[i] The characters in this narrative are fictitious and are not based on a particular person. Rather, the characters are based on research and observations of a number of Aboriginal mothers in prison.
[ii] R.S.O. 1990, c. C.11 [CFSA].
[iii] A.C. Hamilton and C.M. Sinclair, Report of the Aboriginal Justice Inquiry of Manitoba, Vol. 1, The Justice System and Aboriginal People (Winnipeg: Queen’s Printer, 1991) at 475.
[iv] There are two ways in which a child may come into the care of a Children’s Aid Society following apprehension: by way of a court order; or through “temporary care agreements” which are voluntary agreements when the parent is temporarily unable to care for a child. This will discussed further, but for the purposes of this discussion, the distinction is not relevant. See s. 70(2) CFSA. See also Durham Children’s Aid Society, “What is Foster Care?” online: Durham Children’s Aid Society <http://www.durhamcas.ca/FosterCareWhatIs.php>.
[v] Lauren Sasaki, “The Contribution of the Child Welfare System to the Deterioration of Aboriginal Culture and the Need for Aboriginal Control” (1994) 1 Aboriginal Women’s Law Journal (Native Women’s Association of Canada).
[vi] Society wardship refers to a situation where a child has been removed from the parent(s) or guardian(s) and an order has been made whereby the Children’s Aid Society exercises the rights of the parent.
[vii] Special needs agreements under s. 30(1) are used where a parent is unable to provide the necessary services required by a special needs child. Section 51(2)(d) refers to a child being put in the care and custody of the Children’s Aid Society under a temporary order during an adjournment of a hearing.
[viii] With respect to temporary care agreements, s. 29(6.1) explains that the time limits in s. 29(6) also include time in care as a society ward and under temporary orders. Because the time limits in ss. 70 and 29 are equivalent, the distinction between whether a child was taken into society care by way of an agreement or court order becomes irrelevant for the purposes of telling Janine’s story.
[ix] Section 29(6.2) parallels s. 70(2.1) regarding the cumulative nature of time in care with respect to temporary care agreements.
[x] With respect to the time limits in s. 29(6), the agreement including extensions cannot extend beyond the time periods stated.
[xi] CFSA, supra, note 2 s. 70(3).
[xii] Ibid. Section 65 refers to variations of a child’s status under supervision or society wardship orders.
[xiii] CFSA, supra note 2 s. 70(4); paragraphs 2 and 4 of s. 57(1) refer to society wardship under which a child can only remain for a 12 month period.
[xiv] For Nathan, however, since he has spent three months in care, the relevant time period is nine months.
[xv] A customary care arrangement is defined in s. 208 as “the care and supervision of an Indian or native child by a person who is not the child’s parent, according to the custom of the child’s band or native community.”
[xvi] Gabriel Dumont Institute of Native Studies and Applied Research in Correctional Service of Canada, Creating Choices: Report of the Task Force on Federally Sentenced Women, Chapter III “The Voices of Others Who Care” online: Correctional Service of Canada <http://www.csc-scc.gc.ca/text/prgrm/fsw/choices/choice4e-eng.shtml>.
[xvii] S. Trevethan, S. Auger, J-P. Moore, M. MacDonald, and J. Sinclair. The Effect of Family Disruption on Aboriginal and Non-Aboriginal Inmates (Ottawa: Correctional Services of Canada, Department of Justice & Assembly of First Nations, September 2001), online CSC: <http://www.csc-scc.gc.ca/text/rsrch/reports/r113/r113_e.pdf> at ii, 18-19, 21.
[xviii] Ibid. at 26.
[xix] Ministry of Community Safety & Correctional Services, A Safe, Strong, Secure Ontario: Strategic Plan 2008-2013 (October 2008) online: MCSCS <http://www.mcscs.jus.gov.on.ca/stellent/groups/public/@mcscs/@www/@com/documents/webasset/ec069601.pdf>.
[xx] Hamilton & Sinclair, supra note 3 at 498.
[xxi] Lee Anne Schiendein, “The Aboriginal Healing Lodge: A First Step” (1992), 56 Sask. L. Rev. 427 (QL) at 6.
[xxii] Correctional Service of Canada, “Mother-Child Program”, online: Correctional Service of Canada < http://www.csc-scc.gc.ca/text/prgrm/fsw/pro02-5-eng.shtml>.
[xxiii] Megan Vis-Dunbar, “Child Apprehensions in BC Correctional Facilities” Presented to the Board of the British Columbia Civil Liberties Association (November 10, 2008), online: British Columbia Civil Liberties Association <http://www.bccla.org/positions/children/08Child_Apprehensions.pdf> at 7.
[xxv] Native Women’s Association of Canada, “Aboriginal Women and the Legal Justice System in Canada,” online: NWAC < http://www.nwac-hq.org/en/documents/nwac-legal.pdf>.
[xxvi] Vis-Dunbar, supra note 23 at 7.
[xxvii] Ontario Women’s Justice Network, “Women in Provincial Institutions”, online: Ontario Women’s Justice Network < http://www.owjn.org/owjn_2009/index.php?option=com_content&view=article&id=60&Itemid=67>.
[xxviii] Vis-Dunbar, supra note 23 at 7.
[xxix] Elizabeth Fry Society of Toronto (March 2008) “Imprisonment but not Sentenced” 24:2 Out for Change in “Women in provincial institutions”, online: Elizabeth Fry Society of Toronto <http://efrytoronto.org/publications/newsletters/Efrytoronto%20Newsletter%20March%202008.pdf> at 1.
[xxx] Statistics Canada, “Custodial Remand in Canada 1986/87 to 2000/01” in Juristat: Canadian Centre for Justice Statistics by Sara Johnson (Catalogue no. 85-002-XIE, Vol. 23, no. 7, 2003) online: <http://dsp-psd.communication.gc.ca/Pilot/Statcan/85-002-XIE/0070385-002-XIE.pdf> at 9.
[xxxi] Ministry of Community Safety & Correctional Services, supra note 19 at 7.
[xxxii] John Howard Society of Ontario, Remand in Ontario: A Backgrounder (September 2005), online: John Howard Society of Ontario <http://www.johnhoward.on.ca/pdfs/remand.pdf> at 3.
[xxxiii] R.S., 1985, c. C. 46 [Criminal Code].
[xxxiv] John Howard Society, supra note 32 at 3.
[xxxv] Elizabeth Fry, supra note 29 at 1; see also Rebecca Kong and Kathy AuCoin, “Female Offenders in Canada” online: Statistics Canada <http://www.statscan.gc.ca/pub/85-002-x/2008001/article/10509-eng.htm>.
[xxxvi] Correctional Service of Canada, “Programs and Activities Intended for Inmates and Parolees”, online: Correctional Service of Canada <http://www.csc-scc.gc.ca/text/fami/news/contrib0506-eng.shtml>.
[xxxvii] A number of “Treatment Programs” are listed on the Ministry of Community Safety and Corrections website at <http://www.mcscs.jus.gov.on.ca/english/corr_serv/adult_off/treat_prog/treat_prog.html>. Parenting classes is listed among these, along with life management skills and other counseling programs. However, there is no specific mention of mother-child specific programs or family support programs. There has been much less attention given to what is available in provincial institutions compared to what is available at the federal level.
[xxxviii] Elizabeth Fry, supra, note 29.
[xxxix] Ontario Women’s Justice Network, supra note 27.
[xl] One of the women interviewed at Grand Valley Institute for Women (GVIW) mentioned that she and her sister both asked for federal sentences following their convictions as they realized that after years spent in and out of provincial institutions that they were not getting the help that they needed trough programming. Also, one of the correctional services officers at GVIW noted that the caliber of programming available at the federal level is far superior than that offered in provincial prisons. This makes sense based on the fact that women are serving shorter sentences in provincial prisons and therefore there may not be the demand or the justification for a variety of programming, including parenting classes, and other Mother-Child programs.
[xli] NWAC, supra note 25 at 2.
[xlii] See Mary Ellen Turpel, “Critical Perspectives on Family Law: Race, Gender Class – Home/Land” (1991) 10 Can. J. Fam. L. 17-40 (QL). Turpel discusses the value of “home land” in relation to matrimonial real property. The principles she articulates relating to the significance of the community as an epicenter for family, culture and language equally apply to issues of separation of Aboriginal women from their communities. See paras. 36-37.
[xliii] Elizabeth Fry Societies of Ontario, “Facilities for the Incarceration of Women in Ontario”, online: Council of Elizabeth Fry Societies of Ontario <http://www.cefso.ca/prisons.html>.
[xliv] Schiendein, supra note 21 at 6.
[xlv] Vis-Dunbar, supra note 23 at 4.
[xlvi] Jeff Christian, District Director, Alberta/Northwest Territories District in Correctional Services Canada, Creating Choices: Report of the Task Force on Federally Sentenced Women, Chapter III “The Voices of Others Who Care”, online: Correctional Service of Canada <http://www.csc-scc.gc.ca/text/prgrm/fsw/choices/choice4e-eng.shtml>.
[xlvii] Vis-Dunbar, supra note 23 at 5.
[xlix] Ibid at 4.
[li] Schiendein, supra note 21 at 6.
[lii] There was a recent case in the Saskatchewan Court of Appeal involving an Aboriginal mother where the judge took into consideration that hardship incarceration has brought to the children, who had to be separated living with different family members, and varied the offender’s sentence so that she could serve the remainder of the sentence in the community. See R v. McLeod  S.J. No. 497; 2009 SKCA 93 (Sask. C.A.).
[liii] A judge in Manitoba did expressly note that the accused’s “status as a mother of two young children” was a mitigating factor in sentencing. R. v. MacDougall  M.J. No. 400; 2009 MBQB 299. See also R. v. Waskewitch  S.J. No. 718 at para 30.
[liv] R. v. Brooks  N.S.J. No. 519 at para. 76.
[lv] R. v. Batisse  O.J. No. 452 (Ont. C.A.) at para. 37. Although the hardship of separation was acknowledged and the sentence was reduced, the Court of Appeal did not find the circumstances warranted interfering with the trial judge’s decision to incarcerate.
[lvi] R. v. Elias  Y.J. No. 83; 2009 YKTC 59 at para. 33.
[lvii] Abstract of Julie J. Fournier L’experience des meres justiciables: Leurs perceptions de leur role de mere lors de l’incarceration et du retour en communaute. Master’s Thesis, (Ottawa: University of Ottawa, 2000), online: Correctional Service of Canada <http://www.csc-scc.gc.ca/text/pblct/forum/e141/141i_e.pdf>at 1.
[lx] This was a point that was raised in a consultation led by the Association of Native Child and Family Services Agencies of Ontario and Native Child and Family Services. It was also echoed by the Director of Social Services from a First Nation community in Northern Ontario.
[lxi] This was noted as a difference between Aboriginal child welfare agencies and mainstream child welfare agencies by the legal services department at Native Child and Family Services.
[lxii] Noel Knockwood, Elder, in Correctional Services Canada, Creating Choices: Report of the Task Force on Federally Sentenced Women, Chapter III “The Voices of Others Who Care”, online: Correctional Service of Canada <http://www.csc-scc.gc.ca/text/prgrm/fsw/choices/choice4e-eng.shtml>.
[lxiii] The use of alternative dispute resolution (ADR) was not specifically discussed in relation to Janine’s story, but may be relevant to her situation, and is worth considering in greater detail.