Monday, August 31, 2009

Day 6: What Led Up to Mr. Ouellet Being Found in Contempt of Court

One of the most fascinating documents I read from the Court of Appeal file was the transcript of the discovery of Mr. Ouellet, part of the Foster Mother’s application to find him in contempt of court. Examination for Discovery is part of the litigation process to determine facts and other information in a legal action where questions are asked by lawyers and the answers are given under oath. They can become evidence in the litigation.

What Did the Director Know About the Case & When?
I took notes from the transcript and will share the answers and the questions they beg. The testimony indicates some interesting circumstances and realities of the Director’s position, case participation and responsibilities of the office, at least in this case, and presumably others. Remember this saga is all about determining and delivering to meet the best interests of the child. Consider who determines what those best interests are, based on what evidence and how do those responsible actually make the judgment calls about the safety, security and needs of at-risk kids in government care?

Did the Director get Bad Advice?
My impressions from reading the sworn testimony of Mr. Ouellet, I have developed more sympathy for his plight in this case. I think he got some bad advice. He also failed to do his own due diligence in his Director role as he decided to remove the child from the Foster Mother. That failure is not my opinion. That is the opinion of both the original Appeal Panel and the Court of Appeal.

Here is the background and circumstances that Mr. Ouellet found himself in and how he responded, based on his sworn testimony.

According to Mr. Ouellet, he did not know anything about the Court of Appeal order to return the child until a departmental meeting on June 5, 2009. That meeting was called by his staff responding to a Court of Appeal’s letter "clarifying" its outstanding order, from January 30, 2009. The Court of Appeal said its court order meant that the child had to be returned to the Foster Mother. Mr. Ouellet was the senior person in charge and also the official guardian of the child. He said he did not know this matter had been through two levels of court and now going back to court of allegations of his personal contempt of court until June 5, 2009.

What Power and Duties Did the Director Have?
How can there be no such communication to him from his departmental staff or legal counsel who were dealing with the matter, especially given his personal and professional accountability in the case? Is it oversight, lax procedures, poor leadership, poor training, overworked staff? If it is any or all of these concerns, does it all this add up to a serious management and leadership shortcoming in how matters are dealt with in this department? I tend to believe Mr. Ouellet saying he did not know what was happening in this case, since, after all, he was testifying under oath. Perjury is a tougher consequence than contempt.

He goes further saying in the management model in CYSA there is no obligation for workers to inform him as the Director of issues or concerns of any particular matter. The only permissions needed by the social worker and middle management staff are to seek prior permission of the Deputy Minister if the government wants to take matters into litigation.

June 5th Meeting Sealed the Director's Fate.
So let’s look at the events leading up to the June 5th meeting and the actions taken as a result. CYSA received a letter from the Court of Appeal on June 4, 2009 confirming its prior order meant that the child was to be returned to the Foster Mother. The lawyer for the Foster Mother had written to the court requesting directions and clarification of the court order because CYSA had not yet returned the child. That court order had been outstanding and ignored by CYSA for over 4 months by this time.

The June 5th meeting included the Director, a government lawyer and other senior department management people. In requesting the meeting the senior staff said to the Director that they needed to meet about "an interesting and challenging case." Yes indeed it was interesting and challenging but this seems euphemistic considering the seriousness of the matter, especially as to consequences for the child as well as for the Director "best interests" now too.

Four days later an application was made by the Foster Mother seeking an order finding the Director in contempt of court. In preparation for the June 5th meeting the Director was faxed background of the case on June 4th. But he did not read it before or even after the June 5th meeting. Why didn’t he read the file?

Could it be willful blindness, indifference, insouciance, inexperience, naivety or was it neglect and/or negligence? I don’t know, but in hindsight, I am sure the Director wished he had read the material and prepared himself better for that meeting. According to his testimony he was not told about the June 4 letter from the Court of Appeal at the time of the June 5th meeting either. Perhaps it was in the background material, but in any case, it is a very material piece of evidence in the child’s case and soon, in his own contempt of court case.

The Director testified that after the June 5th meeting it was clear that the child had to be returned to the Foster Mother. Curiously he did not direct the staff responsible for the child’s file to return the child. Strange, don’t you think? Well not so strange when you consider this part of the testimony where the June 5th meeting decided that the child should be returned but in this context: "provided all legal avenues had been exhausted." This language indicates a conscious decision to not follow the court order, at least not with any alacrity. That statement is so inappropriate and inconsistent with the rule of law.

What is the Consequence of Ignoring a Court Order?
You don’t ignore a court order – EVER! You can go back to the original judge and seek another order to set aside, vary of discharge the original order. Variations are permitted to correct errors in the original court decisions or to consider and reflect new facts that came to light subsequent to the original order.

Revisiting the court process is not a "do over" or a try again" option. It does not permit anyone to revisit any issue simply because they are dissatisfied with the decision or later thought of a better argument. Otherwise there would be no finality to litigation. This option to go back to the judge to apply vary or set aside the order was open to CYSA but they did not take it. CYSA and the Director had legal counsel throughout these deliberations, so it is not as if they missed knowing about this alternative. Instead they decided to continue to ignore the court order. Shocking!

The Director did acknowledge in his testimony that if he was aware staff was ignoring a court order that is would be "his duty to play a role." Interestingly there was also a statement in his testimony that neither he nor the Director’ office "had a role or involvement in decision making in management of the department." He also testified that a predecessor in the Director’s office had delegated duties to the region child and family services authorities.

But he still had 49 staff under his authority that provided administrative support, analysts and managers all "with a responsibility for provincial policy and direction…and implement provincial policy programs across the province." He said this group monitored standards and process review sections in the department. You would think with that kind of mandate, if any policy or process systems were not working in CYSA, the Director and his team would know about and ought to be doing something about it.

I can muster some sympathy for the Director because he may have gotten bad advice, as Justice Cote mentioned in sentencing in his contempt of court finding. But he was also the architect of his own demise in so many ways. For that he does not get a pass or any absolution just because he may have relied on bad advice. He had a duty to inquire more and it is apparent from the court record that the duty he owed to the child and the duty to respect and enforce the court order was left unfulfilled for too long. He has been in the public service for 32 years and is on the record saying "It’s absolutely essential that court orders be compiled with." His actions in this matter did not reflect his allegiance to that principle.

So with this testimony, it pretty much sealed the Director’s fate that he could be found in contempt of court, and, in the end, he was. He got sentenced to 8 days jail time as a result. He was given the option to do 40 hours of community service in lieu of prison. He also had to pay all the Foster Mother’s costs, including lawyer fees and disbursements, right back to the beginning of this sad and sorry saga. The court, in acknowledgement of Mr Ouellet perhaps getting bad advice from people who were assisting him within the government, allowed those costs to be paid by the government on his behalf.

What Should We Learn From this Case?
In my mind that would be entirely fair under the circumstances. The court also accepted one of Mr. Ouellet’s submissions that contempt of court may also be found against others in CYSA over their handling of this file. As a result, Justice Cote ordered his decisions to be sent to the Minister of CYSA and the Minister of Justice and encouraged them to look deeper into that question. So this aspect may not be over yet. Will that go anywhere? If it doesn’t, it will speak volumes about the character of the leadership in these departments.

I don’t think Mr. Ouellet should be dismissed either. I think he is too valuable as a symbol and talisman to remind people about how much things have to change within the management and leadership culture of this department. He could take this personal experience, and with cooperation of some sound management and some enlightened leadership, turn it into an opportunity to fix the problem. The courts have already fixed the blame on him and encouraged the government to pursue an inquiry about if others are also guilty of contempt of court.

Good people in a bad system are not good enough as an excuse for shoddy management and governance in this case and who knows in how many others in CYSA. Let’s hope there are lessons learned and a renewed commitment to doing this most difficult of public servant jobs both right and rapidly and in the real best interests of children in care. This matter is now about the political will, character of the leadership and personal commitment to do the right thing, especially in times of recession and restraint.

If the future of at-risk kids is determined by dollar costs alone then the social contract of government to society is going to be broken. If that happens then citizens have to respond politically, publically and purposefully and tell our politicians that they have to make sure that our most vulnerable citizens are properly cared for and respected, including those 13,000 at-risk kids in our collective care; who are our society’s children.