The Alberta Court of Appeal recently made a very interesting decision that has profound implications for the quality of governance and accountability of public servants in Alberta.
The court found the Alberta government Director of Child, Youth and Family Enhancement in the Department of Children and Youth Services in civil contempt of court. The Director was found to have not ensured the timely execution of a previous Court Order directing a child, for whom he was also the guardian, be returned to a foster mother.
The decision on the penalty was reserved but the lawyer’s submissions on what would constitute an appropriate penalty for this contempt of court are due today August 4, 2009. A decision as to consequences for the contempt of court should be rendered by Mr. Justice Cote soon. I will do a follow up post on the legal counsel submissions on the penalty later as well as a commentary on the actual penalty imposed by the Court of Appeal in a subsequent post. It is an open question if the Director will face jail time or not.
This is a lengthy and weighty post so make sure you have some time to read it all. The events and implications are very important.
In preparation of this commentary I have read the June 23, 2009 Reasons of Mr. Justice Cote in finding Mr. Richard Ouellet, the Director of Child, Youth and Family Enhancement, in civil contempt of court. I also read the July 14, 2009 Reasons for Decision of Cote in rejecting Mr. Ouellet’s Application to Vacate/Vary the Civil Contempt finding against him. I have not read the various affidavits filed in the original or any subsequent court proceedings dealing with the same child. I think there is enough background in these documents to comment on the political and governance implications of this decision. I will not deal with the law or legal reasoning behind Cote’s Reasons for Decision either. The legal reasons are interesting, but they are more like deep background to my purpose, namely the public policy, accountability, transparency and governance implications of this decision.
A brief history of the facts are needed to give you some context behind the decision and for a better understand the public policy, governance and potential political implications of finding a senior civil servant in contempt of court. The child, known as B.M., was removed from a foster home by the Director. His decision was appealed to an Appeal Panel who, according to Cote, apparently gave “fairly extensive written reasons” as to why the child should not have been removed from the foster home. The Director appealed the Appeal Panel decision to the Court of Queen’s Bench. He got a stay of execution of the Appeal Panel decision to return the child and also won a court decision reversing the Appeal Panel. The foster parent then appealed to the Court of Appeal and it was argued in September 2008. On January 30, 2009 the Court of Appeal allowed the appeal and reinstated the original Appeal Panel decision. The time for any further appeal to the Supreme Court has expired.
The foster mother, relying on the final Court of Appeal Decision demanded that the Director return the child to her care but the Director apparently disagreed with this course of action presumably taking the position that the Court Order was subject to another interpretation. The court was not impressed with how the Director responded to the court order. Cote found that between the original Court Order of January 30, 2009 and June 4th, 2009 “…the Director did nothing of any consequence toward obeying the order of the Court of Appeal, or to clarify what it meant and what he was required to do.” Cote noted further, “He and his officials, however, did find the time to take many steps to make it more difficult for the foster mother ultimately to win.”
Counsel for the foster mother did pursue clarification of the court order and on June 4 the Deputy Registrar of the Court of Appeal gave notice in writing to all parties clarifying that the Appeal Court “…judgment meant the child was to be returned.” The child was finally returned on June 22, 2009 almost five months after the original court order and the day before the June 23 Court of Appeal hearing that found the Director to be in contempt of court. The Director, Mr. Ouellet changed legal counsel who sent a letter to the Court of Appeal “…proposing to reopen and upset the contempt conviction…” and a Notice of Motion and an Affidavit to that end was filed by and on behalf of Mr. Ouellet on July 10, 2009. Cote reaffirmed the contempt of court finding against a province of Alberta senior public servant in the conduct of his duties.
What are the Governance and Public Policy Implications?
That is a summary of the facts, so now I will deal with some of the comments and findings of Mr. Justice Cote in his Reasons for Decision that has some serious governance and public policy implications. What follows is a policy commentary on the public policy, good governance, transparency, accountability, legal duty and respect for the law obligations arising from this matter.
Cote nails the point that nobody is above the law and government officials can’t ignore a court ordered public duty when he says [Para 27] “…when a court judgment or order is given directing someone to do something…Then doing nothing is not an alternative. Simply doing nothing in itself is contempt. Furthermore, it is not enough to take feeble and ineffective steps…negligent or inadequate attempts to obey the court order or to obey it in due course are themselves contempt of court.” He says that “…failure to obey by relying carelessly on others is in no sense vicarious liability. The duty is that of the person commanded.” (emphasis added).
In [Para 18] Cote broadens the issue of the legal duty of the public servants involved and brings it to a head when he says “For about 12 days after the contempt motion was filed here (and 18 days after the Court of Appeal clarified its judgment), everyone concerned on the government side was in clear and obvious breach of the Court of Appeal judgment.” (Emphasis added).
In [Para 36] it gets worse noting that Mr. Ouellet “…on June 5 he learned the following. The Court of Appeal decision of January 30 had not yet been obeyed, though the Court of Appeal on June 4 had clarified what should be done. None of the various officials concerned had yet returned the child, and they were still considering legal alternative to returning the child, i.e. trying to see if there was something which they could legally do to avoid returning the child, and in some fuzzy way were balancing the disadvantages of obeying the judgment.” (Emphasis added.)
In [Para 37] Cote also noted that Mr. Ouellet advised his officials “…he was satisfied with the course which they were following. He did not tell them that they could not wiggle out of obeying the order, nor that wasting time looking for alternatives to obedience was wrong. He did not say to return the child. Indeed he told me in open court on June 23 that the officials’ task on June 5 was to balance the conflicting interests of the two foster families and the child…Nor did Mr. Ouellet set any deadlines, nor inquire into how the child would be returned, nor the methods which would be used. He was content to leave it with the debating officials.” [Para 38] “Nor did Mr. Ouellet ask them to report, nor set up any checking or diarization methods. [Para 39] Yet Mr. Ouellet admitted that he had full power to give those other official binding direction, and that he had a duty to act if he saw something wrong, including a court order not obeyed.” [Para 40] “Worst of all, just before the meeting Mr. Ouellet was given a packet of material relating to this problem, but he never read it, whether before or after the meeting.”
Cote sums it all up in [Para 45] “…Mr. Ouellet had no system whatsoever for follow up or supervision or whether court orders against the Director were being obeyed; not even when the litigation had got as high as an appeal to the Court of Appeal. The Court of Appeal judgment was issued January 30, clarified June 4, contempt threatened June 4, formally moved for June 10, and the child was not returned until June 22. Yet throughout that period of almost five months, Mr. Ouellet had no idea whether or when the child had been returned, and did not ask. Apparently no one was supposed to tell him. The last the Mr. Ouellet knew (June 5) was that the child had not been returned, and that whether to return the child was being discussed. He still knew nothing and made no inquires up to June 23.” (Emphasis added)
Not My Duty – Others Are at Fault:
So what was the reasoning the Director offered to the Court of Appeal to believe he deserved to be released from the earlier finding of contempt of court? These representations amount to CYA and passing-the-buck positioning. I paraphrase [Para 54]in saying first the Director tired to allege that other branches of the government, or other entities or people authorized by the government, such as the regional Child and Family Services authorities, were the ones who were actually involved with this child. The contempt order should therefore be vacated because the Court of Appeal erred in holding Mr. Ouellet as responsible to see to the execution of the court order to return the child. This representation was rejected by the court but it obviously has some interesting and serious public policy and governance implications going forward.
The other chilling implication of the position by the Director in saying an appointed government authority, in this case the Child and Family Services Authority, is the delegated body responsible for this child. That “defense” should make those volunteer citizens think hard about what such a tactic might mean to their personal liability in the future. If that responsibility was found to on the regional authorities by the court they would be well advised to think hard about personal liability from serving on such boards. This argument by a civil servant as to ultimate liability for vulnerable citizens has serious implications for other authorities like in the new heath care Super board and the regional boards dealing with Persons with Developmental Disabilities (PDD).
The good news is that Cote slam dunks the Director’s allegation noting the legislation setting up the authorities in question positions them as “agents of the Crown in right of Alberta under the Minister’s direction.” They are not autonomous and the staff of those authorizes actually work for the government. Those citizens who are sitting on other such authorities may want to ensure that the wording of their enabling legislation also protects them from personal liability, duty of care and possible negligence actions.
The Job is Complicated and the Duty was Delegated:
Cote comments starting at [Para 66 to 70] saying that hiding behind administrative structures in the government will not protect the Director from a finding of contempt when he says “Administrative structure is not the same as law.” He notes the “new evidence tendered as to the extremely convoluted and puzzling structure of who is administratively involved with child protection in Alberta….” He goes on to observe that “Mr. Ouellet seems to think that because the people involved on the ground were not reporting directly to him in a functional sense, that the court should ignore that fact that he had full legal and administrative powers…to see to obedience of court orders like the one in question.” In [para70] the attempt to say the Director’s powers can be delegated to various other bodies, such as regional authorities, and that there is some precedent for that to have happened in the form of Memorandum of Understanding and extracts from websites of regional authorities about their role to “oversee the delivery of services.”
Ouellet [Para80] tries to convince the court that in essence all these matters are and were run by Child and Family Service Authorities, independent bodies which he did not supervise, and so he had no connection. Whereas earlier [Para81] his counsel’s submissions on liability was that there are many children in care and Mr. Ouellet could not personally be familiar with every case, and that he delegated responsibility to many people but admitted that “Mr. Ouellet had to make the final determination how to return the child.” The record shows that “Mr. Ouellet was and is the guardian of this child.” OUCH!
The court notes all the employees of those authorities work for the government and the CEOs report both to the Deputy Minister and the boards of the authorities and “ultimately the Minister governs.” As a consequence the court finds “nothing…which would remove the legal powers and duties from the Director, nor take from him any status as guardian which he was formerly given.” In short delegation is not abdication and the Director in this case lost none of his powers and had no legal obstacle to obeying the Court of Appeal judgment.
The Court Ponders if Other Officials be Specifically Named in Future Actions?
The Court of Appeal offered some advice to legal counsels that oppose those child “protection” authourities in the future. Cote suggested that they learn about all the government officials involved in all matters around any such actions and that they all are named in the litigation and that the officials be personally served and that “Some things should not be assumed. Avenues to escape obedience may be undesirable for a time.”
The Court Ponders if Cabinet Minister Immunity Might be Challenged in the Future:
Cote comments on Cabinet Ministers and potential future culpability too in [Para 118] “After this judgment, ignorance or neglect by such officials will be a smaller excuse for disobeying court orders than before. A repetition might lead to litigation over whether those higher ups were not immune.” Would Cabinet Ministers be within the definition of “higher ups?” Could be an issue tried and determined in the next miscarriage of a public duty in the government.
Is There an Attitude Problem in Government?
Cote says [Para 113] “Her Majesty’s government of Alberta, in my 42 years’ experience, has not been in the habit of hiding identities, equivocating, nor evading court orders against it…[Para 114]But the present case raises doubts about whether everyone in the child protection parts of the government now shares those high standards, or even fully understands court orders. The complex administrative structures suggested by the evidence here must exacerbate opacity and the opportunities for deniability. [Emphasis added]
[Para 115] The government is established under the Constitution to administer the law, including the law about children. Counsel have become used to relying upon the government’s trustworthiness and fairness in obeying court orders. That should remain possible…The government’s obedience to court orders should be and be seen to be willing, prompt and automatic, not strained through the mesh of contempt motions.” [Para 116] Any contempt of court which included shuffling off responsibility to obey a court order amongst different official (at times like the dried pea under three walnut shells) would be almost unprecedented.” OUCH AGAIN!
[Para 117] “It is highly undesirable that the courts and the Bar of Alberta even contemplate having to assume all the burden of enforcing court orders in child protection cases. After all, the parents or foster parents often lack resources and rely on Legal Aid. So taxpayers would suffer too if government were to play as game of hide-an-go-seek.” Cote therefore notes that quite possibly many more individuals involved in the case day-to-day, given the disobedience was lengthy and undeniable, and may also be guilty of contempt. So he invites the Alberta Attorney General to follow up with further investigation and to make sure they know about this decision(sic) he directed the Deputy Registrar of the court to “…send a copy of these Reasons to the Minister of Children and Youth Services, and to the Minister of Justice and Attorney-General of Alberta.
There is an active review of the governance of agencies, boards and commissions in the Alberta government directly tied to the Premier’s office. Perhaps that review must be extended into the governance and accountability of some key departments. I have some strong suggestions to make as to which departments could use some house cleaning and a serious accountability focus based on some of the work I do.
If this behaviour by government administration is left without comment, concern or consequence by our political leadership then I wonder about their character and capacity. I question if they are worthy of our consent to be governed by them. Good governance is always good politics. The reverse happens too but it is the exception.
The court has commented clearly and forcefully already but just as administrative process is not the law, neither is the judiciary there to run our government. We need our lawmakers and those government officials who serve the public interest to reaffirm, in all actions and deeds, that they are not be above the law. We need a strong political statement form all those who govern us that any disrespect of the law, from the very top to the very bottom of our entire governance structure, will result in harsh consequences. If our government fails, refuses or neglects to reassure Albertans in this way, then Albertans have to engage and reassure our government that such an attitude will not be tolerated - and at the ballot box if necessary.