BY SAMANTHA SARRA
THE decision which came down recently from Justice Carol Ross in the lawsuit filed by two former inmates at the Alouette Correctional Centre after the cancelation of the Mother Baby Program is an important victory for women in the corrections system.
The ruling acknowledged the rights of mothers and children — which were violated by the cancellation of the program — under the Child, Family and Community Service Act (CFCS Act) and under international law ratified by Canada.
“The defendants submitted that Corrections is entitled, without any consideration of the best interests of the children affected, to make decisions that will inevitably result in children being seized by the state,” said Justice Ross in the decision.
“I concluded that the state cannot be permitted, through such compartmentalization, to avoid its obligations under the CFCS Act and the values and rights represented in that statute or to sidestep the principle that in all state actions concerning a child, the best interests of the child shall be a primary consideration.”
The Supreme Court’s declaration that the best interests of the child should be paramount is a beacon of hope against the bleak backdrop of oppression linked to incarceration rates in Canada. The decision conceded that provincially-incarcerated women are vulnerable, “with low levels of education and employment, many with mental health issues, and histories of being victims of abuse.”
Systemic discrimination can also be seen in the federal incarceration rates. The Correctional Investigator’s Report on Ethno-Cultural Diversity in Corrections, which was tabled in Parliament November 26, highlighted the over-representation of minority groups in Canada’s federal penitentiaries.
According to the report, over the last ten years the number of black federal inmates has grown by 80 per cent, while the number of caucasian inmates has declined by three per cent. And while aboriginal people represent less than three per cent of the Canadian population, they represent 23 per cent of the federal inmate population — with one in three women under federal sentence being aboriginal.
“These are disturbing trends that raise important questions about equality and our justice system in Canada,” said Correctional Investigator Howard Sapers.
Sapers also is very concerned about the issue of parental incarceration. Years ago he collaborated with the John Howard Society of Alberta to write a series of children’s books for kids with parents behind bars. At an recent expert working group on supporting children with incarcerated parents, he said that when his investigators go into the prisons, the women held there ask them to bring in birthday cards for their kids — something they can’t afford on their inmate allowances.
With 30 per cent of the inmate allowance received withheld for telephone, room and board, mothers can’t cover the cost of staying connected with their children. Shawn Bayes, executive director of the Elizabeth Fry Society in Vancouver, points out that the most a woman can make behind bars is $4 a day, while incarcerated men can make $10 to $12 a day.
“The current system has an incredible failure to intervene in any meaningful way,” said MLA Darryl Plecas, the B.C. government chair of the Blue Ribbon Panel for Crime Reduction. “It’s an absolute disgrace. Someone has to take serious action to get this back on track. It’s a tragedy as it relates to children of incarcerated parents.”
Justice Ross’s decision is a critical first step in working towards tangible change that recognizes the inequalities that shape incarceration in Canada: “Aboriginal mothers and their infants are of particular concern given the history of overrepresentation of aboriginal women in the incarcerated population and the history of dislocation of aboriginal families caused by state action.”
For generations we have been committing the most unforgivable crime — taking babies from their mothers. Prisons have been a confining force of colonialism — first when they incarcerated mothers who refused to let their children be taken to residential schools and today as a punitive means of addressing the intergenerational trauma caused by those schools, further punishing moms by sending their children into foster care.
“Our system is appallingly bad,” says Plecas. “We should be screaming from the rooftops for the government to get its act together.”
Instead of persecuting aboriginal people in Canada, we should be learning from them. The First Nations Court in New Westminster takes a more holistic, restorative approach to justice and has an incredible recidivism rate — not one re-offense in seven years of operation, something unheard of in any other court in Canada.
“Children are our future. If the children aren’t healthy, we don’t have a future,” says Arthur Paul, native court worker and one of the founders of First Nations Court. “At the end of the day, we could see the health of the whole family.”
Because of two mothers who refused to be silenced and the courage and sacrifice they showed with their constitutional challenge, the cries of a broken system can finally be heard. They are the muted cries of the babies denied the benefits of breastfeeding and mother-infant bonding. They are suppressed cries of the 22,000 aboriginal children in foster care. They are the gagged cries of the 90 per cent of federally-sentenced women who have experienced physical and sexual abuse. And they are the resonating cries of children taken from their mothers to residential schools.
With her decision in this case, Justice Ross is ensuring those babies who would be taken from their mothers are wrapped in the protective blanket of their rights — and creating a precedent for change.
Samantha Sarra is a co-principal investigator of Bonding Through Bars, an international research roundtable through the Peter Wall Institute for Advanced Studies at UBC. She also was recently the writer in residence on prison health at the Family Medicine Forum.