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A Win for Moms with Babies Behind Bars

But the five-year battle isn't over yet. First in a series about new mothers on the margins.

By Alexandra Samur 7 Mar 2014 | TheTyee.ca

Alexandra Samur received a Tyee Fellowship for Investigative Reporting, a $5,000 bursary funded by Tyee readers to pursue a major journalism project in the public interest for British Columbians. Samur is a Vancouver-based writer, editor, journalism instructor, and a new mother.

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An estimated 20,000 Canadian children are separated from incarcerated mothers every year. Wire photo via Shutterstock.

[Editor's note: For an introduction to this series, go here.]

In the middle of the night, a 22-year-old pregnant woman awakens alone, confused and in pain. Though more than three weeks remain until her delivery due date, she contacts a nurse, who confirms she's in labour. The woman is quickly handcuffed, and her ankles are shackled together.

Accompanied by a government official, the woman is admitted to hospital. She continues to labour, now shackled to a bed. Some 18 hours later her son is born -- but with complications, so he's taken to the intensive care unit. For two weeks the woman, still restrained, is regularly escorted to the floor below to visit and breastfeed him.

During these weeks together, the woman expects to bring her son back to prison with her, mentally preparing herself for the transition. But because of a snap policy change, the son is instead placed in government care, and the woman is forced to return to her cell, alone.

This is how Amanda Inglis, an Aboriginal woman from Williams Lake, told the story of her son Damien's birth in her testimony before British Columbia's Supreme Court in May 2013.

A former inmate in B.C.'s Alouette Correctional Centre for Women, Inglis is one of two plaintiffs who pursued a constitutional challenge to seek reinstatement of the provincial institution's mother-baby program.

For three years, the program allowed mothers to bring their infants into prison after birth and raise them while serving their sentences. But the program was cancelled early in Inglis's prison term, in April 2008, about two weeks after Damien was born. Had it continued, Inglis would have been able to keep her son at Alouette, raising him there through the balance of her 21-month sentence.

Together with Patricia Block, another mother and former inmate at Alouette, Inglis brought a claim against the province's Justice Ministry to bring the program back.

Without programs like the one at Alouette, mothers and babies are separated shortly after birth, with the children placed in the care of B.C.'s Ministry of Children and Family Development. This deprives newborns of the benefits of their mothers' breast milk, and deprives both mother and child of the ability to bond -- in each case leading to negative health outcomes, according to advocates. It also forces mothers to take their own legal action, following release from prison, to regain custody of their children.

Inglis and Block argued these outcomes infringed on their right and those of their children to life, liberty and security of the person, to avoid cruel and unusual punishment, and to equal protection and equal benefit of the law without discrimination, as ensured by the Charter of Rights and Freedoms.

Recently, they saw their first success: in December, B.C. Supreme Court Justice Carol Ross concluded that the cancellation of the mother-baby program was indeed unconstitutional, violating the rights of Inglis and Block to equality and security of person.

Ross's judgment gives the province six months to change the way it administers correctional services, ensuring its decisions do not continue to contravene prisoners' Charter rights.

With an estimated 20,000 Canadian children separated from incarcerated mothers every year, the consequences of the decision may be significant to a large number of families -- both in B.C., but across the country as well.

Who are these moms?

Though women make up only 10 per cent of B.C.'s prison population, the overall rate of women incarcerated in Canada has been rising: In 2009, women made up just over one-fifth (21 per cent) of all adults charged with a Criminal Code offence, up from 15 per cent in 1979. That's no cheap statistic: the average cost of imprisoning a woman in a federal institution is $175,000 to $250,000 a year.

Kim Pate, executive director of the Canadian Association of Elizabeth Fry Societies, links the rise to cuts in social programs, health care and education.

Another potential contributor is the federal government's 2012 omnibus crime bill. The Safe Streets and Communities Act stiffened mandatory minimum penalties for drug offences. More than a year after the Act came into force, incarceration rates of women are predicted to increase.

Regardless of cause, the B.C. government also thinks the percentage of the population behind bars is set to increase. The Ministry of Justice forecasts that the number of incarcerated will "rise by 1.5 per cent to two per cent a year for the foreseeable future" -- faster than the 1.3 per cent increase the government projects in the provincial population.

The typical incarcerated woman in Canada is poor, and disproportionately likely to be aboriginal. Thirty-five per cent of women in provincial prisons have a Grade 9 education or below, and 40 per cent have been classified as illiterate. A Statistics Canada report published in mid-2013 found that 94 per cent of female offenders in provincial custody have substance-use related needs. Two-thirds of federally-sentenced women are mothers, and many were the sole caregiver of their child before prison.

In B.C., the majority of women offenders serve their sentences where Amanda Inglis did, at Alouette. Located in Maple Ridge, it's the sole women-only corrections facility in the province. Most Alouette inmates have been charged with a drug-related offence; sentences are typically short, averaging 60 to 90 days.

If a mother-to-be at Alouette, or any other B.C. provincial correctional facility, went into labour today, it's not clear what would happen to her and her baby. While the government has indicated it will not appeal Ross's decision, it has yet to announce what its plan for the mother-baby program is going forward.

Justice Minister Suzanne Anton told the CBC: "Prison officials are very aware of the need to be ready. So next time the baby comes, they will be ready, and they will be making sure that they have the best systems in place that they can put in place."

Whether or not that means the formal reinstatement of the mother-baby program, which allows babies born to incarcerated women to stay in prison with their mothers, remains to be seen.

'I had everything I needed'

Jennifer Smith spent seven months of her pregnancy at Alouette. Her daughter, Sierra, was the last baby born before the cancellation of the mother-baby program at the facility. Now 29 years old and living in a quiet residential neighbourhood in East Vancouver with her family, Smith is one of the program's success stories.

In 2007, at 23, Smith was sentenced to 10 months in prison for crimes committed to support her drug habit. Then she found out she was pregnant. She recalls being happy to hear the news.

"It was scary, but I knew that I wanted to be a mother and that I wanted to get my life together," she said. "I knew that being pregnant was probably the best thing that could have happened to me at that time."

Sierra was born two months before her due date, underweight at three pounds, seven ounces. Mother and daughter stayed a month in hospital until Sierra was big enough to be transported back to Alouette. When the two returned, they were placed in a "tiny" room with a bed, crib and desk, Smith remembers. "It didn't bother me though, because I had everything I needed," she said.

Smith remained in the room with her daughter for the rest of her sentence, allowed to socialize occasionally with two other mothers, also with infants.

Seven years later, she stresses the program's value in grounding Alouette's struggling mothers.

"If I wasn't given the option to go back to Alouette with Sierra, I don't know where I would have been or where she would have been. It's just so important to have whatever bonding time you can have," Smith said.

The mother-baby program was a partnership between B.C. Corrections, the Ministry of Children and Family Development, and B.C. Women's Hospital. Pregnant inmates struggling with addiction would be seen at the hospital's Fir Square Unit by a specialized team of nurses and doctors experienced in treating substance-using pregnant women and their new babies.

There, mother and child were allowed to stay in the same room if the baby was born with drug withdrawal symptoms -- not merely for compassionate reasons, but for medical ones: studies have found newborns who stay with their mothers during withdrawal require less treatment and are discharged sooner.

Amy Salmon, formerly the coordinator of the Sheway pregnancy outreach program in Vancouver's Downtown Eastside, was involved in an operational evaluation of Alouette's mother-baby program. She examined medical records of mother-infant pairs from B.C. Women's Hospital, and interviewed mothers who participated in the program, as well as prison health-related contractors.

"It used to be that women would come from Alouette while they were pregnant at whatever point made sense, and they would stay on [at] Fir Square -- sometimes for weeks," Salmon said. There, they could access counselling and parenting classes, and meet with corrections or ministry representatives. If all was well, they would return to Alouette with their babies, she said.

On the whole, Salmon concluded that the mother-baby program clearly led to improved health and social outcomes from mothers and babies.

Alison Granger-Brown, a recreational therapist in charge of promoting healthy inmate lifestyles at Alouette around the time of the mother-baby program, noted its positive impacts on mother and child upon their return to the prison.

"The babies absolutely thrived, because of course the mothers were well-nourished, the babies were well-nourished," said Granger-Brown, who resigned from her position in protest after the program was cancelled in April 2008.

"They had everything that they needed, probably more so than in the community."

The 'babies in prison' program

From the program's cancellation up until May 2013, 106 pregnant women entered the B.C. Corrections system, according to Justice Ministry statistics. Twenty-two of those women gave birth while incarcerated.

It's still not entirely clear why the program was cancelled, though in August 2008, B.C. Corrections started to publicly express safety concerns about the program. A spokesperson told the Canadian Press: "Our staff are not [trained] to supervise infants and they're not trained in infant first aid or anything... if something went wrong and we didn't respond appropriately, we just couldn't risk putting an infant in that situation."

Brenda Tole, the Alouette warden who helped set up the program, retired the summer before the program ended. Tole did not respond to a request for an interview.

Jim Dwyer, a professor at the Virginia-based William & Mary Law School, was the first person to challenge the legality of mother-baby programs in the U.S.

"What's really shocking is that no one talks about the legality of putting children in prison," he said in an interview with CBC's The Current.

"We live in societies where the state simply, constitutionally, may not put people in prison just because it thinks it might be good for them, and it is astonishing that we do this to children without even an adversarial hearing in which someone represents them independently and argues against it."

Guilt and shame

The legality of incarcerating babies aside, other program critics have argued it's dangerous for children to live in the stressful and restrictive environment of a prison.

Yet prisoners who've seen the program in action say the presence of babies may actually make prison safer for moms.

Patricia Block, 35, lived in the same unit as Alouette mothers and babies in 2007. She remembers a spirit of shared respect that developed between the mothers and other inmates.

"With the babies around everyone was a lot more gentle and quieter -- there was less abrupt vocabulary around the kids," she said.

When Block later returned to the same Alouette unit on drug offence charges in September 2008, she found the baby toys and rocking chair had disappeared. Three months pregnant herself, Block began to pursue official and legal channels in order to keep her baby with her while serving time.

While B.C.'s program -- the only provincial one of its kind -- was cancelled, a similar program was still operating at federal correctional institutions, and still is today. Block applied to serve her two-year sentence at the federal Fraser Valley Institution, hoping to be accepted to the "mother-child" program there. 

Despite those efforts, a week before Block's due date she learned she had not been accepted. On March 17, 2009, she gave birth to a baby girl, Amber, who was placed in foster care.

Though Block now lives with four-year-old Amber, her husband and family, she still struggles with the three-month separation, and experiences recurring nightmares of being in jail without her children.

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Patricia Block and her daughter, Amber, at their home in Penticton. Photo provided by Patricia Block.

"When I was in the midst of it, most of my pain came from the fact that I was hurting Amber by not being there for her. I couldn't be, I didn't even have a choice," Block said.

"There's a lot of guilt and there's a lot of shame, and it all just adds onto the whole reason why I was in prison in the first place."

Turning to the courts

Five years after the court challenge over the cancellation was launched, the trial began in May 2013.

Former Alouette warden Brenda Tole was among the advocates to testify in support of the program. Joining her were Dr. Ruth Martin, Alouette's former doctor; Sarah Payne, a midwife who worked at B.C. Women's Fir Square Unit and who had advised on the creation of the program; Sheway's Amy Salmon; and interveners from the BC Civil Liberties Association and West Coast Leaf.

Concluding that the program's cancellation violated the Charter, Justice Ross noted the good work the program had done:

"Provincially sentenced mothers and their babies are members of a vulnerable and disadvantaged group. In that regard, the circumstances of Aboriginal mothers and their infants are of particular concern, given the history of over-representation of Aboriginal women in the incarcerated population and the history of dislocation of Aboriginal families caused by state action. The mother-baby program represented a significant step forward in the amelioration of the circumstances of the mothers and their babies who qualified."

At the time of publication, the status of babies born to incarcerated mothers remains unclear. B.C. Corrections declined to comment on the program, and has remained quiet since its announcement that it would not appeal the court decision.

Sentry Correctional Health Services, the private entity contracted by B.C. Corrections to provide health care for provincial correctional inmates, also did not respond to interview requests.

"Hope is what the women had at that time at Alouette," said Granger-Brown. "The cancellation of the mother-baby program and other programs really arrested a place where they could begin to start changing their lives."

Due to the efforts of Inglis, Block and others who fought for the program's reinstatement, that hope may soon be renewed.

Next Friday: A look at the lives of substance-using mothers and pregnant women, who face stigmatization and multiple barriers in accessing support and treatment.  [Tyee]

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