51 ReferencesBjörnehed, Emma. “Narco-Terrorism: The Merger of the War on Drugs and the War on Terror.” Global Crime 6, no. 3&4 (2004): 305-324.Brenner, Susan W. “Organized cybercrime? How cyberspace may affect the structure of criminal relationships.” North Carolina Journal of Law & Technology 4, no. 1 (2002): 1-41.Campana, Paolo and Federico Varese. “Cooperation in criminal organizations: Kinship and violence as credible commitments.” Rationality and Society 25, no. 3 (2013): 263-289.Catino, Maurizio. “How Do Mafias Organize? Conflict and Violence in Three Mafia Organizations.” European Journal of Sociology 55, no. 2 (2014): 177- 220.Choo, Kim-Kwang Raymond. “Organised crime groups in cyberspace: a typology.” Trends in Organized Crime 11, (2008): 270-295.Duran-Martinez, Angelica. “To Kill and Tell? State Power, Criminal Competition, and Drug Violece.” Journal of Conflict Resolution 59, (2015): 1377-1402.Etges, Rafael and Emma Sutcliffe. “An Overview of Transnational Organized Cyber Crime.” Journal of Digital Forensic Pracitice 3, (2010): 106-114.Gambetta, Diego. The Sicilian Mafia: The Business of Private Protection. Cambridge, MA: Harvard University Press, 1996.Kenney, Michael. From Pablo to Osama: Trafficking and Terrorist Networks, Government Bureaucracies, and Competitive Adaptation. University Park, PA: The Pennsylvania State University Press, 2007.
52Leukfeldt, E. Rutger, Anita Lavorgna and Edward R. Kleemans. “Organised Cybercrime or Cybercrime that is Organised? An Assessment of the Conceptualisation of Financial Cybercrime as Organised Crime.” European Journal on Criminal Policy and Research 23, (2017): 287-300.Lusthaus, Jonathan. “How organised is organised cybercrime?” Global Crime 14, no. 1(2013): 52-60.McCusker, Rob. “Transnational organised cyber crime: distinguishing threat from reality.” Crime Law Society & Change 46, (2006): 257-273.Moise, Adrian Cristian. “Some Considerations on the Phenomenon of Cybercrime.” Journal of Advanced Research in Law and Economics 5, no. 1(2014): 38-43.Olson, Mancur. “Dictatorship, Democracy, and Development.” The American Political Science Review 87, (1993): 567-576.Rider, Barry A. K. “Cyber-Organised Crime: The Impact of Information Technology on Organised Crime.” Journal of Financial Crime 8, no. 4 (2001): 332-346.Smith, Dwight C. “Paragons, Pariahs, and Pirates: A Spectrum-Based Theory of Enterprise.” Crime & Delinquency 26, no. 3(1980): 358-386.Smith, G. Stevenson. “Management models for international cybercrime.” Journal of Financial Crime 22, no. 1(2015): 104-125.Snyder, Richard and Angelica Duran-Martinez. “Does illegality breed violence? Drug trafficking and state-sponsored protection rackets.” Crime Law Social Change 52, (2009): 253-273.Von Lampe, Klaus. Organized Crime: Analyzing Illegal Activities, Criminal Structures, and Extra-Legal Governance. Los Angeles: SAGE, 2016.
53Injustice in TortThe Crumbling Skull Defence and its Role in ProblematizingCanadian Residential School Civil LitigationTanzim Rashid
54Crumbling Skull Defence The most basic principle of Canadian tort law is the notion that a “plaintiffmust be placed in the position he or she would have been in absent thedefendant’s negligence” (Athey, 32). In other words, the restitution provided bythe defendants must be of such a quality as to restore the plaintiff to their‘original position’ (32). As a result, a further determination needs to be maderegarding both the plaintiff’s ‘injured position’ after the tort and their ‘originalposition’ before it. The difference between these two positions would constitutethe plaintiff’s loss (32). The logic in this legal principle is reflective of correctivejustice: a form of justice that focuses on “repairing the wrongs that one individualdoes to another” (Roach, 572). However, within this logic lies a particular exploitthat problematizes civil litigation of residential school abuses. Corrective justice, by its logic, allows defendants to argue that they shouldnot be held liable for harms – inflicted upon the plaintiff – which either preceded,or were not the result of, the tort in question (572). As such, the ‘original position’of the plaintiff becomes a subject for further examination, as defendants will tryand demonstrate that many of the harms suffered by the plaintiff existed before,or was not the result of, their tort (Moran, 547). This problematizes residentialschool litigation, as it allows the defendant – the crown and affiliated churches –to invoke the crumbling skull defence against aboriginal survivors. The crumbling skull defence, particularly in the context of residentialschool civil litigation, is the argument that aboriginal plaintiffs already haveingrained in them many of the harms which they claim were caused by thedefendant’s – Crown and Church’s – tort (547). As a result, the defence argues,
55damages that the defendants are held liable for should only stem from thoseharms that are attributable to their tort (547). This defence, however, created amultitude of issues for residential school civil litigation.Separating Legally and Non-Legally Actionable Harms The first and foremost issue with the existence and subsequent use of thecrumbling skull defence in residential school civil litigation is how it forced thecourts to separate “legally actionable harms” (sexual and physical abuse) from“non legally actionable harms” (loss of culture and family) (547). This is becausein invoking the crumbling skull defence, the defendants forced the courts toisolate the harms that were attributable to their tort – and therefore legallyactionable – from the harms that were attributable to factors independent andunrelated to their tort – which were non-legally actionable. This provedproblematic because the former and latter were often entangled. For example,the forces that regularly helped to alleviate and heal the trauma caused bylegally actionable harms – specifically sexual and physical assault – were oftenthe families of victims or their cultural and spiritual support systems (548).However, by virtue of the Crown and Church’s imposition of the IndianResidential School System, and the non-legally actionable harms they generated– specifically loss of aboriginal culture and destruction of aboriginal families (545)– those remedial mechanisms were often taken away from many of the plaintiffs(547). As a result, many of the legally actionable harms being litigated – whichcould have been ameliorated by remedial mechanisms – either proliferated orwere sustained within the victims (547). In this way, the crumbling skull defenceforced the separation of two types of harms that were inextricably linked and, asa result, left many damages unrewarded to the victims. The Saskatchewan
56Queen’s Bench (SWQB) reaffirmed this specific defect latent in the crumblingskull defence in 1999. In the case of DW v Canada and Starr, the SWQB held that a residentialschool survivor’s awarded damages, for loss of earnings, should be reduced tofifty percent below that of an ‘average’ roofer’s earnings (Starr, 28). Williams J.,speaking for the majority, explained that the court had reached this conclusionbecause the plaintiff had been “raised in poverty”, “never knew his father”, and“had problems with drugs and/or alcohol” – all of which constituted his ‘originalposition’ as inconsistently or under employed (Starr, 28). Given the reasons provided by Williams J., it is clear that the court wasunable to acknowledge that the conditions under which the plaintiff was raised,and the hardships that he had suffered, were both harms caused by thedefendants in question. More importantly, the courts had failed to recognize thatthese harms, while non-legally actionable, were often entangled with thedefendants’ legally actionable harms (Roach, 574). For example, the torts in thislitigation – lost employment due to psychological trauma from residentialschools – were often exacerbated or sustained by the non-legally actionableharms of familial destruction, unequal distribution of resources, and non-sexualabuse spawned by Canadian governmental policies towards aboriginal peoples(574). The court’s inability to understand the entangled relationship betweennon-legally and legally actionable harms is symptomatic of the crumbling skulldefence’s mandate, to courts, to isolate the former from the latter withoutassessing how the former and latter are often inseparable. Moreover, the court’s
57decision in Starr allows for future judicial decisions to rationalize the continueduse of the crumbling skull exploit on inter alia the basis of legal precedent. In thisway, the Canadian courts have played an instrumental role in legitimating andinstitutionalizing the latent defect in the crumbling skull defence within Canadiantort law. Similarly, the Canadian courts have empowered defendants inresidential school litigation to violate the ex turpi causa principle.Violating the Ex Turpi Causa Principle The second issue with the presence and subsequent utilization of thecrumbling skull defence in residential school civil litigation concerns how itfunctioned to violate the ex turpi causa principle. In the common law – uponwhich Canadian law is predicated – the doctrine of ex turpi causa stipulates that“one should not profit from one’s own wrong” (578). In other words, a defendantin a tort case should not benefit, in civil litigation, from a previous and distincttort they have committed. With the crumbling skull defence, however, theviolation of this principle was normalized in residential school civil litigation. In the case of Plint v Blackwater, the defendants – the Government ofCanada and the United Church of Canada – had openly admitted to beinglegally liable for sexual abuses that took place in the Port Alberni ResidentialSchool (Blackwater, 337). However, the defendants argued that the damagesthey would have to pay for should be limited because the plaintiffs – aboriginalresidential school survivors – had crumbling skulls. In other words, the harmswhich the plaintiffs claimed to have suffered as a result of sexual abuse was partlydue to, and a part of, harms which they had suffered previous to it (337). Thislegal argument runs contrary to the ex turpi causa principle since the harms,
58which the defendant claims had been present within the plaintiffs prior to theirtort, were other non-sexual abuse harms caused by the defendants themselves(337). In this way, the Crown and the United Church of Canada attempted tobenefit from non-sexual abuse harms, which they had caused, by utilizing themto limit damages for other distinct sexual abuse harms that they had also caused. This entire line of argument was only made possible because the non-sexual abuse harms caused by the defendants were statute barred – which is tosay, due to Provincial statute of limitation clauses, these harms were immunefrom civil litigation after a certain period of time (Roach, 575). Therefore, byconjoining the non-sexual abuse harms with the sexual abuse ones duringlitigation, the plaintiffs who attempted to circumvent the defendant’s crumblingskull argument were met with the reality that the former was ineligible forlitigation. This specific exploit, endemic in the crumbling skull defence, wasaffirmed and normalized by the Supreme Court of Canada. The argument to limit damages awarded for sexual abuse harms wasmade all the way to the Supreme Court of Canada [SCC] by further attributingthis assertion to non-sexual abuse harms. The SCC, in a majority, held that “Mr.Barney’s [one of the plaintiff's] family difficulties prior to coming to AIRS [AlberniIndian Residential School] had exacerbated and compounded the damage hesuffered from the sexual assaults he sustained at AIRS” (Plint, 82). The court’sadmittance here that the harms suffered by the plaintiffs prior to the torts inquestion, directly influenced said torts, would have been unproblematic had theyrecognized that both harms were inseparable during litigation. However,McLaughlin CJ. (as she then was) concluded with the majority that there “was no
59legal basis upon which he [the trial judge] could allow damages suffered as aresult of statute-barred wrongs committed at AIRS” (82). In this way, the decisionin Plint —enabled by the crumbling skull defence – allowed for the violation ofthe ex turpi causa principle to be institutionalized in the form of legal precedent.Along those same lines, the courts have also allowed defendants in residentialschool litigation to constitute aboriginality as inherently injurious.Constituting Aboriginality as Injurious The third issue with the existence and usage of the crumbling skulldefence in residential school litigation is how it has been operationalized toconstitute aboriginality as inherently injurious. In the case of Blackwater v Plint,one of the arguments offered by the plaintiffs – aboriginal residential schoolsurvivors – was that residential schools were responsible for destroying theplaintiffs’ relationship with their culture and language (Blackburn, 294). Inresponse to these claims, the defendants – the Government of Canada andUnited Church of Canada – invoked the crumbling skull defence (294). Thisdefence stipulated that many of the harms, which the plaintiffs claim were aresult of the defendant’s tort, were actually a result of harms that the plaintiffssuffered prior to, or not as a result of, the tort in question (Moran, 547). While in previous cases, including Plint, the crumbling skull argument wasmade in relation to sexual and non-sexual abuse suffered by aboriginals. In Plint,one of the crumbling skull arguments made was in relation to the loss oflanguage and culture – which the defendants argued was experienced by theaboriginals prior to, or not as a result of, the tort in question (Blackburn, 297). It isimportant to note here that the loss of culture and language are not in
60themselves legally actionable harms in Canadian tort law. However, the plaintiffsin Plint argued that the psychological and emotional harms they had suffered,which were legally actionable, were in part due to the residential schools’destruction of their language and culture (295). The courts were thus given thetask of assessing and determining what the aboriginal people’s relationship totheir culture and language was prior to a given tort. This task, and its conclusion,eventually proved problematic due to the Canadian courts’ legitimation of theassociation that defence lawyers for the Crown and Church had made betweenaboriginality and injury. In Plint, defence lawyers for the Government of Canada and the UnitedChurch of Canada attempted to compose, through their arguments, a version ofaboriginality that consisted of “family dysfunction, poverty, and substanceabuse” (297). These conditions, the defence lawyers argued, were the “formativemilieu in which the plaintiffs were born and raised before AIRS and to which theyreturned afterwards” (298). By constructing the experience of aboriginality as onemired by alcoholism, unemployment, and domestic violence, the Crown andChurch attempted to create an ‘original position’ of the aboriginals that wascharacterized by injury and pathology. Moreover, in arguing that pathology andinjury were inherent in the aboriginal condition – and not the result ofdispossession, colonization, or institutional oppression – the defence lawyers hadeffectively painted an epidemiological portrait of the aboriginal peoples thatconstituted them as dysfunctional and sick (299). This association between aboriginality and injury became problematicbecause it functioned to “magnify” and then “return to...as their problem” the
61injuries that aboriginals had suffered over centuries at the hands of the Crownand Church (299). The constitution of the aboriginal as injured was thusoperationalized as a mechanism for victim blaming. Moreover, in using theoriginal injured position of aboriginals against them in court, and failing tomention the role the Crown and Church had played in “producing aboriginalityitself as a site of injury” (298), the Crown and Church had re-victimized theaboriginal plaintiffs. The non-litigated harms that the aboriginals had suffered atthe hands of the Crown and Church, were now adversely affecting their case forthe litigated harms that they had suffered from the same source. In this way, thecrumbling skull defence had been utilized to, and therefore allowed for, theconstitution of aboriginality as inherently injurious and pathological.Conclusion The crumbling skull defence in Canadian tort law has, and continues to,problematize residential school civil litigation. There are three particular ways inwhich this process manifests itself. First, by partitioning otherwise entangledlegally and non-legally actionable harms, the crumbling skull defence hasinhibited the recognition of the latter’s role in contributing to the former. Thisdearth has been upheld by the Canadian courts through the SWQB’s decision inDW v Canada and Starr. Second, by segregating pre-tort non-sexual harms fromcurrent tort sexual harms, the crumbling skull defence has allowed for theviolation of the ex turpi causa principle to be mobilized against aboriginalplaintiffs. This constitutes an exploitative practice which, through the BCSC’sdecision in Plint v Blackwater, has been standardized by the Canadian courts.Finally, by allowing courts to make determinations regarding the aboriginalcommunity’s relationship to their culture and language prior to a tort, the
62crumbling skull defence has granted the Crown and Church an opportunity toconstruct aboriginality as injurious and pathological – re-victimizing aboriginalplaintiffs in the process. This is a duplication of past oppressive dynamics that theSupreme Court of Canada upheld in their decision in Blackwater v. Plint. Thisduplication of past oppressive dynamics has been upheld by the Supreme Courtof Canada in their decision in Blackwater v Plint. Ultimately, it is the breadth ofthe internal deficiencies within Canadian tort law that highlight how complex andinstitutionalized oppressive structures of colonial dominance have become in thevery mechanisms designed to alleviate them. The demand for further scholarshipregarding residential school civil litigation, however, is only growing, as morecases come to the forefront and as more victims become comfortable sharingtheir traumatic experiences. As difficult and frustrating as this process might be,it is nonetheless a necessary step towards reconciliation between the settlers andIndigenous peoples of Canada.
63 ReferencesAthey v Leonati, [1996] 3 SCR 458 at para 32.Blackburn, Carole. “Culture Loss and Crumbling Skulls: The Problematic of Injury in Residential School Civil Litigation.” Political and Legal Anthropology Review, 2012, pp. 294-299.Blackwater v Plint, 2005 SCC 58, [2005] 3 SCR 3 at para 82.DW v Canada (Attorney General) and Starr, 1999 SKQB 187 at para 28.Moran, Mayo. “The Role of Reparative Justice in Responding to the Legacy of Residential Schools” University of Toronto Law Journal, vol. 64, no. 4, 2014, pp. 545-548.Plint v Blackwater, 2001 BCSC 997, [2001] BCJ no 1446 at para 337.Roach, Kent. “Blaming the Victim: Canadian Law, Causation, and Residential Schools.”University of Toronto Law Journal, vol. 64, no. 4, 2014. pp. 572- 578.
64 About the AuthorsAlex Cote — Alex is a fourth year student studying Criminology and Philosophyat the University of Toronto. In the nesr future, Alex hopes to pursue a J.D. with aspecialization in criminal law. Within the field of criminology and socio-legalstudies, Alex’s interests lie at the intersection between autonomy and socialsecurity in modern drug policy. One interesting fact about Alex: he is a citizen ofboth the United Kingdom and Canada.Teodora Pasca — Teodora is a graduating student from the University ofToronto, receiving her Honours Bachelor of Arts degree in Criminology andEthics, Society & Law. In the fall, Teodora will begin her law degree (J.D.) at theUniversity of Toronto Faculty of Law, hoping to one day become a litigator.Teodora believes that studying criminology is crucial to understanding howjustice institutions can work against marginalized communities, and she hopesher studies at the Centre for Criminology will guide her towards a change-drivenand compassionate legal career. Outside of her studies, Teodora served asComment Editor for the Varsity Inc. during the 2017-18 school year. Oneinteresting fact about Teodora: she loves eating applesauce out of a jar.Rhea Hsu — Rhea is a graduating student from the University of Toronto,receiving her Honours Bachelor of Arts degree in Criminology and InternationalRelations (with a minor in Psychology) . Rhea is planning to move to Taipei in2019 to gain valuable work experience before embarking on a Mastersprogramme. Within the field of criminology and socio-legal studies, Rhea’sinterests revolve primarily around traditional criminological theory, organizedcrime, criminal psychology, and the burgeoning sphere of cybercrime. Rhea isalso co-founder of The Citizens Foundation University of Toronto chapter, acting
65as Vice-President during the 2017-18 school year. One interesting fact aboutRhea: she grew up in Cape Town, South Africa.Tanzim Rashid — Tanzim is a graduating student from Trinity College at theUniversity of Toronto, receiving his Honours Bachelor of Arts degree in Ethics,Society & Law and Criminology (with high distinction). In the near future, Tanzimhopes to pursue a Juris Doctorate (J.D.) at the University of Toronto Faculty ofLaw and append his legal education with a Masters of Law (LLM) degree fromCambridge University. Within the field of criminology and socio-legal studies,Tanzim’s interests lie in topics ranging from Aboriginal title to transnational crimeand feminist legal theory. Tanzim has also served as Editor-in-Chief for this year’sedition of the University of Toronto Undergraduate Criminology Review. Oneinteresting fact about Tanzim: he is a massive fan of Taylor Swift.
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