Canadian Lawyer

protection afforded mothers, before and after childbirth, and their children. The child's best interests should be the primary consideration in all state action. Children should not be separated from parents unless there is due process or it is in the child's best interest. Except for the limitations imposed by prison, incarcerated persons retain their residual rights and freedoms and the state has a responsibility to promote their wellbeing and development. "The concept of the best interests of the child is an important theme in the human rights instruments. It is also a foundational principle of the [Child, Family and Community Service Act]," wrote Ross. She said while the defendants argued the CFCS Act was not part of the legislative context in the present case and therefore BC Corrections didn't have to consider the best interests of the child, "I concluded that the concept of the best interests of the child and the CRCS Act do form an important part of the context of this case." Ross did not agree with BC Corrections that it "is entitled, without any consideration of the best interests of the children affected, to make decisions that will inevitably result in children being seized by the state." She ruled "the state cannot be permitted, through such compartmentalization, to avoid its obligations under the CFCS Act and the values and rights represented in that statute or to sidestep the principle that in all state actions concerning a child, the best interests of the child shall be a primary consideration." The judge maintained the separation of infants from mothers "during the critical formative period of their life" affected the mother and child bond both through physical and psychological benefits associated with acts such as breastfeeding. In this case, "the mothers have already and will continue to suffer the adverse consequences of separation from their infants," she reasoned. University of B.C. Indigenous Community Legal Clinic director Sarah Rauch, with Fasken Martineau lawyers Geoff Cowper and Kevin Nakanishi, defended the case. Rauch, tells Canadian Lawyer the case held significance for all women but would affect aboriginal women to a greater degree as they are disproportionately represented in the criminal justice system. The important feature of the ruling, says Rauch, is how it creates public awareness of mothers in prison and "the issues they are facing in their lives" and confirms the importance of keeping mother and child together, if deemed to be in the best interest of the child. The suit also argues the rights of the newborn babies to be with a parent, she said. The ruling also makes an important distinction, she points out, as it separates the role of mother from that of offender. "Just because you are incarcerated does not mean you are not a safe and protective parent." — JeAN soreNseN jean_sorensen@telus.net The Osgoode Certificate in Personal Injury Law & Practice April 4 - May 12, 2014 5 Modules over 6 Weeks Osgoode Professional Development Downtown Toronto Conference Centre In this unique, comprehensive program, you will learn from leaders in the field and participate in a learn-by-doing skill building program that will give you the opportunity to develop and practice essential trial skills. Module 1 – April 4, 2014 Client Management MODULES 1 - 4 AVAILABLE VIA WEBCAST Module 2 – April 23, 2014 Expert Evidence Module 3 – April 30, 2014 Discovery and Mediation Module 4 – May 6, 2014 Trial Preparation LSUC (ON) CPD: 33.5 CPD Hours (27.75 Substantive, 5.75 Professionalism) Module 5 – May 12, 2014 Trial Advocacy Program Directors Alf Kwinter, Singer Kwinter Jerome Morse, Morse Shannon LLP Osgoode Professional Development has been approved as an Accredited Provider of Professionalism Content by The Law Society of Upper Canada. Registration Fee: $3295 plus HST Inquire about group discounts, financial aid and CPD credits. To Register: www.osgoodepd.ca, Or Call: 416.597.9724 or 1.888.923.3394 Or E-mail: opd-registration@osgoode.yorku.ca Osgoode Professional Development, 1 Dundas Street West, Suite 2600, Toronto CLE Priority Service Code: 13-73OR www.CANADIAN L a w ye r m a g . c o m F e b r uary 2014 13

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