When adults are sent to jail, their children are an 'invisible group,' lawyer says
A survey of sentencing reports found no mention of defendants' children
According to the 1989 United Nations Convention of the Rights of the Child, the best interests of the child should be a primary consideration in all actions concerning children, including in courts of law.
But when adults are sent to jail, their children's interests are rarely — if ever — considered at sentencing.
"They're an invisible group, and that's no different in Canada than it is around the rest of the world," said lawyer Verena Tan. "When we think about people who are being sentenced or incarcerated people ... we very rarely think about their families or their children."
Tan is the co-ordinator of the criminal justice program at the Canadian Friends Service Committee, and the author of a recent report commissioned by the Quaker organization on what happens to the children of incarcerated parents.
In a survey of one year's worth of case law, Tan found no cases where a judge referred to a child's rights in a sentencing report.
Defence lawyers can ask judges to consider a number of factors at sentencing, but judges have no obligation under Canadian law to consider what a sentence will mean for the children of the person sent to jail.
Disproportionate effect on women and Indigenous families
The report found that "according to the most recently available data, 70 per cent of federally incarcerated women report being parents of minor children, and incarcerated women are twice as likely as men to be supporting dependents on the outside."
The Correctional Service of Canada runs a mother-baby program in federal institutions, but B.C. is the only place in Canada with a similar program in its provincial institutions.
In 2008, the B.C. government tried to shut the program down, sparking a community outcry. The program was restored after the 2013 Inglis v B.C. court case.
"[People said] no, we want mothers to be able to stay with their newborn children, be able to develop parenting skills and demonstrate those parenting skills. In that case they won and were able to reinstitute the provincial program," said Tan.
But she noted there are also arguments against expanding those kinds of programs.
"For instance ... if we provide more space for women to have their children in prison, are we encouraging the incarceration of not just mothers, but children? Is it more appropriate that we provide better community services to allow women to have their children, to take care of them in community spaces even if they are under supervision?"
Because of the over-representation of Indigenous people in the criminal justice system, Tan said their families are disproportionately affected.
"It's very well-known in Canada, after the Truth and Reconciliation Commission, that residential schools did enormous amounts of damage to Indigenous culture and populations by separating children from their parents," she said.
"What we're doing is replicating that with incarceration."
A new framework
Tan said her report, Considering the Best Interests of the Child When Sentencing Parents in Canada, comes out of a long Quaker tradition of pushing for prison reform and prison abolition.
She wants Canadian judges to remember the "best interests of the child" at sentencing, as the UN convention dictates.
"Sometimes it's in the best interests of the child to have contact with their parents. Sometimes it's not. It's really about looking at that particular circumstance of that child," said Tan.
"We know [judges are] very familiar with including that principle in family law decisions, but not so much in criminal law."
She also wants to see the Canadian legal system adopt a "rights-based framework for sentencing."
We want people who are safe and healed. We don't want people who are struggling and facing a number of problems throughout their lives.- Verena Tan, lawyer
"Criminal law has been around for a very long time, before solid human rights were established. So many of the principles in criminal law haven't incorporated human rights and children's rights," she said. "What we would be suggesting is, at a policy level, how could we look at sentencing that incorporates the best interests of the child into its considerations?"
Tan believes considering children's interests at sentencing could have far-reaching effects.
"These are children, and they will be people that we will interact with in our communities. What do we want in our communities?" she said.
"We want people who are safe and healed. We don't want people who are struggling and facing a number of problems throughout their lives."
Click 'listen' above to hear the interview.