The government led by Prime Minister Carney is currently engaged in a legal battle with a First Nations grandmother over attempts to modify longstanding legal directives mandating that Canada must offer equal access to crucial healthcare and social services for First Nations children, her legal representatives disclosed.
The Federal Court of Appeal is set to review this groundbreaking case on Monday in Ottawa, marking the initial instance where the appellate court will address Jordan’s Principle, a legal doctrine necessitating governments to promptly deliver essential care to First Nations children without delays related to jurisdictional disagreements.
According to lawyers representing Oneida grandmother Joanne Powless, Canada’s stance is essentially an indirect challenge to the established orders issued by the Canadian Human Rights Tribunal (CHRT) since 2016, seeking to reexamine resolved issues and undermine a decade’s worth of CHRT decisions.
David Taylor and Siobhan Morris from Conway Baxter Wilson stated in a written argument dated September 25 that Canada is attempting to revisit matters already settled by the CHRT without success in the past, pursuing an alternative route to obtain what was previously denied by the tribunal.
In an interview on Friday, Taylor emphasized that the tribunal’s rulings, akin to court judgments, are conclusive and unassailable, with Canada never having effectively contested any of them before. “They’re trying to get indirectly what they didn’t get directly from the tribunal,” Taylor remarked.
The outcome of this single-day hearing could hold significant implications for more than 100,000 pending applications awaiting processing at Indigenous Services Canada (ISC).
In 2022, Powless submitted an application for roughly $200,000 under Jordan’s Principle to address the mold contamination in her residence on Oneida Nation of the Thames near London, Ontario. She also requested financial assistance for temporary relocation, food, and personal hygiene expenses during the remediation process.
As the primary caregiver for her two grandchildren residing with her, Powless received confirmation from their physician that rectifying the mold issue was crucial for the sisters, who suffer from asthma triggered and aggravated by their living conditions, court documents revealed.
Despite Canada’s denial of the requests on the basis that extensive home renovations fall outside the purview of Jordan’s Principle, Powless successfully obtained a judicial review in the Federal Court, where a judge criticized ISC for adopting an overly narrow approach by categorizing the application solely as a housing remediation plea.
The court ruled that Jordan’s Principle mandates government officials to evaluate each request based on the individual health needs and best interests of each child, striving for substantive equality.
Canada is now contending that the Federal Court made critical legal errors, arguing that there is no discrimination as there is no deficiency in services. The government emphasized in a written submission dated September 12 that no existing program in Canada would fund the sought-after mold remediation and renovation work.
In a supplementary argument filed on October 2, Canada maintained that Jordan’s Principle cannot address issues of inadequate housing on reserves or cater to all the needs of First Nations children in the absence of alternative services.
Powless’s legal representatives countered that Canada is recycling previously dismissed arguments to restrict the scope of the principle, highlighting a recurring pattern of Canada evading or excessively narrowing the application of Jordan’s Principle, as outlined in various CHRT decisions.
Following a request for comment on Friday, a spokesperson for Indigenous Services Minister Mandy Gull-Masty deferred to the department for a response. The department issued a statement underscoring the significance of resolving the “critical legal issues” raised by the Federal Court’s decision.
“The appeal aims to clarify the scope of Jordan’s Principle in line with the CHRT rulings to ensure sustainable provision of urgently needed services to First Nations children,” wrote spokesperson Carolane Gratton.
