RR v. Vancouver Aboriginal Child and Family Services Society (No. 6), 2022 BCHRT 116
RR was an Afro-Indigenous woman, a single mother of five children, one of whom passed away at an early age, and three with have complex needs. She was low income and in insecure housing. The Tribunal described her as an inter-generational survivor of residential schools with disabilities stemming from trauma, resourceful, affectionate, a leader in her community, connected to her culture, and loved her children. In August 2016, VACFSS apprehended RR’s four children. For nearly three years, VACFSS retained custody over the children and strictly regulated RR’s access to them. RR complained that “VACFSS based its decisions about her ability to parent on stereotypes about Indigenous single mothers and assumptions about her mental health and addictions.” She alleged discrimination based on her race, ancestry, colour, and mental disability, in violation of the Human Rights Code.
The Tribunal found that that VACFSS discriminated against RR. VACFSS’s decisions to retain custody and restrict RR’s access to her children were informed by stereotypes about her as an Indigenous mother with mental health issues, including trauma, and her conflict with the child welfare system. The Member accepted that no one at VACFSS intentionally discriminated against RR. Generally, the Member accepted that the social workers involved in this complaint were doing their best under difficult circumstances.
RR was not required to prove that VACFSS treated her differently than other people. In that regard, the Member agree with VACFSS that “there is no evidence of any differential treatment towards RR compared to any other parent whose children were in care with VACFSS”. Evidence of differential treatment is not necessary because “equality is not about sameness”: Withler v. Canada (Attorney General), 2011 SCC 12 at para. 31.
Adopting an “intersectional approach,” the Member concluded that the “discrimination in this case was the effect of a wider web of laws, policies, and practices which interact to create a system stacked against Indigenous families, especially single mothers living in poverty, with disabilities, and with children with disabilities.” This was an illustration of “systemic discrimination.” The Member reasoned, first, that Indigenous people are disadvantaged in these risk assessments, which, in her view, was based on current expressions of colonialism.” Risk factors such as “poverty, addiction, unstable housing, prior involvement with child welfare, and historical and intergenerational trauma are identified as risk factors for children. The risk assessment assigns these factors to the caregiver, without accounting for their transitory nature and that they can usually be alleviated with appropriate supports.” Second, the risk assessment tools focused on the perceived deficits in Indigenous parenting, without properly weighing the strengths in a parent’s resilience or connection to culture. Third, the risk assessment tools focused on the risk posed to the children by remaining with the caregiver, ignoring the risks to Indigenous children who are taken into care, and the long-term negative outcomes for Indigenous children who are raised in care. [Parenthetically, one wonders if these factors apply exclusively in an Indigenous context?] According to the Member’s analysis, “stereotypes and prejudices intersect and overlap, with compounding effects.”
The Tribunal awarded RR $150,000 as compensation for injury to her dignity, feelings, and self-respect. In addition, the Tribunal ordered VACFSS to pay $5,000 as costs for improper conduct because of its late disclosure of critical documents in the complaint, including disclosure after RR had finished presenting her case, and the conduct of its former legal counsel in briefing a witness on the testimony and cross-examination of other witnesses who had testified before them.