Error of Law: Historic court case in Halifax identifies gap in health services for First Nations children

This post has been updated since its original publication yesterday.

On the third anniversary of Prime Minister Stephen Harper's historic apology to First Nations people for the forced separation of children from their families under the residential schools system, a Mi'kmaq mother is taking the government of Canada to court over its failure to provide to her son the health services that would allow him to remain at home under her care.

"All the things that were promised in Harper's apology are things they are not doing for Jeremy," said Philippa Pictou, Health Director for Pictou Landing First Nation, sitting on a bench in courtroom 501 in the Law Courts on Lower Water Street in Halifax this morning. "Kids being pushed into institutions, instead of being cared for at home."

Jeremy Meawasige is a 17-year-old from Pictou Landing First Nation who was born with a complex array of disabilities and medical conditions. His mother, Maurina Beadle, had been providing all of his care without government assistance until a double stroke in May 2010 left her physically unable to meet his needs at home. When, with Pictou's help, she applied for funding for home care health services, she found that her family's Aboriginal status caught her son in jurisdictional red tape that prevented him from receiving the same care on-reserve that he would be provided with by the province of Nova Scotia if he lived off-reserve.

This morning, the trial of Maurina Beadle and Pictou Landing First Nation vs the Crown began, with Justice Leonard Mandamin presiding. Judge Mandimen is the only Aboriginal judge on the federal court bench. His bio reads that he is a member of Wikwemikong Unceded Indian Reserve on Manitoulin Island, Ontario.

"Should a disabled 1st Nations child on reserve be entitled to the level of care available to any child off reserve?" asked Beadle and Pictou Landing's lawyer, Paul Champ, in his opening comments. His submissions this morning centred on three arguments:

1. that the decision by Aboriginal Affairs official Barbara Robinson to deny the Beadles funding in excess of the Nova Scotia provincial respite cap of $2,200 per month was an error of law,

2. that her decision is in conflict with Section 15 of the Charter of Rights and Freedoms, and

3. that the decision was based on a misunderstanding of evidence.

Error of Law:

Continuing care health services in the home are generally provide by provincial governments. But provincial governments don't provide health services on-reserve, as First Nations do not fall under the provincial jurisdiction. The federal government, either under Health Canada or Aboriginal Affairs and Northern Development Canada (formerly INAC), is responsible for providing to First Nation bands the resources to provide services "reasonably comparable to those provided by the province." The band must "administer program according to provincial legislation & standards."

Robinson, in her decision to deny the Beadles their requested funding, argued that Beadle and the Band were requesting services above and beyond the "normative standard of care in Nova Scotia."

Champ argued that Robinson's interpretation of the "normative standard of care in Nova Scotia" is flawed. She determined that Jeremy Beadle is eligible to receive $2,200 per month, "full stop," explained Champ. $2,200 per month is the standard respite cape in Nova Scotia, according to a Community Services policy document.

However, a support program available for persons with disabilities in Nova Scotia--one designed to "maintain the integrity of families," including enabling people with disabilities to live at home--includes a section in which "exceptional circumstances" allow for additional respite funding. These circumstances are defined in a number of points, and all apply to Jeremy.

Upon cross-examination, Robinson conceded that the Beadles meet all exceptional circumstances criteria, but she also said that the "exceptional circumstances" part of the policy doesn't apply to Jeremy's case. Her reasoning, explained Champ, was that she relied on what happens "in practice," not necessarily in policy, or law.

According to the Social Assistance Act, the government "shall furnish assistance to all persons in need," and this includes home care. Cabinet can prescribe maximum levels of assistance; no maximum has been legally established; the $2,200 cap is, effectively, arbitrary.

The heart of Robinson's error, submitted Champ, lies in the case of Brian Boudreau, a 34-year-old Nova Scotian with severe autism who required 24-hour supervision and who was being cared for by his single mother. His mother applied for more funding, and in 2011 the Nova Scotia Supreme Court agreed that there is no legal basis for Community Services' $2,200 cap in funding, and therefore the Boudreau family should be provided with the funding that they "reasonably" need to keep Brian at home. The Boudreau case was provided to Robinson prior to her decision to deny Jeremy the funding required to keep him at home.

The care obligations of the provincial Department of Health are fulfilled "when the assistance reasonably meets the need in each specific case." The department had a clear obligation, said the judge in Boudreau's case, to provide such reasonable assistance to Boudreau--to provide the funding requested.

Assistance--funding--that "reasonably meets the need in each specific case," submitted Champ this morning, is therefore the "normative standard of care." And since the the Pictou Landing Band--as the governing body of the federal government--is bound by law to provide services that adhere to the provincial standard, the federal government must provide the band with funding to meet this standard.

Robinson's error lies, submitted Champ, in what Jeremy would have received under provincial law had he been a child living off-reserve. He would have received what Boudreau received: assistance that reasonably meets the needs of his specific case.

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Part II from this court case, Form of Law: The Charter, Jordan's Principle and government discretion in health services provided to First Nations children

Part III, "Boudreau is the Law": The legal nature of an exception, and health care for First Nations children

Feature post with The Dominion, It's a Matter of Jordan's Principle: Canada's health care system leaves Native child behind

Background and photos, Circle of Strength Offered in Halifax to Women Fighting for Jordan's Principle: Pictou Landing First Nation mother vs. Canada and non-universal health care