Our member, Dr. Patrick J. Ryan (King's University College at Western University, Canada), talks about his new book, Childhood and the Law in Canada – The Family/State Relationship (LexisNexis, 2024).
Childhood and the Law in Canada offers a series of case studies in family law and the treatment of children in care, schools, and other social institutions. The book places legal disputes in historical context. This helps the reader engage with the competing claims put forward by the parties and clarifies the social significance of the cases. We learn what the courts held, examine their reasoning, and follow the consequences of landmark decisions for contemporary Canadian institutions and social relationships.
The book advances our understanding of foundational legal concepts and current political issues, such as the doctrine of parens patriae, the best interests of the child principle, the reproductive rights of the disabled, the question of racial socialization in custody disputes, the international system for returning children unlawfully separated from one parent by another, a constitutional challenge to corporal punishment, the development of a legal duty to report, the history of children’s evidence in courts, the use of the law of torts to address the mistreatment of children in care, and the role of the courts in Canada’s response to the harms caused by Indian Residential Schools. Each chapter stands on its own, but the book repeatedly unpacks the problems of custodial power over children, or their legal ‘coverture’ within the family-state relation.
I find the study of cases engaging because it approaches jurisprudence from the perspectives of contestants. We begin with the social context of the dispute and explore law as a prism for social and political continuity and change. This approach demands formal legal rigor too. To make legal sense of any important decision, one must confront other cases and various sources of political authority and legal obligation: statutes, policies, programs, contracts, common law doctrines, and sometimes international agreements or national constitutions. The study of cases is an invitation to confront social issues as they are taken into the structure of government. In the most important instances, the decisions handed down shape future possibilities and problems in law and society.
This book draws on the tradition of studying legal cases historically, but it does so by attending to the needs of students who are learning about childhood and the law. Over the years, I have found that case law draws them into relatable (if sometimes tragic) events or situations, so they might have a reason to learn new vocabulary, information, and ideas. I struggled to find suitable readings on childhood and the law in Canada of an adequate scope that brought the past into the present. So, I decided to produce my own. I think writing for students freed me to create legal analyses rich in description and social significance, but this will be for others to judge.
When Jack London rose before the Supreme Court of Canada for the Assembly of First Nations (AFN), Chief Justice McLachlin motioned to have a brief word off-mike. The microphone came back into range as she completed her instructions “… but, in any event you’ll confine yourselves to the issues that are properly in this litigation.” London handled the admonishment with grace. “I’ll do my best, Chief Justice. And if I stray, I’m sure that I will be deterred.” (Transcripts, pg. 67, ln. 14-19). Their curt exchange exposed a cleavage at the heart of the Blackwater litigation. The former students were unwilling to do what the Canadian legal system was asking them to do: confine their understanding of the harms of the Indian Residential Schools (IRS) within traditional liability concepts. They wanted to use the facts of their abuse to expand liability law in ways that would force Canada to reconsider its colonial history.
It did not take long for Jack London to “stray.” He began by stating bluntly that the litigation they were witnessing today had created “the worst possible situation in which First Nation victims and survivors could find themselves.” The case had become a contest between the state and the churches over who was most to blame. (Transcripts, pg. 68, lns. 1-2) The resulting legalistic maneuvering occluded the most significant truths and the “unique” issues before the Court. For no other project of educational compulsion, said London in response to Justice Bastarache, were children “put into closed environments in which they were under absolute control of their masters.” No other Canadian school had been built for the purposes of “dehumanizing, abuse.” (Transcripts, pg. 69, lns. 2-8) He called upon the Justices to take the next step in a series of cases that were slowly acknowledging Indigenous peoples for what they were – separate nations. (Calder v British Columbia (Attorney-General) [1973] SCC; Guerin et al v The Queen and National Indian Brotherhood [1985] SCC; Delgamuukw v British Columbia [1997] SCC; Haida Nation v British Columbia (Minister of Forests) [2004] SCC).
At this point the Chief Justice interrupted and repeated her initial instruction. London had introduced questions of “race, culture and language [that] were not on the record here, or part of this” litigation. (Transcripts, pg. 69, lns. 22-24) He promised the Court that he would leave the “creation of a tort at the loss of culture or the loss of language… for another day… My point is...” Then McLachlin interrupted, “Yes, I suppose the race, you say, is an inference from the fact that these were operated for aboriginal children.” (Transcripts, pg. 70) London agreed and referred to historical motivations for the IRS uncovered by Milloy and Miller. This led to a discussion of evidence exclusion at trial. London extricated himself from this losing avenue by saying he was not attempting to resubmit excluded evidence.
Nonetheless, London proceeded to speak passionately from the prohibited evidence and arguments. “I can’t see how this court, frankly with great respect, I can’t see how this court can deal with probably the greatest and most grievous stain on the history of the country without going into the historical record.” (Transcripts, pg. 71, lns. 3-5) Why, London asked, would this court have the “desire to look at this case in the isolation of a particular small set of facts in a particular institution.” The crimes suffered by the students at the Alberni IRS could only be assessed within an “overall context… [of] an attempt to assimilate a group of people into the dominant culture.” (Transcripts, pg. 71, lns. 8-9)
From here, London launched the cultural genocide narrative of the IRS. The government had not merely seized land when it created these schools, it took control of the
lives and beings of Indian children for the purpose of assimilating them and for the selfish, in the broadest sense of that term and core breach of fiduciary duty, reason that it wanted to avoid future financial liability. (Transcripts, pg. 71-73)
Worse still, Canada sustained the IRS for almost a century after it knew the initial assimilationist dream had failed because it wanted “to reduce ultimately the amount of money that would be flowing to First Nations people under the treaties” by destroying generations of Indigenous people. (Transcripts, pg. 71-73). The Justices did not deter London, but they could not engage with his ideas. No questions were asked. McLachlin thanked him and called the next intervener.
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