Tuesday, August 11, 2009

Ct of Appeal Says Contempt of Court Means Jail Time but Community Service is an Alternative.

The Court of Appeal has wrestled with what is an appropriate penalty for Mr Ouelette's contempt of court for failing to promptly obey an earlier order of the court. Here is the Judgment.

The Justice reviewed the Rules that apply and here are the options: A fine but that would likely be covered by the province (we taxpayers) and that would mean no real skin off the former Directors nose.

Imprisonment until the contempt is "purged" but that purging was done the day before the second hearing on the contempt issue because the original court order was complied with and the child was returned as ordered. So that penalty is not appropriate. The Court noted, however, had the child not been returned at the last minute, imprisonment until the order was complied with may well have been appropriate, but not any more.

The final option under the Rules is imprisonment for up to 2 years but the court thought that was "harsh" so an alternative was sought between prison and a fine.

The possible resolution of the "quandary" was community service and there is case law that allows for this finding. Here is where it gets interesting and the wisdom of the courts and the judgment of the Bench come into focus. I love it when you see justice done in this way.

The final decision was to sentence Mr. Oulette to 8 days in prison for his contempt, to start once he got back from his holidays. However, the court gives Mr. Ouelette an option to avoid going to jail. He can do unpaid community service of 40 hours with a charitable organization or municipal government by October 31, 2009 and it must "not be in the child protection areas."

In addition the court ordered the payment of the solicitor-client costs of the lawyer acting for the foster mother and the child B.M. throughout the various stages. It left it up to the government to decide if it would pay those cost on behalf of Mr. Ouelette. That will likely be the case. However if the costs are not paid, then a motion could be brought to send Mr. Ouelette to jail on that basis too.

I think this is a very fair and appropriate penalty. The factors the court considered in arriving at it are interesting too. There was no "profit or bad intent" by the Director but a "considerable degree of carelessness." Since Mr Ouelette is no long in this position it is unlikely that there will be a recurrence by him. There was an apology and explanation given to the courts that served to mitigate penalty and the possibility that he received "poor legal advice."

Key to this court finding was also a "need for general deterrence (of others); and need for denunciation." These latter two heads of consideration go to the issue of the leadership, management and culture of the department which is what needs to be seriously reconsidered and fixed by the looks of it.

So that part of the drama is over. Now lets look at how well the child's interests were served in all of this and monitor how the department is responding.