Indigenous B.C. mom’s years-long legal fight comes to an end with Supreme Court of Canada decision

The Supreme Court of Canada is seen, Friday, June 16, 2023 in Ottawa.THE CANADIAN PRESS/Adrian Wyld

The Supreme Court of Canada will not hear an appeal of a decision awarding $150,000 in damages for discrimination to an Indigenous mom in B.C. whose children were taken from her and put in foster care, bringing a years-long legal fight to its conclusion.

The country’s highest court made its decision last week, upholding a B.C. Court of Appeal decision in the case of R.R. v. Vancouver Aboriginal Child and Family Services Society.

“This decision confirms that parents involved with the child-welfare system retain full human-rights protections, and that discriminatory assumptions cannot justify decisions that separate families,” said a statement on the decision from the Community Legal Assistance Society, which represented R.R.

“Stereotypes related to Indigeneity, trauma, or disability have no place in child-welfare decision-making.”

The mother first made a human rights complaint against the child welfare agency in 2017 after her four children were apprehended.

In 2022, the B.C. Human Rights Tribunal found that the apprehension of R.R.’s children and the subsequent limits on her access to them over the next two years—which included months-long periods of no contact whatsoever—was discriminatory, rooted in stereotypes about and prejudice against her as an Indigenous mom who had experienced mental health issues.

“This is an unprecedented complaint. It exposes systemic forces of discrimination and their profound impacts on an Indigenous mother,” the tribunal found.

The impact of that discrimination, the tribunal found, warranted compensation for injury to dignity, feelings and self-respect “at the highest end of human rights damages.” The tribunal set the award at $150,000.

VACFSS sought a judicial review of the decision, and it was overturned in January of 2024. R.R. appealed that decision, and a ruling in her favour was handed down in May of this year.

The tribunal, the lower court and the appeal court have all pointed out that R.R.’s case is playing out in a context where Indigenous children continue to be dramatically overrepresented among kids in care—a persistent and pernicious legacy of the residential school system.

“By inserting itself into the intimate relationship between parent and child, the state takes on the responsibility of doing so without discrimination,” Chief Justice Leonard Marchand, writing for the three-judge panel of the B.C. Court of Appeal, wrote in his decision.

“Racial or other stereotypes have no place in decisions to intervene. Relying on stereotypes in such decisions, far from being in the best interests of the child, is in the best interests of no one. If our shared history has taught us anything, it has taught us this.”

“Discrimination, whether obvious or insidious, cannot justify the decision to deprive a parent of their child,” the Appeal Court’s decision concluded.

In almost all cases, The Supreme Court of Canada does not provide reasons when it denies leave to appeal. None were provided in this case, and costs were awarded to R.R.