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.

"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.