When Indigenous parents feel they鈥檝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鈥檚 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. 

鈥淓ither we鈥檙e going to limit or restrict human rights remedies to Indigenous parents, or we鈥檙e not,鈥� 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鈥檚 daughters from her care in August 2016, , the B.C. Human Rights Tribunal 鈥� using stereotypes to justify keeping them apart. 

The tribunal ordered VACFSS to pay her $150,000 鈥� the tribunal鈥檚 second-highest award ever 鈥� as compensation 鈥渇or injury to her dignity, feelings, and self-respect.鈥� 

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 鈥渇urther consideration.鈥� 

Justine then appealed that decision, leading the case to be rehashed by a panel of appellate judges 鈥� including the province鈥檚 Chief Justice 鈥� from Dec. 11-13. 

鈥淚鈥檓 really hoping for a ,鈥� Rosner told IndigiNews on Dec. 19, referring to analysis courts can apply to take Indigenous people鈥檚 unique experiences into consideration. 

Rosner acted as co-counsel for Justine at the tribunal hearing but was not involved in her current appeal. 

鈥淪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,鈥� Rosner explained. 

鈥楲ots of people would cave and just give up鈥�

When Justine filed her complaint with the B.C. Human Rights Tribunal in August 2017, her four daughters were still in 鈥渃are.鈥� 

The baby and the teenager were living in two separate foster homes, while the middle children were living together in a 鈥渟taffed residence鈥� after their foster placement broke down, where they endured 鈥溾�� including: 鈥�, inter-sibling violence, violence with staff, and the application of physical restraints,鈥� according to the .

In 2018, that social workers concerns included 鈥渁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.鈥�

鈥淵ou鈥檙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,鈥� VACFSS鈥檚 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鈥檚 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鈥檚 eldest daughter, May 鈥� not her real name 鈥� was 13 when she was taken into 鈥渃are鈥� by VACFSS. Now she鈥檚 21. 

On Dec. 13, she sat beside her mom in the appellate court.

鈥淲e have a very, very good relationship, very healthy,鈥� May told IndigiNews outside the courthouse. 鈥淲e talk almost every day. She鈥檚 become my best friend.鈥�

May told IndigiNews a 鈥渓ot of issues鈥� between her and her mother stemmed from social workers separating them.

鈥淟ots of people would cave and just give up; my mom stayed strong and true to herself, even when everyone was against her,鈥� she said. 

鈥淚nstead of separating families, they should try and push us together 鈥� and work with us to try and build stronger relationships with each other.鈥�

Does the tribunal have jurisdiction in child protection cases? 

At this case鈥檚 latest hearing, Chief Justice Leonard Marchand, Justice Peter Edelmann, and Justice Harvey Groberman heard arguments from Justine, VACFSS, B.C.鈥檚 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鈥檚 complaint because the period under review was 鈥渂ookended鈥� by two provincial court orders 鈥� 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鈥檚 full-time care.  

Whatever happened between those two court orders, Hunter argued, was the court鈥檚 business 鈥� not the tribunal鈥檚. 

鈥淭he tribunal is not entitled to review what happens pursuant to a court order,鈥� she said. 

It鈥檚 ultimately in a parent鈥檚 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.

鈥淭here鈥檚 not the same remedy in terms of financial compensation,鈥� Hunter said. 

鈥淭he remedies that the provincial court could have offered during that time 鈥� 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.鈥�

Edelmann later attempted to clarify Hunter鈥檚 submission. 

鈥淵our position is that [Justine] had to choose either monetary damages for discrimination or relief in the provincial court 鈥� one or the other, you can鈥檛 have both?鈥� he said.

Hunter responded, 鈥淭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.鈥�

But this suggestion is 鈥渃ompletely impractical,鈥� countered Jonathan Blair, co-counsel for Justine alongside Danielle Sabelli. 

鈥淭his human rights matter took 21 days, involved multiple interim decisions on expert evidence, disclosure, had multiple witnesses,鈥� Blair said. 鈥淭he provincial court is not set up to hear this, especially in proceedings under the [] which 鈥� need to be done in a timely manner.鈥�

He said it would be a 鈥渄isaster鈥� for the court system if 鈥渆very parent started filing a human rights complaint with the court during the proceeding.鈥�

Both the tribunal and the provincial court have jurisdiction over child welfare, and they鈥檙e empowered to decide distinct legal issues, argued Maria Sokolova. 

She acted for the B.C.鈥檚 Human Rights Commissioner, another intervenor. 

鈥淭he tribunal, acting under the [], may consider whether there has been discrimination in the provision of child welfare services,鈥� she told the court. 鈥淚t cannot make any child welfare orders for the apprehension or the return of children.鈥�

On the other hand, Sokolova argued, a provincial court may decide issues of 鈥渃ustody and access鈥� under the Child, Family and Community Service Act.

鈥淚t cannot make findings of discrimination or grant remedies under the Code,鈥� she said. 

Emma Ronsley, acting for West Coast LEAF, another intervenor, said it鈥檚 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 鈥渧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.鈥�

The court needs to 鈥渃onsider the , which affirms the rights of Indigenous Peoples to be free from discrimination,鈥� she said. 

Did the tribunal give VACFSS a fair shot? 

VACFSS鈥檚 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鈥檚 complaint. 

They pointed to multiple times the tribunal said it wasn鈥檛 going to touch child protection matters under the provincial court鈥檚 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鈥檚 complaint. This wasn鈥檛 fair, VACFSS argued.

鈥淭here鈥檚 a defined complaint period, but you can鈥檛 look at that in a vacuum,鈥� Marchand said. 鈥淪he has to look at the context in which the children came to be in care, doesn鈥檛 she?鈥� 

Chantelle van Wiltenburg, co-counsel for VACFSS, countered, 鈥淏ut she shouldn鈥檛 be looking behind the court order that is responsive to that period of time.鈥�

Edelmann tried to sum up VACFSS鈥檚 position. 

鈥淵ou鈥檙e saying that 鈥� the [tribunal] member is misleading [VACFSS] in saying, 鈥業鈥檓 not going to go behind the court orders and anything that flows from them鈥� 鈥� and you understood that that included that she鈥檚 not going to look into any discretion that we exercised under the court order?鈥�

Van Wiltenburg replied, 鈥淚 think it was unclear what the case to meet was.鈥�

Later, during closing submissions, Hunter reiterated that 鈥淚t was not clear [to VACFSS] what it was about.鈥� 

Edelmann interjected. 

鈥淗ow do you go through a 21-day hearing not knowing what it鈥檚 about?鈥� he asked. 鈥淏eing misled, or thinking it鈥檚 about something else, sure. 

鈥淏ut like just, 鈥榃e were confused and had no idea what it was about the entire time鈥�? I just don鈥檛 understand how counsel does that.鈥�

Hunter, who wasn鈥檛 representing VACFSS at the tribunal, cleared her throat. 

鈥淚 wouldn鈥檛 put it quite that way,鈥� she said. 鈥淚 can鈥檛 tell you what was in counsel鈥檚 head. But what we see in the materials is a shift in the scope.鈥�

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鈥檚 complaint, she said, was about 鈥淰ACFSS鈥檚 assessment of [Justine鈥檚] 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.鈥� 

The tribunal reiterated this scope multiple times, she said 鈥� when it rejected VACFSS鈥檚 application to dismiss Justine鈥檚 complaint before hearing it, at the start of the hearing, and in its .

Colonial context 鈥� to what extent is it relevant?

The Supreme Court found that the tribunal also erred by undermining the law governing social workers in 鈥淏.C.鈥�

For example, in her decision, tribunal member Cousineau wrote, 鈥淭he system created and regulated by the CFCSA 鈥� which VACFSS is bound to implement 鈥� is rooted in a Eurocentric approach to child welfare, heavily focused on a narrow assessment of risk.鈥�

Hunter argued for VACFSS that the tribunal鈥檚 鈥渁ttack on valid legislation, a valid legislative scheme and social workers acting pursuant to it鈥� cannot be 鈥渃ountenanced.鈥�

鈥淭here鈥檚 been lots of attacks on child protection legislation across the country from all kinds of angles,鈥� said Marchand, who is syilx and a member of the Okanagan Indian Band. 

鈥淭he Wrapping Our Ways report and the report of the Truth and Reconciliation Commission, and other academic writings. These aren鈥檛 new ideas 鈥� She鈥檚 writing about things that are in the public domain.鈥�

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. 

鈥淣either the attorney general nor the [Supreme Court] judge has pointed to a single provision of the CFCSA that the tribunal鈥檚 decision purports to invalidate or question the validity of,鈥� she said. 

鈥淭he tribunal鈥檚 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鈥檚 safety under the CFCSA.鈥�

Lauren Witten, acting for 鈥淏.C.鈥檚鈥� attorney general, said that while systemic context is relevant and important, it matters what you do with it.

鈥淭here is a problem with starting the [discrimination] analysis from a view that the legislation is inherently problematic,鈥� she said. 鈥淭he member of a tribunal is required to give effect to valid legislative objectives.鈥�

鈥淲hat the member cannot do 鈥� is transform an individual complaint into a systemic one,鈥� she said. 鈥淭here may be a systemic complaint that can be brought, but that is, in our submission, a different complaint.鈥�

VACFSS spending 鈥榓n outstanding amount of money鈥� 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鈥檚 care when she was nine, and she stayed in 鈥渃are鈥� until she 鈥渁ged out.鈥�

鈥淚鈥檝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,鈥� said Raynes, a member of the . 

鈥淚 came to honour [Justine鈥檚] 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.鈥� 

Justine was also in 鈥渃are鈥� as a child. She told IndigiNews on Dec. 17 that while 鈥渢here鈥檚 still a lot of hurt,鈥� she鈥檚 heartened 鈥渢o see the justice that鈥檚 taking place.鈥�

She said it was important to her to attend the hearing because she wanted the judges 鈥渢o put a face to the names and the people.鈥�

, according to the most recent provincial data  鈥� despite the fact that Indigenous people account for just . 

In 鈥淐anada,鈥� 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 鈥渋ntractable legacies of residential schools, including poverty, addictions, and domestic and sexual violence鈥� 鈥� as well as 鈥渞acist attitudes that considered Aboriginal families as being frequently unfit to care for their children.鈥�

Residential 鈥渟chool鈥� and Sixties Scoop experiences 鈥渁dversely affected parenting skills and the success of many Aboriginal families,鈥� wrote the commission in its 2015 report.

鈥淭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.鈥�

Outside the Court of Appeal, May said she feels like 鈥渢his doesn鈥檛 happen鈥� to her friends 鈥渨ith happy parents and normal families.鈥� 

鈥淭hey don鈥檛 get separated and picked on. I feel like it鈥檚 very weak families and families that have been through a lot, which is mostly Indigenous families 鈥� It鈥檚 not right.鈥�

Blair, one of Justine鈥檚 lawyers, said this case 鈥渇undamentally is about redress to an Indigenous mother who suffered discriminatory mistreatment at the hands of specific child protection workers.鈥�

鈥淭he [tribunal鈥檚] decision was groundbreaking in the sense of how it recognized that. But in the end it鈥檚 about redress for the complainant for what she suffered,鈥� he told IndigiNews on Dec. 16.

Sabelli added that if VACFSS鈥檚 position succeeds, that would be 鈥渃ompletely incompatible with the efforts made by the legal system toward reconciliation.鈥�  

The two lawyers would be 鈥渧ery willing鈥� to assist Justine in appealing to the Supreme Court of Canada if they don鈥檛 win, Blair said.

He added that he wonders whether VACFSS would appeal if it lost.

鈥淚t is an outstanding amount of money they are spending on this case. Their lawyers are very, very good ... I don鈥檛 know how it鈥檚 being paid for, but that鈥檚 not cheap.鈥�

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. 

鈥淎ny information about litigation costs is subject to solicitor-client privilege and will not be disclosed,鈥� replied a spokesperson for the attorney general, via email on Dec. 17. 

鈥淲e are unable to comment on this matter as it is currently before the court.鈥�

IndigiNews asked the attorney general whether the office could at least confirm whether VACFSS's legal costs are coming out of the public purse.

鈥淯nfortunately, we can provide no further comment,鈥� the office wrote. 鈥淐ontact VACFSS directly and you may be able to get what you鈥檙e looking for that way.鈥�

IndigiNews asked VACFSS multiple times to comment about the money 鈥� 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.