When Indigenous parents feel theyB次元官网网址檝e been discriminated against by child protection workers, where should they seek justice?
This question forms the heart of a dispute that has worked its way up from the B.C. Human Rights Tribunal to the provinceB次元官网网址檚 highest court, where it was heard last week.
When the Court of Appeal releases its decision, it could have significant implications for Indigenous families and social workers.
B次元官网网址淓ither weB次元官网网址檙e going to limit or restrict human rights remedies to Indigenous parents, or weB次元官网网址檙e not,B次元官网网址� said M茅tis lawyer Frances Rosner.
The case, heard over three days last week, follows years of various court actions involving the Vancouver Aboriginal Child and Family Services Society (VACFSS) and an Afro-Indigenous mother IndigiB次元官网网址 is identifying by the pseudonym Justine to protect the identities of her children.
After removing JustineB次元官网网址檚 daughters from her care in August 2016, , the B.C. Human Rights Tribunal B次元官网网址� using stereotypes to justify keeping them apart.
The tribunal ordered VACFSS to pay her $150,000 B次元官网网址� the tribunalB次元官网网址檚 second-highest award ever B次元官网网址� as compensation B次元官网网址渇or injury to her dignity, feelings, and self-respect.B次元官网网址�
But VACFSS appealed, and the B.C. Supreme Court Justice who reviewed the decision ruled the tribunal had made legal errors and failed to give VACFSS a fair shake. In January, he for B次元官网网址渇urther consideration.B次元官网网址�
Justine then appealed that decision, leading the case to be rehashed by a panel of appellate judges B次元官网网址� including the provinceB次元官网网址檚 Chief Justice B次元官网网址� from Dec. 11-13.
B次元官网网址淚B次元官网网址檓 really hoping for a ,B次元官网网址� Rosner told IndigiB次元官网网址 on Dec. 19, referring to analysis courts can apply to take Indigenous peopleB次元官网网址檚 unique experiences into consideration.
Rosner acted as co-counsel for Justine at the tribunal hearing but was not involved in her current appeal.
B次元官网网址淪ome sort of recognition that the over-representation crisis of Indigenous children in care and the over-involvement with Indigenous families is in fact rooted in systemic racism and discrimination against Indigenous Peoples,B次元官网网址� Rosner explained.
B次元官网网址楲ots of people would cave and just give upB次元官网网址�
When Justine filed her complaint with the B.C. Human Rights Tribunal in August 2017, her four daughters were still in B次元官网网址渃are.B次元官网网址�
The baby and the teenager were living in two separate foster homes, while the middle children were living together in a B次元官网网址渟taffed residenceB次元官网网址� after their foster placement broke down, where they endured B次元官网网址淏次元官网网址� including: B次元官网网址�, inter-sibling violence, violence with staff, and the application of physical restraints,B次元官网网址� according to the .
In 2018, that social workers concerns included B次元官网网址渁lcohol misuse, inappropriate caregivers, physical and emotional abuse, extreme and excessive discipline, significant conflict between the children and their mother, relational problems, parentification of [May], and very unrealistic expectations of the children.B次元官网网址�
B次元官网网址淵ouB次元官网网址檙e going to hear evidence from the social workers of hostility, lack of cooperation and often belligerent behaviour of the mother who projects all responsibility onto others,B次元官网网址� VACFSSB次元官网网址檚 lawyer told the court.
While her children were in care, Justine had some access to them through supervised visits, but during the period covered by her human rights complaint, VACFSS reduced their length and duration. And for a period of about seven months, VACFSS totally cut off JustineB次元官网网址檚 access to the middle children, who were eight and six at the time.
In the summer of 2019, the girls were , following an unconventional case conference at the end of a brutally long and emotionally-charged .
JustineB次元官网网址檚 eldest daughter, May B次元官网网址� not her real name B次元官网网址� was 13 when she was taken into B次元官网网址渃areB次元官网网址� by VACFSS. Now sheB次元官网网址檚 21.
On Dec. 13, she sat beside her mom in the appellate court.
B次元官网网址淲e have a very, very good relationship, very healthy,B次元官网网址� May told IndigiB次元官网网址 outside the courthouse. B次元官网网址淲e talk almost every day. SheB次元官网网址檚 become my best friend.B次元官网网址�
May told IndigiB次元官网网址 a B次元官网网址渓ot of issuesB次元官网网址� between her and her mother stemmed from social workers separating them.
B次元官网网址淟ots of people would cave and just give up; my mom stayed strong and true to herself, even when everyone was against her,B次元官网网址� she said.
B次元官网网址淚nstead of separating families, they should try and push us together B次元官网网址� and work with us to try and build stronger relationships with each other.B次元官网网址�
Does the tribunal have jurisdiction in child protection cases?
At this caseB次元官网网址檚 latest hearing, Chief Justice Leonard Marchand, Justice Peter Edelmann, and Justice Harvey Groberman heard arguments from Justine, VACFSS, B.C.B次元官网网址檚 Attorney General, the B.C. Human Rights Tribunal, and three intervenors.
Lawyer Claire Hunter acted for VACFSS. She said the tribunal had no business reviewing JustineB次元官网网址檚 complaint because the period under review was B次元官网网址渂ookendedB次元官网网址� by two provincial court orders B次元官网网址� first a 2017 interim custody order Justine consented to, and second a 2019 temporary custody order drawn up by the court, which laid out a plan to gradually return the children to JustineB次元官网网址檚 full-time care.
Whatever happened between those two court orders, Hunter argued, was the courtB次元官网网址檚 business B次元官网网址� not the tribunalB次元官网网址檚.
B次元官网网址淭he tribunal is not entitled to review what happens pursuant to a court order,B次元官网网址� she said.
ItB次元官网网址檚 ultimately in a parentB次元官网网址檚 best interest to bring discrimination complaints about child protection social workers to the provincial court, she told the panel of judges.
Justice Edelmann, freshly appointed to the Court of Appeal in October, asked Hunter what kind of remedies the provincial court can provide.
B次元官网网址淭hereB次元官网网址檚 not the same remedy in terms of financial compensation,B次元官网网址� Hunter said.
B次元官网网址淭he remedies that the provincial court could have offered during that time B次元官网网址� are the most important and most immediate types of remedies in a case of this nature: Increased access, changes to access, they might have ordered that a different director be involved.B次元官网网址�
Edelmann later attempted to clarify HunterB次元官网网址檚 submission.
B次元官网网址淵our position is that [Justine] had to choose either monetary damages for discrimination or relief in the provincial court B次元官网网址� one or the other, you canB次元官网网址檛 have both?B次元官网网址� he said.
Hunter responded, B次元官网网址淭hese issues need to be raised at the earliest opportunity before the provincial court, in the child protection proceedings, where the most important remedies can be obtained.B次元官网网址�
But this suggestion is B次元官网网址渃ompletely impractical,B次元官网网址� countered Jonathan Blair, co-counsel for Justine alongside Danielle Sabelli.
B次元官网网址淭his human rights matter took 21 days, involved multiple interim decisions on expert evidence, disclosure, had multiple witnesses,B次元官网网址� Blair said. B次元官网网址淭he provincial court is not set up to hear this, especially in proceedings under the [] which B次元官网网址� need to be done in a timely manner.B次元官网网址�
He said it would be a B次元官网网址渄isasterB次元官网网址� for the court system if B次元官网网址渆very parent started filing a human rights complaint with the court during the proceeding.B次元官网网址�
Both the tribunal and the provincial court have jurisdiction over child welfare, and theyB次元官网网址檙e empowered to decide distinct legal issues, argued Maria Sokolova.
She acted for the B.C.B次元官网网址檚 Human Rights Commissioner, another intervenor.
B次元官网网址淭he tribunal, acting under the [], may consider whether there has been discrimination in the provision of child welfare services,B次元官网网址� she told the court. B次元官网网址淚t cannot make any child welfare orders for the apprehension or the return of children.B次元官网网址�
On the other hand, Sokolova argued, a provincial court may decide issues of B次元官网网址渃ustody and accessB次元官网网址� under the Child, Family and Community Service Act.
B次元官网网址淚t cannot make findings of discrimination or grant remedies under the Code,B次元官网网址� she said.
Emma Ronsley, acting for West Coast LEAF, another intervenor, said itB次元官网网址檚 wrong to prohibit parents from seeking redress through the tribunal just because a court order is in play.
This would give social workers immunity, she warned, and cover B次元官网网址渧irtually all decision-making by child protection workers about custody and access because the director cannot take custody of the child without a court order.B次元官网网址�
The court needs to B次元官网网址渃onsider the , which affirms the rights of Indigenous Peoples to be free from discrimination,B次元官网网址� she said.
Did the tribunal give VACFSS a fair shot?
VACFSSB次元官网网址檚 lawyer told the court that the tribunal did not give it fair notice before it expanded the timeframe and the substance of the scope of JustineB次元官网网址檚 complaint.
They pointed to multiple times the tribunal said it wasnB次元官网网址檛 going to touch child protection matters under the provincial courtB次元官网网址檚 purview, but then did, in their view.
For example, after the hearing concluded and before releasing its decision, the tribunal asked to see court orders from the period preceding JustineB次元官网网址檚 complaint. This wasnB次元官网网址檛 fair, VACFSS argued.
B次元官网网址淭hereB次元官网网址檚 a defined complaint period, but you canB次元官网网址檛 look at that in a vacuum,B次元官网网址� Marchand said. B次元官网网址淪he has to look at the context in which the children came to be in care, doesnB次元官网网址檛 she?B次元官网网址�
Chantelle van Wiltenburg, co-counsel for VACFSS, countered, B次元官网网址淏ut she shouldnB次元官网网址檛 be looking behind the court order that is responsive to that period of time.B次元官网网址�
Edelmann tried to sum up VACFSSB次元官网网址檚 position.
B次元官网网址淵ouB次元官网网址檙e saying that B次元官网网址� the [tribunal] member is misleading [VACFSS] in saying, B次元官网网址業B次元官网网址檓 not going to go behind the court orders and anything that flows from themB次元官网网址� B次元官网网址� and you understood that that included that sheB次元官网网址檚 not going to look into any discretion that we exercised under the court order?B次元官网网址�
Van Wiltenburg replied, B次元官网网址淚 think it was unclear what the case to meet was.B次元官网网址�
Later, during closing submissions, Hunter reiterated that B次元官网网址淚t was not clear [to VACFSS] what it was about.B次元官网网址�
Edelmann interjected.
B次元官网网址淗ow do you go through a 21-day hearing not knowing what itB次元官网网址檚 about?B次元官网网址� he asked. B次元官网网址淏eing misled, or thinking itB次元官网网址檚 about something else, sure.
B次元官网网址淏ut like just, B次元官网网址榃e were confused and had no idea what it was about the entire timeB次元官网网址�? I just donB次元官网网址檛 understand how counsel does that.B次元官网网址�
Hunter, who wasnB次元官网网址檛 representing VACFSS at the tribunal, cleared her throat.
B次元官网网址淚 wouldnB次元官网网址檛 put it quite that way,B次元官网网址� she said. B次元官网网址淚 canB次元官网网址檛 tell you what was in counselB次元官网网址檚 head. But what we see in the materials is a shift in the scope.B次元官网网址�
Katherine Hardie insisted that the tribunal was clear about the scope of the complaint.
She acted for the Human Rights Tribunal at the Court of Appeal.
JustineB次元官网网址檚 complaint, she said, was about B次元官网网址淰ACFSSB次元官网网址檚 assessment of [JustineB次元官网网址檚] ability to parent, which informed its decisions to continue to deny her custody and to place limits on her access to her children from April 2018 through December 2018.B次元官网网址�
The tribunal reiterated this scope multiple times, she said B次元官网网址� when it rejected VACFSSB次元官网网址檚 application to dismiss JustineB次元官网网址檚 complaint before hearing it, at the start of the hearing, and in its .
Colonial context B次元官网网址� to what extent is it relevant?
The Supreme Court found that the tribunal also erred by undermining the law governing social workers in B次元官网网址淏.C.B次元官网网址�
For example, in her decision, tribunal member Cousineau wrote, B次元官网网址淭he system created and regulated by the CFCSA B次元官网网址� which VACFSS is bound to implement B次元官网网址� is rooted in a Eurocentric approach to child welfare, heavily focused on a narrow assessment of risk.B次元官网网址�
Hunter argued for VACFSS that the tribunalB次元官网网址檚 B次元官网网址渁ttack on valid legislation, a valid legislative scheme and social workers acting pursuant to itB次元官网网址� cannot be B次元官网网址渃ountenanced.B次元官网网址�
B次元官网网址淭hereB次元官网网址檚 been lots of attacks on child protection legislation across the country from all kinds of angles,B次元官网网址� said Marchand, who is syilx and a member of the Okanagan Indian Band.
B次元官网网址淭he Wrapping Our Ways report and the report of the Truth and Reconciliation Commission, and other academic writings. These arenB次元官网网址檛 new ideas B次元官网网址� SheB次元官网网址檚 writing about things that are in the public domain.B次元官网网址�
Ronsley, intervening on behalf of West Coast LEAF, also pushed back against the idea that the tribunal went too far in its critique of the CFCSA.
B次元官网网址淣either the attorney general nor the [Supreme Court] judge has pointed to a single provision of the CFCSA that the tribunalB次元官网网址檚 decision purports to invalidate or question the validity of,B次元官网网址� she said.
B次元官网网址淭he tribunalB次元官网网址檚 acknowledgement of the colonial roots of the child welfare system and the potential for systemic discrimination against Indigenous families in that system does not question the primacy of the objective of protecting childrenB次元官网网址檚 safety under the CFCSA.B次元官网网址�
Lauren Witten, acting for B次元官网网址淏.C.B次元官网网址檚B次元官网网址� attorney general, said that while systemic context is relevant and important, it matters what you do with it.
B次元官网网址淭here is a problem with starting the [discrimination] analysis from a view that the legislation is inherently problematic,B次元官网网址� she said. B次元官网网址淭he member of a tribunal is required to give effect to valid legislative objectives.B次元官网网址�
B次元官网网址淲hat the member cannot do B次元官网网址� is transform an individual complaint into a systemic one,B次元官网网址� she said. B次元官网网址淭here may be a systemic complaint that can be brought, but that is, in our submission, a different complaint.B次元官网网址�
VACFSS spending B次元官网网址榓n outstanding amount of moneyB次元官网网址� on this case
When the court broke for lunch on Dec. 12, Justine grabbed pizza with Flora Raynes.
Raynes is Secw茅pemc from the Bonaparte Band in Cache Creek. She told IndigiB次元官网网址 that she was removed from her motherB次元官网网址檚 care when she was nine, and she stayed in B次元官网网址渃areB次元官网网址� until she B次元官网网址渁ged out.B次元官网网址�
B次元官网网址淚B次元官网网址檝e been having contact with [Justine] throughout the whole process, periodically, from the time the children were apprehended, to the time that she was refused access, to the time when she fought to get access again,B次元官网网址� said Raynes, a member of the .
B次元官网网址淚 came to honour [JustineB次元官网网址檚] strength and to encourage other women who have similar challenges to keep it together and to put in supports around themselves, so that they can rise above the system and embrace their children once again in their home.B次元官网网址�
Justine was also in B次元官网网址渃areB次元官网网址� as a child. She told IndigiB次元官网网址 on Dec. 17 that while B次元官网网址渢hereB次元官网网址檚 still a lot of hurt,B次元官网网址� sheB次元官网网址檚 heartened B次元官网网址渢o see the justice thatB次元官网网址檚 taking place.B次元官网网址�
She said it was important to her to attend the hearing because she wanted the judges B次元官网网址渢o put a face to the names and the people.B次元官网网址�
, according to the most recent provincial data B次元官网网址� despite the fact that Indigenous people account for just .
In B次元官网网址淐anada,B次元官网网址� Indigenous kids represent of all children in care, despite accounting for just 7.7 per cent of the total population of kids under 14.
The Truth and Reconciliation Commission concluded in its that this overrepresentation is rooted in the B次元官网网址渋ntractable legacies of residential schools, including poverty, addictions, and domestic and sexual violenceB次元官网网址� B次元官网网址� as well as B次元官网网址渞acist attitudes that considered Aboriginal families as being frequently unfit to care for their children.B次元官网网址�
Residential B次元官网网址渟choolB次元官网网址� and Sixties Scoop experiences B次元官网网址渁dversely affected parenting skills and the success of many Aboriginal families,B次元官网网址� wrote the commission in its 2015 report.
B次元官网网址淭hese factors, combined with prejudicial attitudes towards Aboriginal parenting skills and a tendency to see Aboriginal poverty as a symptom of neglect, rather than as a consequence of failed government policies, have resulted in grossly disproportionate rates of child apprehension among Aboriginal people.B次元官网网址�
Outside the Court of Appeal, May said she feels like B次元官网网址渢his doesnB次元官网网址檛 happenB次元官网网址� to her friends B次元官网网址渨ith happy parents and normal families.B次元官网网址�
B次元官网网址淭hey donB次元官网网址檛 get separated and picked on. I feel like itB次元官网网址檚 very weak families and families that have been through a lot, which is mostly Indigenous families B次元官网网址� ItB次元官网网址檚 not right.B次元官网网址�
Blair, one of JustineB次元官网网址檚 lawyers, said this case B次元官网网址渇undamentally is about redress to an Indigenous mother who suffered discriminatory mistreatment at the hands of specific child protection workers.B次元官网网址�
B次元官网网址淭he [tribunalB次元官网网址檚] decision was groundbreaking in the sense of how it recognized that. But in the end itB次元官网网址檚 about redress for the complainant for what she suffered,B次元官网网址� he told IndigiB次元官网网址 on Dec. 16.
Sabelli added that if VACFSSB次元官网网址檚 position succeeds, that would be B次元官网网址渃ompletely incompatible with the efforts made by the legal system toward reconciliation.B次元官网网址�
The two lawyers would be B次元官网网址渧ery willingB次元官网网址� to assist Justine in appealing to the Supreme Court of Canada if they donB次元官网网址檛 win, Blair said.
He added that he wonders whether VACFSS would appeal if it lost.
B次元官网网址淚t is an outstanding amount of money they are spending on this case. Their lawyers are very, very good ... I donB次元官网网址檛 know how itB次元官网网址檚 being paid for, but thatB次元官网网址檚 not cheap.B次元官网网址�
IndigiB次元官网网址 reached out to VACFSS and the B.C. Attorney General to ask where the money for their legal representation is coming from, and how much has been spent to date on this case.
B次元官网网址淎ny information about litigation costs is subject to solicitor-client privilege and will not be disclosed,B次元官网网址� replied a spokesperson for the attorney general, via email on Dec. 17.
B次元官网网址淲e are unable to comment on this matter as it is currently before the court.B次元官网网址�
IndigiB次元官网网址 asked the attorney general whether the office could at least confirm whether VACFSS's legal costs are coming out of the public purse.
B次元官网网址淯nfortunately, we can provide no further comment,B次元官网网址� the office wrote. B次元官网网址淐ontact VACFSS directly and you may be able to get what youB次元官网网址檙e looking for that way.B次元官网网址�
IndigiB次元官网网址 asked VACFSS multiple times to comment about the money B次元官网网址� or anything else. It declined.
This story was produced as part of , a collaborative journalism project that aims to improve reporting on the child "welfare" system. Tell us what you think about the story here.
