The seminal case of Racine v. Woods from the Supreme Court has set the path for many indigenous children’s lives and their upbringing. However, is now the time to ask- is this case still good law?
This case was decided in 1983, just after the Canadian Charter of Rights and Freedoms was introduced in 1982. Notwithstanding that the introduction of the Constitution and Charter confirmed Aboriginal Rights as a specific right, at the very same time the SCC was determining that when considering the best interests of a child, the importance of culture can diminish when considering placement.
In the case of Racine v. Woods, a young Aboriginal woman who was a survivor of the Sixties Scoop had her child, Leticia, temporarily removed from her care and placed in Foster Care with a non-Indigenous family. The foster family later applied for adoption of this child. The Court found that the child should remain with her foster family as the importance of her cultural heritage diminished over time and it was replaced by attachment between the child and her foster parents. In other words, the Court effectively held that “the importance of culture diminishes over time and that bonding to adoptive or foster parents becomes more important.”
However, despite the fact that this case has set the stage for the permissiveness of long-term and indefinite placement of Indigenous children outside of their culture since the 80’s, it is a little known fact that this child later suffered severe difficulties in her life, being subjected to alcoholism and sexual abuse from a member of that family, engaging in drug use and gang-affiliation, and was ultimately removed from the care of her adoptive parents and placed in care. It was not until, as an adult, that Leticia discovered her cultural identity and began to heal, now working to bring attention to the real harms visited upon survivors of the Sixties Scoop.
This all occurred despite the Supreme Court of Canada finding that Leticia was more attached to the foster parents and that this connection was more important than her cultural heritage.
This case was decided by the Supreme Court of Canada, the highest court in the country, and created a precedent that has resulted in many Indigenous children in Alberta being raised outside of their culture. Children who have been apprehended are being placed “temporarily” in foster care until a Permanent Guardianship Order is granted. Due to the large number of Indigenous children who are in care in Alberta many have been placed temporarily with non-Indigenous caregivers. These placements often become attached to the children they are “temporarily” caring for and apply for Private Guardianship after a Permanent Guardianship Order has been granted. Given the slow process of the Courts in determining Permanent Guardianship hearings, and the subsequent slow pace at which hearings for Private Guardianship can take place, particularly if contested by a family member of a child, foster parents typically rely on the case of Racine v. Woods and the lower court decisions in Alberta that have flowed from this. These cases play directly to the benefit of foster parents in the sense that by the time the matter is finally heard at the Provincial Court, the children will likely have been in the care of the foster parents, presumptively temporary caregivers, for well over a year or more as the courts are reluctant to move children prior to a final determination, allowing the foster parents to assert the claim of “attachment” over the importance of culture. By and large, the lower courts in Alberta simply defer to the euro-centric theory of attachment and pay little heed to the social developments and burgeoning awareness of the extreme damage that can occur to Indigenous children when removed from their culture. This is notwithstanding the numerous apologies of the Federal and Provincial Governments to survivors of the Residential Schools and the Sixties Scoop, the findings of the Truth and Reconciliation Commission, and the recent $750 million-dollar settlement in the case of Canada v. Brown to survivors of the Sixties Scoop. Rather, when opposition is raised by First Nations, or Indigenous families to the placement of their children with non-Indigenous families, the Courts often myopically dismiss such arguments as being merely “political” in nature.
What the cases that have followed the reasoning in Racine v. Woods do not consider are the societal changes that have occurred.
Since the case of Racine v. Woods was decided the following key shifts have occurred:
- 1996: The last Residential School – the governmental-sponsored policy that sought to forcibly assimilate approximately 150,000 Indigenous children into Euro-Canadian culture – closed its doors;
- 1996: The Royal Commission on Aboriginal Peoples publishes its Report finding the Government of Canada’s colonial policies of assimilation undermined and almost erased Aboriginal cultures, and that these policies have been failures and that Canada needed to repair the relationship with Indigenous peoples through the principles of mutual recognition, mutual respect, sharing and mutual responsibility;
- September 2007: The United Nations Declaration on the Rights of Indigenous Peoples is adopted by the General Assembly, ‘enshrining the minimum standards for the survival, dignity and well-being of Indigenous people of the world’;
- June 2008: Prime Minister Stephen Harper offers a full apology on behalf of Canada for the institution of the Residential School system;
- June 2015: The Truth and Reconciliation Commission in Canada publishes its Report and issues 94 Calls to Action as instructions to guide governments, communities, and faith groups as they participate in the process of reconciliation with Indigenous peoples;
- February 2017: Brown v. Canada was decided in the Superior Court of Justice in Ontario, on a summary basis, finding Canada liable in tort for the Sixties Scoop survivors in Ontario. For those Indigenous children being taken from their birth families and placed into non-Indigenous homes and being denied their culture, a relationship with their community, and their families, the Court approved the payment of up to $750 million to cover individual payments to Sixties Scoop survivors and a further $50 million to fund a foundation memorializing the stories of the Sixties Scoop survivors;
- May 2018: Rachael Notley apologized on behalf of the Province for the role of the Alberta government in perpetuating harm to Indigenous people during Sixties Scoop;
- February 2019: Amendment of the Child Youth and Family Enhancement Act (Alberta) (the “CYFEA) pursuant to Bill 22: “An Act for Strong Families Building Stronger Communities” – signalling Alberta’s commitment to emphasizing the importance of cultivating culture and familial connections in Indigenous children by adjusting policies and processes under the CYFEA to be more supportive to indigenous people.
It is undeniable to see that the former view taken in Racine v. Woods, that the attachment developed in the early years can easily trump the importance of maintaining cultural and familial connections, which research demonstrates becomes increasingly important as the child matures, is itself diminishing with time. It is clear that government and society as a whole are recognizing that cultural safety and the preservation of culture is key to an individual’s identity. The counterpart to this is that it is also being recognized in Canadian society that the Government’s attempts to eradicate Aboriginal societies and cultures, and to deprive Aboriginal children of their heritage has cause multigenerational trauma and destruction amongst Aboriginal communities that continues and that is evident in the plague of social ills being suffered by many Aboriginal societies. It was Duncan Campbell Scott, the Minister of Indian Affairs in Canada between 1913 to 1932 who played a pivotal role in the expansion of the Residential School System, who famously stated that “The happiest future for the Indian race is absorption into the general population, and this is the object and policy of our government.” Almost 100 years later, our governments and society are finally realizing that such policies have created anything but a happy future for Aboriginal persons and communities. However, the historical decisions of our Courts in placing so much emphasis on the euro-centric theory of attachment over and above any other considerations could be seen to be continuing the policies that founded the Residential School System, even though it is likely that such was being done unintentionally due to a lack of true understanding as to sheer importance of cultural safety for Aboriginal persons.
However, notwithstanding that the decision of Racine v. Woods is still considered “good law” and the courts across Canada still rely upon it as precedential, the shifts in governmental and social awareness as to the importance of culture to Aboriginal persons have served to create an option for lower courts to not follow Racine v. Woods. In the case of Bedford v. Canada (Attorney General)  3 SCR 1101, the Supreme Court of Canada did recognize that the decisions of the highest court in Canada are not wholly binding, and do not prevent a lower court from arriving at a different conclusion where, among other things, there is a change in evidence or circumstances that fundamentally shifts the debate.
Such a statement also appears in line with the comments of the Supreme Court of Canada in the case of R. v. Salituro,  3 S.C.R. 654, wherein the Court stated, “Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared.” As a result, notwithstanding the findings of the Court in Racine v. Woods, it is time to recognize that there has been a significant shift in both governmental and societal awareness as to the significance of preserving culture for Aboriginal persons and the extreme damage that is visited upon the individual and their communities when Aboriginal children are removed from their traditional cultures and denied their heritage. It is time for the courts in this country to align with the rest of society and fully consider this in their decision making in recognizing that Racine v. Woods no longer represents the values and truths in contemporary Canadian society. In the case of Brown v. Canada, the Court cited a question posed on the Sixties Scoop Website, which questioned the amount of the settlement per survivor. In response to this question, the Court positively quoted the answer provided by lead counsel in the matter as being “astute and unassailable”; this answer so eloquently provided bears repeating here as it speaks to the future of how our Courts must view the finding of Racine v. Woods going forward:
“[…] while this settlement cannot give you back what you deserve or what you have lost, it can make a very big difference. It is symbolic and shows that cultural identity will now be something that courts have to consider, and measure in all cases from this point forward. Because of you, the law must now recognize that “saving the child” means keeping him or her with family, or extended family or her or his community.”