The B.C. government is trying to pass legislation that weakens the investigative powers of B.C.'s independent children's watchdog, says her lawyer.
"It is a rather extraordinary circumstance," Frank Falzon said. "I've never seen a situation quite like this. (It) might be a draconian step."
Children's representative Mary Ellen Turpel-Lafond, who is on leave from her job as a Saskatchewan provincial court judge, is suing the government for its plans to amend legislation involving her access to cabinet documents.
Lawyers for Turpel-Lafond and the government were arguing in court Thursday. Justice Susan Griffin said she will deliver her decision Friday afternoon.
Turpel-Lafond's lawsuit names Premier Gordon Campbell and Children's Minister Mary Polak. Neither is expected to testify, nor is Turpel-Lafond.
Falzon said the proposal to amend a section of the Children and Youth Act restricts Turpel-Lafond's ability to view cabinet documents that involve the government's handling of children's programs.
It would also allow the government to withhold access to documents on a retroactive basis, he said.
The amendment legislation was introduced late last month and has yet to be passed.
Government lawyer George Copley said Turpel-Lafond should not be entitled to the entire cabinet-document file, including the decision-making rationale.
He said she can do her work with background information and analysis positions provided to cabinet members, but the open door must close when it comes to gaining access to the final pitches that lead to cabinet decisions.
Falzon said the government should not be allowed to refuse cabinet document access to Turpel-Lafond because it is afraid she may do something with the information it doesn't like.
Turpel-Lafond has said she needs access to cabinet material to help her complete an audit and review of a government welfare-type program that involves thousands of children and youth who live with relatives.
A previous government child-relative program, Kith and Kin, touched off a political firestorm after a child was murdered shortly after being put in the home of a relative who had a criminal record for violence.
The beating death of 18-month-old Sherry Charlie, a coroner's inquest into her death and a sweeping child-welfare reform report by former judge Ted Hughes in April 2006 called for the creation of the independent children's watchdog position.
Hughes said the position was necessary to oversee B.C.'s child welfare system, which he said was stretched beyond its limits due to financial cuts and constant upheaval in the children's ministry.
He said the independent children's representative should possess broad and deep powers to advocate for individual children and systemic change.
The government accepted Hughes' report and hired Turpel-Lafond in December 2006.
Polak called the lawsuit a waste of money and said Turpel-Lafond can look at cabinet documents if she signs a protocol agreement.
Falzon said Turpel-Lafond refused to sign the protocol because it doesn't allow her full access to the cabinet documents.
"We'll give them to you as long as we get to dictate publication," he said of what he considers the government's position. "We see it self-evidently obvious that a claim for cabinet privilege cannot stand."
Opposition New Democrat children's critic Maurine Karagianis said outside court that the proposed amendments restrict Turpel-Lafond's ability to conduct her work on behalf of children.
"I'm not entirely sure why they are doing this, what the purpose is behind it, what they are trying to cover in making this really draconian and backward amendment to the legislation," she said.
Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs was at the court hearing to offer support for Turpel-Lafond.
He said of the estimated 10,000 B.C. children in government care, more than 5,000 are aboriginal, and their protection and quality of life is paramount.
"This is an incredibly important issue," he said. "It's about the safety and well-being of children. Fifty-three-per-cent of children in care are aboriginal."
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