Tribunal ruling of discrimination against Indigenous B.C. mom faces court challenge

The B.C. Supreme Court is preparing for hearings to weigh whether the province’s human rights tribunal overstepped its bounds with a landmark ruling that child protection authorities discriminated against a mother.

The Afro-Indigenous mother, referred to as RR because she still has under-aged children, lost custody of her four children for nearly three years starting in 2016.

In November 2022, the B.C. Human Rights Tribunal ruled that Vancouver Aboriginal Child and Family Services Society (VACFSS), a delegated agency of the Ministry of Children and Family Development, had retained custody and restricted RR’s access to her children in decisions informed by stereotypes about her as an Indigenous woman with past mental health issues.

The tribunal awarded her $150,000 “for the significant and devastating impacts the discrimination had on her” according to Community Assistance Legal Society (CALS).

But in January, VACFSS filed an application for a judicial review, asking the court to decide whether the tribunal had the authority to weigh in on child protection issues.

“Ever since she found that out she’s relived the pain. Even though her children are back with her now. Even though she’s doing great,” CALS lawyer Jonathan Blair told Global News.

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Blair said VACFSS’s case does not dispute that the mother was discriminated against, and instead focuses on technical legal arguments.

“The thrust is that the tribunal shouldn’t question the decisions of child protection service workers, and they should … be immunized from tribunal scrutiny through this process,” he said.

“What this would mean is parents like our client would have no redress in this situation. They would have no way to fight this massive power imbalance where the state always wins.”

VACFSS would not agree to an on-camera interview, but said in a statement it was going to court reluctantly because it believes the B.C. Human Rights Tribunal overstepped its jurisdiction in its ruling.

British Columbia Human Rights Commissioner Kasari Govender told Global News the case could set a far-reaching precedent.

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She, along with the Union of B.C. Indian Chiefs and the West Coast Legal Education and Action Fund, have been granted intervener status in the case.

“Our child protection system involves some of the most marginalized people in our communities in the most vulnerable time of their lives. They’re potentially being separated from their children, children potentially being separated from their families, potentially children in need of protection,” she said.

“These are really serious issues that really cut to the heart and involve highly disproportionate numbers of Indigenous children, so we want to make sure that system is subject to human rights scrutiny.”

Govender said VACFSS’s challenge boils down to the argument that under B.C. law, only the courts can make decisions about child protection matters.

But she said B.C. law also doesn’t allow the courts to rule on human rights issues, creating a potential catch-22.

“If the court … finds that the human rights tribunal doesn’t have the power to make a decision in child protection area, then it means families and children going through the child protection system have no recourse for human rights violations,” she said.

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Roslyn Chambers, a child welfare lawyer who was not involved in the case, said it echoes the same issues Canada faced with the residential school system.

“You’ve got a certain group of people telling other people how they should live their lives and how they should bring up their children,” she said.

“There’s not enough checks and balances, there’s not enough collaboration. In fact, the tribunal decision specifically mentions the power and control of social workers of the MCFD in relation to this, that the government has too much power and control and can determine the destinies of these families, whether it’s warranted or not, and there’s an inherent bias in that situation.”

Chambers said that if the court upholds the tribunal’s decision, other parents who have met similar discrimination at the hands of the child welfare system may start to come forward.

Govender said the court is due to begin hearing the case next week, with a decision likely due sometime in the fall.