[Canada] Canadian Politics Redux

[Barrister]

Your first mistake is reading social media.  Your second mistake is reacting to social media.

There are significant issues here beyond what is being discussed on social media though.

One is the delay it took the local indigenous community to get the necessary approvals to do the work to identify where the bodies were located - 20 years.  Another issue is all the work to identify and remains that were not officially recorded as deaths at the time, return the remains to their home territories, assist and compensate the families for those deaths (they were not part of the class action you referred to)  and I am sure a number of other issues I have not thought of in the short time I gave your post some thought.

I have seen those issues discussed absolutely nowhere.  Instead it's baby shoes, Facebook frames, and flags at half mast.

There has been some reference to identifying the bodies - but it's going to be incredibly difficult.  If you take a look at the TRC link I gave all the deaths were invariably from tuberculosis (with influenza being the next most likely).  Deaths from children at residential schools were several times higher than deaths in the wider population - but those rates equalized around 1950.  It's also worth noting that the death rate for the wider aboriginal population was much higher than the general population, so this wasn't just a problem with residential schools.  So basically almost all of those children will have died between 1890 and 1950.

As for compensation... these are of course all children.  They did not have any direct descendants of their own.  Their parents are long since passed away as well.  I'm not sure if it's the best use of money to start giving people money just because their great-great uncle died as a child in residential schools.


Don't get me wrong - I have no problem with the seeming spontaneous outpouring of support for residential school survivors and victims.  I'm just disappointed so many average Canadians seemed fiarly ignorant of what had happened  even in 2021.

[crazy canuck]

Your first mistake is reading social media.  Your second mistake is reacting to social media.

There are significant issues here beyond what is being discussed on social media though.

One is the delay it took the local indigenous community to get the necessary approvals to do the work to identify where the bodies were located - 20 years.  Another issue is all the work to identify and remains that were not officially recorded as deaths at the time, return the remains to their home territories, assist and compensate the families for those deaths (they were not part of the class action you referred to)  and I am sure a number of other issues I have not thought of in the short time I gave your post some thought.

I have seen those issues discussed absolutely nowhere.

That is because you spend your time reading social media posts 

More seriously, it might speak to where you are in the country and the news sources you are seeing.  If you lived in BC and listened to the CBC, you would have heard Linc Kesler (incidentally a person for whom I have a great deal of respect) discuss all those issues.

[crazy canuck]

I'm not sure if it's the best use of money to start giving people money just because their great-great uncle died as a child in residential schools.

I parsed this out for a separate discussion.  There are a number of heads of damage that this might attract beyond what you described.  Canada owed a fiduciary duty when it took these kids away.  You are going to have a hard time convincing me that an egregious breach of a fiduciary duty does not attract damages - especially with the modern line of cases dealing damages in the commercial context of such a breach where strict proof of damages suffered is not required.

You seem to have concluded that this is all old news.  It isn't.  It is fresh evidence of atrocious conduct by the government and the religious orders involved in the residential school system.  And it represents fresh liability for the government.  A cynic might even suggest that is why it took 20 years to get the necessary approvals to locate the bodies...

edit: one other thing to consider BB.  While it is true that the TRC did identify that there were a number of children who died in custody of the schools.  it did not identify all the children who died.  That was one of the reasons for the search for these bodies.  From the Globe story:

Previously, the national Truth and Reconciliation Commission's registry could confirm only 51 deaths at Kamloops from 1914 to 1963. But the Tk'emlups community long suspected that more children were buried on the grounds and tried for about 20 years to find them. Recently, a grant from B.C.'s Pathway to Healing program allowed the nation to pay for ground-penetrating radar, which was used over the Victoria Day weekend to find the site. The survey team's preliminary findings were made public on May 27; a fuller report is expected in June.

Of course, as we know 51 is now over 200 confirmed deaths.  We would not have known that but for this very sad discovery.

[Monoriu]

So on social media I keep seeing all these posts from people who are absolutely outraged about the discovery of the remains of 215 children buried at the Kamloops Residential School.

https://www.cbc.ca/news/canada/british-columbia/tk-eml%C3%BAps-te-secw%C3%A9pemc-215-children-former-kamloops-indian-residential-school-1.6043778

It's fine to be outraged by this - but what gets me is how many people are surprised by it.  I knew that thousands of kids died at residential schools 20 years ago.  And now through the Truth and Reconciliation Committee we know even more details.

https://ehprnh2mwo3.exactdn.com/wp-content/uploads/2021/01/Executive_Summary_English_Web.pdf

(read starting at page 97 of the PDF)  This is the summary of the final report of the Truth and Reconciliation Committee.

What's even worse though is the number of people I see calling for restitution to be paid to residential school survivors.  Umm... what about the over $3 billion that have been paid as part of the residential school settlement agreement that was reached in 2006?

I am surprised.  I watched the news every day when I was in Canada.  But I watched the Chinese news that covered both Hong Kong and Canada, and they didn't mention that. 

[crazy canuck]

I think BB was only commenting on what he was reading on his social media.

The news media is also definitely commenting on these events.  From today's Globe these are just three of the pieces they have on the topic.

https://www.theglobeandmail.com/canada/british-columbia/article-kamloops-residential-school-mass-graves-215-children-explainer/ 

https://www.theglobeandmail.com/canada/article-indigenous-leaders-call-for-national-reckoning-after-childrens-remains/

https://www.theglobeandmail.com/canada/article-survivors-of-residential-schools-share-their-stories-call-on-the/

[Barrister]

I'm not sure if it's the best use of money to start giving people money just because their great-great uncle died as a child in residential schools.

I parsed this out for a separate discussion.  There are a number of heads of damage that this might attract beyond what you described.  Canada owed a fiduciary duty when it took these kids away.  You are going to have a hard time convincing me that an egregious breach of a fiduciary duty does not attract damages - especially with the modern line of cases dealing damages in the commercial context of such a breach where strict proof of damages suffered is not required.

You seem to have concluded that this is all old news.  It isn't.  It is fresh evidence of atrocious conduct by the government and the religious orders involved in the residential school system.  And it represents fresh liability for the government.  A cynic might even suggest that is why it took 20 years to get the necessary approvals to locate the bodies...

edit: one other thing to consider BB.  While it is true that the TRC did identify that there were a number of children who died in custody of the schools.  it did not identify all the children who died.  That was one of the reasons for the search for these bodies.  From the Globe story:

Previously, the national Truth and Reconciliation Commission's registry could confirm only 51 deaths at Kamloops from 1914 to 1963. But the Tk'emlups community long suspected that more children were buried on the grounds and tried for about 20 years to find them. Recently, a grant from B.C.'s Pathway to Healing program allowed the nation to pay for ground-penetrating radar, which was used over the Victoria Day weekend to find the site. The survey team's preliminary findings were made public on May 27; a fuller report is expected in June.

Of course, as we know 51 is now over 200 confirmed deaths.  We would not have known that but for this very sad discovery.

Okay, from what I remember from my aboriginal law classes, I think the relationship between the Crown and First nations isn't strictly speaking a fiduciary relationship, but it's something akin to it.  But let's put it to the side for now.

Who did the government owe that fiduciary relationship to?  Those kids themselves.  Who then would have a cause of action for wrongful death for these poor kids who died 70-130 years ago.
Wrongful death is usually limited to spouses, parents or kids.  Like I said I really can't imagine the law finding a cause of action, or public policy recommending, for distant relatives to receive windfalls many decades after the fact.

There's no end of terrible shit that happened in history.  But it's long been a question of how far back do you go to try and make up for it.  Ta-Nehisi Coates wrote a lengthy essay "The Case for Reparations".  Reparations are often discussed in the US as being reparations for slavery.  Coates though focused very specifically and deliberately on reparations for those still-living victims of Jim Crow and red-lining - not slavery which had ended 150 years earlier.  https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/

As for social media - I was just displaying my dismay that so many people seemed to have no knowledge either of the number of kids who died in residential schools, or of the fact that Canada has paid out billions of dollars in compensation to living survivors over the last 15 years.  These facts deserve to be known.

[crazy canuck]

I'm not sure if it's the best use of money to start giving people money just because their great-great uncle died as a child in residential schools.

I parsed this out for a separate discussion.  There are a number of heads of damage that this might attract beyond what you described.  Canada owed a fiduciary duty when it took these kids away.  You are going to have a hard time convincing me that an egregious breach of a fiduciary duty does not attract damages - especially with the modern line of cases dealing damages in the commercial context of such a breach where strict proof of damages suffered is not required.

You seem to have concluded that this is all old news.  It isn't.  It is fresh evidence of atrocious conduct by the government and the religious orders involved in the residential school system.  And it represents fresh liability for the government.  A cynic might even suggest that is why it took 20 years to get the necessary approvals to locate the bodies...

edit: one other thing to consider BB.  While it is true that the TRC did identify that there were a number of children who died in custody of the schools.  it did not identify all the children who died.  That was one of the reasons for the search for these bodies.  From the Globe story:

Previously, the national Truth and Reconciliation Commission's registry could confirm only 51 deaths at Kamloops from 1914 to 1963. But the Tk'emlups community long suspected that more children were buried on the grounds and tried for about 20 years to find them. Recently, a grant from B.C.'s Pathway to Healing program allowed the nation to pay for ground-penetrating radar, which was used over the Victoria Day weekend to find the site. The survey team's preliminary findings were made public on May 27; a fuller report is expected in June.

Of course, as we know 51 is now over 200 confirmed deaths.  We would not have known that but for this very sad discovery.

Okay, from what I remember from my aboriginal law classes, I think the relationship between the Crown and First nations isn't strictly speaking a fiduciary relationship, but it's something akin to it.  But let's put it to the side for now.

Who did the government owe that fiduciary relationship to?  Those kids themselves.  Who then would have a cause of action for wrongful death for these poor kids who died 70-130 years ago.
Wrongful death is usually limited to spouses, parents or kids.  Like I said I really can't imagine the law finding a cause of action, or public policy recommending, for distant relatives to receive windfalls many decades after the fact.

There's no end of terrible shit that happened in history.  But it's long been a question of how far back do you go to try and make up for it.  Ta-Nehisi Coates wrote a lengthy essay "The Case for Reparations".  Reparations are often discussed in the US as being reparations for slavery.  Coates though focused very specifically and deliberately on reparations for those still-living victims of Jim Crow and red-lining - not slavery which had ended 150 years earlier.  https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/

As for social media - I was just displaying my dismay that so many people seemed to have no knowledge either of the number of kids who died in residential schools, or of the fact that Canada has paid out billions of dollars in compensation to living survivors over the last 15 years.  These facts deserve to be known.

The legal duty I believe you are trying to remember is referred to as the Honour of the Crown.  it is a legal duty owed in addition to the Crown fiduciary duty in certain circumstances.   The fiduciary duty was owed both to the children and the families from which they were forcefully taken.  I don't think there is any benefit in conflating this issue with the slavery issue in the US.  I also think you should choose your words more carefully when you refer to compensation for the death of a family member as a windfall.

[Barrister]

The legal duty I believe you are trying to remember is referred to as the Honour of the Crown.  it is a legal duty owed in addition to the Crown fiduciary duty in certain circumstances.   The fiduciary duty was owed both to the children and the families from which they were forcefully taken.  I don't think there is any benefit in conflating this issue with the slavery issue in the US.  I also think you should choose your words more carefully when you refer to compensation for the death of a family member as a windfall.

There is nothing pejorative about the word windfall.  I would maintain that receiving cash compensation for the death of a distant relative who may have died 100 years ago would count as a windfall - money that is not expected.

[crazy canuck]

The legal duty I believe you are trying to remember is referred to as the Honour of the Crown.  it is a legal duty owed in addition to the Crown fiduciary duty in certain circumstances.   The fiduciary duty was owed both to the children and the families from which they were forcefully taken.  I don't think there is any benefit in conflating this issue with the slavery issue in the US.  I also think you should choose your words more carefully when you refer to compensation for the death of a family member as a windfall.

There is nothing pejorative about the word windfall.  I would maintain that receiving cash compensation for the death of a distant relative who may have died 100 years ago would count as a windfall - money that is not expected.

The definition of the word is that it is an unexpected good fortune.  For Christ Sakes Man, get a grip on reality.  We just discovered four times the children died at Kamloops than was estimated by the TRC.  Do yourself a favour and stop associating that with good fortune.

[Barrister]

I was reading an article about how the Green Party of Canada is fighting within itself over the Israel-Palestine issue when I learned that Green Party leader Annamie Paul is Jewish.


(for non-Canadians, Paul is black, so you wouldn't necessarily have expected Judaism, even after remembering Sammy Davis Jr was jewish)

[Barrister]

The legal duty I believe you are trying to remember is referred to as the Honour of the Crown.  it is a legal duty owed in addition to the Crown fiduciary duty in certain circumstances.   The fiduciary duty was owed both to the children and the families from which they were forcefully taken.  I don't think there is any benefit in conflating this issue with the slavery issue in the US.  I also think you should choose your words more carefully when you refer to compensation for the death of a family member as a windfall.

There is nothing pejorative about the word windfall.  I would maintain that receiving cash compensation for the death of a distant relative who may have died 100 years ago would count as a windfall - money that is not expected.

The definition of the word is that it is an unexpected good fortune.  For Christ Sakes Man, get a grip on reality.  We just discovered four times the children died at Kamloops than was estimated by the TRC.  Do yourself a favour and stop associating that with good fortune.

I never said that the deaths of children at residential schools was "good fortune".

I said that paying compensation to surviving family members, given that they would be quite distant relations, would amount to a windfall.

[viper37]

The legal duty I believe you are trying to remember is referred to as the Honour of the Crown.  it is a legal duty owed in addition to the Crown fiduciary duty in certain circumstances.   The fiduciary duty was owed both to the children and the families from which they were forcefully taken.  I don't think there is any benefit in conflating this issue with the slavery issue in the US.  I also think you should choose your words more carefully when you refer to compensation for the death of a family member as a windfall.

There is nothing pejorative about the word windfall.  I would maintain that receiving cash compensation for the death of a distant relative who may have died 100 years ago would count as a windfall - money that is not expected.

The definition of the word is that it is an unexpected good fortune.  For Christ Sakes Man, get a grip on reality.  We just discovered four times the children died at Kamloops than was estimated by the TRC.  Do yourself a favour and stop associating that with good fortune.

You're talking different things.

You're talking of the community, BB is talking of the individual.

The community has a link with the tragedy, as I figured First Nations members originated in the general area and not some other province, but the individuals living today don't have a link to these children, like you would do with yours. 

If your kid had deceased while at school, you would be entitled to compensation.  But you could not claim compensation to a boarding school where your great-great uncle died (at least, as I understand the law here).

The communities already received compensations from the Truth&Reconciliation process.  It is my understanding that these compensations were for all the traumas, including death and disapearance, not just in this system, but with our respective health care systems too (or was this never settled?  I mean, children given to adoption/international adoption while telling their parents they died)

The question that matters is if this specific community/ies, from which the children originated deserve more settlement money than they were previously awarded because of this new discovery.  It's important to settle this issue now because there likely will be other such discoveries elsewhere in the country later on.

BB thinks the T&R process settled (financially speaking) the matter of these boarding schools, and any discovery that could happen in the future.  I'm inclined to lean his way.

If we feel First Nations deserve more money, it's a discussion to be had on a global level, not community by community, as it would be kinda be unfair to those who might have had -as of yet- unfound/unidentified victims.  Today, we found Kamloops.  But maybe there is such a mass grave in Montreal, or in Halifax, but we just don't know yet.

I think there are better remedies than monetary compensation on top of what was given.  For instance, actively looking for such mass graves, or determine the faith of those who disapeared, and like Quebec has begun to do (or will very soon), helping community members scrutinized adoption registers and any kind of documentation that may help identify to ultimate fate of children birthed in our hospitals (did they really die or were they given to white families?).  That would help a lot more than a few millions here&there.

[crazy canuck]

The legal duty I believe you are trying to remember is referred to as the Honour of the Crown.  it is a legal duty owed in addition to the Crown fiduciary duty in certain circumstances.   The fiduciary duty was owed both to the children and the families from which they were forcefully taken.  I don't think there is any benefit in conflating this issue with the slavery issue in the US.  I also think you should choose your words more carefully when you refer to compensation for the death of a family member as a windfall.

There is nothing pejorative about the word windfall.  I would maintain that receiving cash compensation for the death of a distant relative who may have died 100 years ago would count as a windfall - money that is not expected.

The definition of the word is that it is an unexpected good fortune.  For Christ Sakes Man, get a grip on reality.  We just discovered four times the children died at Kamloops than was estimated by the TRC.  Do yourself a favour and stop associating that with good fortune.

I never said that the deaths of children at residential schools was "good fortune".

I said that paying compensation to surviving family members, given that they would be quite distant relations, would amount to a windfall.

I think the point you are missing is the word "windfall" is associated with good fortune, getting an unexpected benefit etc.  It is tone deaf at best to use that term in these circumstances.

Compensation for a prior wrong is not a benefit or a windfall.  The concept of compensation is to give back what was lost to make whole.  A very different concept from a windfall.

@Viper, the TRC had no power to issue compensation.  It was only a fact finding body.  Also, under the Conservative government of the day, the TRC requests for funding to deal more thoroughly with the issue of deaths of children in care was refused.  BB's claim that it was all dealt with at that time is not accurate.  Ironic since the thing that got BB so worked up in the first place was his perception was that people did not understand what had happened during the TRC process. 

[Barrister]

I think the point you are missing is the word "windfall" is associated with good fortune, getting an unexpected benefit etc.  It is tone deaf at best to use that term in these circumstances.

Compensation for a prior wrong is not a benefit or a windfall.  The concept of compensation is to give back what was lost to make whole.  A very different concept from a windfall.

It's all a question of who would be compensated though - who would have standing.  I'll freely say if they find some 90 year old whose child died in a residential school that person should be compensated.

But as I said - the overwhelming majority of those dead kids are almost certainly from between 1890-1950.  Any living relative is going to be a pretty distant one.  How does one "make whole" for the loss of a great uncle or aunt?  You can't.

My dad had an older sister - Elaine.  She died in a car accident (or maybe a ferry accident?) when she was in her teens and my dad was a kid.  Lets say suddenly I could identify who was responsible.  How do you "make whole" the loss of an aunt to someone in their 40s?  And of course this happening in the 60s was a whole generation more recent than those residential school deaths.

[crazy canuck]

I think the point you are missing is the word "windfall" is associated with good fortune, getting an unexpected benefit etc.  It is tone deaf at best to use that term in these circumstances.

Compensation for a prior wrong is not a benefit or a windfall.  The concept of compensation is to give back what was lost to make whole.  A very different concept from a windfall.

It's all a question of who would be compensated though - who would have standing.  I'll freely say if they find some 90 year old whose child died in a residential school that person should be compensated.

But as I said - the overwhelming majority of those dead kids are almost certainly from between 1890-1950.  Any living relative is going to be a pretty distant one.  How does one "make whole" for the loss of a great uncle or aunt?  You can't.

My dad had an older sister - Elaine.  She died in a car accident (or maybe a ferry accident?) when she was in her teens and my dad was a kid.  Lets say suddenly I could identify who was responsible.  How do you "make whole" the loss of an aunt to someone in their 40s?  And of course this happening in the 60s was a whole generation more recent than those residential school deaths.

Certainly, there will be issues to work through.  There are probably a lot of those 90 and younger parents around given the fact that the last school didn't close its doors until 1996.  I am not sure who you so certain about the numbers of deaths before or after 1950 since the TRC itself said it could not be certain and we now know its estimate was off by a factor of 4 for at least this one location.

Your example is a bad one.  There is no fiduciary obligation in that scenario.  The law of damages related to breaches of a fiduciary obligation is different from negligence.