Poor Baby, Poor Mommy - The Rights of Incarcerated Mothers

BY ANA KRALJEVIC, LAWYER, WISE LAW OFFICE

British Columbia used to have a program in place which permitted inmates to serve their prison sentence with their babies.  Despite the untold benefits of accommodating the health needs of babies in the critical window of infancy, the program was eliminated.  The reason cited by a prison official was the fact that infants did not fall within the purview of the correctional service.  The Ministry of Children and Family Development was left with no other option but to “apprehend” babies previously in the care of their mothers and place them in foster care.    

In response, two former inmates of Alouette Correctional Centre for Women in Maple Ridge, B.C. commenced a lawsuit in 2008.  The final decision was handed down in a 145 page judgment released on December 16, 2013.  Justice Carol Ross ruled that the bureaucratic decision infringed the mother’s equality rights and security of the person and liberty, contrary to the principles of fundamental justice under the Charter of Rights.  Perhaps the most fundamental legal principle that the revocation of the program offended was the principle of the best interests of the child.  Justice Ross noted the following adverse consequences of the forced estrangement of mothers from their babies:

“As a result, infants have been and will be separated from their mothers during the critical formative period of their life, interfering with their attachment to their mother, and depriving them of the physical and psychological benefits of breastfeeding.”

The judge imposed a six-month deadline on the province to cure the unconstitutionality of the province’s policies concerning mother’s in correctional facilities.  The justice ministry can either appeal the decision or reinstate the mother-child program.  

Currently, Ontario does not have a mother and baby program in place in correctional institutions but a recent case involving Julie Bilotta, a female prisoner who gave birth at the Ottawa-Carleton Detention Centre, has sparked controversy in the province.

Ms. Bilotta gave birth to her son on Sept. 29, 2012 on the concrete floor of a prison cell. She was eight months pregnant at the time.  She alleges that she tried to convince jail staff that she was in labour, but the nursing staff and guards on duty ignored her pleas for help.  Her baby died about one year later.  It is unknown whether complications arising from the birth played a role in the child’s sudden death. 

While the B.C. decision is not binding on Corrections Canada, a federal body, it is nonetheless influential in stating that women have the right of access to their children, whether behind bars or not.  Proponents of the ruling, such as representatives from the Canadian Association of Elizabeth Fry Societies have lauded the decision as an incremental step towards recognizing the plight of women in conflict with the law.  However, there are others who have denounced it as privileging the rights of mothers over that of their babies. 

In all likelihood, this view is driven by the stigma attached to incarcerated mothers – a demographic seen as “unworthy” and undeserving of the protections we would otherwise accord them.  Whatever moralistic undertones may accompany criticism of the ruling, which no doubt also played a role in the cancellation of the program, they need to be set aside.  It is poor public policy to assert that the commission of an offence in and of itself bars a mother from her right to bond with and care for her child.  More importantly, the detractors have no factual basis for asserting that mother-baby programs are harmful for infants. 

Grace Pastine, the litigation director for the British Columbia Civil Liberties Association, Association, - said the following about the benefits of the mother-baby programs -"It led to better health outcomes for the babies. Safety guidelines were strictly followed during the program, which was supported by health-care practitioners, including doctors and psychologists, as well as prison officials.” 

While it remains to be seen how B.C. will formally adopt the ruling, many believe that the government can no longer withhold a program that has such profound and undeniable benefits for both mothers and babies.*

- Ana Kraljevic, Toronto

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