Indigenous leaders call on B.C. government to notify parents subjected to ‘illegal and unconstitutional’ birth alerts

‘There needs to be an apology… and that’s just the first step’ 

Indigenous leaders

Reporter Anna McKenzie with newborn Cree and Snuneymuxw daughter. Photo courtesy: Hannah with Captured Memories Photography

Families who were subjected to birth alerts deserve to know their personal information was shared between social workers and health care workers without their consent, says Cheryl Casimer.

“First and foremost, those families need to be notified. And I think that there needs to be an apology that needs to be made to those families — and that’s just the first step,” says Casimer, a citizen of the Ktunaxa Nation and a political executive with the First Nations Summit, an organization that makes space for First Nations in B.C. to address issues of common concern.

A “birth alert” or “hospital alert” is when a social worker flags an expectant parent to hospital staff without their consent because they feel the parent may put their newborn at risk. The hospital then notifies the social worker when the baby is born. This practice resulted in babies being apprehended 28 per cent of the time in B.C., according to government records obtained by IndigiNews.

In B.C., there were at least 444 birth alerts issued between Jan. 1, 2018 and Aug. 31, 2019, according to government records. In May 2019, records show that B.C.’s Ministry of the Attorney General warned the Ministry of Children and Family Development (MCFD) that these alerts are “illegal and unconstitutional,” and the ministry flagged them as a litigation risk.

But parents who were subjected to these alerts may not know that their privacy was breached illegally — because, at least in B.C., MCFD says it hasn’t told them.

“Our focus since we ended the practice of birth alerts has been forward looking. We didn’t want to retraumatize affected families by providing notifications of past birth alerts,” wrote an MCFD spokesperson to IndigiNews. “Our goal was to ensure the safety of children by ensuring the family had the supports they needed to keep kids safe.”

IndigiNews shared this statement with Casimer.

“I think that’s absolutely ridiculous. It’s ludicrous,” she says, adding that she made this point to the province in a meeting on Jan. 13, 2021.

“I said that sounds like the same rhetoric that we’ve been hearing all lives, particularly when it comes to residential schools,” she says.

“We have to deal with the issues, the traumas, and you know, the bad things that have happened in the past in order to move on. You can’t just ask us to forget about it, and let’s just look forward.”

She says the government representatives she spoke with agreed to “do some brainstorming in terms of how the province can address this issue.

Indigenous leaders
Cheryl Casimer looks out on Kitselas Traditional Territory in September 2019.  Photo courtesy: Candice George.

Indigenous Peoples are disproportionately impacted by birth alerts. Records show, for example, that 58 per cent of parents impacted by birth alerts in B.C. in 2018 were Indigenous.

“First Nations people have been subjected to so much as a result of these colonial systems and to systemic racism, and it just seems to be another thing on top of a whole range of things that we’re already faced with,” says Casimer.

“Just because people aren’t aware of what their rights are, it doesn’t give you free reign to trump those rights and to abuse those rights.”

Parents deserve to know

When social workers issue a birth alert about an expectant parent, they do it without first getting a parent’s consent. Michael McEvoy, B.C.’s Information and Privacy Commissioner, has determined this constitutes a breach of someone’s privacy.

“Our office has looked at this issue, and it is our view that the practice of ‘birth alerts’ is not authorized by FIPPA [B.C.’s Freedom of Information and Protection of Privacy Act],” said a spokesperson for the commissioner via email.

Class action lawyers have also told IndigiNews that they believe birth alerts are illegal, and that parents have a right to know that their privacy has been breached.

“It is the very least of your duty to them to inform them that you breached their rights. And a proper reaction would be to inform them that you breached their rights, and then to address that breach in a proper way,” says class action lawyer Reidar Mogerman.

“It is frustrating and unjust to see that you want to look forward when you know that you have violated people’s rights in the past, and you are not going to address those violations,” he says.

Social work professor Cindy Blackstock argues that any time a government breaches citizens’ privacy, they should notify them.

As the executive director of the First Nations Child and Family Caring Society, Blackstock took the federal government to the Canadian Human Rights Tribunal for discriminating against First Nations children “by providing less services and driving them into care.” The tribunal ruled in her favour and she continues to demand the government compensate for its mistakes.

“What I find is governments become more concerned about this ‘forward-looking approach’ when they’ve actually been doing something wrong, and they’re worried that disclosure of that information to persons who might have been affected may trigger some kind of action against the government,” she says.

Indigenous leaders
Cindy Blackstock teaches social work at McGill University. Photo courtesy: The Caring Society.

Compare this to the federal government’s response in August 2020, when the Canada Revenue Agency was hit by cyberattacks, she says.

“Revenue Canada had a privacy breach and it had to notify everybody, even though you didn’t know if your information was shared in that breach. That’s the way it should operate across the board,” she says.

IndigiNews asked MCFD minister Mitzi Dean whether she plans to notify parents who had birth alerts issued about them. Her office did not respond before deadline.

Blackstock’s also concerned that a lawyer acting for the provincial government tried to stop IndigiNews from publishing information obtained through a Freedom of Information request, by sending a letter which claimed the ministry had released information about legal concerns related to birth alerts “in error.”

“I don’t think it’s a good sign,” says Blackstock.

When a government is “faced with a breach of rights of children and families in this kind of order of magnitude and it’s reflex is to protect itself instead of protect the families, that’s a problem,” she says.

“We need to reorient government so that they’re really interested in doing the right thing, and not trying to cover up or look good.”

And that goes for families and the community as well, she adds.

“The reality is that child maltreatment and neglect are serious issues, and we have to look those in the eye and address them, so that children are safe in their communities. But we need to do it in a way where families who have those challenges actually have services and supports to be able to mitigate those risks.”

More transparency needed

The government needs not only to be more transparent with families impacted by birth alerts, but also with its Indigenous partners, says Casimer.

She’s part of a tripartite working group including representatives from the federal and provincial governments. The group, which she says includes folks from MCFD, has a collective goal of “making things better on the ground for First Nations leadership and communities and families.”

“While we were at the table, banging our fists about the fact that birth alerts were wrong, and that we wanted them to end it as soon as possible here in British Columbia, we were unaware that internally, they were already being advised that what they were doing was illegal,” she says.

“That’s really frustrating on our part because it takes away from what the purpose and the intent is of the tripartite working group,” she says. “The intent is to have open communication.”

What the B.C. government does next could have implications not just for families in the province, but for families across the country.

B.C., Alberta, Yukon, Manitoba, Ontario and NWT may have formally put a stop to birth alerts,  but other jurisdictions are still using them. Currently, Newfoundland and Labrador, Nova Scotia, New Brunswick, Saskatchewan and Quebec practice birth alerts.

This is part of a series about the legality of #BirthAlerts and the implications for families. If you have a story to share about your own lived experience, email [email protected]

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