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I. INTRODUCTION

1 In Pictou Landing Band Council v Canada (Attorney General)1, a refreshingly

encouraging recent decision rendered by the Federal Court of Canada in April of this

year, Justice Mandamin strongly calls for a firm implementation of Jordans Principle in

the wholly sympathetic case of a mother and her severely disabled teenaged son.

Jordans Principle, a child-first principle intended to resolve jurisdictional dispute

within, and between, provincial/territorial and federal governments concerning payment

for services to First Nations children when the service is available to all other children,2

was rightly deemed to apply to this specific set of facts. In this comment, I will argue

that the Court was correct in this determination, not solely with regards to the holding

itself, but also in terms of their thoughtful dealings with the submissions of the respective

parties and their careful consideration of previous case law on similar (but fundamentally

distinct) facts and issues. With this decision, we have a precedent-setting piece of

jurisprudence that presents the opportunity not solely to bring about change for a cluster

of individual lives, but, on a broader scale, to directly move us along the journey towards

ensuring the protection of one of the most vulnerable and marginalized sects of our

society.

II. BACKGROUND (JORDANS PRINCIPLE)

2 In her detailed and nuanced article, Jordans Principle: Canadas broken promise

to First Nations Children, Dr. Cindy Blackstock provides a fantastic overview as to the

background and development of Jordans Principle, along with a thorough examination

1
Pictou Landing Band Council v Canada (Attorney General), 2013 FC 342, [2013] 3
CNLR 371, [Pictou].
2
Cindy Blackstock. Jordans Principle: Canadas broken promise to First Nations children? (2012) 17
Pediatrics & Child Health, online: National Center for Biotechnology Information
<http://www.ncbi.nlm.nih.gov> at para 3.
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of its relationship with the case at hand. For our purposes, this piece is especially useful

to provide a contextual framework within which to engage with the facts and issues

immediately in front of us. Given the principles name and its fundamentally human(e)

nature, it is important to first get a sense of Jordan and his struggles.

3 Jordan River Anderson was a young boy from Norway House Cree Nation (in

Manitoba) born with a host of complex medical needs.3 After spending the first two

years of his life at Winnipeg Childrens Hospital, he was deemed ready to go home, with

the support of home care; however, there was a disagreement between the federal and

provincial government as to whose responsibility this child was.4 The government of

Canada refused to acknowledge that they had authority to pay for his at home care, while

the province of Manitoba did not want to set the precedent of picking up a federal cost

given that, according to them, Jordan was a federal responsibility as a status Indian on

reserve.5 His family and community (along with the hospital staff) pleaded with the

governments to allow Jordan to go home, but to no avail.6 Jordan died shortly after his

fifth birthday in the hospital, never having left and never having experienced a family

life.7

4 Jordans Principle, the mandate of which was outlined earlier, was passed

unanimously in the House of Commons in 2007, and sets out to ensure that we are at least

on the journey towards equity, especially with relations to our most vulnerable

3
Blackstock, supra note 2 at para 3.
4
Ibid.
5
Lavallee, Trudy L. Honouring Jordan: Putting First Nations children first and funding fights second.
(2005) 10 Pediatrics & Child Health, online: National Center for Biotechnology Information
<http://www.ncbi.nlm.nih.gov> at para 6.
6
Ibid at para 10.
7
Blackstock, supra note 2 at para 3.
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populations.8 Shortly after this motion passed, however, there was a federal response to

Jordans Principle, that was formed with little-to-no consultation of any substance or

significance with First Nations.9 By avoiding this interaction, the government was able

to begin narrowing the principle to include only the children deemed the most vulnerable,

to the possible exclusion of many.10 This narrow perspective is perhaps best illustrated

through the testimony of Aboriginal Affairs and Northern Development Canada

(AANDC) official Corrine Baggley before the Standing Committee on the Status of

Women in 2011:

When the motion [296] was passed in 2007, INAC and Health Canada worked
together to present a federal response to cabinet. That federal response outlines our
focus for First Nations children under Jordans principle. The focus is on those who
were like Jordan those who are the most vulnerable, those who have multiple
disabilities and require multiple services from across jurisdictions. We thought
children in that situation are most vulnerable and are more likely to be the subject
of jurisdictional disputes.
That does not mean that the response excludes all other First Nations children. We
focused on the most vulnerable but in the work we are doing with provinces and
First Nations, which we continue to do, we are responding to all cases that are
represented to us not just those children with multiple disabilities, but children
with a variety of needs. We have been able to connect those cases to the services
those children require.
In the event of a provincial-jurisdictional dispute and we havent been presented
with one yet we are prepared to make sure that the service continues for that child
while the federal and provincial governments attempt to resolve the fund or
responsibility issues.11

III. FACTS AND ISSUES

5 Maurina Beadle, Jeremys mother, in 2012:

In May 2010, I took a stroke... They wanted to place Jeremy in an institution, I told
them over my dead body. I knew once I took on the Federal government, to help
fight for my special needs son Jeremy and children like him across Canada it was

8
Ibid.
9
Ibid at para 4.
10
Ibid at para 16.
11
Ibid at paras 5-7.
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going to be time consuming, but well worth the long battle. Jeremys case and other
children like him are worth more than what the Federal government thinks.12

6 Maurina Beadle and her sons, Jonavan (the eldest) and Jeremy, live in Pictou

Landing, Nova Scotia and are members of the Pictou Landing First Nation. Jeremy

was born with cerebral palsy and autism, and requires a significant amount of personal

care and service, all of which his mother provided until her stroke in May 2010. Ms.

Beadle and her son have a strong connection and understanding of each other

(especially Maurina, of Jeremys needs.) In the time after the stroke, the Pictou

Landing Band Council (PLBC) provided 24-hour home care for both Ms. Beadle and

Jeremy. After an assessment of the familys needs, it was determined that the cost was

approximately $8,200 a month, representing nearly 80% of the PLBCs total monthly

budget for personal and home care services.

7 In February of 2011, the Health Director at the Pictou Landing First Nation

Health Care, Ms. Philippa Pictou, contacted Ms. Susan Rose to attempt to engage

Jordans Principle in these circumstances and request additional funding for home

care services. In May of the same year, when she wrote to Health Canada and

AANDC officials to formally request additional funding, Ms. Pictou attached to this

request the 2011 guiding (in theory) decision in Nova Scotia (Department of

Community Services) v Boudreau.13 However, the federal government determined that

Jordans Principle was not engaged in the case at hand, suggesting instead to place

Jeremy in an institutiona troubling proposal due to the likelihood of an increase in

Jeremys self-harming behaviour occurring under those isolating arrangements.14

12
Blackstock, supra note 2 at para 1.
13
Nova Scotia (Department of Community Services) v Boudreau, 2011 NSSC 124, 302 NSR (2d) 50.
14
Blackstock, supra note 2 at 14.
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They also suggested child welfare and continued support from the PLBC15neither of

which were particularly feasible, sustainable, let alone just solutions. All of which

brought Maurina Beadle and the Pictou Landing Band Council to Federal Court in

order to fight, not only for the well-being and health of her son, but for any other

children and families that are at risk at being racially discriminated against in the

future.

8 In Justice Mandamins decision, he outlines three primary issues to consider in

this case:

1. Was Jordan's Principle engaged in this case?

2. Did the Manager properly assess the request for funding?
3. Did the Manager exercise her discretion in a manner that
violated section 15(1) of the Charter?16

IV. DECISION

9 Mandamin J granted the application for judicial review, after determining that

Jordans Principle was applicable in this case, quashing the May 27, 2011 decision of the

Manager (Ms. Barbara Robinson.) The Court directed the respondent to reimburse the

applicant beyond the $2,200 maximum, additionally ordering costs for the applicants, as

well.

V. ANALYSIS

A. WAS JORDANS PRINCIPLE ENGAGED IN THIS CASE?

10 As stated above, the first issue that the Court considers is related to Jordans

Principle and its engagement with this particular set of facts. Mandamin J begins with an

overview of the principle and the circumstances from which it stems.17 By giving first a

15
Ibid.
16
Supra note 1 at para 69.
17
Ibid at para 81.
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background Jordans life and struggles, and the jurisdictional disputes that arose as a

result, Mandamin J provides his decision with a persuasive human element, sometimes

lacking from clinical considerations of very real and personal issues such as the ones at

hand. He notes that Jordans Principle is not enacted by legislation, but, rather, had been

approved by a unanimous vote in the House of Commons.18 This qualification is

significant due to the fact that such a motion is not binding on the government.19

11 The Court then takes us through the motions history related to the debate in the

House of Commons. Mandamin J quotes the private members motion of May 18, 2007

which states that, in the opinion of the House, the government should immediately adopt

a child first principle, based on Jordan's Principle, to resolve jurisdictional disputes

involving the care of First Nations children.20 He points to the seemingly unwavering

support that the House gave towards the motion during the ensuing debates later in 2007,

quoting a member of the governing party who indicated that in addition to implementing

immediate, concrete measures to apply Jordan's principle in aboriginal communities, I

would like to inform the House and my colleague that the government is also

implementing other measures to improve the well-being of first nations children...21 As a

final piece of evidence demonstrating the Houses support of the motion, Mandamin J

points to the unanimous nature of the vote (Yeas: 262, Nays: 0).22

12 The Court then moves to consider the implementation by the AANDC, examining

the Manager, Ms. Robinson, who was designated the Jordans Principle focal point for

18
Ibid at para 82.
19
Ibid.
20
Ibid at para 83.
21
Ibid.
22
Ibid.
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the AANDC in Atlantic Canada.23 Ms. Robinson gave a succinct and strongly worded

mandate for Jordans Principle, as well as listing the circumstances during which the

principle would apply.24 Mandamin J brings special attention to items c and e of this list,

which dictate the following:

c) The case involves a jurisdictional dispute between a provincial government and

the federal government
e) Services to the child are comparable to the standard of care set by the province
a child living on reserve (or ordinarily resident on reserve) should receive the same
level of care as a child with similar needs living off-reserve in similar geographic
locations.25

13 Perhaps the most important line of the entire judgment comes shortly thereafter,

with Mandamin Js statement that he does not think the principle in a Jordans Principle

case is to be read narrowly.26 If that is the one thing to be taken from this case, it is

indeed a monumental and encouraging precedent to be set (and hopefully followed), for

cases involving the care of First Nations children. Mandamin J then moves to the 2011

case of Nova Scotia (Department of Community Services) v Boudreau27, which presented

a similar set of issues, although it involved a 34-year-old adult off reserve with multiple

handicaps,28 as opposed to a First Nations child living on reserve.

14 The Court proceeds to work through the Managers reasoning that she laid out in

her cross-examination in which, essentially, she explains that she needed to ensure she

was following the provincial policy as it is being implemented.29 Mandamin J quickly

(and correctly) discounts this, stating, quite succinctly, that she does not need to

23
Ibid at para 84.
24
Ibid.
25
Ibid.
26
Ibid at para 86.
27
Supra note 13.
28
Ibid at para 89.
29
Ibid at para 92.
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interpret the Social Assistance Act (SAA)30 and the Municipal Assistance Regulations.31

In fact, he works through a list of a damning pieces of information that discredit her

foundational arguments, most convincingly pointing to the fact that she had been made

aware of the Boudreau decision by the PLBC.32 If it was not clear the first time he stated

it, Mandamin J again declares that Jordans Principle is not to be narrowly interpreted.
33
At the risk of missing any grey within the Courts exploration of this issue in relation

to precedent, Mandamin J examines the nuance of the Boudreau case. He explains why

the SAA and its Regulations were engaged and why, in the case at hand, the same pieces

of legislation would not apply, in turn, bringing Jordans Principle into play34

15 The respondent had argued that this was fundamentally an issue of jurisdictional

dispute and that there was, in fact, not one present.35 In addition, the respondent had

asserted that Ms. Robinsons approach to determining the normative standard of care

was correct and her conclusion that the request was beyond the normative standard of

care was reasonable.36 For the reasons previously stated, Mandamin J determines this to

be untrue.

16 With regards to the Boudreau case, there is common ground between the Court

and the respondent in their recognition of the differences between it and the case at hand,

but they are not on the same page in terms of exactly how the current circumstances are

distinguishable. The respondent submitted that the applicants were attempting to use

Boudreau to create a new standard of care that neither the Province nor Canada

30
Social Assistance Act, RSNS 1989, c 432.
31
Ibid at para 93; Municipal Assistance Regulations, NS Reg 76/81, s 18.
32
Ibid.
33
Ibid at para 95.
34
Ibid at para 97.
35
Ibid at para 55.
36
Ibid at para 57.
 Bevilacqua 9

recognize[d].37 As Mandamin J pointed out, however, this is simply not the case; rather,

the findings in Boudreau did not apply due to the ineligibility under express provincial

policy.38

B. DID THE MANAGER PROPERLY ASSESS THE REQUEST FOR FUNDING?

17 The Court then goes on to consider the issue of the Managers assessment of the

request for funding. Mandamin J takes us on a chronological journey of the assessment.

First, he considers the case conference that the Manager was a part of, along with

provincial health, First Nation, AANDC and Health Canada officials.39 In stating this, he

makes it clear that the Manager indeed had a full understanding of the issues and care

needs Jeremy required.40 Most impressively (and, again, thoughtfully), Mandamin J

takes time to acknowledge that Ms. Beadle took full care of Jeremy prior to her stroke,

indicating the importance of familial support in ensuring Jeremys well-being.41

18 Mandamin J holds that, in the Managers assessment of the factual circumstances,

the submissions made and the recommendation provided by the in-home assessors, she

erred in determining what that was being requested was 24 hour in-home care, thus

making her finding unreasonable based on the information that she was privy to.42 As

with his consideration of Jordans Principle and the issues surrounding it, Mandamin J

takes a strong stance against the Managers judgment, and sense of protocol and

procedure (and justly so.)

19 The Court then proceeds to address the application of Jordans Principle,

37
Ibid at para 59.
38
Ibid at para 97.
39
Ibid at para 99.
40
Ibid.
41
Ibid at para 103.
42
Ibid at para 105.
 Bevilacqua 10

acknowledging that the issues at hand are new.43 Mandamin J restates the unanimous

support that the resolution had garnered from the House of Commons and, while he also

qualifies that the government is not bound by it, he notes that it has undertaken to

implement this important principle.44 In addition (and of paramount importance),

Mandamin J expressly spells out that the first agency contacted with these types of set of

circumstances must respond as quickly as possible due to their often time-sensitive nature

and that the funding decisions be dealt with at a later time.45

20 Again, with the unpacking of this issue, we see the Courts careful consideration

of nuance and thoughtful attention to detail, especially with regards to the Band Councils

community. I believe it interesting (and important) to note here that Justice Mandamin is,

in fact, an Anishnawbe member of the Wikwemikong Unceded Indian Reserve on

Manitoulin Island, Ontario.46 While impartiality and neutrality are (intended to be)

prominent virtues of judges and decision-makers, it is possible that some of the care and

compassion evident within this decision may be as a result of a deep connection with the

issues and societal themes at play. Far from being a bad or negative thing, however, it

signals the need to have precedent that sets out the remedies in these types scenarios in a

detailed and unambiguous way, so that, in the future, a child facing similar struggles will

not be at risk of being detrimentally punished by a judges (subconscious and/or

unaddressed) cultural biases or ignorance.

21 In speaking of the PLBC, Mandamin J states that the Band Council is a small

community of approximately six hundred members, and, as a result, he acknowledges

43
Ibid at para 106.
44
Ibid.
45
Ibid.
46
Judges and Prothonotaries, The Honourable Leonard S. Mandamin, online: Federal Court <http://cas-ncr-
nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/CoatofArms>.
 Bevilacqua 11

how much of a toll this set of exceptional circumstances has taken on their monthly

Assisted Living Program and Home and Community Care Program budget (and how

unsustainable it is in the long run.)47 He proceeds to re-introduce (and restate) Boudreau

as analogous to this case, this time in terms of the similarities between his lines of

thought and reasoning, and those found within that case.48

22 He rightly acknowledges that the Band Council has met its obligations under its

funding agreement with AANDC and Health Canada, and that it is now time for the

federal departments to adopt Jordans Principle and adequately reimburse the PLBC for

carrying out the terms of the funding agreements.49 Once again, he brings us back to

Boudreau in an analogous fashion, stating that this case clearly presents the exceptional

circumstances necessary to meet the type of similar discretionary requirement as found in

Boudreaudemonstrating, again, a true understanding of the human element at play

here.50 That being said, although he previously stated that Jordans Principle is not to be

read narrowly, here he states that it is not an open-ended principleIt requires

complimentary social or health services be legally available to persons off reserve, [as

well as] assessment of the services and costs that meet the needs of the on-reserve First

Nation child.51

23 Lastly, as a sub-issue, Mandamin J addresses the question of reconsideration. He

brings forward the case of Stetler v The Ontario Flue-Cured Tobacco Growers

Marketing Board52, which held that:

47
Ibid at para 109.
48
Ibid at para 111.
49
Ibid at para 113.
50
Ibid at para 114.
51
Ibid at para 116.
52
Stetler v Ontario Flue-Cured Tobacco Growers' Marketing Board, 2009 ONCA 234, 311 DLR (4th) 109.
 Bevilacqua 12

While "[a] court may not substitute its decision for that of an administrative
decision-maker lightly or arbitrarily", exceptional circumstances may warrant the
court rendering a final decision on the merits. Such circumstances include
situations where remitting a final decision would be "pointless", where the tribunal
is no longer "fit to act", and cases where, "in light of the circumstances and the
evidence in the record, only one interpretation or solution is possible, that is, where
any other interpretation or solution would be unreasonable": Gigure v Chambre
des notaires du Quebec, 2004 SCC 1 (CanLII), [2004] 1 S.C.R. 3 at para 66.53

24 As the Court previously explored, the circumstances of this case rightly fall in line

with the exceptional nature described in the above excerpt, thus allowing the Court to not

turn the matter back for reconsideration.54 Interestingly (but not abnormally), Mandamin

J leaves the issue of determining the amount of reimbursement to the parties

themselves.55 This might prove to be problematic, especially given the fact that Canada

has, in fact, appealed this decision.56

25 In their submissions, under this particular issue, the respondent seems to rely

heavily on the time element of the applicants request57, despite it seeming to be quite

clear from the concrete evidence considered by the Court that this argument was

baseless.58 Moreover, in the applicants submissions, they directly refer to a particular

paragraph demonstrating the Managers mischaracterization of the Band Councils

funding request.59 On a broader scale, the Court rightly determined that Ms. Robinson

was ignorant (either intentionally or unintentionally) of relevant information that had

clearly been put forward.

C. DID THE DECISION-MAKER EXERCSE HER DISCRETION IN A MANNER

53
Ibid at para 42.
54
Supra note 1 at para 120.
55
Ibid.
56
Justice officials arguing against own government in Jordans Principle court appeal, Aboriginal
Peoples Television Network (9 May 2013) online: Aboriginal Peoples Television Network
<http://www.aptn.ca> at para 2.
57
Supra note 1 at para 63.
58
Ibid at para 102.
59
Ibid at para 43.
 Bevilacqua 13

THAT VIOLATED SECTION 15(1) OF THE CHARTER?

26 Although the Court did not take this set of facts through a section 15(1) equality

analysis (as it was not necessary to do so), I would have really enjoyed working through

one here, as I believe this is truly where the meat of the issues at play lies.

VI. CONCLUSION

27 Before winning the case, Paul Champs, counsel for Maurina Beadle and the

PLBC, pithily and eloquently spoke to its significance:

First Nations children deserve the same level of programs and services as children
off-reserve. The Courts have never considered a case like this before. If Maurina
and Jeremy win, it will confirm that the federal government has a legal obligation
to provide programs and services on-reserve that are reasonably comparable to
those available off-reserve.60

28 Through the Courts strong and direct language, and with its careful

consideration and empathetic exploration of the complex issues at hands, the stage has

now been firmly set for the federal government (and, indeed, all levels of government)

to perform its share of duties and responsibilities. Although it is unfortunate that

Canada has decided to appeal this decision, the case retains its potentially game-

changing and precedent-setting nature. It is almost tragically ironic that a decision

which stands for such prototypically Canadian values as compassion, empathy and a

fundamental sense of equality has been rejected by Canada itself. With this piece of

jurisprudence there exists a real and tangible opportunity for change, progress and

healing, both within individual lives and among families and communities, and, on a

larger, symbolic scale, between a country, and its original and native inhabitants.

60
Blackstock, supra note 2 at para 17.
Bevilacqua 14
 Bevilacqua 15

BIBLIOGRAPHY

LEGISLATION

Municipal Assistance Regulations, NS Reg 76/81.

Social Assistance Act, RSNS 1989, c 432.

JURISPRUDENCE

Gigure v Chambre des notaires du Qubec, 2004 SCC 1, [2004] 1 SCR 3.

Nova Scotia (Department of Community Services) v Boudreau, 2011 NSSC 124, 302 NSR (2d) 50.

Pictou Landing Band Council v Canada (Attorney General), 2013 FC 342, [2013] 2

CNLR 371.

Stetler v Ontario Flue-Cured Tobacco Growers' Marketing Board, 2009 ONCA 234, 311

DLR (4th) 109.

SECONDARY MATERIALS: ELECTRONIC SOURCES

Blackstock, Cindy. Jordans Principle: Canadas broken promise to First Nations

children? (2012) 17 Pediatrics & Child Health, online: National Center for

Biotechnology Information <http://www.ncbi.nlm.nih.gov>.

Judges and Prothonotaries, The Honourable Leonard S. Mandamin, online: Federal Court

<http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/CoatofArms>.

Justice officials arguing against own government in Jordans Principle court appeal,

Aboriginal Peoples Television Network (9 May 2013) online: Aboriginal Peoples

Television Network <http://www.aptn.ca>.

Lavallee, Trudy L. Honouring Jordan: Putting First Nations children first and funding

fights second. (2005) 10 Pediatrics & Child Health, online: National Center for

Biotechnology Information <http://www.ncbi.nlm.nih.gov>.