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