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.

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

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

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

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

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

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

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

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

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

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

Links to Posts on Children's Services Series

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

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

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

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

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

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

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

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

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

EARLIER RELATED POSTS:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Anonymous Bloggers Beware!

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

(H/T) Debra Ward for the lead.

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

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

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

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

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