When Indigenous parents feel they91裸聊视频檝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 province91裸聊视频檚 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. 

91裸聊视频淓ither we91裸聊视频檙e going to limit or restrict human rights remedies to Indigenous parents, or we91裸聊视频檙e not,91裸聊视频� 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 Justine91裸聊视频檚 daughters from her care in August 2016, , the B.C. Human Rights Tribunal 91裸聊视频� using stereotypes to justify keeping them apart. 

The tribunal ordered VACFSS to pay her $150,000 91裸聊视频� the tribunal91裸聊视频檚 second-highest award ever 91裸聊视频� as compensation 91裸聊视频渇or injury to her dignity, feelings, and self-respect.91裸聊视频� 

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 91裸聊视频渇urther consideration.91裸聊视频� 

Justine then appealed that decision, leading the case to be rehashed by a panel of appellate judges 91裸聊视频� including the province91裸聊视频檚 Chief Justice 91裸聊视频� from Dec. 11-13. 

91裸聊视频淚91裸聊视频檓 really hoping for a ,91裸聊视频� Rosner told IndigiNews on Dec. 19, referring to analysis courts can apply to take Indigenous people91裸聊视频檚 unique experiences into consideration. 

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

91裸聊视频淪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,91裸聊视频� Rosner explained. 

91裸聊视频楲ots of people would cave and just give up91裸聊视频�

When Justine filed her complaint with the B.C. Human Rights Tribunal in August 2017, her four daughters were still in 91裸聊视频渃are.91裸聊视频� 

The baby and the teenager were living in two separate foster homes, while the middle children were living together in a 91裸聊视频渟taffed residence91裸聊视频� after their foster placement broke down, where they endured 91裸聊视频�91裸聊视频� including: 91裸聊视频�, inter-sibling violence, violence with staff, and the application of physical restraints,91裸聊视频� according to the .

In 2018, that social workers concerns included 91裸聊视频渁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.91裸聊视频�

91裸聊视频淵ou91裸聊视频檙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,91裸聊视频� VACFSS91裸聊视频檚 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 Justine91裸聊视频檚 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 . 

Justine91裸聊视频檚 eldest daughter, May 91裸聊视频� not her real name 91裸聊视频� was 13 when she was taken into 91裸聊视频渃are91裸聊视频� by VACFSS. Now she91裸聊视频檚 21. 

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

91裸聊视频淲e have a very, very good relationship, very healthy,91裸聊视频� May told IndigiNews outside the courthouse. 91裸聊视频淲e talk almost every day. She91裸聊视频檚 become my best friend.91裸聊视频�

May told IndigiNews a 91裸聊视频渓ot of issues91裸聊视频� between her and her mother stemmed from social workers separating them.

91裸聊视频淟ots of people would cave and just give up; my mom stayed strong and true to herself, even when everyone was against her,91裸聊视频� she said. 

91裸聊视频淚nstead of separating families, they should try and push us together 91裸聊视频� and work with us to try and build stronger relationships with each other.91裸聊视频�

Does the tribunal have jurisdiction in child protection cases? 

At this case91裸聊视频檚 latest hearing, Chief Justice Leonard Marchand, Justice Peter Edelmann, and Justice Harvey Groberman heard arguments from Justine, VACFSS, B.C.91裸聊视频檚 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 Justine91裸聊视频檚 complaint because the period under review was 91裸聊视频渂ookended91裸聊视频� by two provincial court orders 91裸聊视频� 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 Justine91裸聊视频檚 full-time care.  

Whatever happened between those two court orders, Hunter argued, was the court91裸聊视频檚 business 91裸聊视频� not the tribunal91裸聊视频檚. 

91裸聊视频淭he tribunal is not entitled to review what happens pursuant to a court order,91裸聊视频� she said. 

It91裸聊视频檚 ultimately in a parent91裸聊视频檚 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.

91裸聊视频淭here91裸聊视频檚 not the same remedy in terms of financial compensation,91裸聊视频� Hunter said. 

91裸聊视频淭he remedies that the provincial court could have offered during that time 91裸聊视频� 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.91裸聊视频�

Edelmann later attempted to clarify Hunter91裸聊视频檚 submission. 

91裸聊视频淵our position is that [Justine] had to choose either monetary damages for discrimination or relief in the provincial court 91裸聊视频� one or the other, you can91裸聊视频檛 have both?91裸聊视频� he said.

Hunter responded, 91裸聊视频淭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.91裸聊视频�

But this suggestion is 91裸聊视频渃ompletely impractical,91裸聊视频� countered Jonathan Blair, co-counsel for Justine alongside Danielle Sabelli. 

91裸聊视频淭his human rights matter took 21 days, involved multiple interim decisions on expert evidence, disclosure, had multiple witnesses,91裸聊视频� Blair said. 91裸聊视频淭he provincial court is not set up to hear this, especially in proceedings under the [] which 91裸聊视频� need to be done in a timely manner.91裸聊视频�

He said it would be a 91裸聊视频渄isaster91裸聊视频� for the court system if 91裸聊视频渆very parent started filing a human rights complaint with the court during the proceeding.91裸聊视频�

Both the tribunal and the provincial court have jurisdiction over child welfare, and they91裸聊视频檙e empowered to decide distinct legal issues, argued Maria Sokolova. 

She acted for the B.C.91裸聊视频檚 Human Rights Commissioner, another intervenor. 

91裸聊视频淭he tribunal, acting under the [], may consider whether there has been discrimination in the provision of child welfare services,91裸聊视频� she told the court. 91裸聊视频淚t cannot make any child welfare orders for the apprehension or the return of children.91裸聊视频�

On the other hand, Sokolova argued, a provincial court may decide issues of 91裸聊视频渃ustody and access91裸聊视频� under the Child, Family and Community Service Act.

91裸聊视频淚t cannot make findings of discrimination or grant remedies under the Code,91裸聊视频� she said. 

Emma Ronsley, acting for West Coast LEAF, another intervenor, said it91裸聊视频檚 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 91裸聊视频渧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.91裸聊视频�

The court needs to 91裸聊视频渃onsider the , which affirms the rights of Indigenous Peoples to be free from discrimination,91裸聊视频� she said. 

Did the tribunal give VACFSS a fair shot? 

VACFSS91裸聊视频檚 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 Justine91裸聊视频檚 complaint. 

They pointed to multiple times the tribunal said it wasn91裸聊视频檛 going to touch child protection matters under the provincial court91裸聊视频檚 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 Justine91裸聊视频檚 complaint. This wasn91裸聊视频檛 fair, VACFSS argued.

91裸聊视频淭here91裸聊视频檚 a defined complaint period, but you can91裸聊视频檛 look at that in a vacuum,91裸聊视频� Marchand said. 91裸聊视频淪he has to look at the context in which the children came to be in care, doesn91裸聊视频檛 she?91裸聊视频� 

Chantelle van Wiltenburg, co-counsel for VACFSS, countered, 91裸聊视频淏ut she shouldn91裸聊视频檛 be looking behind the court order that is responsive to that period of time.91裸聊视频�

Edelmann tried to sum up VACFSS91裸聊视频檚 position. 

91裸聊视频淵ou91裸聊视频檙e saying that 91裸聊视频� the [tribunal] member is misleading [VACFSS] in saying, 91裸聊视频業91裸聊视频檓 not going to go behind the court orders and anything that flows from them91裸聊视频� 91裸聊视频� and you understood that that included that she91裸聊视频檚 not going to look into any discretion that we exercised under the court order?91裸聊视频�

Van Wiltenburg replied, 91裸聊视频淚 think it was unclear what the case to meet was.91裸聊视频�

Later, during closing submissions, Hunter reiterated that 91裸聊视频淚t was not clear [to VACFSS] what it was about.91裸聊视频� 

Edelmann interjected. 

91裸聊视频淗ow do you go through a 21-day hearing not knowing what it91裸聊视频檚 about?91裸聊视频� he asked. 91裸聊视频淏eing misled, or thinking it91裸聊视频檚 about something else, sure. 

91裸聊视频淏ut like just, 91裸聊视频榃e were confused and had no idea what it was about the entire time91裸聊视频�? I just don91裸聊视频檛 understand how counsel does that.91裸聊视频�

Hunter, who wasn91裸聊视频檛 representing VACFSS at the tribunal, cleared her throat. 

91裸聊视频淚 wouldn91裸聊视频檛 put it quite that way,91裸聊视频� she said. 91裸聊视频淚 can91裸聊视频檛 tell you what was in counsel91裸聊视频檚 head. But what we see in the materials is a shift in the scope.91裸聊视频�

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. 

Justine91裸聊视频檚 complaint, she said, was about 91裸聊视频淰ACFSS91裸聊视频檚 assessment of [Justine91裸聊视频檚] 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 2018.91裸聊视频� 

The tribunal reiterated this scope multiple times, she said 91裸聊视频� when it rejected VACFSS91裸聊视频檚 application to dismiss Justine91裸聊视频檚 complaint before hearing it, at the start of the hearing, and in its .

Colonial context 91裸聊视频� to what extent is it relevant?

The Supreme Court found that the tribunal also erred by undermining the law governing social workers in 91裸聊视频淏.C.91裸聊视频�

For example, in her decision, tribunal member Cousineau wrote, 91裸聊视频淭he system created and regulated by the CFCSA 91裸聊视频� which VACFSS is bound to implement 91裸聊视频� is rooted in a Eurocentric approach to child welfare, heavily focused on a narrow assessment of risk.91裸聊视频�

Hunter argued for VACFSS that the tribunal91裸聊视频檚 91裸聊视频渁ttack on valid legislation, a valid legislative scheme and social workers acting pursuant to it91裸聊视频� cannot be 91裸聊视频渃ountenanced.91裸聊视频�

91裸聊视频淭here91裸聊视频檚 been lots of attacks on child protection legislation across the country from all kinds of angles,91裸聊视频� said Marchand, who is syilx and a member of the Okanagan Indian Band. 

91裸聊视频淭he Wrapping Our Ways report and the report of the Truth and Reconciliation Commission, and other academic writings. These aren91裸聊视频檛 new ideas 91裸聊视频� She91裸聊视频檚 writing about things that are in the public domain.91裸聊视频�

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. 

91裸聊视频淣either the attorney general nor the [Supreme Court] judge has pointed to a single provision of the CFCSA that the tribunal91裸聊视频檚 decision purports to invalidate or question the validity of,91裸聊视频� she said. 

91裸聊视频淭he tribunal91裸聊视频檚 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 children91裸聊视频檚 safety under the CFCSA.91裸聊视频�

Lauren Witten, acting for 91裸聊视频淏.C.91裸聊视频檚91裸聊视频� attorney general, said that while systemic context is relevant and important, it matters what you do with it.

91裸聊视频淭here is a problem with starting the [discrimination] analysis from a view that the legislation is inherently problematic,91裸聊视频� she said. 91裸聊视频淭he member of a tribunal is required to give effect to valid legislative objectives.91裸聊视频�

91裸聊视频淲hat the member cannot do 91裸聊视频� is transform an individual complaint into a systemic one,91裸聊视频� she said. 91裸聊视频淭here may be a systemic complaint that can be brought, but that is, in our submission, a different complaint.91裸聊视频�

VACFSS spending 91裸聊视频榓n outstanding amount of money91裸聊视频� 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 mother91裸聊视频檚 care when she was nine, and she stayed in 91裸聊视频渃are91裸聊视频� until she 91裸聊视频渁ged out.91裸聊视频�

91裸聊视频淚91裸聊视频檝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,91裸聊视频� said Raynes, a member of the . 

91裸聊视频淚 came to honour [Justine91裸聊视频檚] 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.91裸聊视频� 

Justine was also in 91裸聊视频渃are91裸聊视频� as a child. She told IndigiNews on Dec. 17 that while 91裸聊视频渢here91裸聊视频檚 still a lot of hurt,91裸聊视频� she91裸聊视频檚 heartened 91裸聊视频渢o see the justice that91裸聊视频檚 taking place.91裸聊视频�

She said it was important to her to attend the hearing because she wanted the judges 91裸聊视频渢o put a face to the names and the people.91裸聊视频�

, according to the most recent provincial data  91裸聊视频� despite the fact that Indigenous people account for just . 

In 91裸聊视频淐anada,91裸聊视频� 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 91裸聊视频渋ntractable legacies of residential schools, including poverty, addictions, and domestic and sexual violence91裸聊视频� 91裸聊视频� as well as 91裸聊视频渞acist attitudes that considered Aboriginal families as being frequently unfit to care for their children.91裸聊视频�

Residential 91裸聊视频渟chool91裸聊视频� and Sixties Scoop experiences 91裸聊视频渁dversely affected parenting skills and the success of many Aboriginal families,91裸聊视频� wrote the commission in its 2015 report.

91裸聊视频淭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.91裸聊视频�

Outside the Court of Appeal, May said she feels like 91裸聊视频渢his doesn91裸聊视频檛 happen91裸聊视频� to her friends 91裸聊视频渨ith happy parents and normal families.91裸聊视频� 

91裸聊视频淭hey don91裸聊视频檛 get separated and picked on. I feel like it91裸聊视频檚 very weak families and families that have been through a lot, which is mostly Indigenous families 91裸聊视频� It91裸聊视频檚 not right.91裸聊视频�

Blair, one of Justine91裸聊视频檚 lawyers, said this case 91裸聊视频渇undamentally is about redress to an Indigenous mother who suffered discriminatory mistreatment at the hands of specific child protection workers.91裸聊视频�

91裸聊视频淭he [tribunal91裸聊视频檚] decision was groundbreaking in the sense of how it recognized that. But in the end it91裸聊视频檚 about redress for the complainant for what she suffered,91裸聊视频� he told IndigiNews on Dec. 16.

Sabelli added that if VACFSS91裸聊视频檚 position succeeds, that would be 91裸聊视频渃ompletely incompatible with the efforts made by the legal system toward reconciliation.91裸聊视频�  

The two lawyers would be 91裸聊视频渧ery willing91裸聊视频� to assist Justine in appealing to the Supreme Court of Canada if they don91裸聊视频檛 win, Blair said.

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

91裸聊视频淚t is an outstanding amount of money they are spending on this case. Their lawyers are very, very good ... I don91裸聊视频檛 know how it91裸聊视频檚 being paid for, but that91裸聊视频檚 not cheap.91裸聊视频�

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. 

91裸聊视频淎ny information about litigation costs is subject to solicitor-client privilege and will not be disclosed,91裸聊视频� replied a spokesperson for the attorney general, via email on Dec. 17. 

91裸聊视频淲e are unable to comment on this matter as it is currently before the court.91裸聊视频�

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

91裸聊视频淯nfortunately, we can provide no further comment,91裸聊视频� the office wrote. 91裸聊视频淐ontact VACFSS directly and you may be able to get what you91裸聊视频檙e looking for that way.91裸聊视频�

IndigiNews asked VACFSS multiple times to comment about the money 91裸聊视频� 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.