Alberta: the Nanny State

Alberta: the Nanny State

Jerry Paradis, Special to North Shore News
Published: Wednesday, February 27, 2008

Ever thought what it would be like to have your child taken forcibly from your home?

Not by kidnappers, but by agents of your provincial government?

Not many people have. However, as an ex-toiler in the vineyards of the Goddess of Justice, I would say unequivocally that there is no more taxing and challenging job for a judge than deciding the fate of a child apprehended by the state. The criminal, civil and other cases that come around are very often decided by their facts -- and by the lying witness embarrassingly trying to explain away those facts. The tough part of criminal work is sentencing; but that, too, is circumscribed to a large degree by rules.

But an allegation that a child is at risk in its own home squeezes all that is valuable out of the adversary system. There is a painstaking examination of the reasons given by social workers for the removal of the child; of the objective facts surrounding that last resort, often provided by neighbours or otherwise interested outsiders; of the explanation given by the parent(s) for the appearance of risk to the child; and of the assertions by extended family and friends that the parents are good people. All of that must be distilled down to three questions. Was the child at risk? If so, does that risk continue to exist? And, if so, is it critical enough to warrant the state to continue its custody of the child?

Risk, in that context, is often an elusive target. The court (and the Ministry of Children and Families) can't simply substitute its own view of what constitutes a proper home. Messiness, for example, doesn't count -- unless it can be shown objectively to be a threat to the health of the child. Strict (or lax) discipline is no sure thing either -- unless it has degenerated into abuse (or abandonment). In short, everyone involved is extremely careful to measure the risk to the child objectively, without injecting their own preconceptions about what constitutes good parenting.

Which brings me to legislation passed in Alberta about 15 months ago. It is called the Drug-Endangered Children Act -- and it suggests that our good neighbours to the east have fallen off the edge of the flat earth they live on.

Like British Columbia, Alberta has a perfectly workable statute to protect children at risk. It's called the Child, Youth and Family Enhancement Act. It is much like all such legislation across the country and, as in British Columbia, the general criteria for what's called an "apprehension" are that the child is neglected or abandoned, deprived of necessary health care or is likely to be sexually, physically or emotionally harmed.

So it comes as something of a surprise that the Alberta government considered the existing law insufficient to deal with children who are at risk because of drugs in their environment. Indeed, they considered it necessary in the preamble to the Drug-Endangered Children Act to state categorically that "children exposed to illegal manufacturing of drugs, indoor cannabis operations, trafficking and other forms of illegal drug activity are victims of abuse."

That is as wild a claim as it is unsupportable. But the circumstances under which it may be invoked are so broad there is little that can be done to counter its stupidity. Although the preamble suggests that only the really serious stuff is the object of the Act, a child is deemed to be drug-endangered if he or she is "exposed" to illegal substances. That's it. Full stop.

There is little doubt that, under existing legislation, finding a child in the heart of a meth lab would be sufficient grounds for removal from the home. Similarly, existing law would also catch a child that is forced to ingest the substances his parents use or to actively participate in trafficking. So, also, would the child who is being raised by alcoholics who have lost their capacity to nurture and protect him or her. Those are all examples of an objective connection between risk and the presence of drugs. But there is none at all in any number of circumstances where drugs are in the picture. The simple fact is, having drugs around -- any kind of drugs -- is a neutral factor in a child's well-being.

Abusing drugs -- all drugs, including alcohol, tobacco and prescription medications -- or being actively involved in the drug market and subjecting your child to the fallout from that activity, is what counts. If the preamble to the Alberta Act is to be taken at face value, the millions who smoke in their own home, or keep alcohol on hand, drink it in front of their children or pass it out to their friends (or, god forbid, have a wine-making operation in the basement) should be deemed, by that very fact, to be abusing their kids.

It is only the illegality of the drugs, therefore, that underpins the statute. That makes as much sense as maintaining that a child is abused because its father cheats on his income tax, or its mother shoplifted a pair of pants, or both have been known to occasionally drive over .08 (with the kid safely at home with a responsible babysitter).

This legislation was enacted by a government all too eager to play on the hysteria over drugs. But it's not just a harmless political ploy. The Act allows provincial authorities to inflict punishment, both on the parents and the snatched child, without anyone alleging that the child is really, seriously and, most important, objectively at risk because of the presence of drugs. As long as the kid is "exposed," that's enough.

The statute is a shameful example of the obsession of elected representatives with petty political advantage at the expense of real human beings, in this case the parents and children who will inevitably be unjustly damaged by its operation.

[email protected]