BC previously warned that “birth alert” system disproportionately affecting Indigenous parents was “illegal and unconstitutional”

“Birth alerts” in BC refer to the controversial practice where social workers flag expectant parents to hospital staff without their consent when they believe the expectant parent poses a risk to the newborn. The birth alert directs hospital staff to alert the social worker when the baby is born. Ministry of Children and Family Development (“MCFD”) records from 2019 show that birth alerts result in the removal of a newborn from their parents “approximately 28% of the time.” Indigenous families are disproportionately affected by the birth alert system. According to MCFD’s records, 58% of parents impacted by birth alerts in 2018 were Indigenous. Birth alerts have been referred to in a report by the National Inquiry Into Missing Indigenous Women and Girls as “racist and discriminatory” and a “gross violation of the rights of the child, the mother, and the community.” Former Representative for Children and Youth Mary Ellen Turpel-Lafond stated the following to IndigiNews about the practice:

“Apologies and amends are necessary, as there has been harm done, including promoting the stereotypes that Indigenous families require intense surveillance because they cannot safely care for their own children,”

https://indiginews.com/vancouver-island/birth-alerts

On May 6, 2019, the BC Attorney General’s office sent a memo to the MCFD confirming that:

“the use of hospital alerts, and other activities involving the disclosure of information without the consent of expectant parents is both illegal and unconstitutional.”

https://indiginews.com/vancouver-island/birth-alerts

However, the practice was not banned by the BC government until September 16, 2019.

If a newborn has been traumatically removed from your family shortly after birth, you may not even know yet that the removal resulted from a birth alert. According to MCFD, it has not advised families that their privacy rights have been breached with the issuance of birth alerts.

One spokesperson for MCFD claimed in a statement to IndigiNews that this was because MCFD did not want to “retraumatize” affected families by providing notifications of past birth alerts. In my view, this response only reinforces that the MCFD takes a discriminatory and paternalistic approach in its interactions with Indigenous families. The baby alert approach promoted a stereotype that Indigenous families are not capable of safely caring for their own children. The comment from the MCFD about retraumatization again reinforces a stereotype that Indigenous families are not capable of deciding what is best for them.

The MCFD should notify families that their privacy was breached by the issuance of a birth alert and then the families can decide for themselves whether they wish to potentially face retraumatization by going through a process of seeking an apology and amends. MacIsaac and Company is currently investigating potential claims regarding this matter.

 

ER Staff “Game” of Guessing Indigenous Patients’ Blood-Alcohol Levels is Potential Human Rights Code Violation

Fontaine

CEO Daniel Fontaine of the Métis Nation of British Columbia (MNBC) and the British Columbia Association of Aboriginal Friendship Centres (BCAAFC) advised  the BC government this week that they have heard emergency room health care staff are playing a “game” of guessing the blood-alcohol concentration levels of Indigenous patients. The allegation became public today, when Provincial Health Minister Adrian Dix held a news conference to advise that he had been made aware of the allegations yesterday and the MNBC issued a media release stating that the “game” is unacceptable.

According to Fontaine, it has been reported that hospital staff called the game “the Price is Right.” They try to guess the blood-alcohol levels as close as they can, without going over. Fontaine stated that the practice is “deeply disturbing and must immediately come to an end.” Dix stated that “if true, it is intolerable, unacceptable, and racist and its effect on patient care is intolerable, unacceptable, and racist.” The MNBC and BCAAFC have called upon the Ministry of Health to accept the following four recommendations:

  1. A public inquiry into Indigenous specific racism in health care in B.C with a focus on hospitals and emergency departments.
  2. Ensure that all front-line staff are required to take mandatory First Nations, Métis and Inuit training that results in increased health professional personal accountability in the delivery of safe health care.
  3. Commit to structural and systemic changes to dismantle indigenous specific racism to ensure culturally safe health care experiences for Indigenous people.
  4. Ensure that Indigenous governments play a stronger role in the development and implementation of anti-racism programs and training throughout BC.

If the allegations are true, there is potential for this abhorrent conduct to give rise to a representative complaint under the BC Human Rights Code. The BC Human Rights Tribunal Form 1.3 – Complaint for Group or Class allows complainants to file complaints about discrimination on behalf of a group or class of people. A “group” is a “number of individuals who are or easily could be identified by name. For example, people who work for the same employer, or people who are members of the same society or association.” A “class” is a “number of individuals who can be identified by characteristics that they share. For example, residents of Vancouver who are visually impaired.” I would argue that the Indigenous targets of these acts are members of both a group and a class. If the staff members who played this “game” and times during which they did so are made available, the patients who they saw at those times could potentially be identified. Those patients would be members of a “group.” Additionally, Indigenous residents of the identified Health Authority, or of the province, may constitute a “class.”

The BC Human Rights Code is meant to prohibit discrimination in certain areas of daily life based on someone’s race, colour, ancestry, or place of origin, among other characteristics. Indigeneity, of course, falls within the protected characteristics. One of the areas of daily life that are meant to be protected is the provision of accommodation, services, and facilities customarily available to the public. As such, the provision of health care services falls within the code-protected areas of daily life.

Dix has appointed Mary Ellen Turpel-Lafond to investigate the matter and make recommendations about an immediate long-term response. She is a former judge and the former Representative for Children and Youth of BC, among many other accomplishments. She is now a professor at UBC and senior counsel in the area of Aboriginal Law.

In addition to Turpel-Lafond’s investigation or in response to her recommendations, it’s possible that a representative human rights complaint could be made.

Landlord Ordered to Pay Indigenous Tenant $23,000 for Discrimination Over Smudging

On February 28, 2020, in Smith v. Mohan (No. 2), 2020 BCHRT 52, the BC Human Rights Tribunal issued its reasons for deciding that a landlord contravened the BC Human Rights Code by making discriminatory statements to his Indigenous tenant and attempting to evict her after learning that she smudged in her apartment.

The tribunal member who made the decision found that complainant Crystal Smith, a member of the Tsimshian and Haisla Nations, was a credible witness, and the Respondent Parminder Mohan was not.

In making her arguments, Ms. Smith relied on the evidence of an expert who wrote a report and testified about the impacts of smudging on air quality and human health. Social context evidence that she relied on included the Final Report of the Truth and Reconciliation Commission of Canada, Volume One and Social Determinants of Health: Aboriginal Experiences with Racism and its Impacts. Ultimately, the tribunal member did not rely on this evidence.

Ms. Smith’s description of smudging is set out as follows:

[50] To smudge, Ms. Smith testified she lights the sage in the abalone shell and fans it with the eagle feather to create smoke. She testified the smoke cleanses negative energy from a person or space. She explained different methods for smudging a person, where you use the smoke to wash over yourself – your head, your eyes, your heart, your whole body; whereas for
a house, you start from the left and smudge the whole house. Ms. Smith testified that a typical smudge lasts for around 10 minutes and there is no ash, except what is left in the shell. She testified that in her experience, the sage creates a white smoke that has a smell that lasts for a few hours, and that after burning the sage she would put what remained in a jar to return to the land.

The tribunal stated the following about a landlord’s ability to prevent a tenant from smudging:

[245] In my view, a policy that prohibits an Indigenous tenant from smudging entirely due to concerns about “nuisance” or “property damage” unless they can persuade their landlord the smudging would not create a risk of nuisance or property damage would adversely impact Ms. Smith and persons with her protected characteristics in and of itself.

Mr. Mohan was ordered to cease contravening the BC Human Rights Code and pay Ms. Smith the following damages:

i. $1,500 for compensation for wages lost as a result of the contravention;
ii. $1,800 as compensation for expenses incurred as a result of the
contravention;
c. $20,000 as compensation for injury to her dignity, feelings, and self‐respect;

for a total of $23,300 plus post-judgement interest.