Discretion and Discrimination - Admission in Apprehension Hearings for Child Protection Matters

Author:  Abby Stein

In 2022, Indigenous people accounted for 7.7% of children under 15 years old; however, they represented 53.8% of children in foster care.”[1] Additionally, over 50% of Indigenous children in foster care lived with non-Indigenous parents.[2] These statistics raise enormous concern, as even with the TRC Calls to Action and Bill C-92, Indigenous children continue to be taken away from their families and culture at an alarming rate. The result is modern-day colonialism, re-traumatization, and the ongoing genocide of Indigenous peoples in Canada. The devastating effects of this system can be seen in the children, families, and communities that are impacted by the forced removal of Indigenous children from their homes.

Integrating hearsay in initial apprehension hearings can be beneficial. However, without the appropriate checks and balances, it can also be detrimental to Indigenous families. This is because hearsay evidence fails to account for discrimination, biases, and the impact of modern-day colonialism on Indigenous peoples nationwide.

This failure leads to a crucial question: how can courts dealing with Child and Family Services (CFS) matter effectively ensure that Indigenous perspectives and realities are both heard and accounted for while putting an end to the modern-day scoop?

To begin addressing this question, we can look to what is often regarded as the commencement of CFS matters: the apprehension hearings. In analyzing the true efficacy of apprehension hearings as they relate to Indigenous families, it is integral to look at the purpose of the hearings and hearsay, how courts are navigating them, and their relative impact both presently and in the future.

Purpose of Child Protection and Apprehension Hearings

Nunavut’s Child and Family Services Act (the Act) regulates child protection matters and the processes that need to be followed. The Act looks to support the well-being of families by ensuring that children are entitled to protection from abuse while also including families on the decision-making process and informing them of their rights.[3] In protecting children from abuse and harm, the Act focuses its attention on the best interests of the child, while respecting the differing cultures within Nunavut when making decisions on how to proceed in protecting the child.[4] When acting in the best interest of the child, several factors are looked at to determine if apprehension is required. These factors include the child's safety, their physical, mental, and emotional development and needs, cultural needs, and community connection.[5] Taking these factors into account allows for situations where a child needs protection in order for the Act to take effect.

Section 7(3) states eighteen subsections where a child in need of protection may be apprehended; however, it is assumed that every case is unique and may fit into one or numerous reasons for apprehension.[6] 

The process for issuing an apprehension will occur in one of two ways. 

An apprehension can occur following a report made to a child protection worker; or, alternatively, without a report, when an authorized person apprehends the child under reasonable grounds.[7] Once grounds have been established for a child to be in need of protection, an apprehension will occur with notice being given to the parents or guardians of the child.[8]

The process used during apprehensions allows someone who is authorized, such as a child protection worker or a peace officer, to enter the home without warrant at any time to take the child.[9] This process can create traumatic situations for the parent and child(ren), considering the context of the apprehension and the emotions that follow the removal. Once an apprehension has occurred, a child protection worker must notify the family and provide reasoning for the apprehension.[10] Following the notice of apprehension, the agency submits an application to declare the need for a child protection order, which must be filed within four days of the apprehension.[11] After an application has been filed, the initial hearing of this application is heard by the court no later than nine days after the application is filed.[12] Once these steps have occurred, the matter will enter the court system. As stated by the Act, all sections and processes within it shall act in accordance with Inuit societal values, such as “Ajiqatigiinniq, meaning to make decisions through discussion and consensus, and Piliriqatigiinniq, meaning working together for a common cause.”[13] However, as evidenced by the case law referenced throughout this blog, the integration of Inuit values for child protection proceedings is often ignored.

What is hearsay and how is it used currently in child protection matters?

Hearsay is an out-of-court statement that is offered at a court proceeding to “prove the truth of its contents.” [14] The general hearsay rule is that it is presumptively inadmissible in proceedings, however, there are both general and specific exemptions where hearsay is admissible so long as it contributes to the administration of justice.[15] Specifically, in an apprehension hearing, the evidentiary burden is much lower than would be expected in a child protection hearing.[16]

This is because the timeline is much shorter, as children could be in imminent danger, and therefore the only evidence available is often found in affidavits and hearsay. [17] These types of evidence can be provided by both parties and relied upon by the courts if deemed credible and trustworthy, which is a determination that is left to the individual Justice of the Peace (JP) or judge.[18] In Director of Child and Family Services v A.A [A.A.], Chief Justice Sharkey made an analogy between an apprehension hearing and a bail hearing.[19]  In this analogy, the Chief Justice demonstrated how, in both situations, the Justice or JP may “receive and base their decision on evidence that they consider credible and trustworthy in the circumstances.”[20] This means that hearsay evidence is permissible so long as it relates to the matter at hand.[21]

The Nunavut Court of Justice (NUCJ) further explained that evidence in apprehension hearings can include hearsay either within the affidavit itself or viva voce testimony.[22] However, at the time of the hearing, it remained unclear whether such information must come directly from the parent or if it can be delivered by their counsel.[23] Chief Justice Sharkey determined that counsel for a parent in an apprehension hearing should be allowed to offer information so long as it is easily verifiable and counsel has verified it.[24] This means that counsel could inform the JP about the parents’ life circumstances, plans to enter rehabilitation programs, community involvement, and more.[25] However, if evidence brought forward by counsel for the parents is disputed, the JP should not consider it credible without hearing from the source directly–namely the parent.[26] In A.A., when counsel told the JP that their client would ensure they “did not drink in front of the kids and that there would be no violence in the home,” this was considered inadmissible hearsay as this information should come directly from the parent.[27]

Further to this, when there are factual disputes regarding contradictory evidence, section 26.1(1) of the Act states that “contradictory evidence should always be resolved in favour of the director.”[28] This creates issues because it upholds colonial values while simultaneously devaluing Indigenous peoples, their experiences, cultures, and histories. However, in recent jurisprudence, factual disputes can be resolved in favour of the parents when they are able to provide reasonable explanations that can disprove the case of the agencies. Importantly though, there still remains risk with hearsay because the ultimate determination is left to the courts, which can leave room for continued biases and discrimination.[29]

While the admission of hearsay evidence in apprehension hearings can be seen as a form of grace and understanding, it presents an illusion of victory for Indigenous peoples. The stark reality, however, is that much discretion is left to the courts, as Justices and JPs are given the power to assess credibility as counsel describes the efforts and lived realities of their client as they fight to keep their children not only within their home but also within their culture. This disadvantage is furthered when there is conflicting evidence, and the outcome of such conflict, as per the Act, favours agencies.[30] 

This gives more weight to evidence that has the potential of being filled with assumptions, biases, and discrimination, while devaluing the experiences of families facing some of the most difficult moments in their lives.[31]

How can we bridge this gap while both protecting children and putting an end to the modern-day scoop?

In January of 2020 Bill C-92 came into effect and was titled An Act Respecting First Nations, Inuit and Métis Children, Youth and Families.[32] Its purpose “affirms the rights and jurisdiction of Indigenous peoples in relation to CFS and sets out applicable principles.”[33] Bill C-92 has the potential to support the gap of protecting children and putting an end to the scoop. However, this requires the collective work of all parties at the federal, provincial, and community levels. Measures need to be taken throughout the proceeding, whether an Indigenous child has laws in their nation to support them through the child protection process or whether they must rely on colonial laws that fail to account for their lived realities as an Indigenous person.

In supporting families and decreasing the gap, Canada needs to effectively understand and proceed with Indigenous values and laws in collaboration with Bill C-92’s purpose and principles. In Australia, “the Maori child is not to be viewed in isolation, or even as part of nuclear family, but as a member of a wider kin group or hapu [sub-tribe] community that has traditionally exercised responsibility for the child’s care and placement… the wellbeing of a Maori child is inextricably related to the sense of belonging to a wider whanau [extended family, kinship] group.”[34] This demonstrates how the integration of Indigenous perspectives and laws are crucial for making decisions in the community. Indigenous peoples sharing their stories will ensure their perspectives, cultures, and histories are included when Justices and JPs are making life-altering decisions such as child apprehension.

Conclusion

The CFS system has harmed Indigenous communities for centuries and while court proceedings account for the need of hearsay to support families, it fails when it comes to the discretionary power afforded to JPs and Justices. While Nunavut currently allows hearsay evidence to be provided, limitations and barriers are created through the use of the Act by favouring agencies and devaluing the experiences of Indigenous families. The current system needs to be restructured to support families while reducing the process of inflicting more harm. Bill C-92 will be the starting point to critical change. By bringing in and respecting Indigenous perspectives in child and family proceedings, we can support and uplift communities to remove colonial control. The positive effect of this bill will require the work of all sectors involved in child protection matters for the future of Indigenous children.

Child at window

Endnotes

[1] Tara Hahmann, Hyunji Lee & Sylvie Godin “Indigenous Foster Children Living in Private Households: Rates and Sociodemographic Characteristics of Foster Children and Their Households” (18 April 2024), online: <www150.statcan.gc.ca/n1/pub/41-20-0002/412000022024001>.

[2] Ibid.

[3] Consolidation of Child and Family Services Act, SNWT 1998, c. 13, as duplicated for Nunavut by s 29 of the Nunavut Act, SC 1993, c 28, s 1 [The Act].

[4] Ibid, s 3.

[5] Ibid.

[6] Ibid, s 7(3).

[7] Ibid, s 10, 11.

[8] Ibid, s 10.

[9] Ibid, s 33.

[10] Ibid, s 34(1).

[11] Ibid, s 24(1).

[12] Ibid, s 26.

[13] Ibid, s 2(2).

[14] Paciocco et al, The Law of Evidence, 8th ed (Toronto: Irwin Law, 2020) at 135.

[15] Brandon Trask, Evidence Class 2, Lecture Powerpoint (Faculty of Law, 2024) at 39.

[16] Director of Child and Family Services v A.A, 2024 NUCJ 09 at para 91 [A.A].

[17] Ibid at para 91.

[18] Ibid at para 94.

[19] Ibid at para 113.

[20] Ibid.

[21] Ibid.

[22] Ibid at para 123.

[23] Ibid at para 124.

[24] Ibid at para 131.

[25] Ibid at paras 131-132.

[26] Ibid at para 133.

[27] Ibid at paras 149-150.

[28] Ibid at para 155.

[29] Ibid at para 164.

[30] A.A, supra note 12 at para 157.

[31] Ibid.

[32] Bill C-92, An respecting First Nations, Inuit and Métis children, youth and families, 1st Sess, 42th Parl, 2019 [Bill C-92].

[33] Ibid at 2.

[34] First Nations Child and Family Caring Society of Canada, Indigenous Children: Rights and Reality (no idea what to put, 2006) at 36.