Substantive Equality in the context of Jordans Principle

Substantive Equality in the context of Jordan’s Principle AFN Virtual Gathering March 10, 2021 Subtitle Here

Formal Equality vs Substantive Equality: • Formal equality generally means that the rules are the same for everyone, and nobody gets special considerations. This approach assumes that if the same rule is applied to everyone, it will produce equal results. • Substantive equality recognizes that the same rules applied to everyone will not produce equal results. Each individual has or faces different circumstances and social discriminations, at present and in the past.

“. . . equality is not really about being treated the same, and it is not a mathematical equation waiting to be solved. Rather, it is about equal human dignity, and full membership in society. It is about promoting an equal sense of self-worth. It is about treating people with equal concern, equal respect, and equal consideration. These are the values that underlie equality. These are the values that are offended when we discriminate, consciously or not. ” (The Honourable Claire L’Heureux-Dubé, “Conversations on Equality” (1999) 26 Man. L. J. 273)

Substantive Equality: • Substantive equality recognizes that the law must take elements such as discrimination, marginalization, and unequal distribution into account in order to achieve equal results for basic human rights, opportunities, and access to goods and services. • Substantive equality is a legal principle that refers to the achievement of true equality in outcomes. It is achieved through equal access, equal opportunity and, most importantly, the provision of services and benefits in a manner and according to standards that meet any unique needs and circumstances, such as cultural, social, economic and historical disadvantage. • Substantive equality is both a process and an end goal relating to outcomes that seeks to acknowledge and overcome the barriers that have led to the inequality in the first place.

First Nations Historic Disadvantage:

Individual Factors

First Nations Context • Substantive equality recognizes that First Nations children may need additional supports to achieve the same outcomes as other children because they or their family have experienced disadvantages other children do not experience. • Acknowledgement of the barriers that have led to inequality in the first place. • Recognition that not all people start off from the same position and that these unequal opportunities make it more difficult for some to be successful. Additional help is required to put them at the same position and give them the same opportunities as others.

First Nations Women Have Additional Considerations • Economic disadvantage experienced by many women after a divorce or separation; • Women’s disproportionate responsibility for childcare; • Higher rates of spousal violence; • Marginalization of First Nations women within society; • Discrimination against single mothers.

Canadian Human Rights Tribunal First Nations Child and Family Caring Society et al v. Attorney General of Canada

CHRT Rulings: Pursuant to the CHRT May 26, 2017 ruling, the Government of Canada was required to ensure substantive equality in the provision of services to the child, to ensure culturally appropriate services and to safeguard the best interests of the child. This requires Canada to provide all First Nations children, on and off reserve, with publicly funded benefits, supports, programs, goods and services in a manner and according to a standard that meets their particular needs and circumstances, on a substantively equal basis with non-First Nations children. Applies to all public services, including services that are beyond the normative standard of care to ensure substantive equality, culturally appropriate services, and to safeguard the best interests of the child.

CHRT’s Comments on Substantive Equality “Substantive equality and Canada’s international obligations require that First Nations children on-reserve be provided child and family services of comparable quality and accessibility as those provided to all Canadians off-reserve, including that they be sufficiently funded to meet the real needs of First Nations children and families and do not perpetuate historical disadvantage. ” (2016 CHRT 2 at para 455) “… the provision of culturally appropriate services, the needs of each individual child must be considered and evaluated, including taking into account any needs that stem from historical disadvantage and the lack of on-reserve and/or surrounding services. ” (2017 CHRT 14, at para 69).

Beyond ‘normative’ standard of care Jordan's Principle is applied on the principle of substantive equality to enable First Nations children to receive additional assistance when necessary. This makes it possible to go beyond provincial services when these are insufficient. “When a government service is not necessarily available to all other children or is beyond the normative standard of care, the government department of first contact will still evaluate the individual needs of the child to determine if the requested service should be provided to ensure substantive equality in the provision of services to the child, to ensure culturally appropriate services to the child and/or to safeguard the best interests of the child”. (2017 CHRT 13 at para 135)

CHRT’s Directions Regarding Substantive Equality • Provides an opportunities equal with other individuals • Must not perpetuate historical disadvantages endured by Aboriginal peoples; • Addresses historical harms, including Indian Residential Schools and intergenerational trauma; • Narrows the gap between First Nations and the rest of Canadian society; • Meets real needs of First Nations children; • Provides services that are culturally appropriate;

Questions?