Contributed by Maya Gunnarsson
The McGill Journal of Law and Health and the Indigenous Law Association at McGill Blog are collaborating on our blogs this year, in order to connect our readers with more content at the crossroads of health law, and Indigenous law and legal traditions. You can find this article cross-posted on their website.
Introduction
The Canadian Human Rights Tribunal released their latest decision in First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) in September 2019. This ruling was the 9th issued by the Tribunal since 2016, when they found the Caring Society’s allegations that Canada was discriminating against First Nations children in their provision of child and family services were substantiated.
“This ruling is dedicated to all the First Nations children, their families and communities who were harmed by the unnecessary removal of children from your homes and your communities. The Panel desires to acknowledge the great suffering that you have endured as victims/survivors of Canada’s discriminatory practices.”
Caring Society v. Canada, 2019 CHRT 39 at para 13.
The purpose of this ruling was to determine the compensation Canada would be ordered to pay due to their discriminatory practices. More broadly, however, this decision attempted to bring justice to an extremely vulnerable group of people who have historically been denied access to justice through Canadian institutions. Since the initial ruling in 2016, the Tribunal had issued multiple remedial orders against Canada, finding that they were continuing to discriminate, and giving clear orders on what the federal government needed to do to comply with its 2016 decision. While the federal government may have been dragging its heels, the Tribunal firmly took a step towards reconciliation in Canada with this decision.
Background
In 2008, the First Nations Child and Family Caring Society brought forward a complaint to the Canadian Human Rights Commission. They alleged that the federal government was discriminating in their provision of child and family services to First Nations children living on reserve and in the Yukon by providing inequitable and insufficient funding for those services, contrary to s. 5 of the Canadian Human Rights Act (CHRA). Whereas the federal government provides child and family services for First Nations, the provinces provide those services for non-Indigenous Canadians. At issue in the original complaint were the funding formulas the federal government used to provide these services, as well as their definition of Jordan’s Principle—a principle intended to ensure First Nations children have access to the same healthcare and social services as non-Indigenous children. For a more detailed background on Jordan’s Principle and the Canadian Human Rights Tribunal’s previous rulings on this case, please see our previous blog post on the subject here.
In 2016, the Tribunal found that the Caring Society’s complaint was substantiated and the federal government’s provision of child and family services “resulted in denials of services and created various adverse impacts for many First Nations children and families living on reserves (para 458).” The Tribunal ordered the federal government to cease its discriminatory practice and to take measures to redress and prevent it. At the time of the judgement, the Tribunal stated that it had outstanding questions regarding the determination of compensation and deferred its ruling on the matter until those questions were answered.
The 2019 Decision
Under s. 53 of the CHRA, if the complainant’s claim of discrimination is substantiated, the Tribunal may order the person (or entity) found to be engaging in the discriminatory practice to financially compensate the victim. Specifically, under s. 53 (2)(e) the Tribunal can order the person to pay up to $20,000 for pain and suffering that the victim experienced as a result of the discriminatory practice. Additionally, under s. 53(3), the Tribunal may order the person to pay an additional $20,000 where the person is found to be “engaging … in the discriminatory practice wilfully or recklessly.”
In order to calculate the appropriate amount of compensation under s. 53(2)(e), the Tribunal had to determine whether the federal government’s discriminatory behaviour resulted in harm to First Nations children, and the extent of their pain and suffering. In determining the appropriate amount of compensation under s. 53(3), the Tribunal had to assess whether Canada was aware of its discriminatory practices. These two sections of the CHRA provided the Tribunal with the authority to award a maximum of $40,000 to each victim of discrimination.
The Tribunal stated that it had heard extensive evidence demonstrating that First Nations children were denied essential services after significant and detrimental delays, causing harm to the children and their parents or grandparents caring for them. For example, some children were required to stay in hospital longer than was medically required, often away from their home communities, while their families waited on funding approval for medical equipment that they needed in order to leave the hospital. In some cases that approval never came.
The Tribunal further stated that the evidence showed some children and their families experienced serious mental and physical pain as a result of the delays and denials in services. Due to the funding formula, many children were removed from their homes and communities in order to access required services. These children were not living in abusive or unsafe homes; however, the only way for them to access services that were available to other Canadian children was to be put in the care of the State. The removal of children from their communities and families was traumatic, and caused great pain and suffering to both the children and their families. As a result, the Tribunal awarded $20,000, the maximum amount allowed for pain and suffering, to each First Nation child that was removed from their home since 2006, and to each of their parents or grandparents where the removal was unnecessary.
Further, the Tribunal found that “Canada’s conduct was devoid of caution with little to no regard to the consequences of its behavior towards First Nations children and their families both in regard to the child welfare program and Jordan’s Principle (para 231).” Canada knew that its policies were harming children, however, the government chose to put their financial interests above the best interests of children. As a result of this wilful and reckless behaviour, the Tribunal awarded each First Nation child that was removed from their home since 2006 and, where the removal was unnecessary, each of their parents or grandparents an additional $20,000, the maximum allowable amount.
Case Analysis
The Tribunal’s decision to award the maximum amount allowed by statute was rare. The decision repeatedly emphasized that the maximum amount of $40,000 for victims was reserved for the worst cases. The Tribunal also categorized the unnecessary removal of children from their homes, families, and communities as “a worst-case scenario (para 234).”
In 1998, the maximum amount the Tribunal could award victims of discrimination was raised from $5,000 for “reckless or wilful conduct or hurt feelings or loss of self-respect” to $20,000 for pain and suffering and $20,000 for reckless or wilful behaviour (para 5). Since then, the Tribunal has only ever ordered compensation to the maximum amount in both categories once: in Alizadeh-Ebadi v. Manitoba Telecom Services in 2017. This case involved an employee facing sustained discrimination at his workplace for over twelve years. Clearly, the Tribunal does not order the maximum amount of compensation lightly.
The impact of awarding the maximum amount allowed by statute to the victims cannot be overstated. In its decision, the Tribunal addressed the victims of Canada’s discriminatory actions directly, stating: “No amount of compensation can ever recover what you have lost, the scars that are left on your souls or the suffering that you have gone through as a result of racism, colonial practices and discrimination (para 13).”
While the compensation of $40,000 cannot be considered proportional to the pain suffered by First Nations children and their families, ordering the maximum amount allowed by statute to be paid to each victim of Canada’s racial discrimination recognizes the severity of the discrimination the Tribunal adjudicated. Further, it attaches the highest price tag it can onto the government placing its own interests above the best interests of children over whom it has a responsibility.
According to the final report of the Truth and Reconciliation Commission,
“Reconciliation is about establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country. In order for that to happen, there has to be awareness of the past, acknowledgement of the harm that has been incited, atonement for the causes, and action to change behaviour.”
pg. 6-7
In this decision, the Tribunal acknowledged the past and detailed the specific harms of the government’s behaviour. It attempted, to the best of its ability given the authority it had as set out by statute, to ensure atonement for the harms caused, through public renouncement and financial compensation. This decision also provides an impetus for the federal government to change its behaviour, as a financial cost is now associated with every subsequent act the government undertakes that neglects the needs of a First Nation child.
This ruling does not fix the entire First Nations Child and Family Services Program in and of itself. However, it signals to the government of Canada, to First Nations communities, and to the Canadian public, that egregiously discriminatory behaviour by the Canadian government is not acceptable. It signals that the lives of those children and their families impacted matter. And it underscores the importance of community, family, and culture in a First Nation child’s life. In short, it is a significant step towards reconciliation.
On October 4, the Attorney General of Canada filed an application for judicial review of this decision. It calls for an order to set aside the decision and dismiss the claims for monetary compensation. This post will be updated following the release of the Federal Court’s review.
Maya Gunnarsson is the Executive Online Editor of the McGill Journal of Law and Health and a second-year B.C.L./ LL.B. student at McGill University’s Faculty of Law. Maya holds an M.A. in Canadian Studies and Indigenous Studies from Trent University where she focused her research on the role of the media in the ongoing crisis of violence against Indigenous women and girls. Prior to law school, Maya worked as a researcher at the Higher Education Quality Council of Ontario and interned at the Office of the UN High Commissioner for Human Rights in the Indigenous Peoples and Minorities Section.
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