The rule of law or ruled by lawyers and double standards..

 

“If we could fix what is ailing the child protection system, child welfare system in this province, by starting from scratch and blowing up what exists — I would be willing to do that, because one child’s life would be worth changing the administrative structures.

 

But, just not yet. The premier wanted more evidence before she would act.

 

 

 

By LAURIE MONSEBRAATEN Social Justice Reporter SANDRO CONTENTA Feature Writer Tues., Sept. 25, 2018.

 

Vulnerable children are being warehoused and forgotten.

 

A scathing report from Ontario’s coroner presses the provincial government to reform a child protection system that “repeatedly failed” 12 youths who died while in care.

 

“Change is necessary, and the need is urgent,” said the report, written by a panel of experts appointed by chief coroner Dirk Huyer last November to examine the spike of deaths between January 2014 and July 2017.

 

The report describes a fragmented system with no means of monitoring quality of care, where ministry oversight is inadequate, caregivers lack training, and children are poorly supervised.

 

 

Is The Law Really Applied Equally?

 

Comack states; “While the pivotal point in the rule of law is ‘equality of all before the law’, the provision of formal equality in the legal sphere does not extend to the economic sphere. Thus, the law maintains only the appearance of equality because, it never calls into question the unequal and exploitative relationship between capital and labor.” This statement implies that the law is in place to be neutral. Therefore, the law would apply equally to everyone, including both the working and elite class. It can be said that in today’s society we have the marketization of law making. Marketization of law making is a process that enables the elites to operate as market oriented firms by changing the legal environment in which they operate in.

 

When the people who have power in our society can have an influence in law making, the laws that get created will not maintain the appearance of equality. The laws will start to benefit the big corporations (elites). This is well illustrated in Stan Cohen’s concept of the moral panic. A moral panic refers to the reaction of a group within society (elite) to the activities of a non elite group. The targeted group is seen as a threat to society also referred to as the folk devil.

 

Elites may sometimes have a desire to criminalize the poor for many reasons. One of the reasons may be that the underprivileged members of society are living/“hanging” around in the neighborhood where certain elites have invested. The goal for the elites is to get rid of the poor in these neighborhoods. These investors do not want these areas to look like low income neighborhoods. We can see here how the law is not applied equally to everyone. In this particular instance the law is benefiting the people with means. We can have the elites in society lobby and eventually criminalize the poor.

 

Respecting The Canadian Constitution And Our Procedural Safeguards..

 

Procedural Safeguards vs Procedural Hurdles.

 

There is a major power imbalance between an impoverished parent (we know that families of low socio-economic status are hugely over-represented in the child welfare system and race has little to do with it) and a state agency. To guard against such an imbalance, it is critical that our legal system respect the time-tested procedural safeguards developed to specifically ensure that the disadvantaged party is treated fairly.

 

Yet according to the Motherisk report, these safeguards were ignored. The report describes a litany of procedural injustices perpetrated on parents: parents were pressured to consent to testing; were not informed of their right to reject testing; they had adverse inferences drawn against them when they rejected testing; they were required to prove the unreliability of testing instead of the other way around; and they were refused the right to cross-examine Motherisk "experts" at summary judgment motions.

 

Removal from the home — permanent removal — is not supposed to be a move taken lightly. The report goes over the legal principles, laying out that it should be a last resort. It is the “capital punishment” of child protection, according to one citation, absolutely devastating to parents, and for children it is “often the beginning of a life sentence.”

 

Yet in the cases reviewed here, it is imposed, often apparently cavalierly and without even a trial, for reasons that amount to a punishment for being poor.

 

The Charter of Rights and Freedoms guarantees procedural fairness when the state interferes with fundamental personal rights, such as the right by parents to care for their children. Ironically enough, the issue of taking body samples (such as hair for testing) without proper consent for the purpose of criminal investigations was found to be an infringement of the Charter 20 years ago by the Supreme Court.

 

The problems detailed in the report’s 278 pages are too numerous to go into in detail. They document the many problems with the SickKids lab’s testing and with the child protection system’s overreliance on those results. The hair testing process produced inconsistent and untrustworthy results despite being perceived as carrying the unimpeachable weight of scientific authority. That much we pretty much knew because of earlier reporting, though the detailed breakdown of it and the specific case references make the injustice of it sickeningly vivid.

 

Former Privacy Commissioner Ann Cavoukian wrote:

 

“I am disheartened by the complete lack of action to ensure transparency and accountability by these organizations that received significant public funding. As part of the modernization of the Acts, I call on the government to finally address this glaring omission and ensure that Children’s Aid Societies are added to the list of institutions covered.”

 

The only oversight for the province’s children’s aid agencies comes from Ontario’s Ministry of Children and Youth Services.

 

"As the law stands now clients of the Ontario Children's Aid Society under Wynne's liberals are routinely denied a timely (often heavily censored) file disclosure before the court begins making decisions and the clients can not request files/disclosure under the Freedom of Information Act nor can censored information reviewed by the Privacy Commissioner of Ontario or the federal counter-part."

 

In her 2004 annual report, which was released on June 22, 2005, the Commissioner called for amendments that would bring virtually all organizations that are primarily funded by government dollars under FOI for the purposes of transparency and accountability: This would include the various children’s aid agencies in the Province of Ontario. Many parents and families complain about how difficult it is, if not impossible, to obtain information from children’s aid agencies. Many citizens complain that CAS agencies appear to operate under a veil of secrecy. Unlicensed and untrained CAS workers are making decisions which are literally destroying families, yet there is little or no accountability for their actions short of a lawsuit long after the damage has been done.

 

 

 

C.A.S. ATTITUDE: WIN CHILD WELFARE CASES AT ALL COSTS $$$.

 

By Gene C. Colman of Gene C. Colman Family Law Centre posted in Child Welfare on Thursday, January 1, 2015.

 

It should not be a matter of "win" or "lose" when it comes to Ontario child welfare law yet it isn't actually about the actual condition of the child or the child's welfare. It's about accusations, Cosmo quiz style parental risk assessments and fake experts and every time the society decides your a risk they get paid.

 

Ontario's Child and Family Services Act tells us that the paramount purpose is to "promote the best interests, protection and well being of children." One might note the glaring lack of any reference to family. In fact, there is a paucity of references to family throughout the entire CFSA even though many judges recognize the importance of maintaining family whenever possible.

 

I had a recent experience with CAS counsel at court when representing a family unjustly caught up in the system. Our office had prepared a very persuasive and comprehensive response to the Society's Application. We attended at the mandated five day hearing that follows apprehensions from parental care. The CAS certainly had not expected such forcefulness; normally parents are so overwhelmed at this early stage that they are unable to mount an effective defence. Generally, the court will rubber stamp the CAS requests. We did not agree to just stand idly by at the first appearance and CAS counsel was surprised by our aggressive (yet fair) approach.

 

Our written material seemed to have persuaded the judge. He instructed the lawyers to prepare a consent endorsement along the lines that we were seeking (which of course included an immediate return of the children to parental care). As we were returning to the courtroom after preparing the consent, the experienced and respected CAS counsel turned to me and my clients and remarked: "This is the third time your lawyer has beaten me."

 

The CAS counsel's comment was made innocently enough and indeed was intended to be complimentary. But still I was shocked (but probably should not have been). Why was I so shocked?

 

 

In leaked memo, Peel CAS staff asked to keep cases open to retain funding

By KATIE DAUBS Feature Writer Thu., March 14, 2013.

 

An internal memo from Peel Children’s Aid Society management asks staff not to close any ongoing cases during March, as part of a strategy to secure government funding.

 

According to the memo, when service volume is lower than projected, there is less money for the CAS.

 

 

THE ONTARIO CHILDREN'S AID SOCIETY HAS OFTEN CLAIM JUDGE'S PROVIDED IMPORTANT OVERSIGHT OF THE CHILD WELFARE PROCESS, BUT FOR WHO AND WHAT?

 

Tammy Law's delusional thoughts, excuses, rationalizations and justifications for using the Motherisk test to justify denying parents due process and circumventing the Constitution, the Charter of Rights and the principles of fundamental Justice behind the closed doors of Ontario's family courts.

 

The Motherisk Commission details years of rights infringements by courts. "If the same problems were identified in criminal court, there would be a huge public outcry." Tammy Law.

 

I want to be clear about what I think some of the fundamental problems are and how I think we can start to change this system. Because I am first and foremost a lawyer, my thoughts naturally focus on the role of lawyers in this mess. My thoughts are summarized as follows:

 

As lawyers, we need to recognize that good intentions are not enough. It is really easy to hide behind “the best interests of the child” and agree or acquiesce to all types of infringements of our clients’ basic human and Charter rights. This needs to stop. Lawyers need to start seeing their role in the context of defending our clients’ very real rights to human dignity and security of the person.

 

The culture of cooperation has gone too far. While I agree that it is very very important to work with the Children’s Aid Society to address their concerns, a line must be drawn when they demand cooperation that crosses the line. As a state agent, the Society has an obligation to ensure that it works in the most minimally intrusive way possible – respecting the client’s right to individual freedom while trying to ensure that its clients are served. This is a difficult job. Lawyers and courts should be there to ensure that the fine line is respected.

 

Society counsel need to understand that they have a public interest role. They should be providing advice to their clients in the context of being a public interest litigant. They have a duty to the court to be fair. This means that if unreliable evidence is being tendered (and there were many signs of this with respect to the Motherisk testing), they should be advising their clients about the unfairness of relying on it. Lawyers are and should be gatekeepers of evidence as much as courts are.

 

We need to be more vigilant. As noted in the report, our role as advocates is to raise every defense possible for our clients.

 

HOW ABOUT PRESENTING EVIDENCE THAT COUNTERS SWORN AFFIDAVITS WHEN CLIENTS HAVE IT IN ABUNDANCE - JUST SAYIN'..

 

Our clients are often extremely vulnerable, having lived lives that were challenged by multiple obstacles.

 

SO LAWYERS FAILING TO REPRESENT THEIR CLIENTS ISN'T JUST ANOTHER ONE OF THOSE OBSTACLES???

 

Many have made admirable attempts to parent their children. We need to be fearless in our advocacy for them. As a lawyer, I have experienced and seen derisive, sarcastic, or rude comments directed at myself and other lawyers who attempt to defend their clients. This needs to stop. It’s our client’s right – their children’s right – that they have a full defence.

 

 

Requirements of a Principle of Fundamental Justice

It "must be a legal principle about which there is sufficient societal consensus that it is fundamental to the way in which the legal system should fairly operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty, or security of the person."[3]

The principle is "informed in part by the rules of natural justice and the concept of procedural fairness"[4]

Procedural Requirements

The PFJ do not require that an accused be entitled to the most favourable procedures possible.[5]

Whether a particular procedure will conform to the PFJ is may require the judge "to balance the competing interests of the state and individual".[6] What is required will depend on the context.[7]

Established Principles of Fundamental Justice

Established Principles of Fundamental Justice include:

Arbitrariness

Vagueness

Overbreadth

Right to Silence

Minimum Level of Mens Rea

Right to Full Answer and Defence

http://criminalnotebook.ca/index.php/Principles_of_Fundamental_Justice

Civilized oppression and moral relations victims, fallibility, and the moral community

 

This book discusses how civilized oppression (the oppression that involves neither violence nor the law) can be overcome by re-examining our participation in it. Moral community, solidarity and education are offered as vibrant strategies to overcome the hurt and marginalization that stem from civilized oppression.

 

There are significant differences between civilized oppression and violent oppression and these differences show not only in the phenomena involved, but also in the nature of those who actively contribute to the two phenomena ('contributing agents'). Fair characterizations of the agents of civilized oppression often require very different descriptions from those applying to violent oppressors. Many of the failings behind civilized oppression are shared by both the contributing agents and a large number of the victims. Often it is the privileged social position of the agents that allows those failings to have such a serious impact, whereas the same failings in the victims may be fairly innocuous (though they are not always). This book is alert to this and other differences between civilized and violent oppression. Jean Harvey examines what the moral relations should be between the key players in civilized oppression: the agents, victims, and 'bystanders'.