What are we to take from the hasty retreat of Tiny Perfect Blog from cyberspace? Graham Thomson's column today adds some valuable perspective. Lots of people have been nosing around trying to uncover the true identity of TPB. It all seems like some kind of cyber scavenger hunt in search of a virtual prize of discovery and disclosure.
There is a growing "consensus" as to who it is but that is mostly driven by speculation and without any substantial evidence. That speculation will likely coalesce into urban myth and become reality in the mind space many who care about such things - regardless of the absence of substantiating facts. The lawyer in me simply wants the facts to be determined before the conclusion is reached. But in the court of public opinion that is not always the way things are decided.
The larger context around why TPB went into a self-induced virtual witness protection program is worth a few reflections. The rise and rapid growth of social media and the power shift of influence going from institutions to individuals is a significant social, political and emerging economic change. That is the larger backdrop to the legend of TPB. TPB had an audience and some influence so who was actually behind the blog has/had relevance.
Social media sites like Facebook, Myspace, Twitter, Youtube are influential creating phenomena, each in their own right. I want to focus this post on the social media influence of blogging because TPB was, after all, a blogger. Blogging exploded a few years ago with millions of new blogs coming out of nowhere and showing up everywhere. Blogging was one of the earlier indications of this shift of influence from institutions to individuals who could now actually impact public agendas and how power was being exercised, especially political power. Remember the Drudge Report and Monica Lewinsky?
The blogosphere was and still is the "wild west" in many ways. It has settled back and now there are many abandoned and vacant blogs as the fad phase has worn off. Many early blogger left the scene as they came to the realization that it is hard work, demanded time and took discipline. Those political bloggers who have persisted, and now still prevail, have found and created significant audiences that are growing and becoming more engaged. Traditional media now references and relies on us almost as much as we reference and rely on them.
Both traditional and new mediums are adapting to grapple with this shift to horizontal interactive networked connectivity. The old media model of vertical integration, one-way communications, gatekeeper control of the political information and the public agenda is proving obsolete and uneconomical. Newspapers are having the toughest time adapting. Conventional television is also struggling. Private radio vacated much of the news gathering mode years ago when it turned to "talk" formats that are usually more voluminous than luminous in their content and news approach.
Political blogs are changing dramatically too. I really only know about Alberta so I will concentrate my comments in that context but I expect some observations can be generalized. There are fewer and fewer active political bloggers in Alberta these days. A scan of the Alberta Blog Roll sidebar of this blog will underscore that fact. Alberta political blogging is now "maturing" in marketing terms but I am not so sure that is as true in content and context terms. That lack of content and context maturity for blogs brings us back to consider Tiny Perfect Blog and the circumstances and apparent reasoning for the abrupt removal of the blog site.
I will not cover the same ground Graham Thomson did today and I will try to focus on the implications for blogging as a legitimate activity in support of a vibrant effective democracy. Mostly I think the TPB demise underscores the need for more citizens to learn some media literacy, especially in the social media realm, and with political blogs in particular.
Polls tell us traditional media has forfeited much of its presumption of authenticity and authority as a reliable new source. Many think political blogs never had any such presumptions about its reliability and authoritativeness. I think that was true back in the day, but it less true today. I see surviving political bloggers becoming more prolific, noticed, read and trusted as they move towards a more fact based approach in their posts. I say this not so much as a comment about a leveling of the playing field to the mutual discredit of traditional and social media. It is more of a comment to show the need for readers and viewers to be skeptical and cautious about what they choose to believe and what they rely on from all media sources, traditional or social.
When it comes to social media sources, and bloggers especially, if they are anonymous you have to wonder if they can be trusted and relied upon. A blog has to have a voice, a perspective and a lens to make it worth reading, becoming engaged with and even commenting on. Bloggers are more about providing commentary and observation than publishing hard news. There are exceptions when every now and then a blogger will "break" a news story. But for most of us that is not our goal. We do not want to be reporters. We are more akin to columnists and editorialists.
So if you don't know the identity of the person behind the voice, their perspective and their personal lens on the world, why would you believe anything they are saying? Given the content and context of the TPB posts and how they quickly slithered away once someone threatened to lift up the rock they were under, you tend want to question to motives of the person who wrote the blog. A cone of silence is around TPB so my guess is we will never know. For the record I don't know who TPB is/was and I would only care if that blogger's anonymity was used as a sword and not a shield. There are many unanswered questions about that concern for sure.
I know the true identity of a number of anonymous or nom de plume Alberta based political bloggers. I have lifted an enjoyable pint with many of them on many occasions. They have identified themselves to me in confidence and I will respect the confidence because I know that they may very well need the shield of anonymity to protect them.
As Daveberta is quoted in Graham's column, this is not China or Iran. BTW if you are Albertan
and don't know who Daveberta is you also must be living under a rock. However there are many powerful forces who find themselves in the blogs. Many are thin skinned, some tend to be bullying and some can even be very vindictive. Just look at the recent declaration of the new health super board that aspires to severely limit the free speech of those citizens working in the Alberta health care sector. You can see why some people in Alberta feel the need to have a shield in order to exercise their free speech rights. Sad but true.
In contrast, after many journalists and apparently some unionists, were trying to determine the true identity of TPB, we have to note that no one has yet been successful. According to Graham Thomson, the only one, so far, who acknowledges that they know the true identity of TPB is Edmonton NDP MLA, Rachel Notley. She is on the record as not "outing" TPB for much the same reasons I would not "out" those anonymous bloggers I know - a prior personal commitment to confidentiality. Am I to presume therefore that TPB was in some kind of position that justified the protection of anonymity? But since nothing is being said to indicate or confirm that need for a shield, one legitimately wonders if other factors are at play, especially given how adept TPB was at brandishing a political sword.
So while TPB is gone, we should not forget the lessons we can learn from his/her disappearance and given the circumstance that surround it. So bottom line, don't trust any media source at face value. In particular one should have a very skeptical eye and ear when the source is anonymous. We will not ever see the end of anonymous sources for traditional media or new media. That said, I personally think their credibility should not be taken seriously - not even with a grain of salt. I urge citizens to learn about media literacy and to keep learning, because one thing for sure, the media like the times, they are a'changing.
So, so long TPB, who ever you are/were or aspired to be. You will not be missed and should not be missed. Your 15 minutes of fame are over. Next!
Saturday, August 08, 2009
Friday, August 07, 2009
Folk Festival Funding Fiasco is About Politics - Pure & Simple
The ham-handed handling of the Conservative stimulus oriented "Marquee Tourism Event" funding so far is political farce in three acts.
Some context on the first act. The Harper Cons contempt for culture cost them a majority government last election. That was when Quebec voters saw through them and backed off in support and have stayed away from the CPC's ever since. This insight in Quebec happened after first being bamboozled by the Rovarian message machine that promised them recognition of "nation" and the feigning fixing of the non-existent "fiscal imbalance." This opportunistic political pandering for personal political power is at the epicentre of the cold cynical heart that is the essence of the soulless Harper Cons.
Now we have act two and another culture based political farce in Edmonton that goes to the core motivations of that cold anti-culture heart of the Harper Cons and puts in a pinch of pure petty politics for flavour. I talked about the Conservatives taking Edmonton for granted in an interview for CBC's The National just before the last election. To paraphrase I said in politics you can ignore two kinds of voters; those who will never vote for you and those who will always vote for you. Edmonton falls mostly in the latter group. Hence the Edmonton Folk Festival, the largest in Canada and recognized as one of the best of its kind in the world and around for 30 years gets no federal funding under a "Marquee Tourism Event????"
Square this circle when news reports of the stated "funding criteria" from an Industry Canada spokesman who said "MTEP (the Marquee Tourism Event Program) is designed to help existing tourism events that occur annually, are well established, have a tradition of programming and management excellence, and generate significant increases in their levels of tourism activity." The Edmonton Folk Festival somehow does not fit this description? It defines this description!
So guess what you don't have to be rational or fair or even equitable in how you select marquee events for funding. Favouritism, ideology and calculated political positioning in anticipation of a fall election seem to play a major part in how these funding decisions are being made. Here are some facts for you to chew on that supports these conclusions. Edmonton got $800,000, half for the Fringe, the first of its kind in Canada and running successfully since 1980 and half for the 3 year old Rexall Indy car race. Calgary, the Prime Minister's home town and "rich with Conservative Cabinet Ministers, got $2.2 million. Lets talk about a shot at redemption for a minute. Ottawa gets over $2million for three festivals and Vancouver a similar amount for two events.
Only $33.4 million has been distributed across Canada so far, and mostly at the last minute, and why not distribute all of it if it to be part of the economic stimulus funding in response to the recession. Quebec scored an amazing $13.1m of the total loot - so far! Steve, Steve , Steve! You already now you can't buy love in Quebec. And now you better understand you can't presume Edmonton and Alberta will give you unconditional love anymore either.
Another thing Steve, wasn't it that same kind of political pandering to Quebec that angered you as the slogan the "West Wants In" actually helped start the Reform Party in the first place? Where are you're political principles and what does all this tell us about your character, other than the pursuit of political power as the name of your game?
The final act is where flummox and unfairness turns into political farce. The farcical internal caucus consternation that led to the dumping of Diane Ablonczy from running this funding program was the early warning sign of what is pure political interference in the program. She was dumped because she put money into Toronto Gay Pride events and had the temerity to pose for a picture with some of "them." Now we have the hapless MP for Edmonton Centre, Laurie Hawn, is turning out to be the goat in the practical politics of this pathetic little panto. He is hopelessly trying to convince Edmontonians that there is no political interference in all of this.
He obviously had to speak out on this funding farce before he got the official talking points from the Prime Minister's Office. That is definitely a career limiting event in the top down command and control culture of the Harper Cons. Here is the gist of what Hawn has said so far.
There is no Edmonton versus Calgary issue here. Yeah Right! Explain why the Calgary Folk Festive get 30% more funding Heritage than Edmonton's when it is half the size? He flat out states "I've purposefully kept out of the process, so there would be no political interference." What the hell do you think your job is Mr.Hawn as a political representative of Edmonton in the federal government? Why are you at the "government's big kids Cabinet table" if not to represent Edmonton's interest in such matters?
How did the 3 year old Rexall Indy get the nod over the Folk Festival? I hear Hawn had a significant hand in that political decision. Oh yes, the Indy race, has budget management problems and is only THREE years old BUT it is in your constituency. Of yes, the Folk Festival is also in the Edmonton Strathcona constituency. That is the political home of Linda Duncan, that NDP blight on the Harper Con field of broken dreams. She alone frustrated the presumption of totally Conservative control and domination of Alberta. And besides Linda's riding is also home of the Fringe, who got some funding. She should be happy enough to keep quiet about any implication of political machinations that did or didn't go on in final funding decisions. Yeah, right again!
The coup d'grace of Hawn's political pugnaciousness is when he tries to characterize this ineptness or indifference as a way to ensure "no political interference" in the funding process to make sure this program did not become another Adscam. He just had to draw out that old Harper shibboleth and continue to mislead Albertans and Canada about the Adscam facts. After months of public inquiry and investigation Mr. Justice Gomrey found no evidence of any political interference by any politician at any level in the all of the Adscam frauds. Those frauds happened but were perpetrated by bureaucrats, party officials and private sector businessmen. No politicians were harmed or were harming the interests of Canada or their constituency in Adscam so quit misrepresenting the facts for partisan political purposes Mr Hawn.
There is a fundamental lack of fairness in all of this and it simply does not pass the political sniff test. Edmonton is being sent a political message by the Harper Cons. We are being put in our place for frustrating the natural order of things because some voters in Edmonton thwarted Harper's pursuit or personal and absolute political power, a total sweep of Alberta.
Harper's political brain trust presumes the Edmonton folkies won't vote for him anyway and, after this he has ensured that result. Those who other Edmontonians who are equivocating about him, his governing performance and suitability for holding the highest office in the land are being sold in no uncertain terms that they had better hop off that fence right now. The message is clear. If Harper wins the next election Edmonton would be well advised to step in line with him, we have just had a small taste of what could happen.
Harper is a bully and we have just seen another example of it. So much for democracy and freedom if Edmonton complies and conforms to support that kind of "leadership" next election.
Some context on the first act. The Harper Cons contempt for culture cost them a majority government last election. That was when Quebec voters saw through them and backed off in support and have stayed away from the CPC's ever since. This insight in Quebec happened after first being bamboozled by the Rovarian message machine that promised them recognition of "nation" and the feigning fixing of the non-existent "fiscal imbalance." This opportunistic political pandering for personal political power is at the epicentre of the cold cynical heart that is the essence of the soulless Harper Cons.
Now we have act two and another culture based political farce in Edmonton that goes to the core motivations of that cold anti-culture heart of the Harper Cons and puts in a pinch of pure petty politics for flavour. I talked about the Conservatives taking Edmonton for granted in an interview for CBC's The National just before the last election. To paraphrase I said in politics you can ignore two kinds of voters; those who will never vote for you and those who will always vote for you. Edmonton falls mostly in the latter group. Hence the Edmonton Folk Festival, the largest in Canada and recognized as one of the best of its kind in the world and around for 30 years gets no federal funding under a "Marquee Tourism Event????"
Square this circle when news reports of the stated "funding criteria" from an Industry Canada spokesman who said "MTEP (the Marquee Tourism Event Program) is designed to help existing tourism events that occur annually, are well established, have a tradition of programming and management excellence, and generate significant increases in their levels of tourism activity." The Edmonton Folk Festival somehow does not fit this description? It defines this description!
So guess what you don't have to be rational or fair or even equitable in how you select marquee events for funding. Favouritism, ideology and calculated political positioning in anticipation of a fall election seem to play a major part in how these funding decisions are being made. Here are some facts for you to chew on that supports these conclusions. Edmonton got $800,000, half for the Fringe, the first of its kind in Canada and running successfully since 1980 and half for the 3 year old Rexall Indy car race. Calgary, the Prime Minister's home town and "rich with Conservative Cabinet Ministers, got $2.2 million. Lets talk about a shot at redemption for a minute. Ottawa gets over $2million for three festivals and Vancouver a similar amount for two events.
Only $33.4 million has been distributed across Canada so far, and mostly at the last minute, and why not distribute all of it if it to be part of the economic stimulus funding in response to the recession. Quebec scored an amazing $13.1m of the total loot - so far! Steve, Steve , Steve! You already now you can't buy love in Quebec. And now you better understand you can't presume Edmonton and Alberta will give you unconditional love anymore either.
Another thing Steve, wasn't it that same kind of political pandering to Quebec that angered you as the slogan the "West Wants In" actually helped start the Reform Party in the first place? Where are you're political principles and what does all this tell us about your character, other than the pursuit of political power as the name of your game?
The final act is where flummox and unfairness turns into political farce. The farcical internal caucus consternation that led to the dumping of Diane Ablonczy from running this funding program was the early warning sign of what is pure political interference in the program. She was dumped because she put money into Toronto Gay Pride events and had the temerity to pose for a picture with some of "them." Now we have the hapless MP for Edmonton Centre, Laurie Hawn, is turning out to be the goat in the practical politics of this pathetic little panto. He is hopelessly trying to convince Edmontonians that there is no political interference in all of this.
He obviously had to speak out on this funding farce before he got the official talking points from the Prime Minister's Office. That is definitely a career limiting event in the top down command and control culture of the Harper Cons. Here is the gist of what Hawn has said so far.
There is no Edmonton versus Calgary issue here. Yeah Right! Explain why the Calgary Folk Festive get 30% more funding Heritage than Edmonton's when it is half the size? He flat out states "I've purposefully kept out of the process, so there would be no political interference." What the hell do you think your job is Mr.Hawn as a political representative of Edmonton in the federal government? Why are you at the "government's big kids Cabinet table" if not to represent Edmonton's interest in such matters?
How did the 3 year old Rexall Indy get the nod over the Folk Festival? I hear Hawn had a significant hand in that political decision. Oh yes, the Indy race, has budget management problems and is only THREE years old BUT it is in your constituency. Of yes, the Folk Festival is also in the Edmonton Strathcona constituency. That is the political home of Linda Duncan, that NDP blight on the Harper Con field of broken dreams. She alone frustrated the presumption of totally Conservative control and domination of Alberta. And besides Linda's riding is also home of the Fringe, who got some funding. She should be happy enough to keep quiet about any implication of political machinations that did or didn't go on in final funding decisions. Yeah, right again!
The coup d'grace of Hawn's political pugnaciousness is when he tries to characterize this ineptness or indifference as a way to ensure "no political interference" in the funding process to make sure this program did not become another Adscam. He just had to draw out that old Harper shibboleth and continue to mislead Albertans and Canada about the Adscam facts. After months of public inquiry and investigation Mr. Justice Gomrey found no evidence of any political interference by any politician at any level in the all of the Adscam frauds. Those frauds happened but were perpetrated by bureaucrats, party officials and private sector businessmen. No politicians were harmed or were harming the interests of Canada or their constituency in Adscam so quit misrepresenting the facts for partisan political purposes Mr Hawn.
There is a fundamental lack of fairness in all of this and it simply does not pass the political sniff test. Edmonton is being sent a political message by the Harper Cons. We are being put in our place for frustrating the natural order of things because some voters in Edmonton thwarted Harper's pursuit or personal and absolute political power, a total sweep of Alberta.
Harper's political brain trust presumes the Edmonton folkies won't vote for him anyway and, after this he has ensured that result. Those who other Edmontonians who are equivocating about him, his governing performance and suitability for holding the highest office in the land are being sold in no uncertain terms that they had better hop off that fence right now. The message is clear. If Harper wins the next election Edmonton would be well advised to step in line with him, we have just had a small taste of what could happen.
Harper is a bully and we have just seen another example of it. So much for democracy and freedom if Edmonton complies and conforms to support that kind of "leadership" next election.
Tuesday, August 04, 2009
Alberta Government Official Found in Contempt of Court
The Alberta Court of Appeal recently made a very interesting decision that has profound implications for the quality of governance and accountability of public servants in Alberta.
The court found the Alberta government Director of Child, Youth and Family Enhancement in the Department of Children and Youth Services in civil contempt of court. The Director was found to have not ensured the timely execution of a previous Court Order directing a child, for whom he was also the guardian, be returned to a foster mother.
The decision on the penalty was reserved but the lawyer’s submissions on what would constitute an appropriate penalty for this contempt of court are due today August 4, 2009. A decision as to consequences for the contempt of court should be rendered by Mr. Justice Cote soon. I will do a follow up post on the legal counsel submissions on the penalty later as well as a commentary on the actual penalty imposed by the Court of Appeal in a subsequent post. It is an open question if the Director will face jail time or not.
This is a lengthy and weighty post so make sure you have some time to read it all. The events and implications are very important.
The Background:
In preparation of this commentary I have read the June 23, 2009 Reasons of Mr. Justice Cote in finding Mr. Richard Ouellet, the Director of Child, Youth and Family Enhancement, in civil contempt of court. I also read the July 14, 2009 Reasons for Decision of Cote in rejecting Mr. Ouellet’s Application to Vacate/Vary the Civil Contempt finding against him. I have not read the various affidavits filed in the original or any subsequent court proceedings dealing with the same child. I think there is enough background in these documents to comment on the political and governance implications of this decision. I will not deal with the law or legal reasoning behind Cote’s Reasons for Decision either. The legal reasons are interesting, but they are more like deep background to my purpose, namely the public policy, accountability, transparency and governance implications of this decision.
A brief history of the facts are needed to give you some context behind the decision and for a better understand the public policy, governance and potential political implications of finding a senior civil servant in contempt of court. The child, known as B.M., was removed from a foster home by the Director. His decision was appealed to an Appeal Panel who, according to Cote, apparently gave “fairly extensive written reasons” as to why the child should not have been removed from the foster home. The Director appealed the Appeal Panel decision to the Court of Queen’s Bench. He got a stay of execution of the Appeal Panel decision to return the child and also won a court decision reversing the Appeal Panel. The foster parent then appealed to the Court of Appeal and it was argued in September 2008. On January 30, 2009 the Court of Appeal allowed the appeal and reinstated the original Appeal Panel decision. The time for any further appeal to the Supreme Court has expired.
The foster mother, relying on the final Court of Appeal Decision demanded that the Director return the child to her care but the Director apparently disagreed with this course of action presumably taking the position that the Court Order was subject to another interpretation. The court was not impressed with how the Director responded to the court order. Cote found that between the original Court Order of January 30, 2009 and June 4th, 2009 “…the Director did nothing of any consequence toward obeying the order of the Court of Appeal, or to clarify what it meant and what he was required to do.” Cote noted further, “He and his officials, however, did find the time to take many steps to make it more difficult for the foster mother ultimately to win.”
Counsel for the foster mother did pursue clarification of the court order and on June 4 the Deputy Registrar of the Court of Appeal gave notice in writing to all parties clarifying that the Appeal Court “…judgment meant the child was to be returned.” The child was finally returned on June 22, 2009 almost five months after the original court order and the day before the June 23 Court of Appeal hearing that found the Director to be in contempt of court. The Director, Mr. Ouellet changed legal counsel who sent a letter to the Court of Appeal “…proposing to reopen and upset the contempt conviction…” and a Notice of Motion and an Affidavit to that end was filed by and on behalf of Mr. Ouellet on July 10, 2009. Cote reaffirmed the contempt of court finding against a province of Alberta senior public servant in the conduct of his duties.
What are the Governance and Public Policy Implications?
That is a summary of the facts, so now I will deal with some of the comments and findings of Mr. Justice Cote in his Reasons for Decision that has some serious governance and public policy implications. What follows is a policy commentary on the public policy, good governance, transparency, accountability, legal duty and respect for the law obligations arising from this matter.
Cote nails the point that nobody is above the law and government officials can’t ignore a court ordered public duty when he says [Para 27] “…when a court judgment or order is given directing someone to do something…Then doing nothing is not an alternative. Simply doing nothing in itself is contempt. Furthermore, it is not enough to take feeble and ineffective steps…negligent or inadequate attempts to obey the court order or to obey it in due course are themselves contempt of court.” He says that “…failure to obey by relying carelessly on others is in no sense vicarious liability. The duty is that of the person commanded.” (emphasis added).
In [Para 18] Cote broadens the issue of the legal duty of the public servants involved and brings it to a head when he says “For about 12 days after the contempt motion was filed here (and 18 days after the Court of Appeal clarified its judgment), everyone concerned on the government side was in clear and obvious breach of the Court of Appeal judgment.” (Emphasis added).
In [Para 36] it gets worse noting that Mr. Ouellet “…on June 5 he learned the following. The Court of Appeal decision of January 30 had not yet been obeyed, though the Court of Appeal on June 4 had clarified what should be done. None of the various officials concerned had yet returned the child, and they were still considering legal alternative to returning the child, i.e. trying to see if there was something which they could legally do to avoid returning the child, and in some fuzzy way were balancing the disadvantages of obeying the judgment.” (Emphasis added.)
In [Para 37] Cote also noted that Mr. Ouellet advised his officials “…he was satisfied with the course which they were following. He did not tell them that they could not wiggle out of obeying the order, nor that wasting time looking for alternatives to obedience was wrong. He did not say to return the child. Indeed he told me in open court on June 23 that the officials’ task on June 5 was to balance the conflicting interests of the two foster families and the child…Nor did Mr. Ouellet set any deadlines, nor inquire into how the child would be returned, nor the methods which would be used. He was content to leave it with the debating officials.” [Para 38] “Nor did Mr. Ouellet ask them to report, nor set up any checking or diarization methods. [Para 39] Yet Mr. Ouellet admitted that he had full power to give those other official binding direction, and that he had a duty to act if he saw something wrong, including a court order not obeyed.” [Para 40] “Worst of all, just before the meeting Mr. Ouellet was given a packet of material relating to this problem, but he never read it, whether before or after the meeting.”
Cote sums it all up in [Para 45] “…Mr. Ouellet had no system whatsoever for follow up or supervision or whether court orders against the Director were being obeyed; not even when the litigation had got as high as an appeal to the Court of Appeal. The Court of Appeal judgment was issued January 30, clarified June 4, contempt threatened June 4, formally moved for June 10, and the child was not returned until June 22. Yet throughout that period of almost five months, Mr. Ouellet had no idea whether or when the child had been returned, and did not ask. Apparently no one was supposed to tell him. The last the Mr. Ouellet knew (June 5) was that the child had not been returned, and that whether to return the child was being discussed. He still knew nothing and made no inquires up to June 23.” (Emphasis added)
Not My Duty – Others Are at Fault:
So what was the reasoning the Director offered to the Court of Appeal to believe he deserved to be released from the earlier finding of contempt of court? These representations amount to CYA and passing-the-buck positioning. I paraphrase [Para 54]in saying first the Director tired to allege that other branches of the government, or other entities or people authorized by the government, such as the regional Child and Family Services authorities, were the ones who were actually involved with this child. The contempt order should therefore be vacated because the Court of Appeal erred in holding Mr. Ouellet as responsible to see to the execution of the court order to return the child. This representation was rejected by the court but it obviously has some interesting and serious public policy and governance implications going forward.
The other chilling implication of the position by the Director in saying an appointed government authority, in this case the Child and Family Services Authority, is the delegated body responsible for this child. That “defense” should make those volunteer citizens think hard about what such a tactic might mean to their personal liability in the future. If that responsibility was found to on the regional authorities by the court they would be well advised to think hard about personal liability from serving on such boards. This argument by a civil servant as to ultimate liability for vulnerable citizens has serious implications for other authorities like in the new heath care Super board and the regional boards dealing with Persons with Developmental Disabilities (PDD).
The good news is that Cote slam dunks the Director’s allegation noting the legislation setting up the authorities in question positions them as “agents of the Crown in right of Alberta under the Minister’s direction.” They are not autonomous and the staff of those authorizes actually work for the government. Those citizens who are sitting on other such authorities may want to ensure that the wording of their enabling legislation also protects them from personal liability, duty of care and possible negligence actions.
The Job is Complicated and the Duty was Delegated:
Cote comments starting at [Para 66 to 70] saying that hiding behind administrative structures in the government will not protect the Director from a finding of contempt when he says “Administrative structure is not the same as law.” He notes the “new evidence tendered as to the extremely convoluted and puzzling structure of who is administratively involved with child protection in Alberta….” He goes on to observe that “Mr. Ouellet seems to think that because the people involved on the ground were not reporting directly to him in a functional sense, that the court should ignore that fact that he had full legal and administrative powers…to see to obedience of court orders like the one in question.” In [para70] the attempt to say the Director’s powers can be delegated to various other bodies, such as regional authorities, and that there is some precedent for that to have happened in the form of Memorandum of Understanding and extracts from websites of regional authorities about their role to “oversee the delivery of services.”
Ouellet [Para80] tries to convince the court that in essence all these matters are and were run by Child and Family Service Authorities, independent bodies which he did not supervise, and so he had no connection. Whereas earlier [Para81] his counsel’s submissions on liability was that there are many children in care and Mr. Ouellet could not personally be familiar with every case, and that he delegated responsibility to many people but admitted that “Mr. Ouellet had to make the final determination how to return the child.” The record shows that “Mr. Ouellet was and is the guardian of this child.” OUCH!
The court notes all the employees of those authorities work for the government and the CEOs report both to the Deputy Minister and the boards of the authorities and “ultimately the Minister governs.” As a consequence the court finds “nothing…which would remove the legal powers and duties from the Director, nor take from him any status as guardian which he was formerly given.” In short delegation is not abdication and the Director in this case lost none of his powers and had no legal obstacle to obeying the Court of Appeal judgment.
The Court Ponders if Other Officials be Specifically Named in Future Actions?
The Court of Appeal offered some advice to legal counsels that oppose those child “protection” authourities in the future. Cote suggested that they learn about all the government officials involved in all matters around any such actions and that they all are named in the litigation and that the officials be personally served and that “Some things should not be assumed. Avenues to escape obedience may be undesirable for a time.”
The Court Ponders if Cabinet Minister Immunity Might be Challenged in the Future:
Cote comments on Cabinet Ministers and potential future culpability too in [Para 118] “After this judgment, ignorance or neglect by such officials will be a smaller excuse for disobeying court orders than before. A repetition might lead to litigation over whether those higher ups were not immune.” Would Cabinet Ministers be within the definition of “higher ups?” Could be an issue tried and determined in the next miscarriage of a public duty in the government.
Is There an Attitude Problem in Government?
Cote says [Para 113] “Her Majesty’s government of Alberta, in my 42 years’ experience, has not been in the habit of hiding identities, equivocating, nor evading court orders against it…[Para 114]But the present case raises doubts about whether everyone in the child protection parts of the government now shares those high standards, or even fully understands court orders. The complex administrative structures suggested by the evidence here must exacerbate opacity and the opportunities for deniability. [Emphasis added]
[Para 115] The government is established under the Constitution to administer the law, including the law about children. Counsel have become used to relying upon the government’s trustworthiness and fairness in obeying court orders. That should remain possible…The government’s obedience to court orders should be and be seen to be willing, prompt and automatic, not strained through the mesh of contempt motions.” [Para 116] Any contempt of court which included shuffling off responsibility to obey a court order amongst different official (at times like the dried pea under three walnut shells) would be almost unprecedented.” OUCH AGAIN!
[Para 117] “It is highly undesirable that the courts and the Bar of Alberta even contemplate having to assume all the burden of enforcing court orders in child protection cases. After all, the parents or foster parents often lack resources and rely on Legal Aid. So taxpayers would suffer too if government were to play as game of hide-an-go-seek.” Cote therefore notes that quite possibly many more individuals involved in the case day-to-day, given the disobedience was lengthy and undeniable, and may also be guilty of contempt. So he invites the Alberta Attorney General to follow up with further investigation and to make sure they know about this decision(sic) he directed the Deputy Registrar of the court to “…send a copy of these Reasons to the Minister of Children and Youth Services, and to the Minister of Justice and Attorney-General of Alberta.
There is an active review of the governance of agencies, boards and commissions in the Alberta government directly tied to the Premier’s office. Perhaps that review must be extended into the governance and accountability of some key departments. I have some strong suggestions to make as to which departments could use some house cleaning and a serious accountability focus based on some of the work I do.
If this behaviour by government administration is left without comment, concern or consequence by our political leadership then I wonder about their character and capacity. I question if they are worthy of our consent to be governed by them. Good governance is always good politics. The reverse happens too but it is the exception.
The court has commented clearly and forcefully already but just as administrative process is not the law, neither is the judiciary there to run our government. We need our lawmakers and those government officials who serve the public interest to reaffirm, in all actions and deeds, that they are not be above the law. We need a strong political statement form all those who govern us that any disrespect of the law, from the very top to the very bottom of our entire governance structure, will result in harsh consequences. If our government fails, refuses or neglects to reassure Albertans in this way, then Albertans have to engage and reassure our government that such an attitude will not be tolerated - and at the ballot box if necessary.
The court found the Alberta government Director of Child, Youth and Family Enhancement in the Department of Children and Youth Services in civil contempt of court. The Director was found to have not ensured the timely execution of a previous Court Order directing a child, for whom he was also the guardian, be returned to a foster mother.
The decision on the penalty was reserved but the lawyer’s submissions on what would constitute an appropriate penalty for this contempt of court are due today August 4, 2009. A decision as to consequences for the contempt of court should be rendered by Mr. Justice Cote soon. I will do a follow up post on the legal counsel submissions on the penalty later as well as a commentary on the actual penalty imposed by the Court of Appeal in a subsequent post. It is an open question if the Director will face jail time or not.
This is a lengthy and weighty post so make sure you have some time to read it all. The events and implications are very important.
The Background:
In preparation of this commentary I have read the June 23, 2009 Reasons of Mr. Justice Cote in finding Mr. Richard Ouellet, the Director of Child, Youth and Family Enhancement, in civil contempt of court. I also read the July 14, 2009 Reasons for Decision of Cote in rejecting Mr. Ouellet’s Application to Vacate/Vary the Civil Contempt finding against him. I have not read the various affidavits filed in the original or any subsequent court proceedings dealing with the same child. I think there is enough background in these documents to comment on the political and governance implications of this decision. I will not deal with the law or legal reasoning behind Cote’s Reasons for Decision either. The legal reasons are interesting, but they are more like deep background to my purpose, namely the public policy, accountability, transparency and governance implications of this decision.
A brief history of the facts are needed to give you some context behind the decision and for a better understand the public policy, governance and potential political implications of finding a senior civil servant in contempt of court. The child, known as B.M., was removed from a foster home by the Director. His decision was appealed to an Appeal Panel who, according to Cote, apparently gave “fairly extensive written reasons” as to why the child should not have been removed from the foster home. The Director appealed the Appeal Panel decision to the Court of Queen’s Bench. He got a stay of execution of the Appeal Panel decision to return the child and also won a court decision reversing the Appeal Panel. The foster parent then appealed to the Court of Appeal and it was argued in September 2008. On January 30, 2009 the Court of Appeal allowed the appeal and reinstated the original Appeal Panel decision. The time for any further appeal to the Supreme Court has expired.
The foster mother, relying on the final Court of Appeal Decision demanded that the Director return the child to her care but the Director apparently disagreed with this course of action presumably taking the position that the Court Order was subject to another interpretation. The court was not impressed with how the Director responded to the court order. Cote found that between the original Court Order of January 30, 2009 and June 4th, 2009 “…the Director did nothing of any consequence toward obeying the order of the Court of Appeal, or to clarify what it meant and what he was required to do.” Cote noted further, “He and his officials, however, did find the time to take many steps to make it more difficult for the foster mother ultimately to win.”
Counsel for the foster mother did pursue clarification of the court order and on June 4 the Deputy Registrar of the Court of Appeal gave notice in writing to all parties clarifying that the Appeal Court “…judgment meant the child was to be returned.” The child was finally returned on June 22, 2009 almost five months after the original court order and the day before the June 23 Court of Appeal hearing that found the Director to be in contempt of court. The Director, Mr. Ouellet changed legal counsel who sent a letter to the Court of Appeal “…proposing to reopen and upset the contempt conviction…” and a Notice of Motion and an Affidavit to that end was filed by and on behalf of Mr. Ouellet on July 10, 2009. Cote reaffirmed the contempt of court finding against a province of Alberta senior public servant in the conduct of his duties.
What are the Governance and Public Policy Implications?
That is a summary of the facts, so now I will deal with some of the comments and findings of Mr. Justice Cote in his Reasons for Decision that has some serious governance and public policy implications. What follows is a policy commentary on the public policy, good governance, transparency, accountability, legal duty and respect for the law obligations arising from this matter.
Cote nails the point that nobody is above the law and government officials can’t ignore a court ordered public duty when he says [Para 27] “…when a court judgment or order is given directing someone to do something…Then doing nothing is not an alternative. Simply doing nothing in itself is contempt. Furthermore, it is not enough to take feeble and ineffective steps…negligent or inadequate attempts to obey the court order or to obey it in due course are themselves contempt of court.” He says that “…failure to obey by relying carelessly on others is in no sense vicarious liability. The duty is that of the person commanded.” (emphasis added).
In [Para 18] Cote broadens the issue of the legal duty of the public servants involved and brings it to a head when he says “For about 12 days after the contempt motion was filed here (and 18 days after the Court of Appeal clarified its judgment), everyone concerned on the government side was in clear and obvious breach of the Court of Appeal judgment.” (Emphasis added).
In [Para 36] it gets worse noting that Mr. Ouellet “…on June 5 he learned the following. The Court of Appeal decision of January 30 had not yet been obeyed, though the Court of Appeal on June 4 had clarified what should be done. None of the various officials concerned had yet returned the child, and they were still considering legal alternative to returning the child, i.e. trying to see if there was something which they could legally do to avoid returning the child, and in some fuzzy way were balancing the disadvantages of obeying the judgment.” (Emphasis added.)
In [Para 37] Cote also noted that Mr. Ouellet advised his officials “…he was satisfied with the course which they were following. He did not tell them that they could not wiggle out of obeying the order, nor that wasting time looking for alternatives to obedience was wrong. He did not say to return the child. Indeed he told me in open court on June 23 that the officials’ task on June 5 was to balance the conflicting interests of the two foster families and the child…Nor did Mr. Ouellet set any deadlines, nor inquire into how the child would be returned, nor the methods which would be used. He was content to leave it with the debating officials.” [Para 38] “Nor did Mr. Ouellet ask them to report, nor set up any checking or diarization methods. [Para 39] Yet Mr. Ouellet admitted that he had full power to give those other official binding direction, and that he had a duty to act if he saw something wrong, including a court order not obeyed.” [Para 40] “Worst of all, just before the meeting Mr. Ouellet was given a packet of material relating to this problem, but he never read it, whether before or after the meeting.”
Cote sums it all up in [Para 45] “…Mr. Ouellet had no system whatsoever for follow up or supervision or whether court orders against the Director were being obeyed; not even when the litigation had got as high as an appeal to the Court of Appeal. The Court of Appeal judgment was issued January 30, clarified June 4, contempt threatened June 4, formally moved for June 10, and the child was not returned until June 22. Yet throughout that period of almost five months, Mr. Ouellet had no idea whether or when the child had been returned, and did not ask. Apparently no one was supposed to tell him. The last the Mr. Ouellet knew (June 5) was that the child had not been returned, and that whether to return the child was being discussed. He still knew nothing and made no inquires up to June 23.” (Emphasis added)
Not My Duty – Others Are at Fault:
So what was the reasoning the Director offered to the Court of Appeal to believe he deserved to be released from the earlier finding of contempt of court? These representations amount to CYA and passing-the-buck positioning. I paraphrase [Para 54]in saying first the Director tired to allege that other branches of the government, or other entities or people authorized by the government, such as the regional Child and Family Services authorities, were the ones who were actually involved with this child. The contempt order should therefore be vacated because the Court of Appeal erred in holding Mr. Ouellet as responsible to see to the execution of the court order to return the child. This representation was rejected by the court but it obviously has some interesting and serious public policy and governance implications going forward.
The other chilling implication of the position by the Director in saying an appointed government authority, in this case the Child and Family Services Authority, is the delegated body responsible for this child. That “defense” should make those volunteer citizens think hard about what such a tactic might mean to their personal liability in the future. If that responsibility was found to on the regional authorities by the court they would be well advised to think hard about personal liability from serving on such boards. This argument by a civil servant as to ultimate liability for vulnerable citizens has serious implications for other authorities like in the new heath care Super board and the regional boards dealing with Persons with Developmental Disabilities (PDD).
The good news is that Cote slam dunks the Director’s allegation noting the legislation setting up the authorities in question positions them as “agents of the Crown in right of Alberta under the Minister’s direction.” They are not autonomous and the staff of those authorizes actually work for the government. Those citizens who are sitting on other such authorities may want to ensure that the wording of their enabling legislation also protects them from personal liability, duty of care and possible negligence actions.
The Job is Complicated and the Duty was Delegated:
Cote comments starting at [Para 66 to 70] saying that hiding behind administrative structures in the government will not protect the Director from a finding of contempt when he says “Administrative structure is not the same as law.” He notes the “new evidence tendered as to the extremely convoluted and puzzling structure of who is administratively involved with child protection in Alberta….” He goes on to observe that “Mr. Ouellet seems to think that because the people involved on the ground were not reporting directly to him in a functional sense, that the court should ignore that fact that he had full legal and administrative powers…to see to obedience of court orders like the one in question.” In [para70] the attempt to say the Director’s powers can be delegated to various other bodies, such as regional authorities, and that there is some precedent for that to have happened in the form of Memorandum of Understanding and extracts from websites of regional authorities about their role to “oversee the delivery of services.”
Ouellet [Para80] tries to convince the court that in essence all these matters are and were run by Child and Family Service Authorities, independent bodies which he did not supervise, and so he had no connection. Whereas earlier [Para81] his counsel’s submissions on liability was that there are many children in care and Mr. Ouellet could not personally be familiar with every case, and that he delegated responsibility to many people but admitted that “Mr. Ouellet had to make the final determination how to return the child.” The record shows that “Mr. Ouellet was and is the guardian of this child.” OUCH!
The court notes all the employees of those authorities work for the government and the CEOs report both to the Deputy Minister and the boards of the authorities and “ultimately the Minister governs.” As a consequence the court finds “nothing…which would remove the legal powers and duties from the Director, nor take from him any status as guardian which he was formerly given.” In short delegation is not abdication and the Director in this case lost none of his powers and had no legal obstacle to obeying the Court of Appeal judgment.
The Court Ponders if Other Officials be Specifically Named in Future Actions?
The Court of Appeal offered some advice to legal counsels that oppose those child “protection” authourities in the future. Cote suggested that they learn about all the government officials involved in all matters around any such actions and that they all are named in the litigation and that the officials be personally served and that “Some things should not be assumed. Avenues to escape obedience may be undesirable for a time.”
The Court Ponders if Cabinet Minister Immunity Might be Challenged in the Future:
Cote comments on Cabinet Ministers and potential future culpability too in [Para 118] “After this judgment, ignorance or neglect by such officials will be a smaller excuse for disobeying court orders than before. A repetition might lead to litigation over whether those higher ups were not immune.” Would Cabinet Ministers be within the definition of “higher ups?” Could be an issue tried and determined in the next miscarriage of a public duty in the government.
Is There an Attitude Problem in Government?
Cote says [Para 113] “Her Majesty’s government of Alberta, in my 42 years’ experience, has not been in the habit of hiding identities, equivocating, nor evading court orders against it…[Para 114]But the present case raises doubts about whether everyone in the child protection parts of the government now shares those high standards, or even fully understands court orders. The complex administrative structures suggested by the evidence here must exacerbate opacity and the opportunities for deniability. [Emphasis added]
[Para 115] The government is established under the Constitution to administer the law, including the law about children. Counsel have become used to relying upon the government’s trustworthiness and fairness in obeying court orders. That should remain possible…The government’s obedience to court orders should be and be seen to be willing, prompt and automatic, not strained through the mesh of contempt motions.” [Para 116] Any contempt of court which included shuffling off responsibility to obey a court order amongst different official (at times like the dried pea under three walnut shells) would be almost unprecedented.” OUCH AGAIN!
[Para 117] “It is highly undesirable that the courts and the Bar of Alberta even contemplate having to assume all the burden of enforcing court orders in child protection cases. After all, the parents or foster parents often lack resources and rely on Legal Aid. So taxpayers would suffer too if government were to play as game of hide-an-go-seek.” Cote therefore notes that quite possibly many more individuals involved in the case day-to-day, given the disobedience was lengthy and undeniable, and may also be guilty of contempt. So he invites the Alberta Attorney General to follow up with further investigation and to make sure they know about this decision(sic) he directed the Deputy Registrar of the court to “…send a copy of these Reasons to the Minister of Children and Youth Services, and to the Minister of Justice and Attorney-General of Alberta.
There is an active review of the governance of agencies, boards and commissions in the Alberta government directly tied to the Premier’s office. Perhaps that review must be extended into the governance and accountability of some key departments. I have some strong suggestions to make as to which departments could use some house cleaning and a serious accountability focus based on some of the work I do.
If this behaviour by government administration is left without comment, concern or consequence by our political leadership then I wonder about their character and capacity. I question if they are worthy of our consent to be governed by them. Good governance is always good politics. The reverse happens too but it is the exception.
The court has commented clearly and forcefully already but just as administrative process is not the law, neither is the judiciary there to run our government. We need our lawmakers and those government officials who serve the public interest to reaffirm, in all actions and deeds, that they are not be above the law. We need a strong political statement form all those who govern us that any disrespect of the law, from the very top to the very bottom of our entire governance structure, will result in harsh consequences. If our government fails, refuses or neglects to reassure Albertans in this way, then Albertans have to engage and reassure our government that such an attitude will not be tolerated - and at the ballot box if necessary.
Friday, July 31, 2009
Alberta Venture Magazine "The Right Call" Column
Here is a link to the audio interviews we did with Fil Fraser in the column for Alberta Venture "The Right Call" on "An Ounce of Flesh" topic.
It is about the payday loan business and the role of government to regulate interest rates charged by businesses.
The "Green Issue" of Alberta Venture is on newsstands now. Pick it up or better yet, subscribe. It is a terrific Alberta based publication.
BTW next month "The Right Call" column is about social media in the workplace. What do you think and what are your experiences.
It is about the payday loan business and the role of government to regulate interest rates charged by businesses.
The "Green Issue" of Alberta Venture is on newsstands now. Pick it up or better yet, subscribe. It is a terrific Alberta based publication.
BTW next month "The Right Call" column is about social media in the workplace. What do you think and what are your experiences.
Land Use Framework Guidelines for Lower Athabasca Region Released
The Land Use Framework Guidelines for the Lower Athabasca Regional Council (RAC) have jsut been released.
It is looking at a 50 year planning horizon in a complex context around land use in the area of the oil sands. It aims to be comprehensive and deal with cummulative impacts of multiple projects and the ful array of impacts from regional economic, environmental and social outcomes. It is about developing strategies and actions to meet measurable objectives and goals.
A profile for where we are now as a province in the region was also released. Lots to chew on here and I will do so over the week end and post more on this very significant policy initiative next week.
This is a very important policy process that needs and deserves the benefit of the doubt as to its good intentions. That does not mean there is no need for rigerous monitoring and engagement by experts and others to help make it the best it can be.
Best of luck to Heather Kennedy and her Council as they launch into one of the most important and critical policy processes that will have enormouos impact on Alberta and Albertans for a long time to come.
It is looking at a 50 year planning horizon in a complex context around land use in the area of the oil sands. It aims to be comprehensive and deal with cummulative impacts of multiple projects and the ful array of impacts from regional economic, environmental and social outcomes. It is about developing strategies and actions to meet measurable objectives and goals.
A profile for where we are now as a province in the region was also released. Lots to chew on here and I will do so over the week end and post more on this very significant policy initiative next week.
This is a very important policy process that needs and deserves the benefit of the doubt as to its good intentions. That does not mean there is no need for rigerous monitoring and engagement by experts and others to help make it the best it can be.
Best of luck to Heather Kennedy and her Council as they launch into one of the most important and critical policy processes that will have enormouos impact on Alberta and Albertans for a long time to come.
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