Blaming the Victim: Canadian Law, Causation and Residential Schools

This article critically examines requirements that Aboriginal people demonstrate a causal relation between attendance at residential schools and present harms in tort claims and at sentencing. It suggests that causation requirements have a deep hold on Canadian law but that they can blame victims and discount the broader legacy of the schools. The first part examines so-called ‘crumbling skull’ arguments made by defendants in tort actions that Aboriginal plaintiffs would have suffered various harms even if they did not attend residential schools. The second part examines the refusal to award damages to Aboriginal plaintiffs for lost earnings while in prison. The final part examines how criminal courts have often required Aboriginal accused to establish a causal relation between crimes and residential schools, especially in intergenerational cases. This has continued even after the Supreme Court clearly indicated in the 2012 case of Ipeelee that judges should take notice of the broader legacy of residential schools as a background factor in sentencing.