Jordan's Principle: New ruling of the Canadian Human Rights Tribunal

On May 26, 2017, the Canadian Human Rights Tribunal ("Tribunal") released a new ruling regarding the implementation of Jordan's Principle by the Government of Canada.

1. Context: Elaboration and Implementation of Jordan's Principle

The history behind "Jordan's Principle" stems from Jordan River Anderson, a young child from the Norway House Cree Nation born with a rare medical condition that required him to be hospitalized during the first years of his life. Because of a lack of available medical services in his community, Jordan's family turned to provincial child welfare care in order for him to receive the required medical treatment. Due to conflicts of jurisdiction between the provincial and federal governments to determine who would assume the costs for a specialized foster home close to his medical facilities in Winnipeg, Jordan spent his entire life in a hospital, where he passed away in 2005 at the age of five.

In order to resolve jurisdictional disputes involving the care of First Nations children, the House of Commons of Canada adopted a motion[1] in December 2007, called Jordan's Principle. This 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 other governments or department after the child has received the service."[2] This principle essentially seeks to prevent First Nations children from being denied essential public services or experiencing unreasonable delays in receiving such services.

Following the adoption of Jordan's Principle, major gaps regarding its implementation have been identified by social actors. In 2014, the First Nations Child and Family Caring Society of Canada and Amnesty International filed factums with the Tribunal stating that the federal government's current interpretation of Jordan's Principle was "narrow, restrictive, ambiguous, unlawful and discriminatory, causing denial and delay of services to children in need."[3] As a result and to address these implementation gaps and subject Canada to its obligations, four rulings have been released by the Tribunal since 2016,[4] the fourth being the ruling released on May 26, 2017.

2. Decision of the Tribunal of May 26, 2017

This ruling of the Tribunal is in response to motions brought by the complainants[5] and interested parties[6] to challenge Canada's implementation of Jordan's Principle in relation to the Tribunal's above-mentioned rulings. The complainants assert that Canada has failed to comply with some of the Tribunal's orders to date and request additional orders regarding specific aspects of Jordan's Principle. The following provides an overview of the orders of the Tribunal in this regard.

i. Definition of Jordan's Principle

The Tribunal found that Canada has been applying a narrow definition of Jordan's Principle, which is not in compliance with the Tribunal's previous orders. Among other things, it was therefore ordered that Canada's definition and application of Jordan's Principle be based on certain key principles, including that Jordan's Principle applies to all First Nations children, on or off reserve, and is not limited to First Nations children with disabilities. The Tribunal also ordered that Canada review previous requests for funding that were denied to ensure compliance with the key principles set forth in its decision.

ii. Changes to the processing and tracking of Jordan's Principle cases

With respect to processing, in order to avoid past unreasonable delays pointed out by the complainants, the Tribunal ordered that Canada develop and modify its process surrounding Jordan's Principle to ensure that the government of first contact will evaluate the individual needs of a child requesting services under Jordan's Principle, within 12 to 48 hours of the receipt of such request. Moreover, this initial evaluation should not be delayed due to case conferencing or policy review. If the request is granted following the initial evaluation, the Tribunal ordered that the government department that is first contacted shall pay for the service. In response to a lack of formal tracking, the Tribunal also ordered the implementation of reliable systems to ensure the identification and tracking of Jordan's Principle cases.

iii. Publicizing the compliant definition and approach to Jordan's Principle

Among other things, the Tribunal concluded that there is a clear need for Canada to go back to its employees, the organizations it works with and its First Nation partners to inform them of the correct definition and processes surrounding Jordan's Principle.[7] This is required to ensure that families know about those changes in case they wish to come forward with potential and urgent cases that could fall under Jordan's Principle.

iv. Future reporting

One of the orders of the Tribunal states that Canada must serve and file a report and affidavit materials detailing its compliance with the orders issued by the Tribunal by November 15, 2017.[8]

3. Next steps

The debate surrounding the implementation of Jordan's Principle will remain open as the Tribunal retains jurisdiction over the above orders to ensure that they are effectively and meaningfully implemented.[9]