SOME CONTEXT AND KEY QUESTIONS:
This case is complicated and challenging but it provides a window into how our government is behaving and operating in its duty of serving the best interests of at-risk kids in and of our society. It is always dicey to generalize from one instance. But the attitude and behaviours exhibited by senior levels of Children and Youth Services Alberta (CYSA) in handling this case makes you wonder how endemic this approach is elsewhere in the department and other social service departments in the Alberta government.
The Appeal Panel is an internal government process, setup in law, to deal with various concern issues within mandate of CYSA. It is intended to resolve issues in an efficient, cost-effective manner that does not involve the time, expense and adversarial nature of litigation. It is a check and balance available for a child, a guardian, a foster parent or other child caregivers over the discretionary (and necessary) powers of the government.
The challenging issue here is why the Alberta government wanted to go to court to over-ride the internal Appeal Panel finding to reverse the Director’s decision to remove the child from the foster home. Was there evidence that the Appeal Panel did not have or discounted? Was it because the Appeal Panel made a mistake in law and was it acting outside its jurisdiction? Those were the legal arguments made by the CYSA in court.
Or was the CYSA decision to take the Foster Mother to court a tactic to grind her down by adding cost, time, energy, anxiety and frustration, hoping she would just give up? Did the CYSA believe it was infallible and in absolute control of these matters? Did the CYSA not appreciate being challenged by an agency Foster Mother? Or was it something else? I will leave the drawing of any conclusions to the reader but these are some of the serious questions begged by the behaviours of the CYSA.
THE ANALYSIS:
I have not read any of the Court of Queen’s Bench (QB) files on the Appeal Panel’s decision to reverse the Director’s order to remove the child from the Foster Mother’s home. I have read the Memorandum of Judgment of the Alberta Court of Appeal that on the Queen’s Bench decision. They do a pretty thorough job of reviewing the reasons of the Queen’s Bench Chamber’s judge. I feel that is enough background to deal with this next phase of this series: Going to Court.
CYSA had every legal right to take the Appeal Panel decision to court, and in many cases they have a duty to appeal such matters to the courts. In this post I will explore the background on the two court appeals, the Court of Queen’s Bench by CYSA and the Court of Appeal by the Foster Mother. CYSA won the QB appeal at a Chambers hearing. That is not a full blown trial and the evidence is mostly affidavits. CYSA also got QB to grant a stay of execution of the Appeal Panel decision to return the child. That meant that CYSA did not have to comply with the Appeal Panel decision until the matter was dealt with in Queen’s Bench.
THE COURT OF QUEEN’S BENCH DECISION AND REASONING:
The chambers judge in Queen’s Bench decided to reverse the Appeal Panel’s decision to return the child. The law that governed the QB judge in deciding the matter was “…based on the material before him, what is in the best interests of the child on the balance of probabilities.” [Ct of Appeal Memorandum of Judgment Para 12]
The QB judge also noted “…that both the Court (QB) and the Appeal Panel were equally positioned to determine that which is in the best interests of the child.” He went further and said “that the Panel’s decision must be held to a standard of correctness.” He also noted that no curial deference could be attributed to the Appeal Panel. That means the court could examine the evidence anew that was before the Appeal Panel. This was because the court found that there was no legal restraint for it to be bound by the facts as determined by the Appeal Panel. It also determined that “The Appeal Panel had no particular expertise in determining the best interests of the child….”.” [Ct of Appeal Memorandum of Judgment Para 13 and 14]
Based on these findings the QB judge said “…I can determine, in on the record before me, the Appeal panel erred and if so, I have all the evidence to support a determination in this matter.” So here, according to the Court of Appeal, is what the QB judge found.
THE COURT OF APPEAL DECISION AND REASONING:
The Court of Appeal heard the matter on September 2, 2008; the decision was written on January 30, 2009 but not filed until March 25, 2009. Those dates are important because of the timing of the Director’s Petition for Adoption for the child by the extended family caregivers. I will talk more about that in later posts.
On “the balance of probabilities” the chambers judge concluded “…that the departmental investigative report was “comprehensive and complete and the Director relied on that report in deciding that is was in the best interests of (the child) that he be removed from (the Foster Mother’s) home.” The chambers judge said the Appeal Panel erred in law in “second guessing” the department’s investigation. They were wrong in concluding that the long time to complete the reporting was a basis for reversing the Director’s decision and that any delay in removing the child from the foster home until the report was done was a ground for reversing the Director’s decision. They were wrong to suggest that there were alternatives to deal with the Foster Mother’s adult daughter’s involvement with the child that could result in not removing the child. [Ct of Appeal Memorandum of Judgment Para 15].
The Court of Appeal said in its Memorandum of Judgment that the CYSA position was”… that the findings by the investigator, as confirmed by the Director, found that the child was at risk and in need of protection is unassailable on review by the Appeal Panel.” They argued that the Appeal Panel could only consider “various remedial alternatives.” “In other words, the Appeal Panel, the Respondent (CYSA) contends, is precluded from inquiring as to the sufficiency of the investigation or, for that matter, in any way challenging the director’s conclusions that the child was at risk. The Respondent argues that the Appeal Panel’s jurisdiction is confined to a consideration of whether some alternative other than removal of the child would have been appropriate, i.e. greater supervision, counselling, education etc.” [Ct of Appeal Memorandum of Judgment Para 18]
The Court of Appeal came down clearly and hard on the CYSA saying “The Respondent’s submission must be rejected.” They accepted that the Director's decision to remove the child was “…founded exclusively upon the investigation and no finding that a child is at risk and in need of protection can be made without reliance upon that investigation.” The Court of Appeal reads section 119(2) of the Child, Youth and Family Enhancement Act and says “…it seems apparent that the Appeal Panel has a broad discretion to “confirm, reverse or vary the decision of the director appealed from.’”
As a further admonition the court said the Appeal Panel powers come from “precisely the same language employed by the Legislature to describe the role of the Court of Queen’s Bench.” The say the Appeal Panel has and needs that broad discretion to accomplish it’s “…purpose, to inquire as to the sufficiency of the underlying investigation. [Ct of Appeal Memorandum of Judgment Para 19]
The Court of Appeal notes that there were legislative amendments even as far back as 2003 that also conferred this power of a broad scope of review on Appeal Panels. The said that power extended “…to an examination of the investigative underpinnings revealed by ‘any new evidence’ or engaged by oral or written representations and submissions. To hold otherwise is, in our opinion, an error of law.” [Ct of Appeal Memorandum of Judgment Para 20]
QB MADE THE ERROR OF LAW - NOT THE APPEAL PANEL:
Given this legislated power in the Appeal Panel, the Court of Appeal rejects the QB judge observations and agreement with the CYSA that there was some kind of “jurisdictional inability of the Appeal Panel to ‘second-guess’ the director, if by ‘second-guess’ he meant to substitute the Appeal Panel’s view of the evidence for that of the investigator and of the director.” They said in conclusion, “In our view, it was an error of law to so constrain the scope of review by the Appeal Panel. The Appellant (Foster Mother) is entitled to relief. The order of the Court of Queen’s Bench is set aside and the decision of the Appeal Panel is restored.” [Ct of Appeal Memorandum of Judgment Para 21]
The Foster Mother won at the Court of Appeal big time. This judgment will have positive impact on many other at-risk kids and encourage other caregivers to challenge inept investigations and inappropriate administrative decisions by government based on them. However, this story is far from over.
In the intervening period, before the Court of Appeal decision came down, the Director filed a Petition for Adoption of the child by the extended family, on March 13, 2009. This move by CYSA for adoption of the child by the extended family is clearly adding to the complexity, cost and would raise the anxiety of the Foster Mother. Her lawyer writes to the Court of Queen’s Bench indicating she was seeking client instructions to respond to the adoption process and asking to be advised of any steps taken in the matter. She also writes to the CYSA on March 18, 2009 saying essentially the same thing about seeking instructions on the adoption process.
This is upping the ante and putting more pressure on the Foster Mother, her energy, capacity, determination and her resources. One has to wonder if initiating this adoption process by CYSA was really necessary for the best interests of the child given the suspicious nature of the timing.
The Foster Mother shows that she is no quitter and she takes some retaliatory steps of her own.
Next post I will deal with the actions taken by the Foster Mother in response to the CYSA adoption move and how she initiates steps to find the Director personally in contempt of court. I will also deal with how this case finally comes to the attention of the Director and what the bureaucrats do beyond the adoption petition and how, if at all, those actions could be in the best interests of the child.
NOTE TO READERS: I have set up a blog post that will gather together in one place all the posts in this series. That way you can go back to the beginning as start following the events or check out other details as you wish. Here is the link to that age where the entire series is located. I will add the link to the bottom of all subsequent posts for convenience.
Monday, August 24, 2009
Sunday, August 23, 2009
CRTC Condones ISP Throttling? What Gives?
What is going on at the CRTC? Are they actually condoning throttling of Internet bandwidth? Even if contained at the wholesale level it is wrong. Canada has to stay competitive in the networked world of the 21st century. We are already getting screwed in our broadband service and costs. This just adds insult to injury.
Go to the Alberta: Get Rich or Die Trying blog for more info and a petition to sign.
Glad to see you back AGRDT - you have been gone far to long.
Go to the Alberta: Get Rich or Die Trying blog for more info and a petition to sign.
Glad to see you back AGRDT - you have been gone far to long.
A Few Important Words on the Rule of Law
In this blog series, looking behind the contempt of court finding against a Children's Services Director, I have mentioned the concept of the rule of law a number of times. The finding of contempt of court in the case under discussion involves invoking the role of the rule of law and the duty of the state to obey the law.
We don't teach this stuff in school much any more. The concept has to be more than just a cliche in the minds of citizens. So I thought I would spend some of my Sunday and try to explain Rule of Law 101. We all know this innately but here are the main elements.
Rule of Law:
Describes a form of government that holds that no power can be used except within the constraints and in accordance with the law. That concordance goes to process, procedures, principles and practices.
Any citizen (including a minor child) can pursue and achieve redress for a breach of they law that they suffered from the action or inaction of the state or any other citizen. It doesn't matter how powerful or ranking a person is within the state, they are bound by the law just like anyone else. The Foster Mother in the Children's Services contempt case was exercising this legal right in pushing the processes to overrule the Director's decision to remove the child from her home and care.
The law is supreme. That means we need an independent judiciary so the law can be effectively enforced against the state, as in the Children's Services case. The courts have to be able to impose consequence for contempt of court and for other breaches of the law. In the current case the courts imposed jail time for the Director who was found responsible for not obey the outstanding court order. The court also allowed for community service time to be served by the Director personally to avoid prison.
Paradoxes of the Rule of Law:
There is a paradox here because the government/state appoints the independent judges. There are now checks and balances in the judicial review and selection process, including consultation with the Bar and distinguished citizens who make the final appointment recommendations to the government. The usually recommend about three qualified candidates for judicial appointment and the Minister responsible can select one of them or reject them all. Such rejections of all candidates is rare and it merely starts the independent review process all over again. That independent and confidential judicial review and selection process is not perfect but it goes a long way to assure citizens of an independent judiciary.
The other paradox is that the government makes the laws that they are also going to be subject to. They can change them at any time as the legislature and Constitution will allow. If the lawmakers do not like something the law imposes on them, they can change the law. So we citizens have to be very careful who we elect. We have to be on constant vigil to ensure our politicians are serving our best interests and not their own or some "friends" or some special interest group.
The Bill 44 recent changes the Alberta Human Rights Act was serving a special interest group and not the best interests of a secular society as a whole. It also undermines the ability of teachers to provide a quality public education system too. But it is the law and it must be obeyed until political pressure is successful in getting it changed.
Without the rule of law there is a risk of social collapse, corruption, terror and intimidation. A further irony of the rule of law is the state needs to be powerful and forceful enough to subvert those lawless activities also using force and violence. The government must be capable and prepared to revert to the kind of violent extremes needed to overcome other illegal and violent extremes. Some readers will remember Trudeau and the War Measures Act in the FLQ Crisis. This is a perfect example of this paradox.
No body, and nobody is above the law nor can they ignore the law. That includes the lawmakers themselves as our agents and as people in their own right. The rule of law is a fundamental principle of our form of government. It can be subverted over time unless we citizens engage effectively in the politics of our time. Failure, refusals or neglect by citizens to engage actively in their democracy will weaken our rights as citizens to be protected by the state and from the state under the rule of law.
Thus endeth the lesson.
We don't teach this stuff in school much any more. The concept has to be more than just a cliche in the minds of citizens. So I thought I would spend some of my Sunday and try to explain Rule of Law 101. We all know this innately but here are the main elements.
Rule of Law:
Describes a form of government that holds that no power can be used except within the constraints and in accordance with the law. That concordance goes to process, procedures, principles and practices.
Any citizen (including a minor child) can pursue and achieve redress for a breach of they law that they suffered from the action or inaction of the state or any other citizen. It doesn't matter how powerful or ranking a person is within the state, they are bound by the law just like anyone else. The Foster Mother in the Children's Services contempt case was exercising this legal right in pushing the processes to overrule the Director's decision to remove the child from her home and care.
The law is supreme. That means we need an independent judiciary so the law can be effectively enforced against the state, as in the Children's Services case. The courts have to be able to impose consequence for contempt of court and for other breaches of the law. In the current case the courts imposed jail time for the Director who was found responsible for not obey the outstanding court order. The court also allowed for community service time to be served by the Director personally to avoid prison.
Paradoxes of the Rule of Law:
There is a paradox here because the government/state appoints the independent judges. There are now checks and balances in the judicial review and selection process, including consultation with the Bar and distinguished citizens who make the final appointment recommendations to the government. The usually recommend about three qualified candidates for judicial appointment and the Minister responsible can select one of them or reject them all. Such rejections of all candidates is rare and it merely starts the independent review process all over again. That independent and confidential judicial review and selection process is not perfect but it goes a long way to assure citizens of an independent judiciary.
The other paradox is that the government makes the laws that they are also going to be subject to. They can change them at any time as the legislature and Constitution will allow. If the lawmakers do not like something the law imposes on them, they can change the law. So we citizens have to be very careful who we elect. We have to be on constant vigil to ensure our politicians are serving our best interests and not their own or some "friends" or some special interest group.
The Bill 44 recent changes the Alberta Human Rights Act was serving a special interest group and not the best interests of a secular society as a whole. It also undermines the ability of teachers to provide a quality public education system too. But it is the law and it must be obeyed until political pressure is successful in getting it changed.
Without the rule of law there is a risk of social collapse, corruption, terror and intimidation. A further irony of the rule of law is the state needs to be powerful and forceful enough to subvert those lawless activities also using force and violence. The government must be capable and prepared to revert to the kind of violent extremes needed to overcome other illegal and violent extremes. Some readers will remember Trudeau and the War Measures Act in the FLQ Crisis. This is a perfect example of this paradox.
No body, and nobody is above the law nor can they ignore the law. That includes the lawmakers themselves as our agents and as people in their own right. The rule of law is a fundamental principle of our form of government. It can be subverted over time unless we citizens engage effectively in the politics of our time. Failure, refusals or neglect by citizens to engage actively in their democracy will weaken our rights as citizens to be protected by the state and from the state under the rule of law.
Thus endeth the lesson.
Saturday, August 22, 2009
Nanos Poll: 60% Say Harper Doesn't "Deserve Re-Election"
The sense of a federal election as early as this fall is becoming more of a possibility in the minds of Canadians. Not sure we really want an election but we are getting more impatient with the current Harper minority government.
The recently released Nanos tracking poll shows some interesting attitudes. Looks like Winter 2009 will be one of discontent with Stephen Harper and his government. His best before date passed effectively last November with his deceitful economic update that almost cost him his government and his leadership.
The patience of Canadians with Harper is wearing thin. We are tired of his negative ad bullying and belligerent politics that predominate his leadership. He is also showing us his astonishing ineptitude at governing in in a time of recession.
Here are the Nano's poll findings as at August 2, 2009:
Some 54% of use still think a minority government show be able to work, which underscores a hesitancy to support a quick election.
What we like about a minority government is that is forces the parties to work together. This is the aspiration of 55% of us. Harper's style is to not cooperate at all so he is seriously out of step with the value driver of the majority. He has had almost 4 years to show some capacity to co-operate but it is just not in his DNA. Interestingly 32% of us are unsure why we liked a minority government. This indicates an underlying unease about Harper's leadership in a minority government that is growing.
60% of those of us who are fed up with the minority government situation, say they are inefficient. We can't have this in a recession when we are spending billions of taxpayer's dollars on stimulus plans. Harper has been half-hearted and hapless about implementing the public infrastructure stimulus plans and his delay is not letting the provinces and municipalities to their job of creating jobs.
Here is the big news finding from Nanos. Almost 60% of us think Harper has not done a good enough job to "deserve re-election." Only 30% still have confidence in him and his leadership and only 10% are unsure.
If that statistic holds into and through the next election and leadership is the ballot question, Harper is toast. We can only hope at this time but it is looking like a leadership change is in the air for the Prime Minister's Office and a minority government is not the preferred option.
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
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
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