ALBERTA: THE NANNY STATE

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.

In my last column, I referred in error to the attorney-general as the
"right honourable." He is not. He is an "honourable" (or not).