Systemic Racism

[Montmorency]

Quotes from decision

Spoiler Alert, click show to read: 

[59] The history and objectives of the FNCFS Program and other related
provincial/territorial agreements indicate that the benefit or assistance provided through
these activities is to “ensure”, “arrange”, “support” and/or “make available” child and family
services to First Nations children and families on reserve and in the Yukon. Without the
FNCFS Program, related agreements and the funding provided through those instruments,
First Nations children and families on reserve and in the Yukon would not receive the full
range of child and family services provided to other provincial/territorial residents, let alone
services that are suitable to their cultural realities. The activities of the provinces/territory
alone were insufficient to meet the child and family services needs of First Nations children
and families on reserve and in the Yukon.
[60] Therefore, the essential nature of the FNCFS Program is to ensure First Nations
children and families on reserve and in the Yukon receive the “assistance” or “benefit” of
culturally appropriate child and family services to that are reasonably comparable to the
services provided to other provincial residents in similar circumstances. The other related
provincial/territorial agreements provide a similar “assistance” or “benefit”. AANDC extends
this “assistance” or “benefit” to First Nations children and families on reserves and in the
Yukon Territory.

[383] The FNCFS Program, corresponding funding formulas and other related
provincial/territorial agreements intend to provide funding to ensure the safety and wellbeing
of First Nations children on reserve by supporting culturally appropriate child and
family services that are meant to be in accordance with provincial/territorial legislation and
standards and be provided in a reasonably comparable manner to those provided offreserve
in similar circumstances. However, the evidence above indicates that AANDC is
far from meeting these intended goals and, in fact, that First Nations are adversely
impacted and, in some cases, denied adequate child welfare services by the application of
the FNCFS Program and other funding methods.
[384] Under the FNCFS Program, Directive 20-1 has a number of shortcomings and
creates incentives to remove children from their homes and communities. Mainly, Directive
20-1 makes assumptions based on population thresholds and children in care to fund the
operations budgets of FNCFS Agencies. These assumptions ignore the real child welfare
situation in many First Nations’ communities on reserve. Whereas operations budgets are
fixed, maintenance budgets for taking children into care are reimbursable at cost. If an
FNCFS Agency does not have the funds to provide services through its operations budget,
often times the only way to provide the necessary child and family services is to bring the
child into care. For small and remote agencies, the population thresholds of Directive 20-1
significantly reduce their operations budgets, affecting their ability to provide effective
programming, respond to emergencies and, for some, put them in jeopardy of closing.

[393] Overall, AANDC’s method of providing funding to ensure the safety and well-being
of First Nations children on reserve and in the Yukon, by supporting the delivery of
culturally appropriate child and family services that are in accordance with
provincial/territorial legislation and standards and provided in a reasonably comparable
manner to those provided off reserve in similar circumstances, falls far short of its
objective. In fact, the evidence demonstrates adverse effects for many First Nations
children and families living on reserve and in the Yukon, including a denial of adequate
child and family services, by the application of AANDC’s FNCFS Program, funding
formulas and other related provincial/territorial agreements. These findings are consistent
with those of the NPR, Wen:De reports, Auditor General of Canada reports and Standing
Committee on Public Accounts reports. Again, the Panel accepts the findings in those
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reports and has relied on them to make its own findings. Those findings are also
corroborated by the other testimonial and documentary evidence outlined above, including
the internal documents emanating from AANDC.

The provision of child and family services under the FNCFS Program and the other
provincial agreements are specifically aimed at First Nations living on reserve. Under the
Yukon Agreement, the services are aimed at all First Nations living in the territory. That is,
the determination of the public to which the services are offered is based uniquely on the
race and/or ethnic origin of the service recipients. Pursuant to the application of the
FNCFS Program, corresponding funding formulas and the other provincial/territorial
agreements, First Nations people living on reserve and in the Yukon are prima facie
adversely differentiated and/or denied services because of their race and/or national or
ethnic origin in the provision of child and family services.

All of the complaints about the funding levels or ineffectiveness of the federal agencies in question may be perfectly correct, but from a legal perspective the decision is nonsense.

Namely, the decision is that because:

the essential nature of the FNCFS Program is to ensure First Nations children and families on reserve and in the Yukon receive the “assistance” or “benefit” of culturally appropriate child and family services to that are reasonably comparable to the services provided to other provincial residents in similar circumstances.

AND the service fails to meet this standard due to fundamental problems in procedure and implementation, and especially in underlying standards for determining operational funding; AND that because

the determination of the public to which the services are offered is based uniquely on the race and/or ethnic origin of the service recipients. Pursuant to the application of the FNCFS Program, corresponding funding formulas and the other provincial/territorial agreements, First Nations people living on reserve and in the Yukon are prima facie adversely differentiated and/or denied services because of their race and/or national or ethnic origin in the provision of child and family services.

AND because this prima facie discrimination violates the Canadian Human Rights Act,

then the programs and agencies need to be reformed and affected individuals paid compensation of $20,000 each.


My complaints follow.

The element given least attention or relevant treatment in the decision and proceedings (and so is taken for granted) is the matter of prima facie discrimination. The discrimination claim is that:

1. The First Nations are the target population of the programs
2. The First Nations constitute an ethnic or racial group.
3. Ethnic/racial groups are a protected category under the CHRA.
4. The programs do not extend substantive equality to the target population in the particular services, in relation to the general Canadian population and its access to similar such services and the quality thereof.

The prima facie discrimination analysis is not concerned with proposed outcomes. It
is concerned with adverse impacts and whether a prohibited ground is a factor in any
adverse impacts.

But what are "adverse effects"? It is already precedent that comparative data in discrimination cases is unnecessary and even inappropriate in cases involving Indians, because

[256] On the Tribunal’s analysis, the employer who consciously decides to
pay his or her only employee less because she is a woman, or black, or
Muslim, would not have committed a discriminatory practice within the
meaning of subsection 7(b) of the Act because there is no other employee to
whom the disadvantaged employee could be compared.
[257] Similarly, the shopkeeper who forces his or her employee to work in
the back of the shop after discovering that the employee is gay would not
have committed a discriminatory practice if no one else was employed in the
store.
[…]
[259] In the examples cited above, individuals are clearly being treated in an
adverse differential manner in their employment because of their
membership in a protected group. However, according to the Tribunal’s
interpretation, no recourse would be available to these individuals under the
Act. Such an interpretation does not accord with the purpose of the
legislation and is unreasonable.

Yet given that discrimination claims are made based on broad social identity and relations between both groups and individuals, such solipsistic reasoning would seem to preclude the possibility of a discrimination case in the first place.

In the end, the decision is predicated upon comparison with the general population, given that

In providing the benefit of the FNCFS Program and the other related
provincial/territorial agreements, AANDC is obliged to ensure that its involvement in the
provision of child and family services does not perpetuate the historical disadvantages
endured by Aboriginal peoples. If AANDC’s conduct widens the gap between First Nations
and the rest of Canadian society rather than narrowing it, then it is discriminatory

But the paradox goes even further when we revisit the following statements, now side-by-side:

That is,
the determination of the public to which the services are offered is based uniquely on the
race and/or ethnic origin of the service recipients. Pursuant to the application of the
FNCFS Program, corresponding funding formulas and the other provincial/territorial
agreements, First Nations people living on reserve and in the Yukon are prima facie
adversely differentiated and/or denied services because of their race and/or national or
ethnic origin in the provision of child and family services.

The prima facie discrimination analysis is not concerned with proposed outcomes. It
is concerned with adverse impacts and whether a prohibited ground is a factor in any
adverse impacts.

So what this in fact entails is that the prohibited ground will necessarily be a factor in any adverse impacts, and there will necessarily be adverse impacts simply by dint of perpetuation of conditions.

What the Court has accomplished here is to technically make a priori discriminatory (and therefore illegal) any policy or program aimed at any protected group, including any reformed programs in redress that the court has ruled must be provided for by the legislature; it is very worrying that that nowhere did the Court acknowledge the vicious regressive nature of their logic, and the way it must bind their hands in a wide swath of future cases.


This is an egregious abuse of common law - judicial activism at its worst.