The Carney administration is engaged in a legal battle with a First Nations grandmother to change longstanding court orders mandating Canada to offer equal access to essential healthcare and social services for First Nations children, as per the woman’s legal representatives. The Federal Court of Appeal in Ottawa will address this groundbreaking case on Monday, marking the inaugural consideration of Jordan’s Principle by the appeals court. This principle, established through a series of Canadian Human Rights Tribunal (CHRT) rulings starting in 2016, obliges governments to provide timely care to First Nations children without delays related to jurisdictional disputes.
According to lawyers representing Oneida grandmother Joanne Powless, Canada’s stance essentially constitutes a covert challenge to the established CHRT orders. The attorneys, David Taylor and Siobhan Morris, from Conway Baxter Wilson, noted in a written argument dated September 25 that Canada is attempting to revisit resolved issues and undermine a decade’s worth of CHRT decisions. Taylor emphasized in an interview on Friday that the tribunal’s orders are conclusive and binding, with Canada never having successfully contested any of them. He remarked, “They’re attempting to achieve indirectly what they couldn’t directly from the tribunal.”
The outcome of this single-day hearing could have extensive implications for over 100,000 pending applications awaiting processing at Indigenous Services Canada (ISC). Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, which has intervened in the appeal, expressed that a victory for Canada could severely impact numerous children, while a win for Powless would add to Canada’s existing losses in similar cases.
In 2022, Powless sought around $200,000 under Jordan’s Principle to address mold issues in her home on Oneida Nation of the Thames near London, Ontario, including funds for temporary relocation and essential living expenses during the remediation process. As the primary caregiver for her two grandchildren residing with her, Powless’s doctor classified the remediation work as crucial for the sisters, who suffer from asthma exacerbated by their living conditions.
Canada rejected the requests, arguing that major home renovations fall outside the scope of Jordan’s Principle. However, Powless successfully applied for a judicial review in the Federal Court, where it was determined that ISC had taken an unreasonably narrow approach by framing the application solely as a housing remediation petition. The court ruled that Jordan’s Principle mandates officials to evaluate each request based on the individual health needs and best interests of each child to achieve substantive equality.
Canada now contends that the Federal Court made fundamental legal errors, stating that there is no discrimination as there is no gap in services. They argued that Jordan’s Principle cannot address issues like inadequate housing on reserves or all the needs of First Nations children when no other services are provided. Blackstock’s organization disagrees, emphasizing the importance of preventing children from ending up in child welfare care, which is the core intention of Jordan’s Principle.
During the oral arguments on Monday, Justice Canada lawyer Christine Mohr emphasized Ottawa’s position that Jordan’s Principle applies only when there is a discriminatory service gap, justifying ISC’s denial. The judges on the appeal panel expressed concerns about this stance and questioned Taylor persistently. Taylor and Morris argued in their written submission that ISC’s decision aligns with a troubling pattern of Canada circumventing or narrowing the scope of Jordan’s Principle, as observed in several CHRT decisions. The Assembly of Manitoba Chiefs, representing 63 First Nations, also intervened, highlighting Canada’s historical non-compliance with tribunal rulings.
The court has yet to announce its decision following the hearings on Monday afternoon.
