This article has been translated from French.

Bill C-75, the criminal justice reform bill, aims to provide better protection for vulnerable individuals. Federal Justice Minister Jody Wilson-Raybould also believes the legislation will “make a significant contribution to a necessary culture shift in the way our criminal justice system operates.” But despite the attention currently being paid to criminal justice, one issue remains entirely absent from public policy and the government’s statements of intent: the concrete social effects of criminal policy on offenders’ families, and particularly their children.

While we cannot cite any numbers because there are no publicly available statistics on the subject, we do know that tens of thousands of children in Canada are living apart from a parent who is behind bars, either in preventive detention or serving a sentence. In addition to the stigma, which often keeps them silent and ashamed, these children can face significant social, psychological, emotional and financial difficulties. But they are invisible in Canada, both on the political stage and in the media. Worse still, they are also neglected by social policy. Currently, no public policy provides targeted support for these children, who are particularly vulnerable, as the Council of Europe recognized in its latest Strategy for the Rights of the Child.

Children of a parent who has run afoul of the justice system are also a group that has been entirely overlooked by the law. In civil law, separating a child from a parent is the exception and may be done only in the best interests of the child, but a court handing down a sentence on a defendant who has been found guilty of a crime has no obligation to inquire about his or her family circumstances. While there are legal precedents for considering the potential effects of a sentence on children, sentencing principles are silent on the matter. Canada has not applied the UN Committee on the Rights of the Child recommendation, made in 2011, that alternatives to prison be given preference in the case of individuals with dependent children.

How can the situation be improved? Certainly, the difficulties experienced by children with a parent in prison are varied and highly complex. Nevertheless, we suggest three avenues to move the discussion forward and unfreeze Canadian policy on the fate of offenders’ children.

First, we need to collect data and compile national statistics on the children of inmates in Correctional Service of Canada institutions and provincial facilities.

How many Canadian children are in this situation? What is their socio-economic profile? What special needs do they have? It would be important to know, for example, how many children are placed in care by child protection services while a parent is in prison, how many are Indigenous, and what age groups are most affected. It should be borne in mind that the United Nations Standard Minimum Rules for the Treatment of Prisoners (the “Mandela Rules”) provide for various information about a detainee’s family members to be entered in the prisoner file management system upon admission into prison, including “the names of his or her family members, including, where applicable, his or her children, the children’s ages, location and custody or guardianship status” (rule 7f). It is possible that some of this information is already being recorded by some institutions in Canada. However, it is not available to the public at this time, although it would be valuable data for research on these children and for intervention with them, especially by community-based organizations. It is also critical information for the development of a targeted intervention policy that meets this group’s special needs.

Secondly, the children of offenders must be included in the discussion about criminal justice reform.

The long-awaited reform of sentencing isn’t in the bill tabled by the government. Hopefully, the time the government seems to need to legislate on this vexed issue will be used to truly rethink our approach to sentencing. Canada could even take advantage of this reform to demonstrate international leadership in criminal justice intervention and protection of children’s rights. To do so, it will have to squarely address the treatment of offenders’ children and the related problems: carrying out arrests in front of a child, pretrial detention of a parent, sentencing of primary caregivers and enforcement of the sentence. On all these fronts, Canada lags behind current thinking in many other countries. In April 2018, the Committee of Ministers of the Council of Europe issued a recommendation that the needs of imprisoned parents’ children be taken into account. The Council urged member states to adopt a penal policy that favours alternatives to detention: “…the rights and best interests of any affected children should be taken into consideration and alternatives to detention be used as far as possible and appropriate, especially in the case of a parent who is a primary caregiver” (article 2).

Accordingly, sentencing reform should proceed from a perspective that combines intervention and prevention, and it must be informed by a clear desire to ensure that intervention by the criminal justice system not create or aggravate situations of vulnerability.

Thirdly, we need to consider criminal justice reform in a thoughtful way, taking into account the potential repercussions of sentencing on the offenders, their loved ones and the community.

Although Indigenous Services Minister Jane Philpott spoke of a “humanitarian crisis” in November 2017 and called an emergency meeting on the welfare of Indigenous children, who are overrepresented in the child protection system, the connection between this issue and the overrepresentation of Indigenous people in the prisons is rarely mentioned. In 2015-2016, Indigenous people made up 3 percent of Canada’s population but 27 percent of admissions to correctional services. These numbers suggest there may often be a relationship between the placement of Indigenous children and incarceration of a parent, although we do not have any statistics to confirm this hypothesis. It is clear, however, that law enforcement is not unrelated to this situation and no solution will be found as long as these problems are considered in isolation.

While there are many nongovernmental community organizations that support inmates’ families (such as Continuité-famille auprès des détenues (CFAD) and Relais Famille in Montreal, and the Canadian Families and Corrections Network (CFCN) in Kingston), the harmful effects of criminal justice intervention on the children of offenders remains a blind spot for the law, criminal policy and child welfare policy alike.

Shortly before tabling Bill C-75, the Minister of Justice posted the following tweet on her Twitter page:

If indeed “protection of the vulnerable” is a priority for the government, it must include the children of offenders in its thinking about criminal justice reform. And at the same time, it must set about developing a policy on support for children with an incarcerated parent, who pay a high price for such intervention by the criminal justice system.

This article is part of the Widening the Lens on Criminal Justice Reform special feature.

Photo : Shutterstock / Suzanne Tucker

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Sophie de Saussure
Sophie de Saussure is a PhD candidate in law at the University of Ottawa, a Pierre Elliott Trudeau Foundation scholar, a Social Sciences and Humanities Research Council scholar (Canada Graduate Scholarships to Honour Nelson Mandela) and a member of the Canada Research Chair in Legal Traditions and Penal Rationality.

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