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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.

Sunday, August 30, 2009

Will Wall Street Return to its Old Ways?

Thanks to blogger Albertasaurus Talks I just came across a Toronto Star piece by David Olive entitled "The Era of Big Government Already in Retreat." It is worth a read.

David Olive says "Never in history, perhaps, has avarice spent so little time in hibernation." The meltdown of capitalism last September saw job losses for 7 million people in North America and an "abrupt global credit freeze" that wiped out "trillions of dollars of net worth of retirees and others as stock market property values plunged 40% and more." Olive says "Capitalism failed, again."

"Capitalism had failed, again. If a few avaricious pinheads in the financial markets could wreak such havoc so swiftly on the general population, then we would reinvent capitalism to make it more socially beneficial. It was that belief, of an urgent renaissance on the horizon, that helped keep the terror at bay last winter and spring."

Instead of using this recession to retool and rethink the regulation of capital markets, Olive argues the opportunity is lost and "We have gone back to living in ordinary times." This is because the Obama reforms, according to Olive, have already been stymied by "Wall Street lobbyists" and the argument is reform would be too expensive.

The same people who crated this crisis in confidence in the financial sector blithely discount the trillions of taxpayer bailout dollars for Wall Street in buying up their unregulated "toxic assets" that have devastated the wealth of ordinary people. That has not been too expensive because without real reform to ensure uncontrolled greed and avarice, we will not have learned from these mistakes in governance and be doomed to repeat them.

If Wall Street is allowed to return to business as abnormal without real regulatory reform, we are only one more greed induced disaster away from depression and devastation.

Canadians governments mostly followed the American lead and act as policy takers, not policy makers. Without some serious self-interest to decouple that political and policy approach we too will be sucked into the next American demise. This is not the kind of political discourse that gets sound bites or slogan journalism coverage. It is too complex and confounding to be approached from a simple-minded communications. To happen, it will have to emerge from citizens in op-ed, think-tanks, universities, thought leaders and maybe even a few bloggers.

It is time for some made in Canada and made for Canada economic and environment policy that just isn't American lite. We have done it in our social policy for years. Just look at the differences in health care, abortion, guns, public education, immigration, gay marriage to name a few.

The best chance for this to happen will be in Alberta and British Columbia because they are still exporters of commodities that beg for more local value added production and new markets beyond the U.S. As well the energy commodities produced have significant environmental issues that should and must be resolved locally and aimed at setting new planet-friendly standards globally.

Saturday, August 29, 2009

Are Canadians Losing Our Sense of Belonging?

Here is a long but thoughtful and relevant essay about how we Canadians are coming to see ourselves. Social cohesion is a key to effective citizenship. This Valpy essay courtesy of the Globe and Mail is a good reflective Sunday morning read.

Thursday, August 27, 2009

Alberta Budget Cuts Coming - Can We Do Them Better This Time?

Well we are going ot see a $430M set of budget cuts this fiscal ending March 31, 2010and a requirement for an additional $2B in the year after that. Lets hope this time we do the cutting judiciously and strategically so we maintain key programs and services, especially to vulnerable Albertans.

Already we are seeing cutbacks in departments and memos are coming out from Deputy Ministers with staff directives eliminating overtime, out of province travel and so forth. This is all consistent with the fiscal update announcements earlier this week. It should not be a surprise.
Here is a window on "yesteryear" back in 2001 and a memo from Richard Ouellet, the fellow in Children's Services who was recently found in contemtp of court. It was a cost cutting exercise then, just as we face now. Question is, have we learned anything from those past experiences? This time can we avoid the kind of damage done to kids and others like the last time government had to impose budget cuts? Time will tell, but are you optimistic?


> From: Richard Ouellet
> Sent: November 16, 2001 11:42 AM
> To: Interim - CFS10 All
> Subject:
>
> 16 November 2001.
>
> To all staff.
>
> Bill has asked me to share the following with you on behalf of the
> Management Team. As Bill mentioned in his letter to staff yesterday we
> need to continue to scrutinize expenditures to meet our budget targets.
> In order to achieve this it is critical that we continue to assertively
> implement cost management strategies that have been developed over the
> past several weeks. These strategies are based on the principle that any
> changes will not affect the safety of children.
>

It is imperative that all staff are aware of, understand and support
> these strategies. The next few months will require your help to ensure
> that we continue to provide quality and responsive services to the
> children and families we support.
>
The first phase of our cost management involved a structural review
> of our organization. While there are a few areas yet to be completed we
> have made significant progress in reducing the administrative costs of the
> Authority.
>
A second key element of our strategy was the development of a Cost
> Management document that was distributed to all NCCYFs and CFRO in early
> November. I encourage you to read the document and discuss these
> strategies with your manager and co-workers, as well as bring forward any
> other ideas you may have.
>
The third phase has been a detailed review of all contracted
> services which has resulted in the reduction or termination of several
> Agency contracts and a request for a 1% reduction in contract costs for
> the remaining agencies. While these adjustments have been difficult we
> have remained true to the underlying principles inherent in the four
> pillars of our service plan. I have provided each NCCYF and CFRO manger
> with a copy of the attached listing of Agencies who received notice of
> contract reduction or termination on November 15, 2001. I should note that
> while the notice was given yesterday the effective date for the changes is
> February 15, 2002.
>
We know there are a lot of pressures on you, your peers, on
> agencies, stakeholders and the community. These have not been easy times.
> Management is asking a great deal from you and it is important for you to
> fully understand the measures being implemented and how they will affect
> you and the people we serve. We are confident that together we can
> achieve our goals.
>
> M. Richard Ouellet


Isn't it interesting how the more things change the more they stay the same. Lets hope we are wiser this time in how we implement program cuts that in the Klein days. I am optimistic by nature but will be watching carefully to see if my faith is well founded.

Day 5 Society's Child: Children's Services Takes Action But Within the Rule of Law?

Society's Child is a blog series emerging out of a Director in Alberta Children's Services being found in contempt of court. This series deals with how the best interest of the child in question has been handled by those involved. It is based on the records filed in the Court of Appeal in Alberta.

If you are just joining us here is a synopsis of the facts:

A child was in foster care with the same family almost from birth to 4.5 years old. He was removed from that foster family based on a Children’s Services investigation about alleged abuse. The Foster Mother appeal the removal decision. A Children's Services Appeal Panel reversed the Director's decision and ordered the child returned to the Foster Mother.

Children’s Services appealed that decision to the Court of Queen’s Bench sided with the government, said the Appeal Panel erred in law. That court reversed the Appeal Panel decision saying it could not "second guess" the government and confirmed the child should be removed from the foster home.

The Foster Mother then went to the Court Of Appeal who found the Court of Queen’s Bench erred in law, not the Appeal Panel. They ordered the child returned to the Foster Mother. Later the Court of Appeal found the Director to be in contempt of court for failing to follow the court order to return the child to the Foster Mother.

What events and actions that led to the contempt of court is where we pick up the story on this Day 5 of "Society's Child."

Children's Services Petitions for Adoption of the Child in the Face of the Court Order:

While waiting for the Court of Appeal decision on the future of the child the government Director who was also guardian of the child, petitioned the courts for adoption of the child by the extended family, which was caring for him at the time. It is an interesting question as to why this was done and at this time.

This seems to me to be unduly hasty given that the Court of Appeal decision to return the child to the Foster Mother had been made on January 30, 2009 but had not yet been file. In the meantime a Petition for Adoption of the child is filed by the government. One would think the prudent course would be to wait for the Court of Appeal decision to be filed. It would have some serious implications as to where the Child ought to be residing and even if this adopted was appropriate. Is this further ineptness, a continuing disregard for the courts or a tactical move to add pressure on the Foster Mother's pursuit of the government for the return of the child to her care as ordered by the court?

Foster Mother Responds With Actions of Her Own:

Faced with the government's adoption petition of the child, the Foster Mother took some significant legal steps of her own. First she had her lawyer write to the government and the Court of Queen's Bench in mid-March 2009. She was advising them that the Foster Mother was considering instructions to her lawyer about the adoption. The lawyer asked that no further steps be taken without notice to the Foster Mother.

The Foster Mother also wrote to Children’s Services on February 5, 2009 asking for the return of the child to her saying that the court had determined his return to her care was in the child’s best interest. She also suggested a meeting with Children’s Services to discuss the government’s expectations regarding the child. Interestingly, on February 5, 2009, the same day, the government’s lawyer sent a letter to the Foster Mother’s lawyer. It said to the effect that while the Court of Appeal concurred with the Appeal Panel’s decision to return the child to the Foster Mother, “…neither the Appeal Panel, nor the Court of Appeal indicated it was in the child’s best interest to return the child to your client’s care.” (Emphasis added)

The government goes further in this letter to say, "In any event, my client does not believe that it is in the child's best interest to be moved from the home of is prospective adoptive parents where he has resided for over two years." (Emphasis added). There seems to be no appreciation in this position that the child had lived with the Foster Mother for over the first four years of his young life. But there are other serious concern about the content of this letter.

This letter from the government’s lawyer appears on its face to say that notwithstanding what the Court of Appeal decided it did not consider the best interest of the child and the government has decided otherwise. And so Children's Services, in this letter, appear to put itself above the courts and states it will not be complying with the order of the court. How can this be happening in a country and a province that ascribes to the rule of law?

Optional Courses of Action for Children's Services:

If the government did not like the Court of Appeal decision it could have appealed to the Supreme. But their time for such an appeal has already lapsed, and you have to wonder who was at fault for that? Alternatively and according to the rules of Court 390(1), they could have gone back to the court to ask for the decision to be reconsidered, varied or set aside. If they had new evidence that would influence or change matters they should have brought it to the attention of the court. They didn’t do that, instead they wrote a letter the opposing counsel saying they, the government, did not agree with the court and therefore they would not be following the order of the court. Astonishing!

This Rule of Court is there to enable variations of court orders to correct errors in the original decision or to reflect important facts that subsequently come to light. There is a court case, Public School Boards Association v. Alberta AG (1998) in the Alberta Court of Appeal that explains the scope of Rule 390. Rule 390 “…it is not a try again or a do over.” “It does not permit an applicant to revisit any issue because he is dissatisfied with the original decision and has thought of better arguments. Otherwise there would be no finality to litigation.”

Instead of revisiting the court decision, Children’s Services “believed" the court order was not in the child’s best interest. They took the position they were simply not going to comply with the decision of the courts. With that attitude it appears that they believed they were above the law and did not have to obey the law. This attitude to be above the rule of law, from a government, simply invites anarchy. It is amazing to me to see this attitude of appearing to be above the law expressed in any way by government in a free and democratic society like Canada and Alberta. To actually see it in writing, from my government, is even more demoralizing and unsettling.

Children's Services Tries To Negotiate a Deal:

The government officials and the Foster Mother met February 20, 2009. The government agreed to contact the extended family, who still had the child, to facilitate the Foster Mother having visits with him and to arrange “post-adoption” visits for her with the child. The government was unsuccessful in negotiating such arrangements with the extended family. The Foster Mother was advised of this failure in a letter dated February 26, 2009. The Director then petitioned for adoption of the child by the extended family on March 13, 2009.

Foster Mother Writes to Court of Appeal for Clarification of Their Order:

Through all of this, the Foster Mother still had not seen the return of the child as order by the court. On April 14, 2009 her lawyer wrote to the Deputy Registrar of the Court of Appeal asking to appear again before the original panel of Justices to “…appeal for guidance, direction or clarification” of their decision to return the child to the Foster Mother.

Instead of re-appearing in the Court of Appeal the Deputy Registrar wrote to the Director on June 4, 2009 confirming the direction in the court’s decision that the child had to be returned to the Foster Mother.

This letter from the Court of Appeal triggered Children’s Services middle management to “…canvass the availability of upper management t arrange a meeting the following day.” That meeting happened on June 5, 2009 and included departmental senior management people, Director Ouellet, his lawyer. And according to a filed affidavit of a government employee, not the Director, these people “discussed how we could respond to the Court’s direction in a manner that would least impact the child.”

Theses Children’s Services people seem to be oblivious to the duty of care they have to serve the best interest of the child and their duty to follow the rule of law. Both duties required them to return the child to the Foster Mother as decided and ordered by the Court of Appeal. Children's Services had still not even contemplated how and when they were going to comply with the law and return the child as order by the courts in this June 5, 2009 meeting.

In fact on June 8, 2009, according to the same affidavit, the government game plan was to develop a plan that would entail returning the child to the Foster Mother “…for a period or time.” (Emphasis added). Even when they were finally considering obeying the court order they were still equivocating about fully respecting the court decision.

On June 9, 2009, the Director’s government lawyer advised the group that they had received notice that the Foster Mother had, on the previous day, filed a court application to find the Director in contempt of court. We will pick up this part of the story in the next post on Day 6 of Society’s Child.



NOTE TO READER: Here is a link to a blog post the puts all posts of the Society's Child Services in one place so you can go back and put the whole matter in context.

Wednesday, August 26, 2009

Hancock Steps Up to the Plate to Defer Bill 44 to Avoid Disaster for Teachers

Terrific developments on the Bill 44 fiasco. Looks like Minister Dave Hancock has asked Minister Lindsay Blackett to delay proclamation of the offensive sections that are part of the Alberta Human Rights Act. Hat tip to Chris Labossiere for bring this to my attention.

We need progressive voices in the PROGRESSIVE Conservative party to take back their place in the party. Progressive party members and MLAs need to promote socially progressive and fiscal conservative ideals that are at the heart of the party.

Failing to do this leaves the Alberta Progressive Conaservative Party vulnerable to the same fate as the federal PC party - takeover by the Reform/Alliance social conservatives.

This action by Hancock to delay proclamation is a practical reality to ensure that the efforts to make this "law" effective and enforceable. The language in the new act now is the usual wishy-washy weasel words used by politicians when they try to skirt around the hard job of trading off one competing principle for another.

It is this poor legislative drafting and fuzzy policy process that force judges to "make law" in their decisions. That is the job but the judiciary but they often have to exercise their power of interpretation because the politicians do a substandard job of drafting a clear law in the first place.

So good for Hancock. Here's to Blackett to do the right thing and leave this ill conceived laws in limbo and then to press for its repeal in the fall session.

Monday, August 24, 2009

Opinion Polls on Voter Intentions Point in Different Directions

The polls are all over the place again just link a couple of elections ago. Only Nanos came close to reflecting the final election outcome. Opinion polls are OK but they don't predict behaviour and election DO matter.

Pollsters are out there asking the meaningless question about who you would vote for if an election were held tomorrow. The question is hypothetical, results in superficial answers and is no predictor of actual behaviour.

Ipsos Reid is out there showing 39% support for Harper up 5 point 2 months ago and Ignatieff is at 28% down 7 points in the last 2 months. Harper has had the media machine in full throttle in the past 2 months making stimulus funding announcements, delivering cheques, spending time at G8, meeting Obama and putting in a week in the Arctic as a media stunt. Hard not to get a bounce in numbers with that kind of media help.

Layton just went through a national convention with all the media focus on the petty possibility of dropping the word “New” from the party name. He only got a 1 point bounce to 14% and is deluding himself into thinking he is on the heels of catching the Liberals. The Greens under Elizabeth May had no publicity in the same timeframe and bounced up 2 points to come in at 10% support.

Ekos, with a larger sample than Ipsos, puts Harper support at 32.8, Ignatieff at 30.3, Layton at 17.3 and the Greens at 11 nationwide. These two polls done virtually at the same time have significantly different outcomes.

The more critical and relevant question is the “sentiment” index of the leaders. Ipsos found that 45% of Canadians believes that Harper has done a good job and deserves to be re-elected. 50% of us, according to Ipsos, don’t think Harper deserves to be re-elected. Nanos’ poll on the same question but a few weeks earlier said almost 60% of us don’t see Harper as good enough to be re-elected. More dissonance in the data

Harper is still leading Ignatieff on perceptions of leadership capacity to best manage issues. Again let’s get some context straight. Harper has been our Prime Minister for almost 4 years. Ignatieff has been leader of the Liberals since last December. We have not had the time to get to know Iggy nor do we have a clear sense of what direction he would want to take the country. As for Harper we are getting all too clear a sense of where he is taking the country and we are getting tired of his bullying, attack ads and strategic incoherence as he says one thing and then he does another.

We are starting to consider his total reversal on Income Trusts, the deceit he promoted last November that we were not in a recession and there would be no deficit and now he is courting China when he said he would not do that. He says the deficit will be $50B but his handpicked Parliamentary Budget watchdog says a more realistic figure could be a deficit 3 times that.

We need as much certainty and honesty and transparency as we can get in foggy times like a recession but Harper has trouble telling us the truth. He fabricates and misleads us on the facts so it is hard to know when and what to believe in anything he says.

The polls are all over the place and perhaps that is a true reflection of the uncertainty Canadians feel about their politics and politicians these days. Don’t get transfixed by the polling data about political intentions these days. Canadian fortunes can be gleaned just as well by reading Tarot Cards in these uncertain times.

Foster Mother Wins Appeal & the Government Goes to Court.

SOME CONTEXT AND KEY QUESTIONS:

This case is complicated and challenging but it provides a window into how our government is behaving and operating in its duty of serving the best interests of at-risk kids in and of our society. It is always dicey to generalize from one instance. But the attitude and behaviours exhibited by senior levels of Children and Youth Services Alberta (CYSA) in handling this case makes you wonder how endemic this approach is elsewhere in the department and other social service departments in the Alberta government.


The Appeal Panel is an internal government process, setup in law, to deal with various concern issues within mandate of CYSA. It is intended to resolve issues in an efficient, cost-effective manner that does not involve the time, expense and adversarial nature of litigation. It is a check and balance available for a child, a guardian, a foster parent or other child caregivers over the discretionary (and necessary) powers of the government.


The challenging issue here is why the Alberta government wanted to go to court to over-ride the internal Appeal Panel finding to reverse the Director’s decision to remove the child from the foster home. Was there evidence that the Appeal Panel did not have or discounted? Was it because the Appeal Panel made a mistake in law and was it acting outside its jurisdiction? Those were the legal arguments made by the CYSA in court.


Or was the CYSA decision to take the Foster Mother to court a tactic to grind her down by adding cost, time, energy, anxiety and frustration, hoping she would just give up? Did the CYSA believe it was infallible and in absolute control of these matters? Did the CYSA not appreciate being challenged by an agency Foster Mother? Or was it something else? I will leave the drawing of any conclusions to the reader but these are some of the serious questions begged by the behaviours of the CYSA.


THE ANALYSIS:

I have not read any of the Court of Queen’s Bench (QB) files on the Appeal Panel’s decision to reverse the Director’s order to remove the child from the Foster Mother’s home. I have read the Memorandum of Judgment of the Alberta Court of Appeal that on the Queen’s Bench decision. They do a pretty thorough job of reviewing the reasons of the Queen’s Bench Chamber’s judge. I feel that is enough background to deal with this next phase of this series: Going to Court.


CYSA had every legal right to take the Appeal Panel decision to court, and in many cases they have a duty to appeal such matters to the courts. In this post I will explore the background on the two court appeals, the Court of Queen’s Bench by CYSA and the Court of Appeal by the Foster Mother. CYSA won the QB appeal at a Chambers hearing. That is not a full blown trial and the evidence is mostly affidavits. CYSA also got QB to grant a stay of execution of the Appeal Panel decision to return the child. That meant that CYSA did not have to comply with the Appeal Panel decision until the matter was dealt with in Queen’s Bench.


THE COURT OF QUEEN’S BENCH DECISION AND REASONING:
The chambers judge in Queen’s Bench decided to reverse the Appeal Panel’s decision to return the child. The law that governed the QB judge in deciding the matter was “…based on the material before him, what is in the best interests of the child on the balance of probabilities.” [Ct of Appeal Memorandum of Judgment Para 12]


The QB judge also noted “…that both the Court (QB) and the Appeal Panel were equally positioned to determine that which is in the best interests of the child.” He went further and said “that the Panel’s decision must be held to a standard of correctness.” He also noted that no curial deference could be attributed to the Appeal Panel. That means the court could examine the evidence anew that was before the Appeal Panel. This was because the court found that there was no legal restraint for it to be bound by the facts as determined by the Appeal Panel. It also determined that “The Appeal Panel had no particular expertise in determining the best interests of the child….”.” [Ct of Appeal Memorandum of Judgment Para 13 and 14]


Based on these findings the QB judge said “…I can determine, in on the record before me, the Appeal panel erred and if so, I have all the evidence to support a determination in this matter.” So here, according to the Court of Appeal, is what the QB judge found.


THE COURT OF APPEAL DECISION AND REASONING:
The Court of Appeal heard the matter on September 2, 2008; the decision was written on January 30, 2009 but not filed until March 25, 2009. Those dates are important because of the timing of the Director’s Petition for Adoption for the child by the extended family caregivers. I will talk more about that in later posts.


On “the balance of probabilities” the chambers judge concluded “…that the departmental investigative report was “comprehensive and complete and the Director relied on that report in deciding that is was in the best interests of (the child) that he be removed from (the Foster Mother’s) home.” The chambers judge said the Appeal Panel erred in law in “second guessing” the department’s investigation. They were wrong in concluding that the long time to complete the reporting was a basis for reversing the Director’s decision and that any delay in removing the child from the foster home until the report was done was a ground for reversing the Director’s decision. They were wrong to suggest that there were alternatives to deal with the Foster Mother’s adult daughter’s involvement with the child that could result in not removing the child. [Ct of Appeal Memorandum of Judgment Para 15].


The Court of Appeal said in its Memorandum of Judgment that the CYSA position was”… that the findings by the investigator, as confirmed by the Director, found that the child was at risk and in need of protection is unassailable on review by the Appeal Panel.” They argued that the Appeal Panel could only consider “various remedial alternatives.” “In other words, the Appeal Panel, the Respondent (CYSA) contends, is precluded from inquiring as to the sufficiency of the investigation or, for that matter, in any way challenging the director’s conclusions that the child was at risk. The Respondent argues that the Appeal Panel’s jurisdiction is confined to a consideration of whether some alternative other than removal of the child would have been appropriate, i.e. greater supervision, counselling, education etc.” [Ct of Appeal Memorandum of Judgment Para 18]


The Court of Appeal came down clearly and hard on the CYSA saying “The Respondent’s submission must be rejected.” They accepted that the Director's decision to remove the child was “…founded exclusively upon the investigation and no finding that a child is at risk and in need of protection can be made without reliance upon that investigation.” The Court of Appeal reads section 119(2) of the Child, Youth and Family Enhancement Act and says “…it seems apparent that the Appeal Panel has a broad discretion to “confirm, reverse or vary the decision of the director appealed from.’”



As a further admonition the court said the Appeal Panel powers come from “precisely the same language employed by the Legislature to describe the role of the Court of Queen’s Bench.” The say the Appeal Panel has and needs that broad discretion to accomplish it’s “…purpose, to inquire as to the sufficiency of the underlying investigation. [Ct of Appeal Memorandum of Judgment Para 19]


The Court of Appeal notes that there were legislative amendments even as far back as 2003 that also conferred this power of a broad scope of review on Appeal Panels. The said that power extended “…to an examination of the investigative underpinnings revealed by ‘any new evidence’ or engaged by oral or written representations and submissions. To hold otherwise is, in our opinion, an error of law.” [Ct of Appeal Memorandum of Judgment Para 20]


QB MADE THE ERROR OF LAW - NOT THE APPEAL PANEL:
Given this legislated power in the Appeal Panel, the Court of Appeal rejects the QB judge observations and agreement with the CYSA that there was some kind of “jurisdictional inability of the Appeal Panel to ‘second-guess’ the director, if by ‘second-guess’ he meant to substitute the Appeal Panel’s view of the evidence for that of the investigator and of the director.” They said in conclusion, “In our view, it was an error of law to so constrain the scope of review by the Appeal Panel. The Appellant (Foster Mother) is entitled to relief. The order of the Court of Queen’s Bench is set aside and the decision of the Appeal Panel is restored.” [Ct of Appeal Memorandum of Judgment Para 21]


The Foster Mother won at the Court of Appeal big time. This judgment will have positive impact on many other at-risk kids and encourage other caregivers to challenge inept investigations and inappropriate administrative decisions by government based on them. However, this story is far from over.


In the intervening period, before the Court of Appeal decision came down, the Director filed a Petition for Adoption of the child by the extended family, on March 13, 2009. This move by CYSA for adoption of the child by the extended family is clearly adding to the complexity, cost and would raise the anxiety of the Foster Mother. Her lawyer writes to the Court of Queen’s Bench indicating she was seeking client instructions to respond to the adoption process and asking to be advised of any steps taken in the matter. She also writes to the CYSA on March 18, 2009 saying essentially the same thing about seeking instructions on the adoption process.


This is upping the ante and putting more pressure on the Foster Mother, her energy, capacity, determination and her resources. One has to wonder if initiating this adoption process by CYSA was really necessary for the best interests of the child given the suspicious nature of the timing.



The Foster Mother shows that she is no quitter and she takes some retaliatory steps of her own.
Next post I will deal with the actions taken by the Foster Mother in response to the CYSA adoption move and how she initiates steps to find the Director personally in contempt of court. I will also deal with how this case finally comes to the attention of the Director and what the bureaucrats do beyond the adoption petition and how, if at all, those actions could be in the best interests of the child.


NOTE TO READERS: I have set up a blog post that will gather together in one place all the posts in this series. That way you can go back to the beginning as start following the events or check out other details as you wish. Here is the link to that age where the entire series is located. I will add the link to the bottom of all subsequent posts for convenience.

Sunday, August 23, 2009

CRTC Condones ISP Throttling? What Gives?

What is going on at the CRTC? Are they actually condoning throttling of Internet bandwidth? Even if contained at the wholesale level it is wrong. Canada has to stay competitive in the networked world of the 21st century. We are already getting screwed in our broadband service and costs. This just adds insult to injury.

Go to the Alberta: Get Rich or Die Trying blog for more info and a petition to sign.

Glad to see you back AGRDT - you have been gone far to long.

A Few Important Words on the Rule of Law

In this blog series, looking behind the contempt of court finding against a Children's Services Director, I have mentioned the concept of the rule of law a number of times. The finding of contempt of court in the case under discussion involves invoking the role of the rule of law and the duty of the state to obey the law.

We don't teach this stuff in school much any more. The concept has to be more than just a cliche in the minds of citizens. So I thought I would spend some of my Sunday and try to explain Rule of Law 101. We all know this innately but here are the main elements.

Rule of Law:
Describes a form of government that holds that no power can be used except within the constraints and in accordance with the law. That concordance goes to process, procedures, principles and practices.

Any citizen (including a minor child) can pursue and achieve redress for a breach of they law that they suffered from the action or inaction of the state or any other citizen. It doesn't matter how powerful or ranking a person is within the state, they are bound by the law just like anyone else. The Foster Mother in the Children's Services contempt case was exercising this legal right in pushing the processes to overrule the Director's decision to remove the child from her home and care.

The law is supreme. That means we need an independent judiciary so the law can be effectively enforced against the state, as in the Children's Services case. The courts have to be able to impose consequence for contempt of court and for other breaches of the law. In the current case the courts imposed jail time for the Director who was found responsible for not obey the outstanding court order. The court also allowed for community service time to be served by the Director personally to avoid prison.


Paradoxes of the Rule of Law:
There is a paradox here because the government/state appoints the independent judges. There are now checks and balances in the judicial review and selection process, including consultation with the Bar and distinguished citizens who make the final appointment recommendations to the government. The usually recommend about three qualified candidates for judicial appointment and the Minister responsible can select one of them or reject them all. Such rejections of all candidates is rare and it merely starts the independent review process all over again. That independent and confidential judicial review and selection process is not perfect but it goes a long way to assure citizens of an independent judiciary.

The other paradox is that the government makes the laws that they are also going to be subject to. They can change them at any time as the legislature and Constitution will allow. If the lawmakers do not like something the law imposes on them, they can change the law. So we citizens have to be very careful who we elect. We have to be on constant vigil to ensure our politicians are serving our best interests and not their own or some "friends" or some special interest group.

The Bill 44 recent changes the Alberta Human Rights Act was serving a special interest group and not the best interests of a secular society as a whole. It also undermines the ability of teachers to provide a quality public education system too. But it is the law and it must be obeyed until political pressure is successful in getting it changed.

Without the rule of law there is a risk of social collapse, corruption, terror and intimidation. A further irony of the rule of law is the state needs to be powerful and forceful enough to subvert those lawless activities also using force and violence. The government must be capable and prepared to revert to the kind of violent extremes needed to overcome other illegal and violent extremes. Some readers will remember Trudeau and the War Measures Act in the FLQ Crisis. This is a perfect example of this paradox.

No body, and nobody is above the law nor can they ignore the law. That includes the lawmakers themselves as our agents and as people in their own right. The rule of law is a fundamental principle of our form of government. It can be subverted over time unless we citizens engage effectively in the politics of our time. Failure, refusals or neglect by citizens to engage actively in their democracy will weaken our rights as citizens to be protected by the state and from the state under the rule of law.

Thus endeth the lesson.

Saturday, August 22, 2009

Nanos Poll: 60% Say Harper Doesn't "Deserve Re-Election"

The sense of a federal election as early as this fall is becoming more of a possibility in the minds of Canadians. Not sure we really want an election but we are getting more impatient with the current Harper minority government.

The recently released Nanos tracking poll shows some interesting attitudes. Looks like Winter 2009 will be one of discontent with Stephen Harper and his government. His best before date passed effectively last November with his deceitful economic update that almost cost him his government and his leadership.

The patience of Canadians with Harper is wearing thin. We are tired of his negative ad bullying and belligerent politics that predominate his leadership. He is also showing us his astonishing ineptitude at governing in in a time of recession.

Here are the Nano's poll findings as at August 2, 2009:

Some 54% of use still think a minority government show be able to work, which underscores a hesitancy to support a quick election.

What we like about a minority government is that is forces the parties to work together. This is the aspiration of 55% of us. Harper's style is to not cooperate at all so he is seriously out of step with the value driver of the majority. He has had almost 4 years to show some capacity to co-operate but it is just not in his DNA. Interestingly 32% of us are unsure why we liked a minority government. This indicates an underlying unease about Harper's leadership in a minority government that is growing.

60% of those of us who are fed up with the minority government situation, say they are inefficient. We can't have this in a recession when we are spending billions of taxpayer's dollars on stimulus plans. Harper has been half-hearted and hapless about implementing the public infrastructure stimulus plans and his delay is not letting the provinces and municipalities to their job of creating jobs.

Here is the big news finding from Nanos. Almost 60% of us think Harper has not done a good enough job to "deserve re-election." Only 30% still have confidence in him and his leadership and only 10% are unsure.

If that statistic holds into and through the next election and leadership is the ballot question, Harper is toast. We can only hope at this time but it is looking like a leadership change is in the air for the Prime Minister's Office and a minority government is not the preferred option.

Links to Posts on Children's Services Series

I have been posting a series on the legal, governance, policy, fiscal and social implications of the recent Alberta Court of Appeal finding of contempt of court against a senior Children's Services bureaucrat. The issues and processes are complex so these posts are relatively long.

I thought it would be helpful for people to follow the series if I put up a one-stop link to all of them in reverse chronological so readers could go back into the history the posts if they wanted more context. I will add new posts and link them here as they get published.

THE SERIES:
Day 7: Where Do We Go Fron Here?
http://ken-chapman.blogspot.com/2009/09/day-7-societys-child-where-do-we-go.html

Day 6: What Led to Mr. Ouellet Being Found in Contempt of Court
http://ken-chapman.blogspot.com/2009/08/day-6-what-led-up-to-mr-ouellet-being.html

Day 5: Did Children's Services Act Within the Rule of Law?
http://ken-chapman.blogspot.com/2009/08/day-5-societys-child-childrens-services.html

Day4: Foster Mother Wins Appeal & Government Goes to Court
http://ken-chapman.blogspot.com/2009/08/foster-mother-wins-appeal-government.html

Day3: It Started with an Inept Investigation
http://ken-chapman.blogspot.com/2009/08/day-3-societys-child-it-all-started.html

Day 2: Accessing & Reviewing the Court of Appeal File
http://ken-chapman.blogspot.com/2009/08/day2-societys-child-accessing-and.html

Day 1: A Blog Series on At-Risk Kids in Care in Alberta
http://ken-chapman.blogspot.com/2009/08/societies-children-blog-series-on-at.html

EARLIER RELATED POSTS:

Court of Appeal Orders Jail Time for Bureaucrat for Contempt of Courthttp://ken-chapman.blogspot.com/2009/08/ct-of-appeal-says-contempt-of-court.html

Minister of Children & Youth Services Reaches Out http://ken-chapman.blogspot.com/2009/08/alberta-minister-of-children-youth.html









Contempt Aside, Where the Child'sBest Interests Served?http://ken-chapman.blogspot.com/2009/08/contempt-of-court-aside-were-best.html

Alberta Government Found in Contempt of Courthttp://ken-chapman.blogspot.com/2009/08/alberta-government-official-found-in.html

Thursday, August 20, 2009

Day 3 Society's Child: It All Started With an Inept Investigation.

So how did all this litigation and conflict between the Foster Mother and Children’s and Youth Service of Alberta over the child start? The first step was an investigation into the Foster Mother’s home. This arose from an allegation of physical abuse made by another five year old formerly in the Foster Mother’s care. After that investigation, the child at the centre of the court case was taken out of the Foster Mother’s Edmonton home where he had lived from the ages of three months to four-and-a-half years. He was placed with extended family members in northern Alberta.

The Foster Mother immediately appealed the Director’s decision to remove the child. This post is going to review the Appeal Panel decision and reasons for returning the child to the Foster Mother.

First, some facts. The Foster Mother was told on October 20, 2006 the Director decided to remove the child. She appealed on November 29, 2006. The appeal started on March 29, 2007 because the government of Alberta objected to the Appeal Panel’s jurisdiction to hear the matter. The government claimed the Foster Mother’s home was “…an agency home and currently ‘on hold’ and therefore the Appeal Panel could not return the child.” Counsel for the Foster Mother said the relevant law did not distinguish between department foster home and an agency foster home. The Appeal Panel agreed with the Foster Mother’s legal position and decided it did have jurisdiction.

Strange position for the government to take claiming there were two classes of foster homes when the legislation did not differentiate at all between departmental and agency foster homes. How does this kind of tactical legal maneuvering by CYSA serve the best interests of the child? It just delays matters runs up costs and increases the adversarial atmosphere. This is merely encouraging conflict in a process that is supposed to be mostly concerned about the welfare of the child.

The Appeal Panel is Not Impressed:
The Appeal Panel, upon hearing the evidence, reversed the Director’s decision to remove the child and ordered him returned to the Foster Mother. Here is some of the crucial reasoning why the Director’s decision was reversed.

The Director's decision to remove the child was based on a CYSA Placement Resource Investigation Unit investigation. It was instigated by a disclosure of a 5 year old foster child who used to be with the Foster Mother. The alleged physical abuse of the child was by the Foster Mother’s adult daughter. The investigation concluded that the Foster Mother “…had failed to protect the foster child in her care from abuse.” There was an added concern about the presence of the Foster Mother’s ex-husband in the home.

The Appeal Panel then examined the quality and reliability of the investigation report. It found the government investigator failed to consider collateral evidence and had relied only on the verbal evidence of the other 5 year old foster child. The Appeal Panel found lots of factors to consider about the reliability credibility of the evidence of the 5 year old.

The Appeal Panel also criticized the investigator for taking an “extended time” to complete his investigation. They believed that delay also affected his findings. The usual time to do these investigations is apparently about 9 days. He started this file on April 26, 2006 but started the actual investigation May 28, 2006. That is a full month delay after receiving allegations of physical abuse of the child. He then took almost 5 more months to complete the report which was finished on October 20, 2006.

Surely this is a case of failure, refusal of neglect by the branch of the government who is specifically responsible to deal with these investigations. To show such a lack of any sense of urgency here stretches credibility that in this case they served the best interests of a child. What could have happened to him in the five months that elapsed if he was actually undergoing physical abuse? Did anyone care about that? Could it be that the investigator was not really concerned about the physical abuse at all so he could take his time? Was there was another agenda at play with the government here?

The Appeal Panel’s criticism of the quality of the investigation is telling as well. They list what the investigator did not do and should have done to serve the best interests of the child. The Appeal Panel the investigator did not interview the bus driver who the 5 year old originally told about the alleged abuse. The investigator did not interview the five year olds teacher, psychiatrist and psychologist all of whom were available and could “provide clear insight into (the five year olds) functioning.

Despite the allegations of punching and hitting by the five year old, the investigator did not take the 5 year old to a doctor to determine if there was any evidence of physical abuse. It was noted by the Appeal Panel there was no evidence of the child's assessor, social worker or case worker ever checking him over for bruises.

Despite all this the investigator said he still believed the five year old to be credible. It is unclear if he knew and ignored the fiveyear olds Reactive Attachment Disorder and Obsessive Compulsive Disorder. Based on these medical conditions the Appeal Panel considered the five year old would have “tendencies with sufficient reason to question his credibility.” The Appeal Panel also noted the five year old had been removed earlier from the Foster Mother’s home at her request. The Appeal Panel noted the five year old had made previous unsubstantiated claims of abuse against his birth mother. These facts seem to have been overlooked or ignored in the investigation too.

The Internal Administrative Review Makes Matters Worse:
There was an internal departmental “Administrative Review” of the Director’s decision and reported on December 21, 2006. It confirmed the Director’s previous removal decision. These reviewers, to their credit, actually met with the Foster Mother and the foster agency program director. They also met with departmental supervisors and the departmental Aboriginal Initiatives Office, the Child’s Advocate office and the extended family caregivers for the child.

This Administrative Review seems like a more conscientious effort to look seriously at the best interests of the child. Interestingly enough the Administrative Review report was attached to the Affidavit of the Foster Mother and not the affidavit of the government employee at the Court of Appeal. I am curious why didn’t the CYSA use the Administrative Review report as part of their case to prove the Director had done the right thing in removing the child? It looks like the Foster Mother was able to use the Administrative Review report to prove her case why the child should not be removed.

The Administrative Review found the earlier investigation recommendations to be appropriate and it confirmed the Director’s decision to remove the child. They met with other people but in the end confirmed the investigation findings that totally relied entirely on the verbal testimony of a troubled and disturbed five year old.

The Administrative Review also found the Foster Mother’s adult daughter to be “highly emotional” in the investigation. They described her as being “overbearing and with an intimidating approach to adults.” They took offence that the Foster Mother’s daughter used prior reports to challenge the credibility of the five year old with his unsubstantiated allegation that started this entire series of unfortunate events. DUH! Wouldn’t you be ticked off and demand some straight answers of the authorities under such circumstances?

These reviewers clearly had made up their minds and seem oblivious to any other objective evaluation or alternative judgment based on the evidence. Here is an example of prejudgment and prejudice in action. The Administrative Review says, “The reviewers found that although the police closed their criminal investigation, the child intervention investigation noted the concerns were not discounted, however, could not be substantiated.” How much more Kafkaesque can you get in one sentence?

There was not a single comment that I could find in the Administrative Review report to indicate what they reported on from their additional interviews. Where is the reviewer's discussion of the evidence from those interviews? Makes you wonder why the reviewers did the extra interviewing? Was this a smoke screen to cover up the ineptness of the original investigation? We will likely never know but these are legitimate questions for departmental management and leadership.

In the reviewer’s minds, the level of caregiver engagement, by the daughter, constituted abdication by the Foster Mother of her caregiver role. They accused the Foster Mother of failing to protect the child and criticized her for not actually believing the abuse allegations. Why would one believe the abuse allegations when there was not a shred of corroborated evidence of abuse? How is this failing to protect the child from abuse?

The Administrative reviewers further denied the Foster Mother and her family free and generous access to the child if he was not returned to their care. They also reaffirmed that the child's caseworker should continue with the extended family caregivers. To be clear, there is nothing to indicate that the extended family caregivers were anything but exemplary in their duty of care for the child. They are not at issue here in any way.

The Foster Mother Wins at Appeal but Government Still Wants to Fight:
Bottom line, the Appeal Panel found no evidence of any risk to the child in the Foster Mother’s home. It said that the removal of the child from that home was unwarranted. The foster home was obviously considered safe to leave the child in for the many two months between the initial screening and the investigation final report without additional surveillance of support. The case worker even testified that in her opinion the child was not only safe; he was a favourite in the foster home.

The only caution from the Appeal Panel was the presence of the ex-husband in the home on occasion. The said he had a “history of making poor choices and has been convicted of assault." The Panel accepted the Foster Mother’s testimony that he was never left alone with the children and recommended his presence in the home should be monitored.

The child was ordered returned to the Foster Mother’s home on July 17, 2007. That did not happen. The government department ignored the Appeal Panel’s decision. Instead they appealed it to the Court of Queen’s Bench. I will start at the QB findings in the next post.

Tuesday, August 18, 2009

Anonymous Bloggers Beware!

UPDATE: AUGUST 23 - GLOBE AND MAIL STORY says days of anonymous bloggers are limited and cites a successful case against Google forcing them to reveal the identity of a blogger.

(H/T) Debra Ward for the lead.

Here is an interesting UK court case that says Bloggers can't hide behind a cloak of anonymity. The Times newspaper "deduced" the identity of an anonymous blogger who was "very political and critical." Political and critical - in the blogospher? How does that happen ;-)

An anonymous blogger was a detective constable writing under a pseudonym who tried to protect his true identity. The court said "...the public should have the right to receive information about the author so that they could assess the weight and authority to be attached to them."

Yes!!! Lots of reasons to be anonymous but not many of them are good ones, especially for bloggers and commentors.

Blogging is growing up and becoming much more of a mainstream media as well as a social media. Here is an indication of the implications of this shift, as this court said, "...blogging was(is) essentially a public, rather than private, activity. Bloggers often took steps to disguise their authorship, but is was a step too far to say that those people could legitimately expect others to be prohibited at law from deducing their identity."

Makes one wonder if Tiny Perfect Blog will ever be back.

Day2 Society's Child: Accessing and Reviewing the Court of Appeal File

I visited the Clerk of the Court of Appeal of Alberta on Wednesday August 12 and asked to see the contempt of court file relating to Director in Alberta Children and Youth Services. I said earlier in this Blog that I would research the issues and comment about how the best interest of the child was served in this case. I was also interested in the background about how a policy unit in an Alberta government social services department could end up acting like they were not bound by the rule of law.

When I arrived the Clerk’s office asked me to write a letter outlining what documents I wished to see and why. My first reaction was puzzlement because court files are public documents unless there is a court order sealing them. That was not the case here. It then occurred to me that the concern was likely about the risk of identifying the child who is at the centre of all this. Of course his/her identity had to be protected. The matter is very current and complex and the child’s privacy should be of foremost concern. I expected the courts didn’t have the time to prepare a public copy of the file that would remove certain names to protect the identity of this child. I was right, so don’t run down to the court house to see the file, at least for a couple of weeks.

Given the circumstances, I wrote the letter and described what I was doing and why. I advised the Clerk’s office that was going to write some blog posts on the best interests of the child issue and other concerns I may discover in reading the file. I told them that I’m a lawyer on the inactive list but still a Member of the Law Society of Alberta. I said that I was bound by the Code of Conduct and as an officer of the court, I had a duty not to disclose the identity of the child in any writing I did.

I was called right after I faxed the letter and was given access to the unexpunged copy of the Court of Appeal. I spent about 7 hours in the Clerk’s office going over the documents last Thursday and Friday. I appreciate the co-operation of Clerk’s office and the Court of Appeal in allowing me such timely and open access. I have to tell you from watching these Court of Appeal clerks, they are hard working, conscientious and spread very thin. They have staff shortages, a hiring freeze and holiday scheduling to contend with as the court system grinds on without any summer lull. C'est la vie in times of budget restraint.


With access to the file I know the names of the parties so I need to explain some ground rules I will use in this blog series to protect the identity of the child. I will refer to the child as “he” or “the child” for purposes of convenience. I will refer to the “Foster Mother.” She is known as B.M. in the published court documents. The “Extended Family” was a caregiver to the child before his recent return to the Foster Mother.

As a matter of fairness, I will not use the names of any of government staff involved in the case but will refer to the positions they hold. I think they also deserve some privacy. Besides there is apparently a government investigation on-going by Children and Youth Services and Alberta Justice to see if others may also be found in contempt of court. Those parties are innocent until proven guilty and nobody has even been identified yet as even being potentially in contempt. It is not the time or place for me or readers to jump to any conclusions. So in fairness, I will respect their privacy under these circumstances. I will do my best to monitor that government investigation and the independent departmental review order by the Minister of Children and Youth Services (CYSA). I do not expect much of it will be made public until it is complete, if then.

I will use the Minister’s name, the Honourable Janice Tarchuk and the name of the Director, Richard Ouellet, who was found in contempt of court. They are the public faces on this file. I hope people don’t find this too awkward in reading the series but it has to be this way to protect the identity of the child.

After reading the entire file I have some sympathy for Mr. Ouellet, the Director who was found in contempt of court. He is still guilty of contempt but I think he received bad advice as Mr. Justice Cote noted in his Penalty Decision. But with 32 years in government you would also think he would also know better. More on that in later posts.

Now for some background facts to set the stage. The child was under permanent guardianship of the government from September 2003. The child was 3 months old when the Foster Mother started caring for him in Edmonton. He was removed from the Foster Mother’s care when he was 4 and a half, as a result of an inspection of the foster home done by CYSA. He is now 7 years old in school and back with his Foster Mother. He was returned the day before Mr. Ouellet appeared before the Court of Appeal in an unsuccessful attempt to vary or vacate the finding of contempt of court against him.

The child was taken away from the Foster Mother in October 2006. He was moved up north, placed with relatives who started adoption proceedings in March 2009. The Foster Mother's family was also interested in adopting him and had applied in 2005. The . There are documents on file that say the Foster Mother is aboriginal as is the extended family and the child was exposed to native spirituality and aboriginal culture throughout his life. So you can see this child was not unwanted nor unloved. In fact two families obviously care for him and want to adopt him. The adoption of the child is still an open issue and therefore not part of my review.

The Foster Mother took immediate steps to appeal the Director’s decision to remove the child from her care. Next post I will tell you about the process and grounds the department of Children and Youth Services used to remove the child from the Foster Mother’s care. An Appeal Panel reviewed the Director’s decision in hearings starting March 28, 2007 and continuing May 17, 18, 24 and 25, 2007. The Appeal Panel obviously considered its decision thoroughly and carefully.


I will tell you next post why they reversed the Directors decision and ordered the child returned to the Foster Mother. I believe the Foster Mother is a woman of courage and persistence. Without her and her lawyer, we may never have known about this case. Nor would we have the benefit of considering the lessons to be learned from this case. We have lots to learn in terms of how our society and social service systems deal with at-risk kids, who are, after all, the responsibility of all of us - not just our government.

Monday, August 17, 2009

High Speed Rail is Catching on - Will Alberta Lead or Follow?

I am a big fan of high speed rail for the Edmonton-Calgary Corridor. It has many advantages and yes it is a fiscal stretch in times of recession. So in the meantime we should at least be assembling the right-of-way so when the economic times are better we can start building the project.

There is lots of HSR activity happening around the world. Alberta has a small population but we have a strong likelihood of Alberta continuing to grow - dramatically. We should be anticipating the future and designing infrastructure to meet the needs, including reducing car travel with high gasoline prices. We could also help reverse the unfortunate image around the world of Alberta as a dirty oil dynasty with this very green HSR project that will garner international attention.

This is a very complex project but no longer cutting edge. Many other countries are seriously into HSR, including China, big time. We Albertans have studied the concept for decades and the time to do is is just about tight now.

MPs Should Be on Twitter & PoliTwitter Especially

There is a growing possibility of a Federal election sooner than later. The Liberals and Conservatives are neck and neck in the polls and have been for some time. The NDP are running against the Liberals and ignoring the threat of the Greens coming up behind them. The Bloc is old, tired and a spent force politically and not rejuvenating at the party level. Media reports indicate that the next election will be fought constituency by constituency.

In all of this political churn I received an interesting email from Trevor May of PoliTwitter.ca. Twitter is becoming a great tool for political networking and sharing by politicians and political parties.

Many politicians are using it, some more effectively than others. The Liberals are into it and using it more and more. The Conservatives noticed that so they have stepped up their Twitter activity too. Trevor's idea, and it is a good one, that is to get as many MPs as possible on to and into Twitter. His site is a great vehicle to gather all the partisan Tweets at a federal and provincial level. Definitely worth visiting and following. Here is what he sent me:


"I am writing in the hope that some of you Bloggers might lend a hand in getting the word out about the new Canadian Political Twitter site http://politwitter.ca . PoliTwitter is a non-partisan service that uses Twitter to connect elected MPs and MLAs with their Canadian constituents with the goal of increasing engagement and promoting open government.

I would be thrilled if some of you could blog about the site and spread the message about getting MPs to join Twitter. I have a list of all the MPs not currently on Twitter that allows anyone to send emails encouraging them to join.

http://politwitter.ca/page/mps_without_twitter
There is also a timeline showing when each MP has joined Twitter:
http://politwitter.ca/page/timeline

Also for you bloggers Politwitter has a widget that you can add to your site with some copy & paste code. The widget shows Political twitter and is customizable. So if you are a Conservative blogger you could customize it to only show conservative tweets.
http://politwitter.ca/page/widget

Thanks for your consideration, I’m running this site not-for-profit, so I need all the help I can get!
- Trevor May - http://network.canadaka.net/


So if you know any MPs who are not on Twitter - get them going and let Trevor know so we can all follow them through PoliTwitter.ca

Sunday, August 16, 2009

"Society's Children" A Blog Series on At-Risk Kids in Care in Alberta

As regular readers will know I have published a number of blog posts on the recent Alberta Court of Appeal finding of contempt of court against the Alberta government Director of Child, Youth and Family Enhancement. You can read them here, here, here and here if you are not familiar with the case.

I have followed the contempt of court issues since the filing of the original decision by Mr. Justice Cote on July 23, 2009. These contempt of court posts are amongst the most widely read in the three years of this blog. The final legal step in the contempt of court issue was August 11, 2009 with the Court of Appeal penalty decision.


Government Contempt for the Rule of Law = Jail Time:

The court ordered jail time for the bureaucrat who was the subject of the contempt of court finding. The option of spending 8 days in jail or 40 hours of community service did not diminish the impact that incarceration could be the clear consequence for a civil servant acting like they were above the law. Feedback to this blog from workers in the department said they were “astonished” by the jail time and felt like they have been “kicked in the gut.”

Well the Court of Appeal just delivered a very loud and clear wake-up call to Alberta’s public servants. That message is that the rule of law trumps administrative complexity and any corporate culture of indifference to the law and ignorance of the law. You break the law or show contempt for the law, you risk going to jail.The precedent is established!


Moving on and Digging Deeper:

While that phase of this sad narrative is essentially over, there are two other fundamental issues that emerge from this litigation that Albertans need to think about. It ought to be a major concern to every Albertan that the actions of some in the Department of Children, Youth and Family Enhancement makes it apparent that they believed they could ignore the rule of law. It makes one wonder what other government of Alberta departments feel the same way. Albertans need to be concerned if their government is willfully blind or just plain indifferent to the impact and import of ignoring the rule of law. The natural consequence of this is chaos like we see on the streets and in the prisons of Iran today.

There is another critical outstanding and largely ignored issue. Where the best interests of the child at the centre of all this controversy served by the system? How do we know the answer one way or another? How are we as citizens to judge and evaluate the actions of those involved in the real case of the real child who is behind the contempt of court concerns?

I intend to investigate and comment on these two issues. In the coming weeks I am going to take you on a journey into facts, implications and consequences of this file. I will be working fromthe court records and anything else I can uncover. I will deal with perspectives on the government being subject to the law and what happened to this child and was it always in his best interest. for the record, I am not hired by anyone to do this. This is a pro bono project pure and simple.

I will try to give you some context and insight surrounding the facts and events and the implications and consequences that flow. I will do this through the eyes of a lawyer and a concerned citizen. I am not trained or experienced enough to judge the quality of the work outlined in the various reports and reviews of this child’s situation on file. However, I do feel qualified to ask questions and to write public policy and political commentary on what I read. I hope to hear blog comments from other people inside and outside government who are in fact qualified to make informed comments on those other aspects.


Telling the Story Behind the Contempt of Court Case and Learning Some Lessons:

I intend to tell the story in a series of blog posts that will be written every 2 or 3 days in the weeks ahead. I will do my best to describe what happened to this child in as much detail as I can under the circumstances. My posts will be based solely on the filed court records and other background material that is in the public domain. There are limitations on what I can say and they will be explained in the next blog post.

Like any good story, there are heroes and villains. But as in any critical and important human condition, it is complicated. It is not all black and white nor cut and dried. There are nuances and interpretations, especially around the question of has the best interests of this child been served. Has our government, the one you and I elected to act on our behalf, done their job, especially about ensuring the best interests of this child? Have the professionals involved made the right tough judgments about these intricate and emotional human conditions? This is not about second guessing or Monday morning quarterbacking. It is a quest for the right questions and gaining a better understanding of the context and consequences to the child in this case.

This series of blog posts will be a case study in process, policy, public interest, professional duty, politics and competing personal interests. It will be a quest for questions about what happened and why things happened the way they did. It will be a chance for Albertans to consider and make suggestions on how to fix the system to ensure our child protection system is improved in ways to better serve the best interests of the child. This has to be done on the ground and in real life, not just in theory or in some departmental business case Mission and Vision statement. It is not easy stuff to deal with so it demands that the best and brightest, most caring and capable people be properly equiped and enabled to do their jobs.

I am isolating one case out of some 13,000 at-risk children who are in some way or other under the care and control of our government. I think there is lots of blame to go around about this child and likely many others that we will never hear about. Confidentiality is a shield and sometimes a shroud.

Much of the blame in this instance has been “fixed” in the contempt of court proceedings. More blame on others may be attributed in the future and the Departments of Child, Youth and Family Enhancement as well as Alberta Justice and Attorney General conduct further investigations. Iwill be monitoring progress on those fronts in subsequent posts as well.


Fixing the Blame is Necessary but NOT Enough to Fix the Problem:

Fixing the blame is fine but it is not the way to fix the problem. Fixing the problem is about attitudes, values, culture and character. Getting serious and being successful about fixing the problem is the real test of our political, governance and policy delivery systems. It also speaks to the character of the citizenship we have in our Alberta society. First we have to really understand the problem or problems to be able to help resolve them. If we don't care enough, then why should our government and public service rise to the challenge to fix the system. After all in a democracy, our government is merely a reflection of us.

We need to be clearer and better informed about what challenges our policy maker, their expert advisers and public servants face on the front lines. What resources, tools and techniques do they have to help them deal with these kids and their troubles and tribulations? How do they solve problems and how can we as a society and as individual citizens begin to help them and the children they care for? How can this be done effectively when there are serious budget cuts coming and staff hiring freezes already impacting the capacity to do the job?

How do Albertans individually and together through social service agencies and government programs help our vulnerable at-risk kids to learn and adapt and become positive contributing members of our society? With each and every one of these children there is a story. Some sadness, some hope, some tragedy and some happiness is likely pervade each one of these young lives as they try to find and make their way in the world. We should not give up on them and we should not write them off.


It's Time for a Public Conversation About At-Risk Children in Alberta

I am looking forward to the journey and I hope you are too. I hope you will read the posts and forward the posts to share them with your friends and family. I also hope you will comment on the blog posts and help create an informative, respectful and enriching public conversation about this file and its larger implications. Albertans need to know more about these larger issues in children youth and family enhancement services. We need to care more about the vulnerable at-risk children who are, in the end result, the responsibility of our society. That's you and me! There is no "them" here.

These vulnerable at-risk kids started out as somebody’s child and some parent’s responsibility. That relationship broke down for some reason or other so now they are our mutual responsibility as a society. They are truly “Society's Children.” So we Albertans have to step up to the plate, learn more, care more, provide the required resources and create capacity for those who out there trying to do the job for these kids. And then we must require more of ourselves, our government and our social services system to do what it takes to effectively serve the best interests of our society’s at-risk children.

Tomorrow I will post some background on the Court of Appeal file on this matter and how I got to read the unexpunged version for background on the coming blog posts. If you are on our Cambridge Strategies distribution list you will be getting regular notices of new blog posts. Otherwise I suggest you subscribe to this blog through the FeedBlitz widget on the righthand sidebar.