When Indigenous parents feel theySA国际影视传媒檝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 provinceSA国际影视传媒檚 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.
SA国际影视传媒淓ither weSA国际影视传媒檙e going to limit or restrict human rights remedies to Indigenous parents, or weSA国际影视传媒檙e not,SA国际影视传媒� 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 IndigiNews is identifying by the pseudonym Justine to protect the identities of her children.
After removing JustineSA国际影视传媒檚 daughters from her care in August 2016, , the B.C. Human Rights Tribunal SA国际影视传媒� using stereotypes to justify keeping them apart.
The tribunal ordered VACFSS to pay her $150,000 SA国际影视传媒� the tribunalSA国际影视传媒檚 second-highest award ever SA国际影视传媒� as compensation SA国际影视传媒渇or injury to her dignity, feelings, and self-respect.SA国际影视传媒�
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 SA国际影视传媒渇urther consideration.SA国际影视传媒�
Justine then appealed that decision, leading the case to be rehashed by a panel of appellate judges SA国际影视传媒� including the provinceSA国际影视传媒檚 Chief Justice SA国际影视传媒� from Dec. 11-13.
SA国际影视传媒淚SA国际影视传媒檓 really hoping for a ,SA国际影视传媒� Rosner told IndigiNews on Dec. 19, referring to analysis courts can apply to take Indigenous peopleSA国际影视传媒檚 unique experiences into consideration.
Rosner acted as co-counsel for Justine at the tribunal hearing but was not involved in her current appeal.
SA国际影视传媒淪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,SA国际影视传媒� Rosner explained.
SA国际影视传媒楲ots of people would cave and just give upSA国际影视传媒�
When Justine filed her complaint with the B.C. Human Rights Tribunal in August 2017, her four daughters were still in SA国际影视传媒渃are.SA国际影视传媒�
The baby and the teenager were living in two separate foster homes, while the middle children were living together in a SA国际影视传媒渟taffed residenceSA国际影视传媒� after their foster placement broke down, where they endured SA国际影视传媒淪A国际影视传媒� including: SA国际影视传媒�, inter-sibling violence, violence with staff, and the application of physical restraints,SA国际影视传媒� according to the .
In 2018, that social workers concerns included SA国际影视传媒渁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.SA国际影视传媒�
SA国际影视传媒淵ouSA国际影视传媒檙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,SA国际影视传媒� VACFSSSA国际影视传媒檚 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 JustineSA国际影视传媒檚 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 .
JustineSA国际影视传媒檚 eldest daughter, May SA国际影视传媒� not her real name SA国际影视传媒� was 13 when she was taken into SA国际影视传媒渃areSA国际影视传媒� by VACFSS. Now sheSA国际影视传媒檚 21.
On Dec. 13, she sat beside her mom in the appellate court.
SA国际影视传媒淲e have a very, very good relationship, very healthy,SA国际影视传媒� May told IndigiNews outside the courthouse. SA国际影视传媒淲e talk almost every day. SheSA国际影视传媒檚 become my best friend.SA国际影视传媒�
May told IndigiNews a SA国际影视传媒渓ot of issuesSA国际影视传媒� between her and her mother stemmed from social workers separating them.
SA国际影视传媒淟ots of people would cave and just give up; my mom stayed strong and true to herself, even when everyone was against her,SA国际影视传媒� she said.
SA国际影视传媒淚nstead of separating families, they should try and push us together SA国际影视传媒� and work with us to try and build stronger relationships with each other.SA国际影视传媒�
Does the tribunal have jurisdiction in child protection cases?
At this caseSA国际影视传媒檚 latest hearing, Chief Justice Leonard Marchand, Justice Peter Edelmann, and Justice Harvey Groberman heard arguments from Justine, VACFSS, B.C.SA国际影视传媒檚 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 JustineSA国际影视传媒檚 complaint because the period under review was SA国际影视传媒渂ookendedSA国际影视传媒� by two provincial court orders SA国际影视传媒� 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 JustineSA国际影视传媒檚 full-time care.
Whatever happened between those two court orders, Hunter argued, was the courtSA国际影视传媒檚 business SA国际影视传媒� not the tribunalSA国际影视传媒檚.
SA国际影视传媒淭he tribunal is not entitled to review what happens pursuant to a court order,SA国际影视传媒� she said.
ItSA国际影视传媒檚 ultimately in a parentSA国际影视传媒檚 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.
SA国际影视传媒淭hereSA国际影视传媒檚 not the same remedy in terms of financial compensation,SA国际影视传媒� Hunter said.
SA国际影视传媒淭he remedies that the provincial court could have offered during that time SA国际影视传媒� 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.SA国际影视传媒�
Edelmann later attempted to clarify HunterSA国际影视传媒檚 submission.
SA国际影视传媒淵our position is that [Justine] had to choose either monetary damages for discrimination or relief in the provincial court SA国际影视传媒� one or the other, you canSA国际影视传媒檛 have both?SA国际影视传媒� he said.
Hunter responded, SA国际影视传媒淭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.SA国际影视传媒�
But this suggestion is SA国际影视传媒渃ompletely impractical,SA国际影视传媒� countered Jonathan Blair, co-counsel for Justine alongside Danielle Sabelli.
SA国际影视传媒淭his human rights matter took 21 days, involved multiple interim decisions on expert evidence, disclosure, had multiple witnesses,SA国际影视传媒� Blair said. SA国际影视传媒淭he provincial court is not set up to hear this, especially in proceedings under the [] which SA国际影视传媒� need to be done in a timely manner.SA国际影视传媒�
He said it would be a SA国际影视传媒渄isasterSA国际影视传媒� for the court system if SA国际影视传媒渆very parent started filing a human rights complaint with the court during the proceeding.SA国际影视传媒�
Both the tribunal and the provincial court have jurisdiction over child welfare, and theySA国际影视传媒檙e empowered to decide distinct legal issues, argued Maria Sokolova.
She acted for the B.C.SA国际影视传媒檚 Human Rights Commissioner, another intervenor.
SA国际影视传媒淭he tribunal, acting under the [], may consider whether there has been discrimination in the provision of child welfare services,SA国际影视传媒� she told the court. SA国际影视传媒淚t cannot make any child welfare orders for the apprehension or the return of children.SA国际影视传媒�
On the other hand, Sokolova argued, a provincial court may decide issues of SA国际影视传媒渃ustody and accessSA国际影视传媒� under the Child, Family and Community Service Act.
SA国际影视传媒淚t cannot make findings of discrimination or grant remedies under the Code,SA国际影视传媒� she said.
Emma Ronsley, acting for West Coast LEAF, another intervenor, said itSA国际影视传媒檚 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 SA国际影视传媒渧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.SA国际影视传媒�
The court needs to SA国际影视传媒渃onsider the , which affirms the rights of Indigenous Peoples to be free from discrimination,SA国际影视传媒� she said.
Did the tribunal give VACFSS a fair shot?
VACFSSSA国际影视传媒檚 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 JustineSA国际影视传媒檚 complaint.
They pointed to multiple times the tribunal said it wasnSA国际影视传媒檛 going to touch child protection matters under the provincial courtSA国际影视传媒檚 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 JustineSA国际影视传媒檚 complaint. This wasnSA国际影视传媒檛 fair, VACFSS argued.
SA国际影视传媒淭hereSA国际影视传媒檚 a defined complaint period, but you canSA国际影视传媒檛 look at that in a vacuum,SA国际影视传媒� Marchand said. SA国际影视传媒淪he has to look at the context in which the children came to be in care, doesnSA国际影视传媒檛 she?SA国际影视传媒�
Chantelle van Wiltenburg, co-counsel for VACFSS, countered, SA国际影视传媒淏ut she shouldnSA国际影视传媒檛 be looking behind the court order that is responsive to that period of time.SA国际影视传媒�
Edelmann tried to sum up VACFSSSA国际影视传媒檚 position.
SA国际影视传媒淵ouSA国际影视传媒檙e saying that SA国际影视传媒� the [tribunal] member is misleading [VACFSS] in saying, SA国际影视传媒業SA国际影视传媒檓 not going to go behind the court orders and anything that flows from themSA国际影视传媒� SA国际影视传媒� and you understood that that included that sheSA国际影视传媒檚 not going to look into any discretion that we exercised under the court order?SA国际影视传媒�
Van Wiltenburg replied, SA国际影视传媒淚 think it was unclear what the case to meet was.SA国际影视传媒�
Later, during closing submissions, Hunter reiterated that SA国际影视传媒淚t was not clear [to VACFSS] what it was about.SA国际影视传媒�
Edelmann interjected.
SA国际影视传媒淗ow do you go through a 21-day hearing not knowing what itSA国际影视传媒檚 about?SA国际影视传媒� he asked. SA国际影视传媒淏eing misled, or thinking itSA国际影视传媒檚 about something else, sure.
SA国际影视传媒淏ut like just, SA国际影视传媒榃e were confused and had no idea what it was about the entire timeSA国际影视传媒�? I just donSA国际影视传媒檛 understand how counsel does that.SA国际影视传媒�
Hunter, who wasnSA国际影视传媒檛 representing VACFSS at the tribunal, cleared her throat.
SA国际影视传媒淚 wouldnSA国际影视传媒檛 put it quite that way,SA国际影视传媒� she said. SA国际影视传媒淚 canSA国际影视传媒檛 tell you what was in counselSA国际影视传媒檚 head. But what we see in the materials is a shift in the scope.SA国际影视传媒�
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.
JustineSA国际影视传媒檚 complaint, she said, was about SA国际影视传媒淰ACFSSSA国际影视传媒檚 assessment of [JustineSA国际影视传媒檚] 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.SA国际影视传媒�
The tribunal reiterated this scope multiple times, she said SA国际影视传媒� when it rejected VACFSSSA国际影视传媒檚 application to dismiss JustineSA国际影视传媒檚 complaint before hearing it, at the start of the hearing, and in its .
Colonial context SA国际影视传媒� to what extent is it relevant?
The Supreme Court found that the tribunal also erred by undermining the law governing social workers in SA国际影视传媒淏.C.SA国际影视传媒�
For example, in her decision, tribunal member Cousineau wrote, SA国际影视传媒淭he system created and regulated by the CFCSA SA国际影视传媒� which VACFSS is bound to implement SA国际影视传媒� is rooted in a Eurocentric approach to child welfare, heavily focused on a narrow assessment of risk.SA国际影视传媒�
Hunter argued for VACFSS that the tribunalSA国际影视传媒檚 SA国际影视传媒渁ttack on valid legislation, a valid legislative scheme and social workers acting pursuant to itSA国际影视传媒� cannot be SA国际影视传媒渃ountenanced.SA国际影视传媒�
SA国际影视传媒淭hereSA国际影视传媒檚 been lots of attacks on child protection legislation across the country from all kinds of angles,SA国际影视传媒� said Marchand, who is syilx and a member of the Okanagan Indian Band.
SA国际影视传媒淭he Wrapping Our Ways report and the report of the Truth and Reconciliation Commission, and other academic writings. These arenSA国际影视传媒檛 new ideas SA国际影视传媒� SheSA国际影视传媒檚 writing about things that are in the public domain.SA国际影视传媒�
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.
SA国际影视传媒淣either the attorney general nor the [Supreme Court] judge has pointed to a single provision of the CFCSA that the tribunalSA国际影视传媒檚 decision purports to invalidate or question the validity of,SA国际影视传媒� she said.
SA国际影视传媒淭he tribunalSA国际影视传媒檚 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 childrenSA国际影视传媒檚 safety under the CFCSA.SA国际影视传媒�
Lauren Witten, acting for SA国际影视传媒淏.C.SA国际影视传媒檚SA国际影视传媒� attorney general, said that while systemic context is relevant and important, it matters what you do with it.
SA国际影视传媒淭here is a problem with starting the [discrimination] analysis from a view that the legislation is inherently problematic,SA国际影视传媒� she said. SA国际影视传媒淭he member of a tribunal is required to give effect to valid legislative objectives.SA国际影视传媒�
SA国际影视传媒淲hat the member cannot do SA国际影视传媒� is transform an individual complaint into a systemic one,SA国际影视传媒� she said. SA国际影视传媒淭here may be a systemic complaint that can be brought, but that is, in our submission, a different complaint.SA国际影视传媒�
VACFSS spending SA国际影视传媒榓n outstanding amount of moneySA国际影视传媒� 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 IndigiNews that she was removed from her motherSA国际影视传媒檚 care when she was nine, and she stayed in SA国际影视传媒渃areSA国际影视传媒� until she SA国际影视传媒渁ged out.SA国际影视传媒�
SA国际影视传媒淚SA国际影视传媒檝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,SA国际影视传媒� said Raynes, a member of the .
SA国际影视传媒淚 came to honour [JustineSA国际影视传媒檚] 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.SA国际影视传媒�
Justine was also in SA国际影视传媒渃areSA国际影视传媒� as a child. She told IndigiNews on Dec. 17 that while SA国际影视传媒渢hereSA国际影视传媒檚 still a lot of hurt,SA国际影视传媒� sheSA国际影视传媒檚 heartened SA国际影视传媒渢o see the justice thatSA国际影视传媒檚 taking place.SA国际影视传媒�
She said it was important to her to attend the hearing because she wanted the judges SA国际影视传媒渢o put a face to the names and the people.SA国际影视传媒�
, according to the most recent provincial data SA国际影视传媒� despite the fact that Indigenous people account for just .
In SA国际影视传媒淐anada,SA国际影视传媒� 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 SA国际影视传媒渋ntractable legacies of residential schools, including poverty, addictions, and domestic and sexual violenceSA国际影视传媒� SA国际影视传媒� as well as SA国际影视传媒渞acist attitudes that considered Aboriginal families as being frequently unfit to care for their children.SA国际影视传媒�
Residential SA国际影视传媒渟choolSA国际影视传媒� and Sixties Scoop experiences SA国际影视传媒渁dversely affected parenting skills and the success of many Aboriginal families,SA国际影视传媒� wrote the commission in its 2015 report.
SA国际影视传媒淭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.SA国际影视传媒�
Outside the Court of Appeal, May said she feels like SA国际影视传媒渢his doesnSA国际影视传媒檛 happenSA国际影视传媒� to her friends SA国际影视传媒渨ith happy parents and normal families.SA国际影视传媒�
SA国际影视传媒淭hey donSA国际影视传媒檛 get separated and picked on. I feel like itSA国际影视传媒檚 very weak families and families that have been through a lot, which is mostly Indigenous families SA国际影视传媒� ItSA国际影视传媒檚 not right.SA国际影视传媒�
Blair, one of JustineSA国际影视传媒檚 lawyers, said this case SA国际影视传媒渇undamentally is about redress to an Indigenous mother who suffered discriminatory mistreatment at the hands of specific child protection workers.SA国际影视传媒�
SA国际影视传媒淭he [tribunalSA国际影视传媒檚] decision was groundbreaking in the sense of how it recognized that. But in the end itSA国际影视传媒檚 about redress for the complainant for what she suffered,SA国际影视传媒� he told IndigiNews on Dec. 16.
Sabelli added that if VACFSSSA国际影视传媒檚 position succeeds, that would be SA国际影视传媒渃ompletely incompatible with the efforts made by the legal system toward reconciliation.SA国际影视传媒�
The two lawyers would be SA国际影视传媒渧ery willingSA国际影视传媒� to assist Justine in appealing to the Supreme Court of Canada if they donSA国际影视传媒檛 win, Blair said.
He added that he wonders whether VACFSS would appeal if it lost.
SA国际影视传媒淚t is an outstanding amount of money they are spending on this case. Their lawyers are very, very good ... I donSA国际影视传媒檛 know how itSA国际影视传媒檚 being paid for, but thatSA国际影视传媒檚 not cheap.SA国际影视传媒�
IndigiNews 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.
SA国际影视传媒淎ny information about litigation costs is subject to solicitor-client privilege and will not be disclosed,SA国际影视传媒� replied a spokesperson for the attorney general, via email on Dec. 17.
SA国际影视传媒淲e are unable to comment on this matter as it is currently before the court.SA国际影视传媒�
IndigiNews asked the attorney general whether the office could at least confirm whether VACFSS's legal costs are coming out of the public purse.
SA国际影视传媒淯nfortunately, we can provide no further comment,SA国际影视传媒� the office wrote. SA国际影视传媒淐ontact VACFSS directly and you may be able to get what youSA国际影视传媒檙e looking for that way.SA国际影视传媒�
IndigiNews asked VACFSS multiple times to comment about the money SA国际影视传媒� 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.
