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

This post is an update to Error of Law and Form of Law, posted last week during a trial at the Law Courts in Halifax. Background links below.

The "heart of Jordan's Principle"—that no child should suffer a lack of critical health care as a result of a dispute between levels of government as to jurisdictional responsibility for providing that care—was a matter of debate at the Law Courts in Halifax last Monday, June 11. During the afternoon hearings, lawyers for the Crown challenged submissions from Maurina Beadle and Pictou Landing First Nation, who are suing the Government of Canada for its failure to provide the same health care services to Jeremy Meawasige, a disabled child living on-reserve, that would be provided to an off-reserve Nova Scotian of similar medical needs.

The trial is a precedent-setting case which, if Beadle and the Band win, will have implications for children across Canada; Jordan's Principle has never been invoked in a court of law in Canada.

Jordan's Principle is a child-first policy passed unanimously in the House of Commons in 2007, named in honour of Jordan River Anderson of Norway House Cree Nation, who spent all his life in hospital while the province of Manitoba and the government of Canada argued over who was responsible for funding the child's care at home. Jordan died at the age of four, having never lived at home.

"In Jordan's case," argued the Crown, "it was determined that he would have received this care had he lived off-reserve. This is not the case with Jeremy."

Funding is provided to First Nation bands by the federal government so the bands can provide services "reasonably comparable to those provided by the province." Aboriginal Affairs official Barbara Robinson based her decision to cap payments to Pictou Landing First Nation for Jeremy's care at $2,200 per month on information she had received from provincial officials, said the lawyer for the Crown. $2,200 per month is the standard cap for respite (at-home) care in Nova Scotia. All requests to the province for funding above and beyond this cap had been denied, and "until further notice" this was the maximum that would be paid out for direct family support, Robinson was advised by an official with Continuing Care. The alternative, according to the province of Nova Scotia, said the Crown's lawyer, is institutional care.

Because Robinson, a federal official, was adhering to provincial standards in offering federal funding for Jeremy's care, Jordan's Principle cannot be engaged, submitted the Crown, as there is no evidence of a jurisdictional dispute. "The criteria [for Jordan's Principle] is not met."

She outlined the criteria that must be met in order to invoke Jordan's Principle, (which, she reminded the court, is a non-binding resolution):
- The child must live on-reserve.
- An assessment must reveal that the child requires multiple service providers.
- There must be a jurisdictional dispute about providing those services.
- The funding requested must match the normative standard of care that would be provided to an off-reserve child.

The Crown submitted that the last two criteria are not met in Jeremy's case, and that "the decision maker"—Robinson—"did not err in making her decision" because her decision fell within the range of possible outcomes that could be considered "reasonable," since "the levels of government agree on what the standard of care is."

"Notwithstanding Boudreau," added Justice Leonard Mandamin, who was presiding over proceedings.

"Notwithstanding Boudreau," agreed the Crown.

Brian Boudreau is 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.

"'Boudreau is not relevant to my decision,'" the Crown quoted Robinson. "'The Boudreau decision does not affect provincial policy. I work with existing policy.' No other individual in Nova Scotia receives more than $2,200."

"Thirty-two other people were named in the Boudreau case" who receive direct family support over the $2,200 cap, said Philippa Pictou, Health Director for Pictou Landing First Nation, who has been supporting Beadle in this case and who sat beside me in court.

"The issue," submitted the Crown, "is that Maurina Beadle doesn't want institutionalized care" for Jeremy. "No parent wants this. But we are here to discuss laws. Section 15 [of the Charter of Rights and Freedoms, which was invoked by Beadle's lawyer] is designed to protect rights under the law, not what a parent prefers. Under the law, Jeremy is entitled to institutionalized care."

Brian Boudreau's case is "an exception, by definition, not part of a 'normative standard,'" said the Crown.

Section 15 of the Charter states that all people are entitled to equal benefit under the law. The federal government, in providing health benefits to First Nations, base these benefits on the provincial health benefits of a given province. "Under a unique situation where there is no statute," submitted the Crown, the federal government uses "discretionary policy," and Robinson was basing her decision on a context that reasonably required a mix of fact and law.

In his final responses to the Crown Monday afternoon, Beadle and the Band's lawyer, Paul Champ, challenged the credibility of the information on which Robinson based her decision to deny extra funding for Jeremy's care.

"Robinson relies on a Nova Scotia official who is 'wrong in law' according to the Nova Scotia Supreme Court," which overturned the decision from the same provincial official to deny Brian Boudreau's mother the extra funding she requested.

To get this outcome, the Boudreau case used the Social Assistance Act, which helped define the "normative standard of care." According to the Social Assistance Act, the government "shall furnish assistance to all persons in need," and this includes home care. The court found that no maximum has been legally established; the $2,200 cap is, effectively, arbitrary.

"The normative standard of care encompasses everything [Maurina Beadle] would receive if she were off-reserve," concluded Champ, reasoning that if Beadle lived off-reserve and went to court demanding more funding for her son's care, holding the Boudreau case as a precedent, the court would have no choice but to grant her the same considerations as Brian Boudreau's mother was granted.

"Boudreau is the law," he said.

And Robinson, in refusing to consider the Boudreau case relevant to her decision, created a jurisdictional dispute.

After the Crown’s submissions and the applicants' responses, Judge Mandimen acknowledged that the case is time-sensitive. Recognizing that the Pictou Landing First Nation cannot continue to provide funding for Beadle’s home care, Mandimen said that he would move his decision through as soon as possible.

Beadle—and First Nations across the country who are watching this case—will still have to wait up to six months for a ruling, although after the trial Champ said he hopes for a ruling by the end of August.

“I know this [case] won’t necessarily change things for Jeremy, by the time it’s over,” said Beadle, after court was adjourned at 5:30pm.  “But this isn’t for Jeremy. This is for children across the country. They shouldn’t have to wait while the people in power procrastinate.”

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Part I from this court case, Error of Law: Historic court case in Halifax identifies gap in health services for First Nations children

Part II, Form of Law: The Charter, Jordan's Principle and government discretion in health services provided to 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