Children's Aid: A glaring omission in provincial and federal privacy laws

Children's Aid: A glaring omission in provincial and federal privacy laws
Posted on January 25, 2017 | Derek Flegg | Written on January 25, 2017
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Author's Note:

Author's Note:

"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." Former Privacy Commissioner Ann Cavoukian 

Section 7 of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. (and/or any and all fully government funded non profit private corporations?)

Procedural  law or adjective law comprises the rules by which a court hears and determines what happens in civil, lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process (in the U.S.) or fundamental justice (in other common law countries) to all cases that come before a court.

The principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the legal system ought fairly to operate", per R v Malmo-Levine.[1] These principles may stipulate basic procedural rights afforded to anyone facing an adjudicative process or procedure that affects fundamental rights and freedoms, and certain substantive standards related to the rule of law that regulate the actions of the state (e.g., the rule against unclear or vague laws).

Canada's legal system is based on a heritage that includes the rule of law, freedom under the law, democratic principles and due processDue process is the principle that the government must respect all of legal rights a person is entitled to under the law and I would assume receiving a full disclosure before any court starts rendering decisions is covered by due process and the right to defend yourself, a federal right that is routinely violated in the family courts under Wynne's Ontario liberals.

In 2013, the former Privacy Commissioner of Ontario, Anne Cavoukian, called on government to pass new legislation that would require oversight from the privacy commissioners offices in order to ensure that the sensitive data being managed by these agencies was being properly handled and secured.

SEE: "Toronto firm files statement of claim against province seeking $75 million over data leak." http://ottawacitizen.com/news/local-news/toronto-firm-files-statement-of...

One can only wonder had the Wynne liberals acted in 2013 to include the children's aid society under FIPPA if there would be a $75million class action suit today.

According to Premiere Wynne the public should just assume the school boards would work closely with the children's aid society without any kind of legislation or regulation or even a legal right to enter schools and needlessly interrogate children hoping to meet the agency's funding goals, so why can't we just assume the children's aid society would willing register with the College of Social Work and work closely with the Ombudsman's Office or the Privacy Commissioner without legislation? What have they to hide?

As far back as 2004, Ontario's Privacy Commissioner has lobbied for oversight and accountability for the Children’s Aid Society and been completely ignored.

Privacy Commissioner Ann Cavoukian wants to add children's aid societies to the agencies covered by freedom of information legislation. In her annual report for 2013 released on June 17 there is just one paragraph on children's aid on page 12: In my 2004, 2009, and 2012 Annual Reports I recommended that Children’s Aid Societies, which provide services for some of our most vulnerable citizens – children and youth in government care, be brought under FIPPA. 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.

http://www.fixcas.com/news/2014/Cavoukian.pdf

Former Privacy Commissioner of Ontario highlights a glaring omission in provincial and federal privacy laws, neither of these laws cover children’s aid societies.

Without the oversight of the commissioners offices, the organizations are not bound by the same privacy laws and data security regulations that govern other public institutions.

"She wrote in her 2013 annual report.

“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

Read more here:
http://www.theglobeandmail.com/news/national/beef-up-information-laws-on...

See also:
http://www.newswire.ca/news-releases/commissioner-cavoukian-calls-on-gov...

In a report released earlier this year by the Information and Privacy Commissioner, Ann Cavoukian, she recommended that the Ontario government make broad additions to the scope of the province’s freedom of information and privacy
legislation.

Her recommendations would include making changes to the law which would make a number of publicly funded organizations more accountable to the public, include Children’s Aid Agencies.

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.

“Hundreds of organizations that are recipients of large transfer payments from the government are not subject to the provincial or municipal Freedom of Information and Protection of Privacy Acts,” said the Commissioner, “which means they are not subject to
public scrutiny.” Among the examples she cites are hospitals and Children’s Aid Societies. “Openness and transparency of all publicly funded bodies is essential – they should be publicly accountable.”

 “Each year,” said the Commissioner, “my office has to tell Ontarians, again and again: ‘We’re sorry, but the situation you describe doesn’t fall under Ontario privacy legislation.’ Residents of several other Canadian provinces have more effective privacy protection than Ontarians. Ontario, Canada’s most populous province and the hub of business, needs a
made-in-Ontario privacy law that will cover all of the private sector and non-government sectors, similar to laws in Alberta, B.C. and Quebec. This would be the final cornerstone statute for privacy protection in Ontario.”

The Information and Privacy Commissioner is appointed by and reports to the Ontario Legislative Assembly, and is independent of the government of the day. The Commissioner's mandate includes overseeing the access and privacy provisions of the
Freedom of Information and Protection of Privacy Act, the Municipal Freedom of Information and Protection of Privacy Act, and the Personal Health Information Protection Act, and commenting on other access and privacy issues.

https://www.ipc.on.ca/wp-content/uploads/Resources/ar-2012-e.pdf

Fundamental Justice - From Wikipedia, the free encyclopedia

In Canadian and New Zealand law, fundamental justice is the fairness underlying the administration of justice and its operation. The principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the legal system ought fairly to operate", per R v Malmo-Levine.[1] 

These principles may stipulate basic procedural rights afforded to anyone facing an adjudicative process or procedure that affects fundamental rights and freedoms, and certain substantive standards related to the rule of law that regulate the actions of the state (e.g., the rule against unclear or vague laws). The degree of protection dictated by these standards and procedural rights vary in accordance with the precise context, involving a contextual analysis of the affected person's interests. In other words, the more a person's rights or interests are adversely affected, the more procedural or substantive protections must be afforded to that person in order to respect the principles of fundamental justice.[2] A legislative or administrative framework that respects the principles of fundamental justice, as such, must be fundamentally fair to the person affected, but does not necessarily have to strike the "right balance" between individual and societal interests in general.[3]

The term is used in the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms and also the New Zealand Bill of Rights Act 1990. Fundamental justice, although closely associated with, is not to be confused with the concepts of due processnatural justice, and Wednesbury unreasonableness.

Section 7 of the Canadian Charter of Rights and Freedoms - From Wikipedia, the free encyclopedia

Canadian Charter of Rights and Freedoms Part of the Constitution Act, 1982Preamble Guarantee of Rights and Freedoms1Fundamental Freedoms2Democratic Rights345Mobility Rights6Legal Rights7891011121314Equality Rights15Official Languages of Canada1616.1171819202122Minority Language Education Rights23Enforcement24General25262728293031Application of Charter3233Citation34

SHOULD THIS SECTION BE APPLIED TO CHILD PROTECTION AND THE FAMILY COURTS BECAUSE RIGHT NOW IT ISN'T...

Section 7 of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to lifeliberty, and security of the person. Denials of these rights are constitutional only if the denials do not breach what is referred to as fundamental justice.

This Charter provision provides both substantive and procedural rights.[1] It has broad application beyond merely protecting due process in administrative proceedings and in the adjudicative context, and has in certain circumstances touched upon major national policy issues such as entitlement to social assistance[2] and public health care.[3] As such, it has proven to be a controversial provision in the Charter.

Be sure to visit kelleyandderek.com.

About The Author

Advocates for family preservation against unwarranted intervention by government funded non profit agencies.

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