By Aleem Bharmal, QC, Human Rights Lawyer
The BC Human Rights Clinic is representing an Indigenous mother in the case RR v Vancouver Aboriginal Child and Family Services Society (VACFSS) which is set to proceed to hearing at the BC Human Rights Tribunal from February 18 to 28, 2020. Our client alleges that she was discriminated against by VACFSS, a government contracted family services agency that apprehended her children and continued to deny her custody and restrict her access to her children in foster care based, in part, on stereotypical and prejudicial assumptions about her ability to care for her children rooted in her Indigeneity and mental health.
The fact that the BC Human Rights Clinic was able to provide enough evidence to warrant a hearing in this case is ground-breaking. Our client had “taken her complaint out of the realm of speculation,” (para 82 of Tribunal decision) and this allowed the case to proceed to hearing. Trying to prove discrimination is a factor in a government service is challenging, as discrimination is rarely explicit and must often be inferred. Previous similar cases had all been dismissed by the Tribunal at the preliminary application stage for failure to provide sufficient evidence suggesting a link to a protected ground of discrimination. As the Tribunal’s historic decision describes, “RR is a First Nations woman. She was raised by her mother and step-father, both of whom are intergenerational residential school survivors. In her affidavit, she explains that, as a result of their experience through residential schools, they had serious challenges with parenting their own children. This led to RR having a very difficult childhood”.
The Tribunal further observed in its groundbreaking decision (para 79):
“Finally, I take notice of the notorious overrepresentation of Indigenous children in foster care. The causes of this broader trend are complex but undoubtedly arise as a result of Canada’s historic oppression of Indigenous people based on their race and ancestry. The Truth and Reconciliation Commission concluded that “Canada’s child welfare system has simply continued the assimilation that the residential school system started”: Final Report of the Truth and Reconciliation Commission of Canada, Volume One: Summary at p. 138. The unique, race-based, context of Indigenous people in child welfare is expressly recognized in the CFCSA, and in the Ministry’s delegation of authority to the Society, whose mission is focused on eliminating the oppression of Indigenous people. This history and context would not be enough, on its own, to prove that RR’s race, ancestry, colour and mental disability were factors in the Society’s actions towards her: Bombardier at para. 88; Campbell v. Vancouver Police Board, 2019 BCHRT 12 at para 19. But it is a piece of the story which a human rights body like this one must be alive to and which, with appropriate evidence at a hearing, could support an inference of discrimination.”
In this era of Truth & Reconciliation this is an important step for the Tribunal, in that it explicitly takes into account the social and historical context of Indigenous Peoples in Canada. This is a much welcome development, taken together with the very recently released report commissioned by the Tribunal, Expanding our Vision: Cultural Equality & Indigenous Peoples’ Human Rights. The report highlights the work that still needs to be done to make the human rights legal process safe and accessible for Indigenous Peoples. The report is researched and written by Ardith Walpetko We’dalx Walkem, QC who states in the report that “Incorporation of Indigenous legal definitions of human rights, and mechanisms for ensuring fairness and freedom from discrimination, is a cornerstone of access to justice.”
If our client is ultimately successful, this would be a significant legal precedent that would help develop human rights case law and guide how the government needs to deal with Indigenous children in foster care in a non-discriminatory manner. The hearing addresses the social and historical record of Indigenous human rights and continues the much-needed work of systemic law reform by the BC Human Rights Clinic, operated by the Community Legal Assistance Society (CLAS).