Nations people” will be used in this post when referring to “Indians”.

The Manitoba government argued that the federal government had a fiduciary duty to First Nations people both on and off reserve and therefore Health Canada should be financially responsible.  The federal government argued that the provincial healthcare system was responsible for Jordan’s care.  As the two levels of government disputed who should foot the bill, Jordan was denied the service and remained in the hospital.

6872410817_eabeba8c24_o Hospital Bed || (Source: Flickr // Aaron Noble )

Jordan’s situation was not isolated.  Hundreds of First Nations children were being denied or delayed receipt of public services available to non-Indigenous children each year.

Jordan’s Principle is a response to this situation.  It states that when there is a jurisdictional dispute between different levels of government, or governmental departments over services for First Nations children, the government of first contact must pay for the service, and resolve the dispute over payment afterwards.  It is intended to ensure all children have equitable access to governmental services, such as healthcare. Continue reading “Jurisdictional Disputes and Indigenous Health: The Emergence of Jordan’s Principle”

The Criminalization of HIV Non-Disclosure: A Closer Look at the Duty to Disclose

Contributed by: Annelise Harnanan

A Closer Look at the Duty to Disclose

In Canada, failing to disclose a positive HIV status may lead to charges for various offences – most notably aggravated sexual assault and aggravated assault. Two landmark Supreme Court of Canada cases have described the circumstances under which an individual with HIV may be prosecuted for not disclosing their status: R v Cuerrier and R v Mabior. However, the criminalization of non-disclosure of HIV status has been widely criticized by experts in various fields, such as the domains of science and public health. Continue reading “The Criminalization of HIV Non-Disclosure: A Closer Look at the Duty to Disclose”