Native Justice of the Peace Seminar 2013

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Native Justice of the Peace Seminar 2013 por Mind Map: Native Justice of the Peace  Seminar 2013

1. History of Colonialization Canada government policy was to break the Indian by breaking the family and community

1.1. Remove the Indian from the Indian Stated federal government policy

1.2. In community recollection

1.2.1. Indian Agent

1.2.2. 60s scoop

1.2.3. More children in care now than during the 60s scoop

1.3. A history too long to discuss

2. CFSA

2.1. Sections Specific to Native Children

2.1.1. 1

2.1.2. s.2 Definitions

2.1.2.1. Band

2.1.2.2. Extended Family

2.1.2.3. Indian

2.1.2.4. Native Community

2.1.2.5. Native Person

2.1.3. 37(4)

2.1.4. 47 (2)

2.1.5. 51

2.1.6. 51(3.1)

2.1.7. 57(5)

2.2. Are all of the parties identified

2.2.1. all Bands are not the same

2.2.2. different Nations

2.2.3. Friendship Centres (Be careful and ask about protocols)

2.2.4. s.39 CFSA

2.2.5. s. 213 CFSA

2.3. Apprehensions

2.3.1. s.40(2) Warrant to Apprehend a Child

2.3.1.1. s.40(3) Justice of the Peace shall not refuse to issue warrant

2.3.1.2. s.40(4) Order to Produce or Apprehend Child

2.3.1.3. s.40(5) Child's name, location not required

2.3.1.4. s.40(6) Authority to Enter

2.3.1.5. s.40(7) Apprehension Without a Warrant

2.3.1.6. Further sections address police assistance, consent to examine a child, right of entry, peace officer has powers of a child protection worker, protection from personal liability for a peace officer and child proteciton worker

2.3.2. s.41 Apprehension of a Child In Care

2.3.2.1. s.41(2) Justice of the Peace shall not refuse to issue warrant

2.3.2.2. s.41(3) No Need to Specify where the child is located

2.3.2.3. s.41(4) Apprehension of a Child in Care without a warrant

2.3.3. s.42 Apprehension of a Child under 12

2.3.3.1. a peace officer's authority to apprehend a child 12 or under who has committed an act that would be an offence, provisions for notice to a parent, taking a child to a place of safety

2.3.4. s.43 Warrant to Apprehend Runaway Child

2.3.4.1. authorizes the issuance of a warrant to apprehend a child under 16 years who has withdrawn from the parent's care and control and whose health and safety may be at risk, unless custody proceedings under the CLRA would be more appropriate. The child is to be returned to the parent unless there are reasonable and probable grounds to believe the child is in need of protection

2.3.4.1.1. Information sworn by parent

2.3.5. s.40(1) Application

2.3.5.1. CAS may apply to the Court to determine whether a child is in need of protection

3. Practical Implications

3.1. CAS will have to address these issues with the family and generally given the history between Native People and CAS these factors will be present and on the face of the allegations may present as a high risk environment. Context is very important as well as support services and input of the Band

3.1.1. Residential Schools/Training Schools/60/s Scoop

3.1.2. CAS history as a child/parent/grandparent

3.1.3. Loss/Trauma/Addiction/Attachment

3.1.4. Crminality

3.1.5. Poverty

3.1.6. Education/Employment

3.2. AGEISM

3.2.1. Age is not a protection concern in and of itself and the CAS should be articulating the protection concern(s) and attempts to put services in prior to an apprehension of a young/under age parent

3.2.1.1. Often the protection concern is that the parent was a Crown Ward

3.3. Notice to the Band

3.3.1. Generally done after the decision is made to apprehend

3.3.1.1. Band Not served the Warrant to Apprehend

3.3.1.1.1. IMPACT is the most intrusive option available under the legislation

3.4. ACCESS

3.4.1. Generally parents/extended family will not have access arranged and go long periods of time without seeing the child(ten)

3.4.1.1. Access is also the right of the child

3.4.2. explore options within the First Nation community

3.4.3. explore alternate locations/family members/friends

3.4.4. This also means Siblings Aunties/Uncles/Grandparents

3.4.5. CAS to assist in transportation

3.5. Children Over 16 years

3.6. Harbouring of Children

3.6.1. s. 83 Offence

3.6.2. s.84 Offence

3.7. Band Representatives/ Protocols with the CAS

3.8. CAS determining whether child(ren) are eligible for status

3.9. Community Legal Education

3.9.1. Advice Counsel hours provided by LAO in Lambton County First Nation Communities

3.10. CAS does not always notify or speak to the non-custodial parent when there are child protection concerns

3.10.1. IMPACT is that cuts off a potential placement that may avoid an apprehension

4. Process

4.1. Apprehension

4.1.1. Need to be in court within 5 days (includes the weekend)

4.1.1.1. Parents and Band generally not served before the 5th day.

4.1.1.1.1. Application - what the CAS is asking for and this can always change as the case moves forward

4.1.1.1.2. Notice of Motion - this is so the CAS can get the order they are asking for on a temporary basis

4.1.1.1.3. Affidavit - this is the "evidence" of the Worker which is supporting what the CAS is asking for in the Notice of Motion

4.1.1.1.4. Plan of Care - this the document that sets out what parent(s) have to do to get the CAS out of their life or to get their child(ren) returned to the person(s) from which the child was apprehended

4.1.1.1.5. Table of Contents

4.1.1.1.6. Blank Answer & Plan of Care

4.1.1.1.7. Information Handbook

4.2. First Court Date

4.2.1. this will be found on the first page of the Notice of Motion (look in the top right hand corner to see what the document is)

4.2.1.1. Generally an interim order is made without prejudice, which means the matter can be set to a hearing date to argue the motion and any terms. Also an interim order can be made on consent of all parties

4.3. Temporary Care and Custody Hearing

4.4. Informal Case Conference

4.5. Motion Dates/To speak to Dates

4.6. Settlement Conference

4.7. Trial Management Conference

4.8. Trial

5. Why is the Native Client Different? Issues to be aware of

5.1. Issues

5.1.1. "All members of the justice system are part of the problem" - Aboriginal perspective

5.1.2. What is

5.1.2.1. Indian

5.1.2.2. Native

5.1.2.3. Band Member

5.1.2.4. Eligible for Band Member

5.1.2.5. Metis

5.1.2.6. Aboriginal People

5.1.2.7. membership

5.1.2.7.1. indian act

5.1.2.7.2. traditional

5.1.3. History of NO trust and NO respect

5.1.4. What is Authority? What laws apply to Indians, Metis, Natives Aboriginal Peoples

5.1.4.1. Federal government authority

5.1.4.2. Provincial government authority

5.1.4.2.1. Municipal government

5.1.4.3. Municipal government

5.1.4.4. Indian Act

5.1.4.5. Band Resolutions

5.1.4.6. Chief and Council authority

5.2. Issues to Consider

5.2.1. Communication is different?

5.2.1.1. Sensitive to Judgment

5.2.1.2. Approach

5.2.1.3. Maneurism

5.2.1.4. Definition of Family

5.2.1.5. Family Present - strength in Numbers

5.2.2. Access to Justice is an issue

5.2.2.1. Limited lawyers that will practice in Child Protection

5.2.2.2. More community legal education required to explain to people that it is not good or bad to be Native, just treated differently within the legislation

5.2.3. Native People= Native Programming

5.2.3.1. Ask CAS what resources they know of that are culturally appropriate

5.2.3.2. Ask CAS what services have been offered to the family

5.2.3.3. Ask CAS if the Band has been notified

5.2.3.3.1. If so, when and did the CAS discuss alternatives to apprehension

5.2.4. As you read the warrant you will see

5.2.4.1. Trauma

5.2.4.2. Emotional Health Issues

5.2.4.3. Mental Health Issues

5.2.4.4. Abuse

5.2.4.5. Sexual Abuse

5.2.4.6. Violence

5.2.4.7. Addictions

5.2.4.8. Separation from Family

5.2.4.9. Dislocation from Community

5.2.4.10. Poverty