Beyond Scrutiny? Reviewing decisions impacting First Nations children using the Vavilov framework

• Main Author: Levesque, Anne
• Format: Article in Journal/Newspaper
• Language: English
• Published: University of Toronto Faculty of Law 2022
• Subjects: Canada; First Nations
• Online Access: https://jps.library.utoronto.ca/index.php/utjle/article/view/34764

This article considers the Vavilov framework and administrative decisions that impact the lives of First Nations children in Canada. Because of their unique constitutional status, First Nations children often do not receive government services in the same way that other children in Canada do. As a result, they are often caught in lengthy jurisdictional disputes involving different levels or branches of governments about who should pay for their services. Decisions regarding whether they are provided with a service are almost always made by state actors with large discretionary powers outside of a legislative framework. Historically, as well as currently to some extent, administrative decisions regarding the provisions of services to First Nations children have been unpredictable, discriminatory, and even harmful to them. In this article, I argue that the contextual considerations provided by the majority in Vavilov risk affording too much deference to administrative decision-makers in areas like the provision of public services to First Nations children. I also offer some ideas on the ways in which reviewing courts can interpret, apply, and weigh the Vavilov factors to overcome these shortcomings. In particular, the Canadian Human Rights Tribunal’s (CHRT) decisions in the Caring Society litigation, which are consistently focused on the best interests of the child, offer valuable insight to reviewing courts that are called to assess the reasonableness of decisions involving First Nations children and their access to public services. By applying the CHRT’s understanding of substantive equality and being keenly attentive to the significant impact of administrative decisions on the lives of First Nations children, reviewing courts can mitigate the deficiencies in the Vavilov framework.