First Nations Child and Family Caring Society of Canada v. Canada, 2019 CHRT 39

Contributed by Maya Gunnarsson

The McGill Journal of Law and Health and the Indigenous Law Association at McGill Blog are collaborating on our blogs this year, in order to connect our readers with more content at the crossroads of health law, and Indigenous law and legal traditions.  You can find this article cross-posted on their website.

Introduction

The Canadian Human Rights Tribunal released their latest decision in First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) in September 2019. This ruling was the 9th issued by the Tribunal since 2016, when they found the Caring Society’s allegations that Canada was discriminating against First Nations children in their provision of child and family services were substantiated.

“This ruling is dedicated to all the First Nations children, their families and communities who were harmed by the unnecessary removal of children from your homes and your communities. The Panel desires to acknowledge the great suffering that you have endured as victims/survivors of Canada’s discriminatory practices.” 

Caring Society v. Canada, 2019 CHRT 39 at para 13.

The purpose of this ruling was to determine the compensation Canada would be ordered to pay due to their discriminatory practices. More broadly, however, this decision attempted to bring justice to an extremely vulnerable group of people who have historically been denied access to justice through Canadian institutions. Since the initial ruling in 2016, the Tribunal had issued multiple remedial orders against Canada, finding that they were continuing to discriminate, and giving clear orders on what the federal government needed to do to comply with its 2016 decision. While the federal government may have been dragging its heels, the Tribunal firmly took a step towards reconciliation in Canada with this decision. Continue reading “First Nations Child and Family Caring Society of Canada v. Canada, 2019 CHRT 39”

Constitutionalization of the Right to Health: a Pathway to Improved Health Outcomes?

Contributed by: Maya Gunnarsson

Introduction

This February, the McGill Journal of Law and Health hosted a conference on Access to Care and the Constitutionalization of the Right to Health.  One panel featured two experts on the right to health and the Canadian constitution.  The general argument for the constitutionalization of health is that it will lead to better health outcomes within a society.  The panellists, however, questioned this assumption.  This article will highlight some of the challenges associated with the constitutionalization of the right to health, as well as explore how this process has played out in other countries. Continue reading “Constitutionalization of the Right to Health: a Pathway to Improved Health Outcomes?”

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”