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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.

4 comments:

  1. The sentence handed out is more than fair, and definitely sends home a message. It will be interesting to see if the government will cover the legal costs on this. If it does I would say it is an admission of guilt on their part. There is still lot's of unanswered questions on whether or not the childs best interests were being served, maybe now Oulette will shed some light on it himself after all what does he have to lose? Thanks for posting court documents, very interesting read.

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  2. Frontline Worker9:50 pm

    I am a worker and I know nothing about this case but I can tell you that I do follow court orders to the best of my ability and sometimes it is easer said then done. When the phone is ringing, you have people in crisis, the police are at the front counter demanding to see you about a situation, and you have to do a home visit before the end of the day otherwise would be in contempt for not visiting a family at the set interveral, and overtime is not allowed, what is someone in that postion to do ? I don't want to go to jail for doing the best I can with what I have to work with.

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  3. Thx Frontline. I hear the folks at CYSA were shocked at the court's decision to order jail time for the contempt. I was not surprised and think it was an apropriate penalty.

    I think there is a serious staffing resourcing and perhaps staff training problem here. I know there is that kind of concer in Seniors and Community Services in the PDD area with the community based volunteer supported service delkivery agencies . I have been working in that area for a couple of years and know the situation first hand.

    Good people in bad systems who have to deal with vulnerable people who are at serious risk, especially kids, is not an appropriate situation. The GOA has to get serious about service capacity and dellivery of outcomes as well as tracking the cash to ensure value for money.

    I sense the department senior management and political leadership in the GOA really knows the cost of lots of the stuff they pay for but do not have a sense of the value delivered in doing the job right.

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  4. Anonymous5:15 pm

    Jail for contempt of court - that's a laugh. You can go into family morning chambers practically any day of the week and hear cases where mothers refuse to obey court orders, and there is never a penalty for it. Any excuse will do. Of course, in those cases only the father is being deprived of the company of his children. It is an entirely different matter when a mother, even a foster mother, is deprived...

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