Interesting editorial in the Calgary Herald today on the recent Court ordered bar of the public from a preliminary hearing. Anonymous bloggers and citizen journalists and social media sites are said to be "rife with violations of the basic laws pertaining to the courts." The editorial also notes the widespread violations of libel and slander laws on too many sites and I might add from too many Anonymous commenters.
I agree with the observations of the Calgary Herald editorial but then it gets all uppity and defensive about the superiority of the traditional media and professional journalism. I also agree that there is a great benefit to society from professional journalism but frankly that has been eroding too. Not the legal standards but the ethical standards are not always up to snuff. There has been an erosion of analysis and depth in MSM too. This is due to the money saving move for convergence of newspapers, radio and television coverage and ownership but also the competitive pressures to get it first before getting it right.
Part of this competitive pressure is brought on by the Bloggers too because they are breaking more and more news these days. John Ibbitson of the Globe and Mail said as much in a conference we were both speaking at. He noted that in the 2008 Presidential campaign that every major story was broken by a Blogger not a reporter. Part of the problem is the reporters were ensconced on the candidate campaign buses and force fed recycled spin. The news was happening elsewhere...in the communities where the Bloggers were.
Not doubt Bloggers and social media sites have to pick up their game by learning and respecting the legal requirements that relate to what they are writing about. By the same token MSM needs to elevate their coverage too and risk being really informative and start eschewing the infotainment we see all too often - especially on television and talk radio.
The public is ill served by MSM pushing superficial shallow news coverage or self-serving pap served up as authoritative analysis. The public is also ill served by silly shocking strident and uninformed commentary by Bloggers out to pick a fight instead of informing a civil conversation.
I think the courts should insist that citizen journalists, who want to cover court proceedings, actually get proper accreditation specifically as Bloggers/Citizen Journalists. Perhaps they need to pass a test to show knowledge of basic laws relating to the administration of justice and defamation. They can't be anonymous either and they must obey the laws.
Rather than ban Bloggers the courts should make them accountable and liable for what they report. I recently got access to a confidential court file as a Blogger when I did the report on the contempt finding against a Director of Children's Services in the Alberta government. I asked and undertook not to disclose the child's name nor his caregivers in anything I wrote under penalty of Contempt of Court. It was not easy and it happened mostly because I was a lawyer too and could give a professional undertaking to the courts. That is too high a standard and banning Bloggers is too low.
Seems to me there is a better way to serve the public interest here than banning Bloggers from the courts. The larger problem to me is Tweeting from the Court room by anyone with a smartphone. They can publish and mislead the public with instant and enormous reach with retweeting. Many of those who would be tweeting in a Courtroom don't even know they are publishing. It is almost guaranteed that we will see out of context and misinformed tweets coming out of courtrooms. With with only a 140 characters per "story" it is pretty hard to be contextual never mind accurate. Perhaps a ban on cellphones in courtrooms is something we have to look at. I also think we need to allow live video feeds from the courts so the whole complex context of a case is available directly to the public. I think that coverage can be supplemented with an informed or expert commentator to explain the procedure and the context of the proceedings for people. Not reality television silliness but real world information and education for the public about the courts, the administration of justice and the law.
We need professional experienced journalists and responsible informed bloggers to a have access to the courts to so show us that justice is being done and explain how the public interest is being served by the processes and outcomes of various cases. We don't need them to be the keepers of the truth and gatekeeper determinants of what is important or newsworthy. We need a more informed and media literate public with a highly developed skill at critical thinking too. This will all help to keep our democracy and its institutions focued on their real job; that of serving the public interest...not just looking for scoops and sensations.
Showing posts with label Contempt of Court. Show all posts
Showing posts with label Contempt of Court. Show all posts
Sunday, January 30, 2011
Friday, March 05, 2010
An Update on the Foster Child and Alberta Director's Contempt of Court Case.
UPDATE MARCH 5, 2010 5:11 PM - GOOD NEWS. I have just been contacted by the Deputy Minister of Alberta Children and Youth Services who advised that they are not appealing the Guardianship Order of the Foster Mother as stated in this blog. I understood from earlier communications that the department intended to appeal. If the facts about the appeal intentions of the department are in accurate in this blog post I owe both Children and Youth Services and the Foster Mother an apology. I hope they both consider this factual update to correct the record an appropriate apology. I am going to correct the content of this blog post to refect this update from the department by overstriking the irrelevant commentary and incorrect facts according to Children and Youth Services advice to me.
For those of you who follow this blog on a regular basis (and I thank you) you will recall I did a series of posts on problems in the Alberta Department of Children and Youth Services last summer. I centered the series on a Contempt of Court finding against a Director level official in department over a foster child and the impact and implications for the child. I am writing this post as an update on the case but first let me put you back in context.
I have to be careful in writing about the case to ensure the parties are not identified due to privacy concerns for the child at the centre of the case. I also wrote the series about the Foster Mother who was a champion for the child to stay with her. She took court action to that end and won in spite of the contrary and rejected recommendations of the government.
The attitude and actions of those in control of these matters in the Department of Children and Youth Services were criticized by the Court of Appeal. The former Minister launched an external review of how these matters were handled and I was interviewed by the external reviewers as part of their work. One of the things I said to the review committee was I believed there may a destructive culture in the senior levels of the department if this case was an example that could be generalized.
My impression was garnered from reading the Court files, background documents, as well as considering the actions of senior management involved in this case and the attitudes expressed in their communications from the department. My sense was that senior management was more interested in protecting the Minister from political ramifications than it was in serving its duty to represent the best interest of children in care. I pointed this impression out to the review committee and asked them to be aware of this possibility in their work and in their reporting.
Now for the update!It is timely given the death of a 21 month old little girl in foster care in Morinville this week but that is another story and perhaps for another time. Since the blog series last summer the Foster Mother who went to bat for this little boy has contacted me directly and kept me posted on developments. I will still have to be careful not to disclose identities but I can tell you as part of the original court process there were competing interests vying to take care of this child. The Foster Mother applied for Guardianship. Others, with a competing interest in the child and who had temporary custody granted from the lower court, had also applied to adopt the child. I can tell you the child is aboriginal and so cultural issues arise as well as caring, safety and other best interests’ issues.
I have just been advised by the Foster Mother there is good news. The good news is her application to the Courts for Guardianship of the child was granted. The Adoption petition of the others was denied, in fact the other party’s request for continuing contact with the child was also denied. In addition the Foster Mother was awarded all her costs in the matter to be paid by the Director of Child, Youth and Family Enhancement. The Foster Mother was granted a similar order by the Court of Appeal to have all her costs paid in the original action. That means she not only won on the merits based on the law, the award of total costs is a major victory on the equity of the situation.
Now for the bad news! It seems as though the Director of Child, Youth and Family Enhancement intends to appeal the Guardianship Order and rejection of the Petition for Adoption. This department has lost at every instance and issue on this matter every time except for the first trial and that decision was a travesty of justice in my opinion. So this Foster Mother has to continue to fund and fight if the Director follows through with the threat to appeal.
The arrogance of this approach by the Department of Children and Youth Services is breath taking. How much abuse must this Foster Mother endure and how much uncertainty must this child suffer? How is this abuse of power by our government serving the best interests of this child? If the department can’t get it right the first time given all the power and resources they have at their disposal, what justifies them to continue to persecute and pursue this family? Please tell me it is not political or bullying and intimidation of citizens and at-risk vulnerable citizens as we are seeing in other areas like PDD funding.
When a child in care dies it is a tragedy. When a child in care becomes a pawn of in an unnecessary nightmare of administrative insouciance and insensitivity it is still a tragedy that can last a lifetime for this already vulnerable little boy. Minister Fritz, you were was given this portfolio to fix up this department. You obviously have a lot of work to do. Call off the departmental dogs in this case and so get that departmental review fast-tracked and made public as soon as possible.
I have just done a conjoint study amongst progressive thinking Albertans on the values they want to see applied by our government when it makes laws, policy and other decisions that impact the lives of citizens. Those Albertans told us they mostly wanted integrity, honesty, accountability and transparency from their government. It is time to start delivering on these values Madame Minister. This case is an appropriate place to start to change the culture of your department and to start to show that you will reflect those core values of Albertans.
UPDATE AND CORRECTION MARCH 5, 2010:
THIS BLOG POST HAS BEEN EDITED TO CORRECT AN APPARENT ERROR OF FACT THAT THE GOVERNMENT OF ALBERTA INTENDED TO APPEAL THE RECENT SUCCESSFUL GUARDIANSHIP ORDER GRANTED TO THE FOSTER MOTHER OF THIS CHILD. I HAVE BEEN INFORMED BY THE DEPARTMETN YTHAT THIS IS NOT THE CASE. I WISH TO APOLOGIZE TO THE MINISTRY OF CHILDREN AND YOUTH SERVICES AND THE FOSTER MOTHER TOO IF I MISUNDERSTOOD THE FACTS AROUND AN INTENTION OF THE GOVERNMENT TO APPEAL THIS RECENT COURT DECISION.
For those of you who follow this blog on a regular basis (and I thank you) you will recall I did a series of posts on problems in the Alberta Department of Children and Youth Services last summer. I centered the series on a Contempt of Court finding against a Director level official in department over a foster child and the impact and implications for the child. I am writing this post as an update on the case but first let me put you back in context.
I have to be careful in writing about the case to ensure the parties are not identified due to privacy concerns for the child at the centre of the case. I also wrote the series about the Foster Mother who was a champion for the child to stay with her. She took court action to that end and won in spite of the contrary and rejected recommendations of the government.
The attitude and actions of those in control of these matters in the Department of Children and Youth Services were criticized by the Court of Appeal. The former Minister launched an external review of how these matters were handled and I was interviewed by the external reviewers as part of their work. One of the things I said to the review committee was I believed there may a destructive culture in the senior levels of the department if this case was an example that could be generalized.
My impression was garnered from reading the Court files, background documents, as well as considering the actions of senior management involved in this case and the attitudes expressed in their communications from the department. My sense was that senior management was more interested in protecting the Minister from political ramifications than it was in serving its duty to represent the best interest of children in care. I pointed this impression out to the review committee and asked them to be aware of this possibility in their work and in their reporting.
Now for the update!
I have just been advised by the Foster Mother there is good news. The good news is her application to the Courts for Guardianship of the child was granted. The Adoption petition of the others was denied, in fact the other party’s request for continuing contact with the child was also denied. In addition the Foster Mother was awarded all her costs in the matter to be paid by the Director of Child, Youth and Family Enhancement. The Foster Mother was granted a similar order by the Court of Appeal to have all her costs paid in the original action. That means she not only won on the merits based on the law, the award of total costs is a major victory on the equity of the situation.
UPDATE AND CORRECTION MARCH 5, 2010:
THIS BLOG POST HAS BEEN EDITED TO CORRECT AN APPARENT ERROR OF FACT THAT THE GOVERNMENT OF ALBERTA INTENDED TO APPEAL THE RECENT SUCCESSFUL GUARDIANSHIP ORDER GRANTED TO THE FOSTER MOTHER OF THIS CHILD. I HAVE BEEN INFORMED BY THE DEPARTMETN YTHAT THIS IS NOT THE CASE. I WISH TO APOLOGIZE TO THE MINISTRY OF CHILDREN AND YOUTH SERVICES AND THE FOSTER MOTHER TOO IF I MISUNDERSTOOD THE FACTS AROUND AN INTENTION OF THE GOVERNMENT TO APPEAL THIS RECENT COURT DECISION.
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.
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 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.
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.
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.
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.
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