The polls are all over the place again just link a couple of elections ago. Only Nanos came close to reflecting the final election outcome. Opinion polls are OK but they don't predict behaviour and election DO matter.
Pollsters are out there asking the meaningless question about who you would vote for if an election were held tomorrow. The question is hypothetical, results in superficial answers and is no predictor of actual behaviour.
Ipsos Reid is out there showing 39% support for Harper up 5 point 2 months ago and Ignatieff is at 28% down 7 points in the last 2 months. Harper has had the media machine in full throttle in the past 2 months making stimulus funding announcements, delivering cheques, spending time at G8, meeting Obama and putting in a week in the Arctic as a media stunt. Hard not to get a bounce in numbers with that kind of media help.
Layton just went through a national convention with all the media focus on the petty possibility of dropping the word “New” from the party name. He only got a 1 point bounce to 14% and is deluding himself into thinking he is on the heels of catching the Liberals. The Greens under Elizabeth May had no publicity in the same timeframe and bounced up 2 points to come in at 10% support.
Ekos, with a larger sample than Ipsos, puts Harper support at 32.8, Ignatieff at 30.3, Layton at 17.3 and the Greens at 11 nationwide. These two polls done virtually at the same time have significantly different outcomes.
The more critical and relevant question is the “sentiment” index of the leaders. Ipsos found that 45% of Canadians believes that Harper has done a good job and deserves to be re-elected. 50% of us, according to Ipsos, don’t think Harper deserves to be re-elected. Nanos’ poll on the same question but a few weeks earlier said almost 60% of us don’t see Harper as good enough to be re-elected. More dissonance in the data
Harper is still leading Ignatieff on perceptions of leadership capacity to best manage issues. Again let’s get some context straight. Harper has been our Prime Minister for almost 4 years. Ignatieff has been leader of the Liberals since last December. We have not had the time to get to know Iggy nor do we have a clear sense of what direction he would want to take the country. As for Harper we are getting all too clear a sense of where he is taking the country and we are getting tired of his bullying, attack ads and strategic incoherence as he says one thing and then he does another.
We are starting to consider his total reversal on Income Trusts, the deceit he promoted last November that we were not in a recession and there would be no deficit and now he is courting China when he said he would not do that. He says the deficit will be $50B but his handpicked Parliamentary Budget watchdog says a more realistic figure could be a deficit 3 times that.
We need as much certainty and honesty and transparency as we can get in foggy times like a recession but Harper has trouble telling us the truth. He fabricates and misleads us on the facts so it is hard to know when and what to believe in anything he says.
The polls are all over the place and perhaps that is a true reflection of the uncertainty Canadians feel about their politics and politicians these days. Don’t get transfixed by the polling data about political intentions these days. Canadian fortunes can be gleaned just as well by reading Tarot Cards in these uncertain times.
Monday, August 24, 2009
Foster Mother Wins Appeal & the Government Goes to Court.
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.
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.
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
Thursday, August 20, 2009
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.
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.
Tuesday, August 18, 2009
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.
(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.
Day2 Society's Child: Accessing and Reviewing the Court of Appeal File
I visited the Clerk of the Court of Appeal of Alberta on Wednesday August 12 and asked to see the contempt of court file relating to Director in Alberta Children and Youth Services. I said earlier in this Blog that I would research the issues and comment about how the best interest of the child was served in this case. I was also interested in the background about how a policy unit in an Alberta government social services department could end up acting like they were not bound by the rule of law.
When I arrived the Clerk’s office asked me to write a letter outlining what documents I wished to see and why. My first reaction was puzzlement because court files are public documents unless there is a court order sealing them. That was not the case here. It then occurred to me that the concern was likely about the risk of identifying the child who is at the centre of all this. Of course his/her identity had to be protected. The matter is very current and complex and the child’s privacy should be of foremost concern. I expected the courts didn’t have the time to prepare a public copy of the file that would remove certain names to protect the identity of this child. I was right, so don’t run down to the court house to see the file, at least for a couple of weeks.
Given the circumstances, I wrote the letter and described what I was doing and why. I advised the Clerk’s office that was going to write some blog posts on the best interests of the child issue and other concerns I may discover in reading the file. I told them that I’m a lawyer on the inactive list but still a Member of the Law Society of Alberta. I said that I was bound by the Code of Conduct and as an officer of the court, I had a duty not to disclose the identity of the child in any writing I did.
I was called right after I faxed the letter and was given access to the unexpunged copy of the Court of Appeal. I spent about 7 hours in the Clerk’s office going over the documents last Thursday and Friday. I appreciate the co-operation of Clerk’s office and the Court of Appeal in allowing me such timely and open access. I have to tell you from watching these Court of Appeal clerks, they are hard working, conscientious and spread very thin. They have staff shortages, a hiring freeze and holiday scheduling to contend with as the court system grinds on without any summer lull. C'est la vie in times of budget restraint.
With access to the file I know the names of the parties so I need to explain some ground rules I will use in this blog series to protect the identity of the child. I will refer to the child as “he” or “the child” for purposes of convenience. I will refer to the “Foster Mother.” She is known as B.M. in the published court documents. The “Extended Family” was a caregiver to the child before his recent return to the Foster Mother.
As a matter of fairness, I will not use the names of any of government staff involved in the case but will refer to the positions they hold. I think they also deserve some privacy. Besides there is apparently a government investigation on-going by Children and Youth Services and Alberta Justice to see if others may also be found in contempt of court. Those parties are innocent until proven guilty and nobody has even been identified yet as even being potentially in contempt. It is not the time or place for me or readers to jump to any conclusions. So in fairness, I will respect their privacy under these circumstances. I will do my best to monitor that government investigation and the independent departmental review order by the Minister of Children and Youth Services (CYSA). I do not expect much of it will be made public until it is complete, if then.
I will use the Minister’s name, the Honourable Janice Tarchuk and the name of the Director, Richard Ouellet, who was found in contempt of court. They are the public faces on this file. I hope people don’t find this too awkward in reading the series but it has to be this way to protect the identity of the child.
After reading the entire file I have some sympathy for Mr. Ouellet, the Director who was found in contempt of court. He is still guilty of contempt but I think he received bad advice as Mr. Justice Cote noted in his Penalty Decision. But with 32 years in government you would also think he would also know better. More on that in later posts.
Now for some background facts to set the stage. The child was under permanent guardianship of the government from September 2003. The child was 3 months old when the Foster Mother started caring for him in Edmonton. He was removed from the Foster Mother’s care when he was 4 and a half, as a result of an inspection of the foster home done by CYSA. He is now 7 years old in school and back with his Foster Mother. He was returned the day before Mr. Ouellet appeared before the Court of Appeal in an unsuccessful attempt to vary or vacate the finding of contempt of court against him.
The child was taken away from the Foster Mother in October 2006. He was moved up north, placed with relatives who started adoption proceedings in March 2009. The Foster Mother's family was also interested in adopting him and had applied in 2005. The . There are documents on file that say the Foster Mother is aboriginal as is the extended family and the child was exposed to native spirituality and aboriginal culture throughout his life. So you can see this child was not unwanted nor unloved. In fact two families obviously care for him and want to adopt him. The adoption of the child is still an open issue and therefore not part of my review.
The Foster Mother took immediate steps to appeal the Director’s decision to remove the child from her care. Next post I will tell you about the process and grounds the department of Children and Youth Services used to remove the child from the Foster Mother’s care. An Appeal Panel reviewed the Director’s decision in hearings starting March 28, 2007 and continuing May 17, 18, 24 and 25, 2007. The Appeal Panel obviously considered its decision thoroughly and carefully.
I will tell you next post why they reversed the Directors decision and ordered the child returned to the Foster Mother. I believe the Foster Mother is a woman of courage and persistence. Without her and her lawyer, we may never have known about this case. Nor would we have the benefit of considering the lessons to be learned from this case. We have lots to learn in terms of how our society and social service systems deal with at-risk kids, who are, after all, the responsibility of all of us - not just our government.
When I arrived the Clerk’s office asked me to write a letter outlining what documents I wished to see and why. My first reaction was puzzlement because court files are public documents unless there is a court order sealing them. That was not the case here. It then occurred to me that the concern was likely about the risk of identifying the child who is at the centre of all this. Of course his/her identity had to be protected. The matter is very current and complex and the child’s privacy should be of foremost concern. I expected the courts didn’t have the time to prepare a public copy of the file that would remove certain names to protect the identity of this child. I was right, so don’t run down to the court house to see the file, at least for a couple of weeks.
Given the circumstances, I wrote the letter and described what I was doing and why. I advised the Clerk’s office that was going to write some blog posts on the best interests of the child issue and other concerns I may discover in reading the file. I told them that I’m a lawyer on the inactive list but still a Member of the Law Society of Alberta. I said that I was bound by the Code of Conduct and as an officer of the court, I had a duty not to disclose the identity of the child in any writing I did.
I was called right after I faxed the letter and was given access to the unexpunged copy of the Court of Appeal. I spent about 7 hours in the Clerk’s office going over the documents last Thursday and Friday. I appreciate the co-operation of Clerk’s office and the Court of Appeal in allowing me such timely and open access. I have to tell you from watching these Court of Appeal clerks, they are hard working, conscientious and spread very thin. They have staff shortages, a hiring freeze and holiday scheduling to contend with as the court system grinds on without any summer lull. C'est la vie in times of budget restraint.
With access to the file I know the names of the parties so I need to explain some ground rules I will use in this blog series to protect the identity of the child. I will refer to the child as “he” or “the child” for purposes of convenience. I will refer to the “Foster Mother.” She is known as B.M. in the published court documents. The “Extended Family” was a caregiver to the child before his recent return to the Foster Mother.
As a matter of fairness, I will not use the names of any of government staff involved in the case but will refer to the positions they hold. I think they also deserve some privacy. Besides there is apparently a government investigation on-going by Children and Youth Services and Alberta Justice to see if others may also be found in contempt of court. Those parties are innocent until proven guilty and nobody has even been identified yet as even being potentially in contempt. It is not the time or place for me or readers to jump to any conclusions. So in fairness, I will respect their privacy under these circumstances. I will do my best to monitor that government investigation and the independent departmental review order by the Minister of Children and Youth Services (CYSA). I do not expect much of it will be made public until it is complete, if then.
I will use the Minister’s name, the Honourable Janice Tarchuk and the name of the Director, Richard Ouellet, who was found in contempt of court. They are the public faces on this file. I hope people don’t find this too awkward in reading the series but it has to be this way to protect the identity of the child.
After reading the entire file I have some sympathy for Mr. Ouellet, the Director who was found in contempt of court. He is still guilty of contempt but I think he received bad advice as Mr. Justice Cote noted in his Penalty Decision. But with 32 years in government you would also think he would also know better. More on that in later posts.
Now for some background facts to set the stage. The child was under permanent guardianship of the government from September 2003. The child was 3 months old when the Foster Mother started caring for him in Edmonton. He was removed from the Foster Mother’s care when he was 4 and a half, as a result of an inspection of the foster home done by CYSA. He is now 7 years old in school and back with his Foster Mother. He was returned the day before Mr. Ouellet appeared before the Court of Appeal in an unsuccessful attempt to vary or vacate the finding of contempt of court against him.
The child was taken away from the Foster Mother in October 2006. He was moved up north, placed with relatives who started adoption proceedings in March 2009. The Foster Mother's family was also interested in adopting him and had applied in 2005. The . There are documents on file that say the Foster Mother is aboriginal as is the extended family and the child was exposed to native spirituality and aboriginal culture throughout his life. So you can see this child was not unwanted nor unloved. In fact two families obviously care for him and want to adopt him. The adoption of the child is still an open issue and therefore not part of my review.
The Foster Mother took immediate steps to appeal the Director’s decision to remove the child from her care. Next post I will tell you about the process and grounds the department of Children and Youth Services used to remove the child from the Foster Mother’s care. An Appeal Panel reviewed the Director’s decision in hearings starting March 28, 2007 and continuing May 17, 18, 24 and 25, 2007. The Appeal Panel obviously considered its decision thoroughly and carefully.
I will tell you next post why they reversed the Directors decision and ordered the child returned to the Foster Mother. I believe the Foster Mother is a woman of courage and persistence. Without her and her lawyer, we may never have known about this case. Nor would we have the benefit of considering the lessons to be learned from this case. We have lots to learn in terms of how our society and social service systems deal with at-risk kids, who are, after all, the responsibility of all of us - not just our government.
Monday, August 17, 2009
High Speed Rail is Catching on - Will Alberta Lead or Follow?
I am a big fan of high speed rail for the Edmonton-Calgary Corridor. It has many advantages and yes it is a fiscal stretch in times of recession. So in the meantime we should at least be assembling the right-of-way so when the economic times are better we can start building the project.
There is lots of HSR activity happening around the world. Alberta has a small population but we have a strong likelihood of Alberta continuing to grow - dramatically. We should be anticipating the future and designing infrastructure to meet the needs, including reducing car travel with high gasoline prices. We could also help reverse the unfortunate image around the world of Alberta as a dirty oil dynasty with this very green HSR project that will garner international attention.
This is a very complex project but no longer cutting edge. Many other countries are seriously into HSR, including China, big time. We Albertans have studied the concept for decades and the time to do is is just about tight now.
There is lots of HSR activity happening around the world. Alberta has a small population but we have a strong likelihood of Alberta continuing to grow - dramatically. We should be anticipating the future and designing infrastructure to meet the needs, including reducing car travel with high gasoline prices. We could also help reverse the unfortunate image around the world of Alberta as a dirty oil dynasty with this very green HSR project that will garner international attention.
This is a very complex project but no longer cutting edge. Many other countries are seriously into HSR, including China, big time. We Albertans have studied the concept for decades and the time to do is is just about tight now.
MPs Should Be on Twitter & PoliTwitter Especially
There is a growing possibility of a Federal election sooner than later. The Liberals and Conservatives are neck and neck in the polls and have been for some time. The NDP are running against the Liberals and ignoring the threat of the Greens coming up behind them. The Bloc is old, tired and a spent force politically and not rejuvenating at the party level. Media reports indicate that the next election will be fought constituency by constituency.
In all of this political churn I received an interesting email from Trevor May of PoliTwitter.ca. Twitter is becoming a great tool for political networking and sharing by politicians and political parties.
Many politicians are using it, some more effectively than others. The Liberals are into it and using it more and more. The Conservatives noticed that so they have stepped up their Twitter activity too. Trevor's idea, and it is a good one, that is to get as many MPs as possible on to and into Twitter. His site is a great vehicle to gather all the partisan Tweets at a federal and provincial level. Definitely worth visiting and following. Here is what he sent me:
"I am writing in the hope that some of you Bloggers might lend a hand in getting the word out about the new Canadian Political Twitter site http://politwitter.ca . PoliTwitter is a non-partisan service that uses Twitter to connect elected MPs and MLAs with their Canadian constituents with the goal of increasing engagement and promoting open government.
I would be thrilled if some of you could blog about the site and spread the message about getting MPs to join Twitter. I have a list of all the MPs not currently on Twitter that allows anyone to send emails encouraging them to join.
http://politwitter.ca/page/mps_without_twitter
There is also a timeline showing when each MP has joined Twitter:
http://politwitter.ca/page/timeline
Also for you bloggers Politwitter has a widget that you can add to your site with some copy & paste code. The widget shows Political twitter and is customizable. So if you are a Conservative blogger you could customize it to only show conservative tweets.
http://politwitter.ca/page/widget
Thanks for your consideration, I’m running this site not-for-profit, so I need all the help I can get!
- Trevor May - http://network.canadaka.net/
So if you know any MPs who are not on Twitter - get them going and let Trevor know so we can all follow them through PoliTwitter.ca
In all of this political churn I received an interesting email from Trevor May of PoliTwitter.ca. Twitter is becoming a great tool for political networking and sharing by politicians and political parties.
Many politicians are using it, some more effectively than others. The Liberals are into it and using it more and more. The Conservatives noticed that so they have stepped up their Twitter activity too. Trevor's idea, and it is a good one, that is to get as many MPs as possible on to and into Twitter. His site is a great vehicle to gather all the partisan Tweets at a federal and provincial level. Definitely worth visiting and following. Here is what he sent me:
"I am writing in the hope that some of you Bloggers might lend a hand in getting the word out about the new Canadian Political Twitter site http://politwitter.ca . PoliTwitter is a non-partisan service that uses Twitter to connect elected MPs and MLAs with their Canadian constituents with the goal of increasing engagement and promoting open government.
I would be thrilled if some of you could blog about the site and spread the message about getting MPs to join Twitter. I have a list of all the MPs not currently on Twitter that allows anyone to send emails encouraging them to join.
http://politwitter.ca/page/mps_without_twitter
There is also a timeline showing when each MP has joined Twitter:
http://politwitter.ca/page/timeline
Also for you bloggers Politwitter has a widget that you can add to your site with some copy & paste code. The widget shows Political twitter and is customizable. So if you are a Conservative blogger you could customize it to only show conservative tweets.
http://politwitter.ca/page/widget
Thanks for your consideration, I’m running this site not-for-profit, so I need all the help I can get!
- Trevor May - http://network.canadaka.net/
So if you know any MPs who are not on Twitter - get them going and let Trevor know so we can all follow them through PoliTwitter.ca
Sunday, August 16, 2009
"Society's Children" A Blog Series on At-Risk Kids in Care in Alberta
As regular readers will know I have published a number of blog posts on the recent Alberta Court of Appeal finding of contempt of court against the Alberta government Director of Child, Youth and Family Enhancement. You can read them here, here, here and here if you are not familiar with the case.
I have followed the contempt of court issues since the filing of the original decision by Mr. Justice Cote on July 23, 2009. These contempt of court posts are amongst the most widely read in the three years of this blog. The final legal step in the contempt of court issue was August 11, 2009 with the Court of Appeal penalty decision.
The court ordered jail time for the bureaucrat who was the subject of the contempt of court finding. The option of spending 8 days in jail or 40 hours of community service did not diminish the impact that incarceration could be the clear consequence for a civil servant acting like they were above the law. Feedback to this blog from workers in the department said they were “astonished” by the jail time and felt like they have been “kicked in the gut.”
Well the Court of Appeal just delivered a very loud and clear wake-up call to Alberta’s public servants. That message is that the rule of law trumps administrative complexity and any corporate culture of indifference to the law and ignorance of the law. You break the law or show contempt for the law, you risk going to jail.The precedent is established!
Moving on and Digging Deeper:
While that phase of this sad narrative is essentially over, there are two other fundamental issues that emerge from this litigation that Albertans need to think about. It ought to be a major concern to every Albertan that the actions of some in the Department of Children, Youth and Family Enhancement makes it apparent that they believed they could ignore the rule of law. It makes one wonder what other government of Alberta departments feel the same way. Albertans need to be concerned if their government is willfully blind or just plain indifferent to the impact and import of ignoring the rule of law. The natural consequence of this is chaos like we see on the streets and in the prisons of Iran today.
There is another critical outstanding and largely ignored issue. Where the best interests of the child at the centre of all this controversy served by the system? How do we know the answer one way or another? How are we as citizens to judge and evaluate the actions of those involved in the real case of the real child who is behind the contempt of court concerns?
I intend to investigate and comment on these two issues. In the coming weeks I am going to take you on a journey into facts, implications and consequences of this file. I will be working fromthe court records and anything else I can uncover. I will deal with perspectives on the government being subject to the law and what happened to this child and was it always in his best interest. for the record, I am not hired by anyone to do this. This is a pro bono project pure and simple.
I will try to give you some context and insight surrounding the facts and events and the implications and consequences that flow. I will do this through the eyes of a lawyer and a concerned citizen. I am not trained or experienced enough to judge the quality of the work outlined in the various reports and reviews of this child’s situation on file. However, I do feel qualified to ask questions and to write public policy and political commentary on what I read. I hope to hear blog comments from other people inside and outside government who are in fact qualified to make informed comments on those other aspects.
I intend to tell the story in a series of blog posts that will be written every 2 or 3 days in the weeks ahead. I will do my best to describe what happened to this child in as much detail as I can under the circumstances. My posts will be based solely on the filed court records and other background material that is in the public domain. There are limitations on what I can say and they will be explained in the next blog post.
This series of blog posts will be a case study in process, policy, public interest, professional duty, politics and competing personal interests. It will be a quest for questions about what happened and why things happened the way they did. It will be a chance for Albertans to consider and make suggestions on how to fix the system to ensure our child protection system is improved in ways to better serve the best interests of the child. This has to be done on the ground and in real life, not just in theory or in some departmental business case Mission and Vision statement. It is not easy stuff to deal with so it demands that the best and brightest, most caring and capable people be properly equiped and enabled to do their jobs.
I am isolating one case out of some 13,000 at-risk children who are in some way or other under the care and control of our government. I think there is lots of blame to go around about this child and likely many others that we will never hear about. Confidentiality is a shield and sometimes a shroud.
Much of the blame in this instance has been “fixed” in the contempt of court proceedings. More blame on others may be attributed in the future and the Departments of Child, Youth and Family Enhancement as well as Alberta Justice and Attorney General conduct further investigations. Iwill be monitoring progress on those fronts in subsequent posts as well.
Fixing the Blame is Necessary but NOT Enough to Fix the Problem:
Fixing the blame is fine but it is not the way to fix the problem. Fixing the problem is about attitudes, values, culture and character. Getting serious and being successful about fixing the problem is the real test of our political, governance and policy delivery systems. It also speaks to the character of the citizenship we have in our Alberta society. First we have to really understand the problem or problems to be able to help resolve them. If we don't care enough, then why should our government and public service rise to the challenge to fix the system. After all in a democracy, our government is merely a reflection of us.
We need to be clearer and better informed about what challenges our policy maker, their expert advisers and public servants face on the front lines. What resources, tools and techniques do they have to help them deal with these kids and their troubles and tribulations? How do they solve problems and how can we as a society and as individual citizens begin to help them and the children they care for? How can this be done effectively when there are serious budget cuts coming and staff hiring freezes already impacting the capacity to do the job?
How do Albertans individually and together through social service agencies and government programs help our vulnerable at-risk kids to learn and adapt and become positive contributing members of our society? With each and every one of these children there is a story. Some sadness, some hope, some tragedy and some happiness is likely pervade each one of these young lives as they try to find and make their way in the world. We should not give up on them and we should not write them off.
It's Time for a Public Conversation About At-Risk Children in Alberta
I am looking forward to the journey and I hope you are too. I hope you will read the posts and forward the posts to share them with your friends and family. I also hope you will comment on the blog posts and help create an informative, respectful and enriching public conversation about this file and its larger implications. Albertans need to know more about these larger issues in children youth and family enhancement services. We need to care more about the vulnerable at-risk children who are, in the end result, the responsibility of our society. That's you and me! There is no "them" here.
These vulnerable at-risk kids started out as somebody’s child and some parent’s responsibility. That relationship broke down for some reason or other so now they are our mutual responsibility as a society. They are truly “Society's Children.” So we Albertans have to step up to the plate, learn more, care more, provide the required resources and create capacity for those who out there trying to do the job for these kids. And then we must require more of ourselves, our government and our social services system to do what it takes to effectively serve the best interests of our society’s at-risk children.
Tomorrow I will post some background on the Court of Appeal file on this matter and how I got to read the unexpunged version for background on the coming blog posts. If you are on our Cambridge Strategies distribution list you will be getting regular notices of new blog posts. Otherwise I suggest you subscribe to this blog through the FeedBlitz widget on the righthand sidebar.Friday, August 14, 2009
What's the Hold up - Proclaim Bill 44 Amendments into Law NOW!
So we are getting some Ministerial musings about the timing of the proclamation of the "new" Alberta Human Rights Act. We are hearing it is set for this October or November, well after school starts and up to 6 months after the new Act was passed.
I can't see any reason to not proclaim it now and lets get this litigation circus and abuse of teachers going right off the bat when school starts in September.
Surely this law was well enough thought out in the first place that all they have to do is proclaim it and get on with it. Or, is it the case that "the powers that be" don't have a frigging clue about what the real implications of this law will be and it is now just starting to sink in?
Could it be that there are wiser minds and some bigger brains in the back rooms of provincial power are having a serious second thought? Is Cabinet getting cold feet about proclaiming the opting out provisions in Section 9 of the new law? I don't think so.
This ill-conceived law was rammed through with a reckless "damn the torpedoes" attitude in a show of pure and raw political power at play. Nothing has changed in the meantime and to retreat from a folly is never seen as preferred political option.
Besides isn't the strategic political plan to just get past this public rage over Bill 44 so it will be forgotten by the next election. Further delay just gives more time for more events to happen that would just rekindle the public rage. I see nothing to indicate that the government has all of a sudden had an epiphany and received some enlightenment and would now decide to repeal Section 9 "opting out" provisions instead. That would be good government. It just seems too late for our policy makers and law makers to choose that good government road. Sadly , it is road that is much less travelled by in Alberta these days.
If this horrendous law is as benign as the government assures us, what's the hold up? Cabinet makes the proclamation and it meets in the summer. School starts in a few weeks. Give teachers, trustees and parents some certainty (sic) and proclaim the damn law now and lets see what happens sooner than later.
I can't see any reason to not proclaim it now and lets get this litigation circus and abuse of teachers going right off the bat when school starts in September.
Surely this law was well enough thought out in the first place that all they have to do is proclaim it and get on with it. Or, is it the case that "the powers that be" don't have a frigging clue about what the real implications of this law will be and it is now just starting to sink in?
Could it be that there are wiser minds and some bigger brains in the back rooms of provincial power are having a serious second thought? Is Cabinet getting cold feet about proclaiming the opting out provisions in Section 9 of the new law? I don't think so.
This ill-conceived law was rammed through with a reckless "damn the torpedoes" attitude in a show of pure and raw political power at play. Nothing has changed in the meantime and to retreat from a folly is never seen as preferred political option.
Besides isn't the strategic political plan to just get past this public rage over Bill 44 so it will be forgotten by the next election. Further delay just gives more time for more events to happen that would just rekindle the public rage. I see nothing to indicate that the government has all of a sudden had an epiphany and received some enlightenment and would now decide to repeal Section 9 "opting out" provisions instead. That would be good government. It just seems too late for our policy makers and law makers to choose that good government road. Sadly , it is road that is much less travelled by in Alberta these days.
If this horrendous law is as benign as the government assures us, what's the hold up? Cabinet makes the proclamation and it meets in the summer. School starts in a few weeks. Give teachers, trustees and parents some certainty (sic) and proclaim the damn law now and lets see what happens sooner than later.
Tuesday, August 11, 2009
Ct of Appeal Says Contempt of Court Means Jail Time but Community Service is an Alternative.
The Court of Appeal has wrestled with what is an appropriate penalty for Mr Ouelette's contempt of court for failing to promptly obey an earlier order of the court. Here is the Judgment.
The Justice reviewed the Rules that apply and here are the options: A fine but that would likely be covered by the province (we taxpayers) and that would mean no real skin off the former Directors nose.
Imprisonment until the contempt is "purged" but that purging was done the day before the second hearing on the contempt issue because the original court order was complied with and the child was returned as ordered. So that penalty is not appropriate. The Court noted, however, had the child not been returned at the last minute, imprisonment until the order was complied with may well have been appropriate, but not any more.
The final option under the Rules is imprisonment for up to 2 years but the court thought that was "harsh" so an alternative was sought between prison and a fine.
The possible resolution of the "quandary" was community service and there is case law that allows for this finding. Here is where it gets interesting and the wisdom of the courts and the judgment of the Bench come into focus. I love it when you see justice done in this way.
The final decision was to sentence Mr. Oulette to 8 days in prison for his contempt, to start once he got back from his holidays. However, the court gives Mr. Ouelette an option to avoid going to jail. He can do unpaid community service of 40 hours with a charitable organization or municipal government by October 31, 2009 and it must "not be in the child protection areas."
In addition the court ordered the payment of the solicitor-client costs of the lawyer acting for the foster mother and the child B.M. throughout the various stages. It left it up to the government to decide if it would pay those cost on behalf of Mr. Ouelette. That will likely be the case. However if the costs are not paid, then a motion could be brought to send Mr. Ouelette to jail on that basis too.
I think this is a very fair and appropriate penalty. The factors the court considered in arriving at it are interesting too. There was no "profit or bad intent" by the Director but a "considerable degree of carelessness." Since Mr Ouelette is no long in this position it is unlikely that there will be a recurrence by him. There was an apology and explanation given to the courts that served to mitigate penalty and the possibility that he received "poor legal advice."
Key to this court finding was also a "need for general deterrence (of others); and need for denunciation." These latter two heads of consideration go to the issue of the leadership, management and culture of the department which is what needs to be seriously reconsidered and fixed by the looks of it.
So that part of the drama is over. Now lets look at how well the child's interests were served in all of this and monitor how the department is responding.
The Justice reviewed the Rules that apply and here are the options: A fine but that would likely be covered by the province (we taxpayers) and that would mean no real skin off the former Directors nose.
Imprisonment until the contempt is "purged" but that purging was done the day before the second hearing on the contempt issue because the original court order was complied with and the child was returned as ordered. So that penalty is not appropriate. The Court noted, however, had the child not been returned at the last minute, imprisonment until the order was complied with may well have been appropriate, but not any more.
The final option under the Rules is imprisonment for up to 2 years but the court thought that was "harsh" so an alternative was sought between prison and a fine.
The possible resolution of the "quandary" was community service and there is case law that allows for this finding. Here is where it gets interesting and the wisdom of the courts and the judgment of the Bench come into focus. I love it when you see justice done in this way.
The final decision was to sentence Mr. Oulette to 8 days in prison for his contempt, to start once he got back from his holidays. However, the court gives Mr. Ouelette an option to avoid going to jail. He can do unpaid community service of 40 hours with a charitable organization or municipal government by October 31, 2009 and it must "not be in the child protection areas."
In addition the court ordered the payment of the solicitor-client costs of the lawyer acting for the foster mother and the child B.M. throughout the various stages. It left it up to the government to decide if it would pay those cost on behalf of Mr. Ouelette. That will likely be the case. However if the costs are not paid, then a motion could be brought to send Mr. Ouelette to jail on that basis too.
I think this is a very fair and appropriate penalty. The factors the court considered in arriving at it are interesting too. There was no "profit or bad intent" by the Director but a "considerable degree of carelessness." Since Mr Ouelette is no long in this position it is unlikely that there will be a recurrence by him. There was an apology and explanation given to the courts that served to mitigate penalty and the possibility that he received "poor legal advice."
Key to this court finding was also a "need for general deterrence (of others); and need for denunciation." These latter two heads of consideration go to the issue of the leadership, management and culture of the department which is what needs to be seriously reconsidered and fixed by the looks of it.
So that part of the drama is over. Now lets look at how well the child's interests were served in all of this and monitor how the department is responding.
Alberta Minister of Children Youth Services Reaches Out.
It is good to see the Minister of Child and Youth Services Alberta (CYSA) responding to the various events that impact from and to the department. Here is a copy of an email that I received from an anonymous source that I understand is from the Minister and distributed to the department:
"A number of incidents involving our ministry have placed us in the news headlines since the beginning of the year, including the death or injury of children in care, youth in care being charged with serious crimes, and issues such as the recent contempt of court ruling by the Alberta Court of Appeal.
These matters and the resulting attention and criticism in the media have an impact on your daily work. I know what it is like to open the newspaper or turn on the radio and hear a report claiming that our system for serving children and families is not working properly.
I want to share with you action that our ministry has been taking following these occurrences, to continue ensuring the best possible outcomes for children, youth, and families in Alberta.
Those of you working directly with children and families, and those of you that support staff who do, understand that the troubling cases reported in the media are the exception and not the rule. During times when there is more media and public attention on the work of our ministry and its staff, it is important to not be distracted but continue focusing on developing and delivering the highest-quality supports and services to the thousands of Albertans who rely on our help.
Our policies and processes are based on leading practices nationally and internationally, and following them makes good sense, since we know they are rooted in evidence-based research. At the same time, it is essential to never stop looking for ways we can make our systems even stronger. In fact, this has always been at the heart of how this ministry does business.
• A number of initiatives are currently underway to achieve that goal including:
• A recently announced review of our child intervention system, chaired by leading child intervention experts, who will examine current child intervention practices, identify leading practices from other jurisdictions, and suggest ways our system may be further strengthened.
• Examining the way our ministry administers the court orders it receives through a review being done with Alberta Justice and Attorney General.
• Reviewing and developing recommendations to strengthen the kinship care program.
• Looking at the multi-disciplinary team process that is part of the Family Support for Children with Disabilities Program.
These activities are over and above the regular reviews and adjustments to our policies and practices, which happen on a continuous basis in our ministry.
Despite our best efforts the reality is there will be times where our systems may not work as well as intended. As ministry staff, you see first hand our policies at work. If you have suggestions on how our policies or practices can be improved, I encourage you to share them with your supervisor.
I feel fortunate to be part of a team that makes such a profound and lasting positive difference in the lives of thousands of Albertans. Please accept my continued thanks and appreciation for the hard work you do for children and families.
Honourable Janis Tarchuk, Minister"
"A number of incidents involving our ministry have placed us in the news headlines since the beginning of the year, including the death or injury of children in care, youth in care being charged with serious crimes, and issues such as the recent contempt of court ruling by the Alberta Court of Appeal.
These matters and the resulting attention and criticism in the media have an impact on your daily work. I know what it is like to open the newspaper or turn on the radio and hear a report claiming that our system for serving children and families is not working properly.
I want to share with you action that our ministry has been taking following these occurrences, to continue ensuring the best possible outcomes for children, youth, and families in Alberta.
Those of you working directly with children and families, and those of you that support staff who do, understand that the troubling cases reported in the media are the exception and not the rule. During times when there is more media and public attention on the work of our ministry and its staff, it is important to not be distracted but continue focusing on developing and delivering the highest-quality supports and services to the thousands of Albertans who rely on our help.
Our policies and processes are based on leading practices nationally and internationally, and following them makes good sense, since we know they are rooted in evidence-based research. At the same time, it is essential to never stop looking for ways we can make our systems even stronger. In fact, this has always been at the heart of how this ministry does business.
• A number of initiatives are currently underway to achieve that goal including:
• A recently announced review of our child intervention system, chaired by leading child intervention experts, who will examine current child intervention practices, identify leading practices from other jurisdictions, and suggest ways our system may be further strengthened.
• Examining the way our ministry administers the court orders it receives through a review being done with Alberta Justice and Attorney General.
• Reviewing and developing recommendations to strengthen the kinship care program.
• Looking at the multi-disciplinary team process that is part of the Family Support for Children with Disabilities Program.
These activities are over and above the regular reviews and adjustments to our policies and practices, which happen on a continuous basis in our ministry.
Despite our best efforts the reality is there will be times where our systems may not work as well as intended. As ministry staff, you see first hand our policies at work. If you have suggestions on how our policies or practices can be improved, I encourage you to share them with your supervisor.
I feel fortunate to be part of a team that makes such a profound and lasting positive difference in the lives of thousands of Albertans. Please accept my continued thanks and appreciation for the hard work you do for children and families.
Honourable Janis Tarchuk, Minister"
I have asked questions and raised concerns about the corporate culture of CYSA in recent posts. So it is good to see the Minister reaching out. It still begs the questions if the CYSA system is inadequate or the people are ill-prepared or insufficiently resourced to do their job there are serious problems in meeting the legal obligations to the at-risk children and youth they are supposed to be helping. If the staff lacks confidence in the departments leadership then there are very serious problems in work place.
The GOA did a "Corporate Employee Survey" in December of 2008 for each department. Here are some interesting findings for the 1,433 staff of the CYSA. While 76% of department staff were "overall satisfied" to be a GOA employee only 64% of CYSA employees were "satisfied" with their ministry or department. Not good but better than 2006 when only 61% were satisfied with the department.
CYSA staff feelings about being "valued as a GOA employee had only 53% strongly or somewhat agreeing, 31% strongly or somewhat disagreeing and 16% in the neither category. Not a very good work situation obviously.
Only 54% felt the department felt that they were helped to understand how their work "contributes to government business plan goals" and 58% believed they understood the same about the department's business plan. Only 51% believes there is an effective internal communications process in CYSA. Is that reflecting alienation of staff or indifference of leadership and management or both?
We live in rapidly changing times and CYSA's work has to be amongst the most volatile in government services. That said only 52% of staff felt they got the support needed to adapt to changes in the job or work environment and only 50% felt senior management demonstrated interest in the well being of employees and 49% believed they received meaningful recognition for work well done. Only 44% of staff felt that they were asked for employee input about plans for business improvements and that the management and leadership could make timely decisions. OUCH.
It is not all bad news for CYSA. Mostly this department is slightly below the averages of all GOA employees in most categories but when it is bead it is significantly bad. On the positive side a full 92% feel they "have a positive working relationship with coworkers and 84% are satisfied with the quality of service provided from their own work unit. 80% indicated they had confidence in the direct supervisor. It is worth noting only 64% felt that others outside their immediate work unit provided high quality service. Strange disconnect there I think.
There is a recently announced GOA hiring freeze. I wonder how many vacancies exist in CYSA that may be critically needed for people to do their job? Only 56% felt they could retain needed department employees and only 48% felt they could attract needed employees too.
There is obviously a great deal to do to improve these numbers and to better position the department to do its job. I will pose a number of question in a rage of theme areas in future posts that I hope will help Albertans consider in how they might evaluate that repositioning. The credibility gap between the leadership and field staff is the most obvious.
So good start with this email to the department Minister Tarchuk. It is going to be a long row to hoe so please don't think the job of closing the gap between the senior management and your leadership is done with one email.
Monday, August 10, 2009
Will Bill 44 Be Debated at the Alberta PC Party AGM in November?
I found out that my suggestion to the Edmonton Glenora PC constituency association to submit a resolution to the Party AGM to repeal the classroom opting out provisions of the new Alberta Human Rights Act, best known as Bill 44, did not make the cut.
There were 4 options presented to the Board members to choose from. After a number of emails trying to find out what happened. I saw the constituency President at the Folk Festival on Thursday night and she told me the results. The Bill 44 repeal resolution was dead last in the Glenora constituency board voting priority. I am not surprised but I am sure disappointed.
It now looks like the last chance to have an AGM debate by the membership of the PC Party on Bill 44 is if the Whitemud constituency makes it happen. But that is not a sure thing either. The party rules are a limit of 2 resolutions per constituency. The Bill 44 resolution in Whitemud was tied for second place with another resolution. So the Whitemud constituency will have to break the tie. The Bill 44 option could be lost in the tie breaker vote.
This is a model example of the problem with party politics. They exist primarily to pursue and preserve political power. That power presumption sometimes trumps things like having a healthy public debate based on competing values and for the sake of good governance. I recall back in the day when Stockwell Day promoted a party resolution to de-insure abortions in Alberta's health care coverage. The resolution was presented, debated, voted on and defeated. The party was stronger for it.
If the PC party accepting that Bill 44 is preferred law and therefore it is not worth debating further, I can accept that. I suppose one can take it on faith that this is the will of the party because no constituency has yet to come forward conclusively to want to test the wisdom of Bill 44 in a resolution debate and a vote. It is very clear that party resolutions are not binding on the Stelmach government. They are merely advice and influential information at best.
That said what are other Albertans to think about the PC Party when people in it will not step up to the plate to speak their minds on contentious issues and government laws? Heaven knows we have seen lots of pressure to abolish the Alberta Human Rights Commission but certain people, many I expect are in the PC Party. That is well established law and a move to throw out the baby with the bath water.
Ironically everyone on all sides of the Alberta political spectrum agreed that the hate speech provisions of the Human Rights legislation in Alberta should go but it survived the legislation review process. GO figure. That must be an example of the old joke that you don't really what to know how sausages or how laws are made.
What are political parties good for as institutions in the larger scheme of our democracy if not to find their truths and to bring their truth to the powers that be in their party and the government. All it can do is make them better and stronger.
It is clear to me that the powers that be in the PC party and the PC government clearly want the embarrassment of Bill 44 to be forgotten and to just go away, rather than to try and fix the mistake. That is a naive political hope. It will not happen. This travesty will not be forgiven or forgotten by the majority of Albertans who find Bill 44 to be a discriminatory unnecessary and abusive law.
I guess fixing this problem is now up to the citizens of Alberta. The next opportunity for that correction of Bill 44 to happen will be in 3 more years; at the next election. Thanks to Bill 44 an awful lot of serious damage can happen to our schools, our children, our education system and out teachers between then and now.
There were 4 options presented to the Board members to choose from. After a number of emails trying to find out what happened. I saw the constituency President at the Folk Festival on Thursday night and she told me the results. The Bill 44 repeal resolution was dead last in the Glenora constituency board voting priority. I am not surprised but I am sure disappointed.
It now looks like the last chance to have an AGM debate by the membership of the PC Party on Bill 44 is if the Whitemud constituency makes it happen. But that is not a sure thing either. The party rules are a limit of 2 resolutions per constituency. The Bill 44 resolution in Whitemud was tied for second place with another resolution. So the Whitemud constituency will have to break the tie. The Bill 44 option could be lost in the tie breaker vote.
This is a model example of the problem with party politics. They exist primarily to pursue and preserve political power. That power presumption sometimes trumps things like having a healthy public debate based on competing values and for the sake of good governance. I recall back in the day when Stockwell Day promoted a party resolution to de-insure abortions in Alberta's health care coverage. The resolution was presented, debated, voted on and defeated. The party was stronger for it.
If the PC party accepting that Bill 44 is preferred law and therefore it is not worth debating further, I can accept that. I suppose one can take it on faith that this is the will of the party because no constituency has yet to come forward conclusively to want to test the wisdom of Bill 44 in a resolution debate and a vote. It is very clear that party resolutions are not binding on the Stelmach government. They are merely advice and influential information at best.
That said what are other Albertans to think about the PC Party when people in it will not step up to the plate to speak their minds on contentious issues and government laws? Heaven knows we have seen lots of pressure to abolish the Alberta Human Rights Commission but certain people, many I expect are in the PC Party. That is well established law and a move to throw out the baby with the bath water.
Ironically everyone on all sides of the Alberta political spectrum agreed that the hate speech provisions of the Human Rights legislation in Alberta should go but it survived the legislation review process. GO figure. That must be an example of the old joke that you don't really what to know how sausages or how laws are made.
What are political parties good for as institutions in the larger scheme of our democracy if not to find their truths and to bring their truth to the powers that be in their party and the government. All it can do is make them better and stronger.
It is clear to me that the powers that be in the PC party and the PC government clearly want the embarrassment of Bill 44 to be forgotten and to just go away, rather than to try and fix the mistake. That is a naive political hope. It will not happen. This travesty will not be forgiven or forgotten by the majority of Albertans who find Bill 44 to be a discriminatory unnecessary and abusive law.
I guess fixing this problem is now up to the citizens of Alberta. The next opportunity for that correction of Bill 44 to happen will be in 3 more years; at the next election. Thanks to Bill 44 an awful lot of serious damage can happen to our schools, our children, our education system and out teachers between then and now.
YouTube Duck Poachers Arrested.
It is good news to see that the goofballs who illegally shot a bunch of ducks on a remote pond have been arrested. These jerks, who took great glee in killing these birds for not good reason, also posted the video of the event on YouTube.
They are in such serious trouble and they should be. The Globe an Mail story as of 10:15 am today had a 175 comments already. The Sun papers are carrying a story about their "apology" saying they had "never been in trouble before" and they "did not know it was a crime."
Come off it guys, how hollow, shallow and unctuous can you be.
These accused are rural young men in their 20s and a 30 year old who already fessed up that they are the ones in the video. They are not teenage boys out on a prank. They surely knew or ought to know what poaching is and that there is an actual duck hunting season. They own guns and one would hope they have been properly trained in their use and informed as to when guns are to be use for legitimate hunting purposes. This was thoughtless useless killing just for the fun of watching those birds die.
Hunters and wildlife conservationists share many common values about wildlife. These guys have done so much harm to legitimate sport hunters image that they are not going to get of with an apology for the useless slaughter of these ducks.
I am not surprised by the public loathing and seething anger at these guys. We have done two major research projects with over 4000 Albertans in each case. the study was on what are predominant value drivers of Albertans around the forestry and oil sands industries. In both cases preservation of wildlife and protection of their habitat was the #1 value driver for Albertans. We saw the international outrage when the ducks died in the Syncrude tailing pond over a year ago. The same outrage will be visited on these guys.
The penalties they potentially face are severe, depending on what laws they are charged under. The Migratory Birds Convention Act carries fines between $300,000 and $1,000,000 and up to 6 months in jail. The Saskatchewan Wildlife Act is another place were charges will likely be laid but I don't know the penalty sections there.
The wanton disregard for the law and the feeble excuses they have offered so far will do little to mitigate the damage they have done or the public outrage against this kind of behaviour. These dolts put their video up on YouTube for all to see. Social media is such a game changer in how our society is changing and learning about stuff. Some of it is mindless drivel but it also helps bring people to justice as in this case.
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