Below, please find, for the record, newly minted Court of Queen’s Bench Justice Vic Toews’s complete remarks made at his swearing-in ceremony in courtroom 210 of the Law Courts Complex on May 2, 2014.
[Free Press photo by Phil Hossack, as credited]
To say it’s disheartening hearing the evidence that’s coming out at the Phoenix Sinclair Inquiry would be beyond an understatement.
But among the litany of facts painting the picture of major systemic breakdown — a portrait of ignominy becoming clearer each passing day — there are moments of fascinating clarity.
One of them came today, in the testimony of veteran CFS caseworker Laura Forrest, who, like many of her colleagues, was asked towards the end of her time on the stand to comment on the nature of the CFS system in general and improvements which could be made to it to better protect Manitoba kids.
Forrest handled Phoenix’s case for a few months, and despite her failure to physically see and visit the child in following up what was considered to be a low-risk potential maltreatment claim, it was Forrest who finally put together all the available information to determine the little girl’s background equalled nothing less than a high-risk situation.
And her parents’ negative attitude and disregard for CFS and its work was a huge factor in her finding, which a review noted was largely ignored a few weeks after she came to this conclusion.
Fast forward to today, and Forrest is no longer an intake worker with CFS, handling crises and complex cases as they poured in by the bucketsful.
She now works delivering services to families as a case worker — a step removed from the process of initial contact and assessment of cases by CFS. (EDIT: she’s actually doing foster-care placements, but left intake in 2009 to move to a family service position with CFS till recently).
Off the top, Forrest readily admitted her workload was high — if not huge — in her time in intake, and that continued till she left that unit in 2009. By then, several reviews of Phoenix’s case had been done, and changes implemented by officials to try and ensure no similar situation ever happened again.
“My practice was to do the best I could with what I had,” she said.
Forrest says she was never consulted or interviewed about any of the reviews that were done or findings made, something she says she would have liked to have seen happen just because the investigations analyzed her work. It also may have been educational for her, she said.
“What’s the answer to workload issues?,” Commission lawyer Sherri Walsh asked her today — toward the end of Forrest’s lengthy testimony.
She paused a while before speaking.
“I guess, it’s a big answer. Because it’s not as simple as telling a system, ‘these are all these standards you should be following and that will take care of everything. We deal with really complex family situations. And depending on where they’re coming from, lack of community resources, increased issues with respect to addictions, mental health, which makes things much more complicated – families placing their children into care at much more, much higher numbers.
The system can try and change as much as it can sometimes, but if everything else around, in our community is also escalating in terms of their needs and their problems that they’re trying to deal with, I don’t know how we can keep up, to be honest.”
“In my experience — over 20 years — things have changed. It’s not easier to do my job.
Not withstanding changes in the system?
“Yeah. I mean, I think that we all try to do the very best that we can, whether people can believe that or not. We have a lot of hope, we have a lot of belief that people can make changes, that families can make changes. Sometimes I find if I didn’t have those, that would be very very difficult, because sometimes that’s all you have with a family.
So, is very simply one answer to the workload concerns reducing the need? Prevention?
“Well, prevention would be helpful. So if you could look at some prevention programs that could be in place even within [the] system, we had those — we had a couple of them — and they were helpful in terms of dealing with families that had teenagers out of control. But those programs were changed and something else came about as a result of that. So I think that it would be helpful if we found practical interventions that would actually really, adequately meet family needs in a realistic fashion.
We can tell them what we think we need them to do, but if they can’t do it because they don’t have enough food, they don’t — they’re struggling maintaining the three or four or two kids in their home because they’re a single parent and they don’t have a lot of resources — I think we have to be fair and mindful that these are people that are working hard to do the best they can.
We have to come up with better solutions as to what we can offer them for intervention. So that could be helpful — some practical intervention, some more practical and more available resources. I always hope for that and I know other people do. And I know the community resources try as much as they can as well with what they have. But, you know, to say that one system has to make all the change and that will take care of everything and no child will be harmed again — I don’t know if that’s going to happen by just looking at one system.
You say that protecting children can’t just be put on the shoulders of the child-welfare system.
“We have that burden. But it would be helpful if we had other supports and resources. Not for us, but for the families.
We talked about community resources and addressing issues of poverty, employment, education, child care — those are all things that would help, ultimately, with workload?
“Yeah. These are all the things that our families struggle with and we have to try and help them overcome those. Sometimes it’s very difficult.
Was there anything about (Phoenix’s family’s) circumstances, either in terms of their factual circumstances or the nature of services that were being delivered by the agency that stood out in your mind as compared to other families that you were working with?
“This family situation was fairly similar to many families I had dealt with. Whether it was single parent dealing with addictions issues, conflict with the other parent, struggling to manage in child care, relying on other family members. It wasn’t unique in itself. There are certain things about it that make them different but often times I dealt with families that struggled with poverty … parenting … addictions … mental health. It was more common than not.
You can follow my live blog on the inquiry by finding any Phoenix-related story on the home page of the Winnipeg Sun website.
From the WFP 6/11/2011: By Mary Agnes Welch
It was 2004 when then-Justice Minister Gord Mackintosh first said a mental health court was in the works.
“We’re of the view that if we’re going to have a successful mental health court we have to develop this slowly and sure-footedly,” he told the Free Press at the time.
“Slowly” turned into seven years. Last week, the province announced the court would finally launch this winter.
Selinger said it took time to do proper due diligence and planning on things like the mental health court to get them to a workable point.
“We put it in the throne speech last fall and we did it this spring,” said Selinger of the mental health court. “That’s a pretty fast turnaround.”
But, according to a judicial memo circulated today, we can all mark May 10, 2012 on our calendars as the day the shiny new MHC will sit for the first time.
Re: MENTAL HEALTH COURT
Effective Thursday May 10, 2012, Mental Health Court (MHC) will sit weekly on Thursdays at 1 p.m. in courtroom 408, 408 York Avenue, Winnipeg Manitoba.
This problem-solving court will hear matters where the accused’s involvement with the criminal justice system is a result of mental health issues and there the particulars of the incident(s) fall within the sets of criteria established by the Crown and the Winnipeg Regional Health Authority’s Forensic Assertive Community Treatment (FACT) team.
Persons with mental health issues who have been or are about to be charged with an offence may be identified to the Crown by police, courts or corrections staff or counsel.
In these cases, the Crown will review the file and may refer the accused to the FACT team for a suitability and amenability assessment. Counsel may assist the accused in filing an application for and amenability assessment. Counsel may assist the accused in filing an application form and the required waiver form. Provided the accused is a suitable candidate for MHC and willing to participate, the FACT team will prepare a report to the MHC judge which will include a treatment plan. This process constitutes application to Mental Health Court.
Until an accused applies for MHC, the charges will be remanded on the pre-trial coordinator’s dockets. Upon application, the accused with appear for the first time on the MHC docket as arranged by counsel with court staff. The accused will enter guilty pleas, file application and waiver forms and enter into a bail as agreed upon by all parties. The charges will then be remanded week to week while the accused’s mental health is addressed during the treatment plan.
Each Thursday at 12 p.m. the MHC judge will meet with the FACT team and counsel in Judges’ chambers to discuss the treatment progress of each person on the docket. During the court sitting as the Crown calls each matter the MHC judge will address the named accused directly to encourage ongoing commitment.
As each accused’s mental health improves, appearances may become less frequent. Upon the treatment plan being completed, the accused will make a final appearance before the MHC judge either to be sentenced to a community based disposition or for the Crown to stay the charges.
The entire process is expected to take 18-24 months from referral to disposition.
ISSUED By Chief Judge Ken Champagne, Provincial Court of Manitoba
Over the past few months I had heard rumblings this would be happening, but like many, I’m sure, had no idea when.
The only other thing I had heard is that the Crown prosecutor who will be running the show is Susan Helenchilde, who is leaving community prosecutions to take this on.
The first Mental Health Court started in 1998 in Toronto, putting us well behind the curve in terms of time — that’s also allowed (hopefully) Manitoba to gain from the knowledge MHC’s in other jurisdictions have only gleaned through trial (pun intended) and error.
It’s interesting to note that in Toronto’s system, there’s a wide range of offences that aren’t eligible for MHC (below).
We’ll obviously learn in coming days what’s permissible for MHC in Manitoba.
I’d also highly recommend reading the “factors to consider” section of the Toronto MHA website. It’s also clear that Manitoba’s taking a bit of a ‘baby-step’ approach by electing (as per the memo above) to not stay charges until the treatment plan is completed.
Geeks can read stats analysis and other research topics on MHC’s here at Stats Can. (Like the court, your tax dollars paid for it, may as well read it.)
3. Eligibility of Offences
- a. Offences that are not eligible (also known as Class III for purposes of other practice memoranda)
The following classes of offences will not be eligible for treatment plans or supervisory programs as an alternative to prosecution, regardless of the circumstances of the alleged offence or the accused:
- murder, manslaughter, infanticide, criminal negligence causing death;
- causing death or bodily harm by dangerous or impaired driving;
- any offence causing serious bodily harm;
- simple impaired driving or driving with a prohibited blood alcohol concentration;
- offences involving firearms;
- criminal organization offences;
- spouse/partner offences
- child abuse;
- offences involving child pornography
- sexual offences including sexual assault, interference and exploitation, invitation to sexual touching and incest;
- specific hate offences
- home invasions;
Some members of Manitoba’s NDP government have been on the hot seat lately over the rising cost of Manitoba Hydro’s Bipole III project (see here) — essentially who knew what and when. Members of the Opposition have alleged the NDP was in contempt of the legislature because the old Bipole cost figure was oft-repeated in the house as being considerably less than what it is.
Wednesday, Speaker George Hickes ruled the government was not in contempt. His lengthy consideration is worth looking at:
Here’s how he framed the allegations:
Following the daily prayer on April 15th of 2011, the honourable Official Opposition House Leader (Mrs. Taillieu) rose on a matter of privilege to contend that comments made by the honourable Minister of Finance (Ms. Wowchuk) and the honourable First Minister concerning the projected costs for building Bipole III were at odds with information from Manitoba Hydro and were deliberately misleading. At the conclusion of her remarks, the honourable Official Opposition House Leader moved THAT this House find the government in contempt and that the Minister of Finance and the Minister responsible for Manitoba Hydro and the Premier of Manitoba be censured for first withholding information, then providing contradictory information and deliberately attempting to mislead this House by maintaining the cost of Bipole III was $2.2 billion for at least 18 months even though they were aware of contradictory evidence about the true and escalating cost of Bipole III, and as recently as yesterday continued to bring conflicting information to this House.
Hansard, April 20, 2011 pg. 892
In his ruling, Hickes makes the following comments about what must happen to find house privilege was violated and/or a minister/ government is in contempt.
“The ruling of previous Manitoba Speakers have been very clear and consistent. Speakers Walding, Phillips, Rocan and Dacquay have all ruled that in order to find allegations of deliberately–of deliberate misleading the House as prima facie means proving that the member purposely intended to mislead the House by making statements with the knowledge that these statements would mislead.
Therefore, a burden of proof exists that goes beyond speculation, conjecture, but involves providing absolute proof, including a statement of intent by the member involved, that the stated goal is to intentionally mislead the House, as it is possible members may inadvertently mislead the House by unknowingly putting incorrect information on the record.
As I advised the House on April 16th of 2007, providing information that may show the facts are at variance is not the same as providing proof of intent to mislead.
Speaker Dacquay also ruled that without a member admitting in the House that he or she had the stated goal of misleading the House when putting remarks on the record, it is virtually impossible to prove that a member had deliberately intended to mislead the House.
The ‘absolute proof’ comment gave me pause. Consider now what Judges tell jurors in terms of the burden of proof in criminal proceedings:
 It is virtually impossible to prove anything to an absolute certainty, and the Crown is not required to do so. Such a standard would be impossibly high. However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. You must not find NOA guilty unless you are sure s/he is guilty. Even if you believe that NOA is probably guilty or likely guilty, that is not sufficient. In those circumstances, you must give the benefit of the doubt to NOA and find him/her not guilty because the Crown has failed to satisfy you of his/her guilt beyond a reasonable doubt.
Canadian Judicial Council: Model Jury Instructions Sec. 5.1 (5)
Just pointing this out.