Legislative Assembly of Ontario

MINISTRY OF THE ATTORNEY GENERAL

CONTENTS

Wednesday 3 September 1997

Ministry of the Attorney General

Hon Charles Harnick, minister

Mr Graham Reynolds, assistant Deputy Attorney General, criminal law

STANDING COMMITTEE ON ESTIMATES

Chair / Président

Mr Gerard Kennedy (York South / -Sud L)

Vice-Chair / Vice-Président

Mr Rick Bartolucci (Sudbury L)

Mr Rick Bartolucci (Sudbury L)

Mr Marcel Beaubien (Lambton PC)

Mr Gilles Bisson (Cochrane South / -Sud ND)

Mr Michael A. Brown (Algoma-Manitoulin L)

Mr John C. Cleary (Cornwall L)

Mr Ed Doyle (Wentworth East / -Est PC)

Mr Bill Grimmett (Muskoka-Georgian Bay / Muskoka-Baie-Georgienne PC)

Mr Morley Kells (Etobicoke-Lakeshore PC)

Mr Gerard Kennedy (York South / -Sud L)

Ms Frances Lankin (Beaches-Woodbine ND)

Mr Trevor Pettit (Hamilton Mountain PC)

Mr Frank Sheehan (Lincoln PC)

Mr Bill Vankoughnet (Frontenac-Addington PC)

Mr Wayne Wettlaufer (Kitchener PC)

Substitutions / Membres remplaçants

Mr Peter Kormos (Welland-Thorold ND)

Mr Terence H. Young (Halton Centre / -Centre PC)

Also taking part / Autres participants et participantes

Ms Shelley Martel (Sudbury East / -Est ND)

Mr Gerry Phillips (Scarborough-Agincourt L)

Clerk / Greffière

Ms Rosemarie Singh

Staff / Personnel

Ms Alison Drummond, research officer, Legislative Research Service

The committee met at 1547 in committee room 2.

MINISTRY OF THE ATTORNEY GENERAL

The Acting Chair (Mr John C. Cleary): I call the committee to order. This is the second day of estimates. I welcome the minister back. It is my understanding that each caucus will have 20 minutes. We'll start with the official opposition.

Mr Peter Kormos (Welland-Thorold): On a point of order, Mr Chair: I understood we were to receive a written transcript of the comments made by the Attorney General yesterday.

The Acting Chair: I understand they will be here momentarily.

Mr Kormos: Thank you, sir. Sorry, Mr Phillips.

Mr Gerry Phillips (Scarborough-Agincourt): I appreciate the chance to talk with the Attorney General. An area I wouldn't mind focusing on a bit is how the ministry works in determining the issues. I am particularly interested in how the decision was made at Ipperwash that it would be -- I think the language used was that it would be an MNR issue as opposed to a native affairs issue. I wonder about the basis for making that decision. My examination of similar circumstances in Ontario -- it involved first nations and their making a claim, in this case about a burial ground -- is that it normally would have been seen as a first nations issue and treated that way. But the government made a fairly conscious decision not to treat it as a first nations issue. I'm just wondering about the basis on which that was decided.

Hon Charles Harnick (Attorney General, minister responsible for native affairs): First of all, there has not been, to the best of my knowledge, any formal land claim, or claim to date, regarding a burial ground at Ipperwash, and certainly there was an occupation of a park that was owned by the Ministry of Natural Resources.

Mr Phillips: If they had claimed at the time that there was a burial ground there, would that have made a difference? Would the government have treated it differently then?

Hon Mr Harnick: You're asking me to speculate. What I will say is that we have a formal process in the province that deals with the administration of land claims.

Mr Phillips: Just so I'm clear, at one time in the Legislature I said, talking about the occupation:

"A number of our first nations people went into that park and occupied it. One of the reasons they did that was because they believed there was a sacred burial ground within the boundary of that park."

The Attorney General, responsible for native affairs, said: "That isn't why they went into the park."

Was it your understanding at the time that that wasn't the reason they went into the park?

Hon Mr Harnick: I can't tell you what was in the mind of those who occupied the park. I think the premise of your question indicated something that I didn't know.

Mr Phillips: You said, "That isn't why they went into the park." I presume you knew, then, that isn't why they went into the park.

Hon Mr Harnick: No. I don't know what was in their minds, so I can't answer that question.

Mr Phillips: But I said one of the reasons they went in was because "they believed there was a sacred burial ground," and your answer to me was, "That isn't why they went into the park."

Hon Mr Harnick: Can I see the whole answer? I can't recall what I said on that occasion.

Mr Phillips: Sure.

Hon Mr Harnick: You should read the whole thing, to be fair, because on the next page --

Mr Phillips: To be fair, I read the whole the thing of what I said and then you answered, "That isn't why they went into the park."

Hon Mr Harnick: And then you carried on and asked the rest of your question. I suppose the confusion is that I probably interrupted you by saying that. You then proceeded to ask the balance of your question, and then what I said is really exactly what I said here:

"The member for Scarborough-Agincourt makes some rather bold assumptions. He makes an assumption as to why there was an occupation at Ipperwash Provincial Park, and he makes that assumption on the basis of the only reason being that there was a sacred burial ground."

Mr Phillips: I never said that.

Hon Mr Harnick: "I don't think he can leap to that conclusion because there is no evidence that is why or that is even the sole reason that the occupation took place."

Mr Terence H. Young (Halton Centre): Mr Chairman, on a point of order: I'm trying to understand what relevance this has to the estimates process. I'm looking through the Attorney General's book from the ministry on the estimates and I'm trying to understand the relevance. Could you please explain it to me?

Mr Phillips: I can explain it, because I'm asking the question. I'm asking the Attorney General the basis on which they make policy decisions. The government made a decision that they were going to ignore the burial ground claim, although it was in the newspapers all that day. In the Legislature, when I said one of the reasons they went into the park was because they believed a sacred burial ground was there, the minister said that was not the reason they went into the park. I'm trying to find the basis on which the minister makes these policy decisions to ignore the first nations claim.

Hon Mr Harnick: By seeing my answer in its entirety, it's exactly the answer I just gave you today. That's the answer, Mr Phillips.

Mr Phillips: I'll just read it back into the record. I said: "One of the reasons they did that was because they believed there was a sacred burial ground within the boundary of that park."

This is complete:

"Hon Charles Harnick (Attorney General, minister responsible for native affairs): That isn't why they went into the park."

Hon Mr Harnick: If you're going to play that game, I'll continue to insist that you read what I went on to say on the second page.

Mr Phillips: There are two paragraphs there. I'll table it with the committee so they can all read it.

Hon Mr Harnick: I will also advise you, if you want to be fair -- I don't know whether you want to be fair or don't want to be fair, but the complete answer continues on the next page and it's exactly the answer I gave you today.

Mr Phillips: Print it all.

The second thing is the basis on which the ministry's legal advice is provided. Again, just so I'll have an understanding of how the ministry works, in the Legislature a week ago you indicated -- I'm trying to get an idea of how the ministry works with its lawyers. It's a discussion that is absolutely germane to Ipperwash, because the government in the end chose to seek what is called an ex parte injunction.

The minister said in the House, "An ex parte injunction was sought at the recommendation of government lawyers." At the same time, there's a transcript from the judge from the day the government went into court, which was on September 7. The judge had been told the day before that it was the intention of the government to seek a normal injunction, not an ex parte injunction. The government lawyers had informed the judge that's the type of injunction they would be seeking. The judge was quite taken aback when the government arrived and sought a different type of injunction, an ex parte injunction.

He said: "Perhaps I can stop you there for a moment and make some inquiry. I should indicate that you are now disabusing me of the information that was given to me yesterday that in fact this was not an ex parte injunction." In other words, the judge had been told by the government lawyers that the government would be in court seeking not an ex parte injunction but a normal injunction. Presumably, that was the advice of the lawyers.

Are you now saying that wasn't the advice the lawyers were providing the government and that the government lawyers were telling the government they should seek an ex parte injunction?

Hon Mr Harnick: It was left to government lawyers as to how to proceed, once I had made a decision that we would seek a civil injunction. The lawyer who dealt with this was a lawyer by the name of Tim McCabe, who is probably the foremost expert in government in dealing with these kinds of situations. It was his considered opinion that an ex parte injunction be applied for.

On September 7 the provincial government lawyers applied for and were granted an interim injunction without notice, which, among other things, prohibited the occupiers of the park from trespassing in it. By its terms, the order was not to be enforced until September 11, by which time the occupiers were to have been served with the injunction materials. On September 11 argument for the continuance of the injunction until trial was to be heard. That was the sequence of events.

It's interesting. This appeared in the Globe and Mail, and I notice that you deliberately avoid commenting on it as you piece together a little piece here and a little piece there and try and join them when the facts really don't link with one another. But one of the things that happened was that Mr McCabe, very experienced in this particular area, provided the materials regarding the injunction on the evening before the injunction was to be heard by transmitting them to the judge who would be hearing them. At the same time, an attempt was made through Mr McCabe to have the materials delivered by the Ontario Provincial Police to the occupiers, if that was possible, as a courtesy so that they would know the injunction was going on.

I can't put myself into Mr McCabe's head, but I think the concern was the ability to effect service of the injunction application, so Mr McCabe came to the conclusion that he would initially proceed by way of ex parte injunction, which I might tell you as well -- you keep using the word "normal." There is nothing abnormal about applying for an ex parte injunction. It happens all the time.

1600

Mr Phillips: Was it the government lawyers or the cabinet that made the decision?

Hon Mr Harnick: It was absolutely the government lawyers that determined how the injunction would be applied for and the kind of proceedings they would take to obtain that injunction.

Mr Phillips: So it was not the cabinet that made the decision to seek an ex parte injunction?

Hon Mr Harnick: The decision was made by Tim McCabe.

Mr Phillips: Why would the minutes of the meeting then say that the cabinet made the decision to seek the ex parte injunction?

Hon Mr Harnick: I don't know what minutes you're referring to, but I can tell you that that was the decision I made.

Mr Phillips: The lawyers for the family, obviously with their own client relationship, have done an analysis of whether or not the government can proceed to call a public inquiry. They cite the Westray mine experience. Just as a small aside -- interesting -- it was Gerry Phillips v Nova Scotia in that case. I used to get phone calls: Was I the Gerry Phillips of the Westray mine? No, no, no. It was Phillips v Nova Scotia, known as Westray. The lawyers have analysed that and their conclusion is, "Westray now stands as a recent unanimous decision by the Supreme Court that a public inquiry may proceed in a situation exactly like that in which we find ourselves." Have you or your staff now had a chance, because this is now two months old, to examine their conclusion? It seems to me that we have a precedent here that would allow us to proceed with a public inquiry. Is there any reason we couldn't proceed as the Westray mine inquiry is proceeding?

The Acting Chair: The government member asked for a clarification on what the questioning has to with the estimates committee. I am told by the lady there that it comes under ministry administration, so it's legal to do that questioning.

Mr Young: That's your ruling?

The Acting Chair: Yes.

Hon Mr Harnick: I think the answer to the question is quite simply that no one has precluded that an inquiry will take place. It's a decision that hasn't been made at this time. Certainly the Premier has been very clear that he, I think quite properly, is not prepared to consider the matter while there are still legal proceedings ongoing. At the same time, he has not indicated that there won't be an inquiry. He's been very clear about that.

Mr Phillips: Actually, the question was different from that. It was, have you or your staff examined the Westray mine decision by the Supreme Court that says a public inquiry could proceed? Is it now a question not that we could proceed with a public inquiry but that the government doesn't want to proceed with it?

Hon Mr Harnick: I don't think an examination of that case indicates that an inquiry must take place. That is the proposition you are putting here.

Mr Phillips: No, no, I'm just saying --

Hon Mr Harnick: Certainly no one has indicated that once legal proceedings are completed, such an event would not happen.

Mr Phillips: I'll just try and ask the question again. It's a very simple question.

Hon Mr Harnick: You have my answer. I'm not prepared to engage in an analysis of a case with you that I don't think is a precedent as to telling anyone what must take place.

Mr Phillips: I've never used the word "must" at all. Hansard will show that. I simply say, have you or your staff examined the decision by the Supreme Court in the case of Westray, and do you agree that we could proceed, if we wanted to, with a public inquiry based on that or do you disagree with that decision?

I realize it's up to the government, in the final analysis, to decide whether it wants a public inquiry, but I think there has been the perception that we couldn't proceed because it would jeopardize legal matters. We now have the Supreme Court decision saying that in their opinion it wouldn't. My question is not whether or not you plan to call an inquiry; it's just, have you looked at that decision and have you concluded, "Yes, we could proceed legally to hold an inquiry right now; it's just that we are not going to"?

Hon Mr Harnick: I am familiar with the decision. I don't know the answer to your question.

Mr Phillips: How could we determine the answer to that question?

Hon Mr Harnick: I suppose we could hypothetically think of what a court may or may not do in all the circumstances. I don't know whether the facts of the two cases are identical. I don't know whether courts would decide this case in the same way they would decide that case. I know that other inquiries have taken place and have been stopped at given times. I don't know the answer.

The Acting Chair: Excuse me, Mr Phillips, your time is up. Now it's the New Democratic Party's turn.

Mr Kormos: I understood the Attorney General yesterday to have spoken of a process whereby crown attorneys are going to be urged to seek longer sentences. Understanding that, I ask the Attorney General, which Criminal Code offences, in his opinion, have attached to them inadequate sentencing provisions?

Hon Mr Harnick: First of all, your question indicates that I have asked crown attorneys to seek -- I'm sorry I didn't write it down. No one has indicated that crown attorneys are seeking higher sentences or penalties. What we have determined in consultations with people around the province is that the public in a great many situations does not believe that the penalties imposed fit the crimes people have been convicted of. We have within the ministry set up a group of crown attorneys to look into sentencing issues and make recommendations, if indeed they think there is a problem that exists, as to the kinds of sentencing practices that might find greater consistency in dealing with matters that come before courts for sentencing.

Mr Kormos: What Criminal Code amendments will you be seeking from the federal government in that regard?

Hon Mr Harnick: They are going to make recommendations, so I can't tell you.

Mr Kormos: Your comment was, "This group is also working on recommendations we can take to Ottawa for Criminal Code amendments to allow judges to impose longer sentences for given crimes." I'm just curious as to which crimes are being contemplated that require longer sentences.

Hon Mr Harnick: I'm waiting to hear what they tell me. I don't have any information and I won't until I get the recommendation.

1610

Mr Kormos: It was yesterday, I believe, that your colleague the Solicitor General bemoaned that young offender sentences are fixed and that means that misconduct by a young offender can't be deterred by virtue of extending the sentence. In view of that, are you prepared to recommend that young offender sentences have attached to them the statutory remissions that are contained in adult sentences currently?

Hon Mr Harnick: Based on the comments the Solicitor General made, it's something the Solicitor General may wish to look at. It may be a matter we should look at. The issue arose as a result of incidents in a youth detention centre. I think very likely that should be an area we should look at.

Mr Kormos: Have you contemplated statutory remissions for young offenders?

Hon Mr Harnick: I am awaiting recommendations from the crown attorneys who are looking at this area. I have certainly not given them any preconceived notions of what I want. I want to see what they want to provide. I'll wait and see.

Ms Shelley Martel (Sudbury East): I'd like to begin by asking who made the decision to lay off 290 staff at the family support plan last August 15, 1996, in a single day, and shortly after to close the regional offices before the centralized office was up and ready, thereby causing financial hardship for thousands and thousands of families right across this province.

Hon Mr Harnick: I don't disagree that that was done. In hindsight -- we've publicly said this -- it could likely have been done in a better way. There was a plan to close regional offices and I stand by that plan, because I don't think they were providing an effective service to those who were depending on receiving family support payments. What we found in regional offices I think quite justified the closing of those offices.

The manner of the closing, certainly in hindsight -- I've said this publicly before -- was not done in an effective way and we did have a period of time when there was some dislocation and inconvenience to people. It's no secret that I felt very badly about that, and I publicly apologized for that occurring.

But I believe the decision was the right decision. I believe the family support plan was an ineffective plan that had been racking up arrears that were unconscionable. When we closed the regional offices and found 98,000 items backlogged that had been totally ignored and not dealt with, it was very justifiable to do what we did.

Ms Martel: My constituents in Sudbury would disagree with you fundamentally about whether it was the right idea to close the Sudbury regional office. My question was very specifically, who made the decision? Maybe I can be more direct: Did you make the decision?

Hon Mr Harnick: A recommendation was made and a plan was developed. I followed the recommendation that had been made to me and I implemented the plan that had been developed and had been recommended to me. Are you asking me whether I take the responsibility? Yes, I do.

Ms Martel: Minister, you had front-line staff at the family support plan who, as early as January 1996, when they caught wind of the fact that you might be closing the offices and reducing staff, made any number of pleas to you to look at alternative ways to find some savings, but also to consider not doing the very thing you ended up doing. That was the position of the front-line staff. So who was it? It was not the front-line staff who would make such a recommendation to you that would lead to such chaos and crises for families.

Hon Mr Harnick: There was a period of difficulty, and I certainly don't deny that. But a plan had been developed and recommended to me, and I evaluated that plan and accepted it and implemented it.

Ms Martel: Let me ask you if this is true. This comes from the Ombudsman's report, the first one she filed, March 27, as a result of her investigation. She said her staff were told that in May 1996 a management team comprised of senior FSP managers, regional managers and regional council was advised that cabinet would be considering a proposal for a new, consolidated organization. A committee of senior FSP managers began seriously considering how a centralized organization would function. These are her words:

"My information indicates that the work of this group was handed over to two project directors recruited from outside the plan. A number of FSP corporate and operational managers advised that they had no knowledge whatsoever of how the input they provided was being factored into the planning of the organization."

Is this true?

Hon Mr Harnick: I received a plan that had been developed by senior staff within that section of the ministry. I reviewed the plan with them and I accepted it.

Ms Martel: Is it true, though, that this work was taken away from the people who had some knowledge of how this system worked and that the whole transition was handed over to two people who came from outside the plan and knew nothing about how the plan operated?

Hon Mr Harnick: I don't know that I'd conclude that the whole plan was developed by people outside the ministry. I know that senior ministry staff were involved in the development of the plan. I don't know the extent to which work was done by outside people, but people within that section of the ministry, the social justice services section, worked to develop the plan.

Ms Martel: Can you tell me why you would agree to a plan that would lay off virtually 85% of the staff overnight, which was exactly the effect, and close very soon afterwards the regional offices before the centralized office at Downsview was up and ready?

Hon Mr Harnick: The information that had been conveyed to me was that over a relatively short period of time that section of the ministry would continue to be able to process cheques and ensure that the cheque processing aspect of the plan could continue to run without any interruption, while the work of consolidating files in a central location could begin. That was the information I was given, and I relied on it.

Ms Martel: We began raising these cases as soon as the House came back. It became very clear early in September that this would entail that things were not operating as they were supposed to or as you were being told they were supposed to. Given that this was happening and given that we were raising questions in the House, when did you first discover or ask questions about whether Downsview was actually functioning?

1620

Hon Mr Harnick: It was part of the plan that the Downsview office would begin to function in or about November. Certainly that was the information that had been provided to me. I gather that the operation really was functioning out of that centre a couple of weeks later. I don't have the dates at the tip of my finger.

Ms Martel: Your acting director at the time, Linda Waxman, sent a memo to all MPPs dated October 11, 1996. She said, "Until the Downsview site is fully operational at the end of October, the Toronto regional office will serve as a backup now." Of course Mr Kormos and I were in November 7 and it was nowhere near to being operational. Were you aware that this letter was being sent out to MPPs on your behalf saying the office was going to be fully functional at the end of October?

Hon Mr Harnick: I think the answer I just gave you was that it was my understanding that it would be operational at the beginning of November. I can correct that. I didn't have that memo in front of me. I guess the end of October would be more accurate than the beginning of November.

Ms Martel: So your staff, or someone, had led you to believe that this would be operational by the beginning of November.

Hon Mr Harnick: That's what the memo says and that's what I said.

Ms Martel: In view of that, I go back to my original question. No business in its right mind would make a decision to lay off virtually 85% of its staff and consolidate new operations in an office that's not ready. If your folks were telling you it was not going to be operational until the end of October, why would you have made a decision to put people in the situation they were put into?

Hon Mr Harnick: I didn't make a decision to put people into that position. I made a decision based on information that had been provided to me indicating that during the transition, the cheque processing aspect of the plan would continue and there would be no dislocation to the people expecting cheques. On that basis I made that decision. As I have indicated to you -- I don't know what more I can do other than stab myself in the heart. That is not the way it turned out, and I regret that very much.

Ms Martel: What I think is important is that a significant decision was made which led to a major change in operations. The Ombudsman certainly expressed her frustration at being unable to obtain the information she thought was necessary to determine why this had happened. The reason I am asking these questions is because I still don't feel like we had some of the information that we should have had to determine how such a decision was made. Fully 85% of the staff was laid off in a single day. I don't even know why anyone would have thought cheque processing could have continued if 85% of the staff was laid off in a single day and had three days to make a decision whether they were going to stay or leave. Don't you think that's problematic?

Hon Mr Harnick: The experience that the plan had during a period when it was being run by managers during the course of the strike was that cheques were able to be processed, were processed, without the vast majority of the people working in the plan being there to process them. I think they came to that conclusion somewhat on that basis, and, as I have indicated to you, it turned out to be wrong.

I think it is wrong as well to say that the Ombudsman couldn't get answers. We were very open and forthright with the Ombudsman and wanted to provide her with everything she wanted to see, and indeed we did. I think the Ombudsman was quite impressed with the way the plan is now operating and with the direction the plan is moving in. Certainly we have made vast improvements over the way this plan has ever run. Is it perfect? No, it's not perfect. Are there still people who are having trouble? Yes there are. Is it generally because cheques are being received and not being processed? No, that's not what is happening.

What we have is a plan that has been mired in an inability to be an enforcement agency. What it really became was a cheque clearinghouse. Quite simply, we have now developed a new call centre and we have more front-line staff available to deal with people than we have ever had before. We are now able to concentrate on enforcement issues.

I can tell you that we took over 90,000 pieces of unanswered correspondence, court orders, financial adjustments and cost-of-living adjustments out of the former regional offices and are now at a stage where we have at least reduced that backlog to 38,000 items. As a result of that, you immediately begin to see why there is a reduction in phone calls to the plan, because all of a sudden people see that the cost-of-living adjustment that the court ordered to be made has been made and effected. This wasn't happening before.

We found files that hadn't been opened in five years, that were sitting in regional offices. Collections are tough, and when you can't make collections, people give up on them. They'd bury those files. That is what we found.

Ms Martel: Can I just go back to what the Ombudsman said? She said: "It is my opinion that the information in this document," in MB 20, "might be useful in assisting me to understand how it was intended that an acceptable level of service was to be achieved during the transition. After a number of requests were made for this document on February 24, the Attorney General certified that to produce the document might involve a disclosure of the deliberations of the executive council, and access to the document was denied. My investigators were advised that the decisions regarding the planning of the transition were made by cabinet," which I find impossible to believe, because you are the minister responsible. "Without the MB 20 document, it has been difficult to determine where cabinet decision-making ended and the ministry and FSP decision-making began. My investigation has been limited as a result." That's what the Ombudsman said.

I don't believe, frankly, that cabinet was responsible for the planning of the transition. I believe that was your responsibility.

Hon Mr Harnick: You know that cabinet deals with these issues; cabinet must approve what cabinet committees do. The legal advice I had was that to release and disclose this particular document was to disclose something that was directly dealt with by cabinet and it should not be done.

Ms Martel: Can you disclose the transition plan to this committee then, the transition plan you operated under? Can that be disclosed to this committee?

Hon Mr Harnick: I think it is part and parcel of that document, so the answer is the same.

The Acting Chair: Time's up. It's the government's turn.

Mr Marcel Beaubien (Lambton): I will continue on the line Ms Martel was pursuing. I have a few other questions, but with regards to the Family Responsibility Office, I think we all have to admit that there was a problem. The proof is in the pudding, that there was $1 billion that had not been collected, and I am sure that $1 billion did not accumulate in the previous two years.

In your report you mention that 95% of payments are now processed within 24 to 48 hours. It is nice and it is cute to try to poke holes in the system; if I were in the opposition that is probably what I would do also. But I am concerned about the 5% we are not properly looking after. That is pretty close to 8,000 people, people who really need their money. I hear in my own consituency that for some people at the end of the month or during the middle of the month, whenever the payment is supposed to be made, the money is not there. They have sent post-dated cheques to the mortgage company or to their credit card company and the cheque is returned NSF, and consequently we compound the problem. I don't know what the charge is for an NSF cheque, but I am told it is in the neighbourhood of $15 to $20 in some cases. What are we doing today to try to rectify the problem with the other 5%, these 8,000 people who really need our help as a government?

1630

Hon Mr Harnick: Let me try and explain it this way. What we have found is that the frequent reasons for delay of payment are often that a payor's employer sent the Family Responsibility Office a cheque with incomplete or incorrect information about the payor; a direct deposit was rejected by the recipient's bank; an employer has deducted payment but has not yet sent it to the Family Responsibility Office; payment is sometimes sent to the wrong address; sometimes you receive only partial payment; a recipient is on social assistance and has assigned payments to the family benefits office or the Ministry of Community and Social Services; a recipient was on social assistance in arrears or are still owed; or money is owed to the Family Responsibility Office for a previous NSF cheque or stop payment.

There are a number of factors that impact on how cheques are processed. If the cheque comes in properly, the cheque goes through an electronic process through our partner, the Royal Bank, and within 24 to 48 hours the cheque goes out. Oftentimes a cheque comes in and can't go through that computerized process because there is a court order involving some calculations or one of the reasons I have just outlined causes a delay, so the cheque has to be processed manually. Those cheques that are processed manually are generally done within a week, but it does take a longer period of time.

What we've tried to do with the plan is to get as many people as possible on to an electronic or direct payment program, so that the money flows through the Royal Bank, calculations don't have to be made or cheques aren't rejected; that they've filled out the information properly. The vast majority of cheques are going through that process.

We've taken that process -- in fall 1996 the Royal Bank dealt with 50% of cases. We're now up to 95%. We also have programs that are being picked up by employers where there are multiple payors under the roof of a single employer; we have programs that permit that employer very easy access by sending one cheque through to the plan and the program we've developed immediately divides the money and puts the proper amount into the recipient's account. We've accomplished a great deal that way. We are able to process payments in a better way than we've ever processed them before.

The problem with the Family Responsibility Office continues to be that the volume of cases continues to go up by about 1,100 a month. We don't have control over that, but we're building the capacity to deal with it. I think we've established that ability. We hope people will take advantage of the opting-out provisions which people who don't need the plan can now avail themselves of.

We think that with the software we now have available for employers who are now using that -- we have 133 companies now testing a new software package and I think they will adopt its use because it's a much simpler method of dealing with it. Plus, our use of the Royal Bank means we have less and less manual work to do. As I said, we now have the backlog down from 90,000 issues to 38,000 issues, and as a result of that the phones have stopped ringing.

Interjection.

Hon Mr Harnick: The phones are ringing less. They have not stopped ringing, and I doubt they will ever stop ringing, but they're ringing in smaller numbers.

The fundamental problem with this plan is that it has got to be more than just processing cheques. It has got to be an ability to start eating into arrears. It would be unconscionable to continue to run the plan in the old way it was run when you were racking up debt of $100 million every year. I think, and I say this with some guarded optimism, that we now will be able to begin a process of truly making progress in eating into these arrears and getting people who have not paid to start paying.

Mr Beaubien: You were talking about opting out of the system, which I think is a good option. How many cases have been downloaded or taken off the books since that option has been available?

Hon Mr Harnick: Very few, is my understanding. I think the opting-out provisions will be much more effective in terms of those who are now just getting into the plan. We see that as an ability to slow down this 1,100-case increase every month; we are looking more at that. Once people are in the plan and the moneys are flowing through the plan, it is difficult for both parties to agree to opt out of the plan because they are in it and it is working.

But where we think we can succeed is to have fewer cases coming into the plan because of this new ability and the advice people will be receiving that they don't have to be in the plan, that if they are satisfied with the arrangements they already have in operation they can agree to opt out.

Mr Beaubien: You seem to think that people are not opting out because the system is working for them, but do you think you've done the proper advertising or selling job on people? They might be able to get their money quicker as opposed to having the government handle the money and pass it on to somebody else.

Hon Mr Harnick: I agree with you, and that is a major communications challenge. We are looking at ways to get that message out that go beyond merely a news release and fact sheet sent to clients. We are working with some of the major groups such as MAFIA and FAD, as well as lawyers' groups, to more effectively get that message out.

Mr Beaubien: Another question I have is on page 33, dealing with the agencies and boards and the Assessment Review Board. You mentioned, "In order to hear and dispose of triple the volume of complaints forecast as a consequence of province-wide reassessment in 1998, the board will require additional members in 1997-98." Do you have any idea of how many new members you are going to need, and for how long?

Hon Mr Harnick: Work is taking place on that. I think there will need to be an increase in the number of front-line staff; that is being determined now. I think it is important to tell you that the Ministry of the Attorney General is responsible for the Assessment Review Board, but the information we rely on as to what the requirements will be come from Ministry of Finance; they're effecting changes to the Assessment Act and we're reacting to those changes. But there is no question that there will be an increase in resources and in the number of board members and employees.

Mr Beaubien: How long a period would that be?

Hon Mr Harnick: I know there are projections as to the caseload going up and then the period of time it'll take for the caseload to go down. I suspect it is over a period of a few years, maybe as many as four years, for that to take place. In the last two years we have been very successful in bringing down the number of outstanding assessment appeals by a considerable number, but as a result of changes to legislation, that number will go up.

1640

Mr Beaubien: My last question will deal with the court system. I am very sensitive, just in case I ever have to appear in front of a judge. In your overview statement it says, "The goal of the Ministry of the Attorney General is to become a modern, more accessible and more effective justice system that will deliver justice services that are fair, equitable and affordable." I am concerned about the fairness part of this equation.

Could you tell me, my constituents also, when someone applies to become a bencher or to be appointed as a judge, the process you go through in order to make this appointment fair and equitable? I am not too concerned about "affordable" at this point in time, because I think these are all paid at relatively the same rate.

Hon Mr Harnick: The appointment of judges provincially is done by a body known as the Judicial Review Appointments Committee. They are a committee that by statute includes some appointees of the Attorney General, representatives of the public, representatives of the legal profession through the law society and the benchers, and representatives of the judges. They have a process that recommends lists of qualified candidates to me for individual postings of vacancies and I choose judges from their lists. The scope I have is limited based on the -- for federal judges, it's different. I know in Ontario the Minister of Justice has a committee. Applications are received and referred to the committee. The committee vets those applications and determines whether a person is qualified. If the committee says they are, the individual goes on the list. A running list is kept and the minister then chooses from that list.

In terms of benchers, benchers are elected through procedures set up under the Law Society Act. They are elected by members of the legal profession. I think 40 benchers in all are elected, 20 from the Metropolitan Toronto area, 20 from outside the Metropolitan Toronto area. I believe there are four lay benchers who are appointed by the Attorney General to sit as benchers. Now, whether that's fair is in the eye of the beholder.

Mr Beaubien: It depends what sentence you get, right?

Hon Mr Harnick: As I said, it is in the eye of the beholder.

Mr Bill Vankoughnet (Frontenac-Addington): My question to the minister concerns court security costs. This has been a very unfair situation to many municipalities, particularly some smaller municipalities in which the courts are located, especially if there are federal or provincial detention centres, which generate more work because of the perhaps serious nature of the individuals they deal with. To have these municipalities have the burden of paying through property taxes some of the costs of court security -- I would hope there is consideration being given to see if something couldn't be done to have a broader base. It might be on the basis of where the criminal comes from, which might be a provincial responsibility. Where the federal institution is located, they usually pay large grants in lieu to those municipalities, so they get some benefits, not only directly but indirectly. But for some of the smaller municipalities, it's a very unfair burden to those local taxpayers. I'd like your comments on that.

Hon Mr Harnick: My understanding is that at one time court security was the responsibility of the Ministry of the Attorney General or the Solicitor General. That was the case for many years. Under the Liberal government a decision was made by Mr Scott, the then Attorney General, to transfer the cost of providing court security to municipalities. That is the way court security has been provided over the course of the last 10 years or more.

I think it's important to note that as the province renovates courthouses -- as we're doing all over the province; I indicated yesterday that we have about $212 million of capital construction now ongoing or about to be ongoing in different locations. We have taken the position since Mr Scott made that decision that the costs of security we would become responsible for are built into the construction and renovation of new courthouses, in providing better sally ports and holding facilities within court facilities and prisoner transfer areas in courthouses that keep those in custody separated from the public; and that the costs of the day-to-day operations are borne by municipalities.

I agree with you that there are situations where a very unfair burden is imposed on municipalities. I referred to a case that involved a transfer from Ottawa, I believe, or one of the more major centres to the town of Cobourg. The problem was that because a judge ordered a change of venue, a much smaller centre, the place the venue was changed to, became responsible for providing significant costs of security during the course of the trial. I agree that in a situation like that, it is very unfair and we should be taking a look at some of those situations.

I don't know that we have the resources to now re-create the kind of security arrangements that existed when Mr Scott changed the nature of court security and made it a municipal responsibility, but I believe there are certain incidents that occur that we should take a look at being more responsive about.

1650

The Acting Chair: It's the official opposition's turn now.

Mr Michael A. Brown (Algoma-Manitoulin): Minister, I had an opportunity to look through your statement; I wasn't taking notes quite quickly enough when you spoke yesterday. One of the things I'm interested in is that you talked about a diversion rate of 73% or something like that in the criminal justice system being dealt with before they actually get in front of a court. I wonder if you could elaborate a little. Is that an increased percentage, and by how much? Would a layman talk about that in terms of plea bargains and issues like that?

Hon Mr Harnick: When the Askov crisis occurred after your government ignored those kinds of statistics, which they did, and caused the NDP great difficulty when they became the government and a month later had 50,000 cases dismissed from the courts, that wasn't the fault of that government because they inherited a situation they obviously didn't have time to deal with. At that time the early resolution rate of cases was around 50%, which meant the trial list became horribly backlogged, and as a result of that mismanagement and ignoring of the system there were 50,000 cases thrown out. I don't think that inspired a great deal of confidence in the justice system among the public.

What your government was to be commended for was the fact that they did begin a restructuring of the provincial court, both criminal division and family division, which was long overdue. I think a great deal of the success of that had to do with the appointment of Judge Linden as the Chief Judge and the organization that he has since supplied to the provincial court. But that wasn't enough to stem the tide of so many cases pending on the trial lists.

I think we all would know that G. Arthur Martin, a distinguished criminal lawyer for many years and then a judge of the Court of Appeal, authored a report known as the Martin report, which became the basis for the investment strategy that the former government, quite appropriately, adopted and began to implement. Since the time that the former government began to do that, the early resolution rate of cases increased from about 50% to about 70%. We now have increased that early resolution rate by about another 2% or 3%.

The importance of doing that is that by implementing what Justice Martin advocated, we now screen cases before they proceed to make sure there's a reasonable prospect of conviction and that a prosecution is in the public interest. That was never done before, so cases remained on a list until trial and were never looked at until, in many cases, the morning of the trial. Cases became backlogged as a result of that. If a case were able to be settled in the sense that disclosure could be made -- and that was another aspect of the Martin report, to ensure that disclosure was made to defence counsel -- that promoted a number of much earlier guilty pleas, because disclosure was made within weeks of the offence, turned over to the defence and the case could be evaluated.

In more complicated cases, pre-trials have become in most criminal courts in the province a regular part of the procedure so that issues can be narrowed. There is no point in having a trial about a number of issues when most of them can be agreed upon; the ones that become the focus of the trial are the ones that can't be agreed upon. That has been done.

Certainly plea negotiations take place. A crown, by having the opportunity to evaluate a case at an early time, may realize that a conviction for a particular offence could not be registered -- they couldn't prove it -- but maybe a lesser but included offence can obtain a guilty plea. Sometimes a defence counsel will also acknowledge that. Where it's appropriate -- crowns certainly have the discretion and should have the discretion -- they evaluate cases and determine whether a plea should be accepted for a given offence or not. That is part and parcel of the discretion I think crown attorneys should have.

As a result of doing all those things, the system no longer is in peril to undergo another Askov crisis. That was something your government obviously paid little heed to, quite frankly, because the Supreme Court had warned your government on two or three occasions before the Askov case to begin to deal with this problem. After several warnings, the case of Askov came along. The result was that 50,000 cases were not dealt with in any way, shape or form. There were no plea negotiations. There was no screening of those cases. They were just tossed out.

I applaud the work of the Martin committee. I think we have to build on that, and we are. There will be some announcements, I hope shortly, to talk about that building process. We've had the backlog blitz that has taken place in our six most heavily burdened jurisdictions, and it has been very successful. We are not in peril of an Askov crisis at all in the province of Ontario today.

As I said, the last government is to be congratulated, because they inherited a horrible situation and dealt with it very appropriately. We believe we have built on the work of the last government and my two immediate predecessors as Attorneys General. Quite simply, it's been very successful. It has been a complete change in the way our provincial courts have run.

Mr Michael Brown: In other words, there is more plea bargaining going on than there was before. That was actually the question I asked.

Hon Mr Harnick: Did you want me to answer that?

Mr Michael Brown: I do want to get your answer.

Hon Mr Harnick: I suppose the answer is that plea negotiations by skilled crown attorneys are far preferable to your methodology, which was to see an Askov crisis. I don't think an Askov crisis is a good idea. You do, but I don't.

Mr Michael Brown: We're not going to rehash history that's seven years old.

Hon Mr Harnick: I know it hurts.

Mr Michael Brown: I'm crushed.

Hon Mr Harnick: You've been crushed twice after that.

Mr Kormos: Chair, please, I don't want to be put in the position where I have to be conciliatory between these two gentlemen.

The Acting Chair (Mr Ed Doyle): I'm sure you'll be okay on that.

Mr Michael Brown: Given that we know that the rate of violent crime is down, could you tell me if the rate of charges is also down so that the number of cases coming before the court is now less than it was in total?

Hon Mr Harnick: The rate of charges has in fact increased over the last several years. The rate of violent crime is down, but the number of charges has gone up.

Mr Michael Brown: Could you explain that?

Hon Mr Harnick: I think you'd have to ask the police. Police lay charges and the Ministry of the Attorney General prosecutes them.

1700

Mr Michael Brown: Obviously, but would the ministry prosecute -- I'm really having trouble with this. How could there be less crime and more charges? You do prosecute them. If they were without merit, you wouldn't be prosecuting.

Hon Mr Harnick: I can tell you that in 1994-95, 440,174 charges were received, 419,000 charges were disposed of and 162,000 charges were pending. In 1995-96, 424,000 charges were received, 403,000 charges were disposed of and 173,000 charges were pending. In 1996-97, which is a projection, it was projected that there would be 448,000 charges received. Those are projections. We don't have those final numbers.

We also have provincial offences charges which have been reduced considerably. I don't know why, but they have been reduced considerably. The number of family cases received has reduced, and the number of youth court charges has gone up from 105,000 to a projected 107,000. Those are the numbers. Do you want to know the civil actions?

Mr Michael Brown: No. I'm still puzzled. I don't think this is very partisan. I'm just musing out loud how, if violent crimes have decreased, charges can increase? I understand that there is often a number of charges related to a specific criminal incident; there is often more than one statute that has been breached. Are there more criminals or accused people now or are there fewer?

Hon Mr Harnick: I can only tell you in terms of the charges, and those are the numbers. I suspect there has been an increase in property crimes; that may account for the increase in numbers. But I can't tell you the answer.

Mr Michael Brown: The ministry doesn't analyse these sorts of things together with your sister ministry, the Solicitor General, to understand on a public policy basis how these things could be happening?

Hon Mr Harnick: Mr Reynolds may be able to help us. I don't know.

Mr Graham Reynolds: Thank you, Minister. I'm not a trained criminologist. I think a variety of explanations have been offered about the trends and statistics that have been shown. The primary responsibility in this area is with the Solicitor General ministry, who of course analyse the activities and actions of the police. But there have been some trends that have been apparent. The minister mentioned yesterday that the rate of violent crime for young offenders has shown some increase. On the other hand, there has been a decrease in some of the overall murder rates in the country. There has been some fluctuation in the area of property crimes, as I recollect.

I don't think there is one single, clear explanation that can apply to all the circumstances. There are regional differences, for example. The lower mainland of British Columbia, on a national basis, has a much greater incidence of drug crime, for example, than southern Ontario does. It should be remembered that there are federal offences that are part of this component as well. There are drug offences also included in here, and drug offences have been showing some increase in certain parts of the country over some years. I don't know if there is an easy answer to the question.

Unfortunately, the monitoring system we have at the moment doesn't allow us to record on an absolute basis the number of people who are going through the courts or the court's charges, because that was the way the system was designed under previous administrations and that's what we're able to measure. We can't come up with an absolutely accurate number of persons who are flowing through the criminal court system on an annual basis. I think we wish we could.

At the federal-provincial level, there is a committee that works on the collection of criminal statistics. My colleague the ADM for courts administration has input through her division into that area. I think there are efforts across the country to have better methods of collecting and disseminating information about the incidence of crime and the incidence of people coming through the justice system. I think Ontario is relatively far ahead of other provinces in this area. It's my perception when I go to federal-provincial gatherings that many provinces have no measures in place at all of gathering the number of charges and the number of statistics of persons going through the court system. We have a relatively better system, but it's not perfect.

Mr Michael Brown: It seems to me that that would be a very useful thing to know, and to know something of the background of the people being accused, so we can develop a justice system of the future that is more relevant and probably accomplishes society's goals a little bit better. I say that in a non-partisan way.

Hon Mr Harnick: There is a move now taking place that we refer to as the integrated justice project. I hope the integrated justice project will help us in that regard to a degree. That project involves developing an information technology system that will link the ministries of justice in the government of Ontario -- it will link the Solicitor General and police and the Attorney General and corrections and parole -- so that some of those data may be available.

What you're referring to is something that has been very much lacking because of the fact that the Ministry of the Attorney General and, to a slightly lesser degree, the Ministry of the Solicitor General have been purely paper-driven ministries and really haven't moved into the age of information technology where this material can be collected and stored and made available. I hope that trend is going to change.

Mr Reynolds: If I could just supplement on one point, for the information of the member, who may not be aware, there is an organization called the Canadian Centre for Justice Statistics in which we work cooperatively with the federal authority in developing means and measures of assessing and providing to the public accurate information about the incidence of crime and the incidence of people going through the justice system. We're actively working with them and they will be coming to make a presentation to our ministry sometime in the very near future. This is an area where I think we're working quite positively on the federal-provincial scheme.

Mr Michael Brown: It seems to me that the goal of the criminal justice system is to try to put itself out of business.

Mr Reynolds: Absolutely.

Mr Michael Brown: Rather than to talk about how fast we can process charges or something, it's really the public safety. The fewer charges you have to lay, the better off society's likely to be.

I was interested in your comments on the family support plan. SCOE, which you know is quite different from the family support plan, did not include everyone; there was opting out. That's just to help you out a little bit.

Of the $1 billion in arrears, by the ministry's own account, what is collectible? What does the ministry believe is collectible?

1710

Hon Mr Harnick: To suggest a figure is almost guesstimating. I would hope that a substantial portion of that would be available. Certainly we haven't written any of it off. We have new enforcement measures that I hope will be implemented shortly as we continue to implement our recent bills, various measures to give the plan some teeth. A lot of the long-standing cases I hope will be referred to private collection agencies, because those files have been sitting around for about five years doing nothing, where a writ has been filed in the hope, on a wing and a prayer, that an asset might be sold and some money might be available through the execution process. But that's about all the plan has been able to do.

I want to say that we haven't written any moneys off. I know that was a concern of Ms Martel. I think we adjusted our legislation, if recollection serves me, to ensure that wouldn't happen. I know I had discussions with Ms Boyd about that. Because we just don't know --

Mr Michael Brown: Would much of that money be actually owed to the crown?

Hon Mr Harnick: I think about -- I'm guessing again -- several hundred million dollars of that would be owing to the crown.

Mr Michael Brown: Do you have a target for this year?

Hon Mr Harnick: When all the implementation measures are up and running, we expect to see a significant reduction in that annual $100 million of arrears that the former plan was able to ensure, based on the way it operated. I certainly hope we can eat into that, because every dollar we eat into that is an extra dollar for women and children in the province.

The goal is that we hope, with the implementation of driver's licence suspension coming this fall, with the referral of files to the private sector collection agencies, with our ability to deal with situations that involve sheltering, we would be able to start to make some inroads and collect moneys that are not now being collected, and every extra dollar is an extra dollar for children in the province.

Mr Kormos: Who's your private sector partner in the integrated justice project?

Hon Mr Harnick: Those discussions are continuing and there has been no contract that has been finalized, so it would be imprudent to discuss that.

Mr Kormos: On page 29 of your written remarks you state, "We are negotiating with a partner who will provide the new technology." I trust, then, that more accurately it would be "prospective partner."

Hon Mr Harnick: That's right.

Mr Kormos: This negotiation was the result of a proposal made by that prospective partner?

Hon Mr Harnick: The process began about a year ago. My understanding of it -- I want you to know that I remain far removed from the negotiations, for obvious reasons. Proposals were sought publicly, proposals were received, and a committee was set up involving people within and outside of government, I believe, to evaluate proposals.

Mr Kormos: So an RFP was issued?

Hon Mr Harnick: I guess it was a form of RFP.

Mr Kormos: When was that, please?

Hon Mr Harnick: It would have been a little over a year ago.

Mr Kormos: I wonder if a copy of that RFP might be filed with the committee.

Hon Mr Harnick: I don't know that that's a relevant issue to this committee at this time, because it's not part of the estimates process. Maybe it will be a year from now.

Mr Kormos: Chair, the Attorney General opened the door by so proudly announcing the partnership with the private sector and announcing the integrated justice project, in fact suggesting that a partner had been developed. I appreciate now that he, at my encouragement, has corrected that or modified it. He stated, "We are negotiating with a partner who will provide the new technology." I say to you that an RFP, if it had been distributed approximately a year ago, is no longer a private sort of thing. It seems to me that --

Hon Mr Harnick: Why don't I do this, Mr Kormos? I'll take that under advisement and I'll seek some advice.

The Acting Chair: Is that okay, Mr Kormos?

Mr Kormos: Thank you, sir.

When you speak of new efficiencies which will constitute the compensation or the reimbursement for the partner, you're talking about cost reductions, I'm sure.

Hon Mr Harnick: I'm not following you.

Mr Kormos: Take a look at page 29 of your written statement, where you say the private sector partner "will be paid out of the efficiencies the new technology brings to the justice system." Surely you're talking about cost reductions.

Hon Mr Harnick: Let me give you an example. If you're able to file documents in civil cases by electronic technology, you don't need, ultimately, the overhead you now have.

Mr Kormos: You mean the labour cost.

Hon Mr Harnick: I suppose that's a component of it.

Mr Kormos: So your plan is to dismiss even more registry office staff, registrar's office staff, court staff.

Hon Mr Harnick: I think that may be the case, with modern technology coming to the courts, over a period of several years.

Mr Kormos: But that's very much a goal of this -- you speak of this as a five-year project.

Hon Mr Harnick: No, the goal is to take the ministry from being a paper-driven system and doing our work the way the rest of the world is now doing its work, having some of the modern capabilities business uses to run their operations as part of our court system. It's a move to the 21st century, I think.

Mr Kormos: Yes, more joblessness.

Hon Mr Harnick: Different kinds of jobs, Mr Kormos.

Mr Kormos: The compensation technique being proposed is, as you said it, to "be paid out of the efficiencies the new technology brings to the justice system. That motivates your private sector partner to reduce costs as much as possible, because that way they earn more, correct?

Hon Mr Harnick: I certainly think the efficiencies we are looking for and that motivate this project are efficiencies that will make the delivery of justice services better for people in the province of Ontario.

Mr Kormos: But you are ultimately engaging in a relationship with a private sector partner who is being highly motivated to reduce the cost of the Ministry of the Attorney General.

Hon Mr Harnick: No. They are motivated as a result of our desire to enter into a commercial relationship that will provide the ministry with the 21st-century tools we need to provide better service to the public.

Mr Kormos: But the efficiencies you're speaking of, if they're going to be quantified in dollars and cents, have to relate to reduction of costs.

Hon Mr Harnick: Of course. I think that's a component of it.

Mr Kormos: And the costs you're speaking about are, in the largest part, labour costs?

Hon Mr Harnick: No. As a matter of fact, the projection of labour costs -- and again I'm guessing -- is, out of a ministry of 7,000 employees, maybe 300 people.

But I think there are significant costs to be saved, for instance, in the storage of documents. Let me give you an example. By electronic filing, we no longer have to store documents; we are storing material within a software package. As a result of that, we no longer have to store volumes of paper. We spend about $8.5 million or $9 million a year storing paper files, which consist of pleadings in civil lawsuits that no one ever reads, in a warehouse in Cooksville. That is not money well spent. That's money that would be much better spent on providing better front-line justice services. By introducing modern technology, we will be able to do that.

1720

Let me give you another example. When police arrest someone, they create a file. When that issue goes into the Crown Attorney's office, another file may be created. When it goes to the victim/witness program, yet another file may be created. There may be files if social work services become involved in a particular case. What would now be available would be an opportunity for everyone to access information in one central place, rather than re-create a file seven or eight or nine times.

Mr Kormos: I am sure of that, and I am sure the hacker network across North America will find access to your secure computer files fascinating and most profitable.

Hon Mr Harnick: That's why, Mr Kormos, we are dealing with people who can provide services that we believe will protect against those kinds of things. I understand you're cynical about moving into the 21st century and I understand the penchant that you and your government had for spending taxpayer's money without providing taxpayers with good services.

Mr Kormos: No, I am just cynical based on your demonstrated incompetence with the family support plan and your attempts to bring that into the 21st century and the crisis it created.

Hon Mr Harnick: Let's talk about that, Mr Kormos, because it's an important topic. We did have a period of difficulty. You can dwell on that period of difficulty all you want, but I think there is another way to approach it, and that's to look ahead and see what the plan is now doing and how the plan is now operating and to admit the failure of the plan as it existed. I know that big deficits and $100 million a year in arrears in the Family Responsibility Office are something you could quite accept. Your government had a penchant for racking up deficits in the double digits in terms of billions of dollars every year without having any conscience about it, without concern for the taxpayers who pay the freight, nor with any concern for the kind of services your government provided.

Mr Kormos: This sort of polemic is a refuge for a desperate Attorney General, I tell you.

When do you expect to finalize your negotiations with this anticipated private sector partner?

Hon Mr Harnick: When the negotiations are complete.

Mr Kormos: When do you expect to finalize them?

Hon Mr Harnick: I don't have a deadline date. I hope it will be shortly.

Mr Kormos: Who's responsible for those negotiations? That is to say, what ministries are involved in the process of negotiation?

Hon Mr Harnick: The negotiations involve the Ministry of the Solicitor General, corrections and the Ministry of the Attorney General.

Mr Kormos: Are you directly involved or is your bureaucratic staff involved in this negotiation?

Hon Mr Harnick: There's an element of bureaucratic staff involved. There are outside experts who understand technology issues.

Mr Kormos: Who are the consultants you have retained?

Hon Mr Harnick: I think the firm that is acting for the government are Fasken Campbell and Coopers Lybrand.

Mr Kormos: How long have they been on retainer for the purpose of these negotiations?

Hon Mr Harnick: I can't tell you that.

Mr Kormos: You don't know or you can't tell me?

Hon Mr Harnick: Don't know.

Mr Kormos: Would the Attorney General please undertake to provide that information to the committee?

Hon Mr Harnick: I'll seek advice as to whether that should be provided.

Ms Martel: Minister, speaking of no conscience, I would argue that you demonstrated none when you made the completely disastrous decision to close down the plan and put thousands and thousands of families into severe financial hardship. And you know what, Minister? A year later there has been no significant improvement at the family support plan to speak of. Our files for the month of August 1997, the number of cases we had, was the same in that single month as we had the whole year from August 1995 to August 1996 -- one single month, August, that just finished.

You can talk about us and our debt and everything else, but your actions directly led to severe financial hardship for thousands and thousands of women, and that problem is not over yet. I think part of the reason is that you've got 40% less staff now than you did before. You can talk about having 125 front-line staff. Those people have additional responsibilities and they can't cope, because overall there is 40% less staff. I want to ask you, how much of the decision that you made to cut the staff by 40% and close the regional offices was based on your need to find a saving of 35% from the plan? How much of this was financially driven?

Hon Mr Harnick: The decision that was made was based on the fact that the plan had been a disastrous plan. It was based on the fact -- and I appreciate that you don't think I have a conscience. I can say the same thing about my belief about your conscience. To have run a plan that racks up $100 million in debt out of the pockets of women and children every year, to have ignored that and done nothing about it, to have had groups like Mothers Against Fathers in Arrears and Families Against Deadbeats come to you and urge you to start developing a plan that had the ability to collect money and to have had your Attorney General of the day send them away to the point where they had to go out and picket, I think is unconscionable. If you want to talk about my conscience, I'll talk about your conscience.

Ms Martel: Minister, you were the one that made the decision overnight to lay off 85% of the staff; 290 people got a layoff notice on the same day, August 15. Three days after that the regional offices shut down. You had no central office whatsoever ready to run the operation. No businessperson would do that. No government cognizant of its responsibility to people, to make sure families would get money, should do that either.

Hon Mr Harnick: You said that before. You've said that to me. You said it 20 minutes ago.

Ms Martel: So why did you do it, Minister?

Hon Mr Harnick: I answered that questioned. You can keep going back to it or you can say, how do you make the plan better now? That is what we are trying to do. How do you start to collect some of the $1 billion in arrears that obviously your conscience doesn't bother you about. That's money out of the hands of women and children.

I acknowledge that the transition was terrible. I feel very badly about that. It could have been done better and it should have been done better. But we now are running a plan that has the capability of starting to collect money that we never were able to collect before.

I appreciate that you want to have press conferences and you want to be able to keep this boiling on the political burner. That's in your interest. I understand that. But my interest is an ability to try and start collecting money, $1 billion in arrears, because that bothers me. It bothers me that women and children are doing without $1 billion and that we had a plan that for five years sat there and had one single way to collect money: We trot on down to the registry office and we file an execution and we sit around and wait. Maybe something happens and maybe it doesn't. Every now and then a cheque for $35,000 comes in because a house gets sold or an asset gets sold.

Ms Martel: Tell me, Minister, do you have the technology in place to collect one cent of those arrears? In December you were in a big panic to get this legislation passed.

Hon Mr Harnick: You were opposed --

Ms Martel: In effect that was because of the bad publicity you got when Peter Kormos and I went into the office. You were in a big hurry so we passed it rapidly. You didn't even proclaim the legislation till May. Your driver's licence program was supposed to be up and running in September, and I heard you say only recently that you hope to get it started sometime this fall. Have you collected a penny in those arrears?

Hon Mr Harnick: I suspect we will start to collect pennies very quickly.

Ms Martel: Here we are, nine months later --

Hon Mr Harnick: If you were genuinely concerned about that, instead of sending Families Against Deadbeats and Mothers Against Fathers in Arrears away four or five years ago, this could have been up and running and we would have had a plan that might have been working. But we didn't have that. You didn't agree to that. In fact, because you are so politically motivated, you were opposed. You brought an opposition day forward that was opposed to the bill. You said, "Withdraw the bill." I couldn't believe it.

Ms Martel: Because, Minister, what you don't want to recognize is --

Hon Mr Harnick: Because you racked up $1 billion in debt and you don't want to admit it.

1730

Ms Martel: You continue to allow the director of the plan to have the discretion to write off arrears. You just tried to tell Mr Brown that somehow you changed the provisions we were most worried about. The fact is that what's going to happen is that your director is going to decide that millions and millions and millions of dollars of arrears are uncollectible. You didn't change that portion of the legislation. Are we opposed to that? You're darn right. What I am afraid of --

Hon Mr Harnick: So why didn't you do something about it?

The Acting Chair (Mr Cleary): One at a time, please.

Ms Martel: -- is that before you hand this off to the private collection agencies, you're going to get rid of the worst cases and hand over the easiest cases to the collection agencies to collect.

Hon Mr Harnick: You didn't even do that.

Ms Martel: That's why I wanted that guarantee.

Hon Mr Harnick: But you didn't even do that. You didn't do anything to collect. Let me answer your question. You didn't even try and collect the easy cases. You sent people away who had ideas that they wanted to implement to try and collect money. You sent them away. You didn't even want to collect the easy cases, let alone the hard cases that we're going to send out to private sector people who are professional collectors. You sent people away who wanted to do that.

Ms Martel: Minister, overnight you ignored the advice of your front-line staff, who said to you: "For goodness' sake, we don't have enough staff right now to deal with what we have to deal with. Don't close the regional offices." You ignored the advice of your front-line staff, and overnight you threw this plan into chaos, and overnight thousands and thousands of people didn't get their cheques.

Hon Mr Harnick: You said that already.

Ms Martel: We are here a year later and I am saying to you that you still don't have the technology in place to deal with collecting the arrears and you do not have enough staff to deal with the plan; you've got 40% less than before. My constituents -- two of every three calls we receive and three of every five people who come to the door continue to have the plan, and most of those people used to receive regular payments. I am saying to you we are here a year later and you're trying to tell this committee things are improving and I should get on the bandwagon. I'm telling you that the experience in our office is totally different, the reality is totally different from your rhetoric.

Hon Mr Harnick: I don't agree with what you are saying.

Ms Martel: Come to my office, Minister. Come and spend a day in my office.

Hon Mr Harnick: The experience we are having is that when employers are remitting money, that money is sent to recipients within 24 to 48 hours. As long as the money is being received by us, we are not holding any money.

Quite simply, we've made some tremendous strides in bringing this plan into the 21st century, with 95% now being electronically dealt with. Software that speeds up remittance -- 133 companies now testing it. Our ability to answer telephone calls: At the rate we're going, we hope there will be no delay in answering telephone calls, that we will be able to do 2,500 in a day. As of about a week ago, I understand the wait period for a call was down to 10 minutes. Under your plan, only 6% of callers ever got through. How can you run a plan that can't answer the phone? How do you run a plan that had 90,000 pieces of outstanding work that weren't done? You were sending lawyers to court to get orders and cost-of-living adjustments, and then they'd come back, put the file on the shelf and nobody would make the calculations, so individuals didn't end up getting their cost-of-living allowance because 90,000 pieces were sitting in backlogs in regional offices.

Ms Martel: If things are so much better, how come I had more cases in the single month of August 1997 than I did the entire year between August 1995 and 1996? How can things be better if that is the case?

The Acting Chair: Thank you. It's the government's turn.

Mr Bill Grimmett (Muskoka-Georgian Bay): I'd like to ask the minister if he'd mind turning to pages 92 through 95 in the estimates book. I'd like to refer him to some of the questions that have been brought to me by my constituents since I've been elected.

One of the areas your ministry is responsible for is the civil side of the courts in Ontario. Before I entered this very popular profession, I was equally popular in another profession, as a lawyer. One of the great frustrations I had as a lawyer and that my clients had as well was the slow pace of civil activity, the way a civil action takes so long. I've even had complaints from constituents who've come to me to complain about the slow activity in Small Claims Courts.

I notice from the statistics you're projecting on page 92 that you're looking at fewer proceedings in civil actions in the future. I wonder if the initiatives you refer to on page 95 have been more directed at reducing the number of cases to be dealt with in civil courts, or has there also been an effort to speed up the process of individual civil cases? It has been my experience for the time I've been a lawyer that there doesn't seem to be a lot of initiative within the system to deliver relatively quick justice. I think that is the most common complaint from the most common constituent, not the person who is a regular, litigious civilian, but the person who really doesn't even know which door to go into when they get to the courthouse. They want speedy justice. They don't understand how the process takes so long. I wonder what efforts your ministry has undertaken in that regard.

Hon Mr Harnick: That's a very good and important question. Under the last government, the Civil Justice Review was set up. The former Attorney General and the Chief Justice of the trial court were the co-chairs of the Civil Justice Review, which produced an extensive report on how to improve the civil justice system. I became Attorney General at around the time the report was completed and I received the report.

The report indicated very strongly that the civil litigation process and the speed with which court cases proceed had to be taken out of the hands of lawyers and had to be put into the hands of judges, and rules had to be developed that would provide a track upon which cases would run, with time limits that were realistic but kept cases moving through the system. That is really what is now known as case management. We have implemented case management 100% in Ottawa. There are no backlogs and cases are now moving through the system with great speed.

Mr Grimmett: Can you give us some indication of how long a reasonably sized civil case would take?

Hon Mr Harnick: Most cases that are uncomplicated and on a standard track are going through the system at about a year and a half. That includes examinations for discovery and all the other proceedings.

Mr Grimmett: That's from the time that you issue the --

Hon Mr Harnick: From the time a claim is issued. I might tell you that in Ottawa, they have implemented mandatory mediation, being run by the private sector in conjunction with the courts. Most of that mediation takes place within 90 days of the delivery of a statement of claim, and 80% of the cases going through mediation are settling in the Ottawa region now. We are about to implement that same process on a province-wide basis.

I can tell you that we have a draft rule that is now before Justice Morden's rules committee. We will I hope be getting finalization on that rule shortly so that we can begin mediation on a province-wide basis as each region becomes ready with a roster of mediators to do the work.

1740

But to get back to case management, we also have case management running in Windsor and in Sault Ste Marie. Those projects are being converted to the Ottawa model. As we've seen the success of that model taking place we have increased the number of cases now in case management in Metropolitan Toronto to 25%. I hope by the end of the year we can be at 50%. With our integrated justice project we will have the technology to get this project spread across the province over the next four years, which I think is very important.

We've brought back the office of the master and confined that role to a case management master. They will hear motions. They will help with cases that will be streamed into a roster to be run by a judge and a single master. All the motions and proceedings will take place before those individuals and they will monitor that time lines are met.

Where complicated cases now take in excess of five years, I hope we will be cutting those time periods in half. With that reduction, we will be continuing to provide a quality justice system at less cost to litigants.

Mr Grimmett: Two and a half years is still a long time to conduct a civil case, even in a complicated matter.

Hon Mr Harnick: I would hope we can shorten that time line, but we have to make allowances for complicated cases, cases that take a long time in terms of the preliminary procedures, and those cases will continue to exist. What we are very intent upon doing is providing all litigants with an early opportunity for mandatory mediation in civil non-family cases.

I hope that will give litigants an opportunity to get a case settled before they begin to incur significant expense. The pilot project that has been run, both in Ottawa and in Toronto, indicates that litigants who go through that process are very satisfied with the results they're getting and with the way the system deals with their problems.

Mr Grimmett: What about Small Claims Court? In the 14 years since I started practising, the cases have gotten too complex. In my opinion, too many lawyers are involved in Small Claims actions and there's far more documentation than there used to be. I have not been in the courts in the last two years and something may have changed there, but I get a surprising number of constituents who come in and complain to me about the complexity in Small Claims. They expect it to be something where you can walk in and get justice basically instantly. Now, that's probably unrealistic, but I wonder if the ministry is looking at Small Claims?

Hon Mr Harnick: We are. One of the proposals out there that we're looking at, although we have no affinity to move in this direction at this time, is increasing the limit of the Small Claims Court. The Small Claims Court still is traditionally a place where most litigants don't need a lawyer. They may choose to have a lawyer, and I agree with you that probably slows the process, but an awful lot of litigants still do not need a lawyer and don't take a lawyer to Small Claims Court. With the cost of litigation today, I think we would be remiss if we didn't take a look at increasing the limit of the Small Claims Court.

One of the commitments I have made to the author of the civil justice review is to see, over the next period of about a year, how the simplified rules which deal with cases of $25,000 and less operate in terms of their efficiency and cost savings to litigants before I make any decisions about changing the limit of the Small Claims Court.

But I agree with you that it's an important court, and we're taking a look at how to streamline that court as well.

Mr Frank Sheehan (Lincoln): I'd like to follow up on what Bill was talking about. I'm a small business man, and I understood Small Claims Court was designed so that almost on an individual basis we could sit and resolve our differences and have somebody wise and objective make a determination.

You've increased the limit to -- it used it be $1,000; it's up to $6,000 now. You've laid off a substantial number of experienced staff. The backlog has gone now from three weeks on an average to about three months, and you've raised the fees. So if it is supposed to be a court of equity, but there has to be some equity for the person who is owed the money.

Right now, it you start off, you put $50 on the table; that gets you some forms. It costs you anywhere from $20 to $40 to get it served. Then if you want to go into a trial, I think it's another $100. This is not a cheap game.

Then you say frequent users have to pay more. They use the term "banks" and all that. I share Mr Kormos's great affection for banks. It's probably the only thing we do agree on, but we agree on something.

And one last thing: your forms. I understand there is now in the order of 20 forms, and these forms ask the same information but there are different ways on different forms. There's not even a standardization of the forms.

What was supposed to be a court of equity has now got so damned complex it's almost like rocket science to try to figure out how to collect a $20 bill. There's no more equity in this process. You've effectively priced out -- for the people who are in the habit of not paying their bills, it won't take them 30 seconds to figure out that they can't be touched for under $150. Most of them you wouldn't anyway, because it would just be a pain in your neck to do it.

The complexity is leading people to use agencies to collect money, so now a small business man get rapped as a frequent user even though he may not be a frequent user but because the system is so damned hard to manipulate around he feels compelled to get a professional to do it. Then some of the issues, as Bill said, end up requiring a lawyer.

Do you have some plans to address this? If you have plans, do you intend to utilize the expertise of the people who are the victims of this process? Can you comment on that, please?

Hon Mr Harnick: The experience we have with the Small Claims Court is that it was the most expensive court to operate of any court that is run in the province of Ontario. We've tried to adjust the financial aspect of that court so that frequent users are going to pay the bulk of the costs associated with the courts. Most of those -- I think it's 70% -- are institutional users of the court who use the court as a collection device.

We certainly are concerned about all the issues you raise, and I can tell you we will be monitoring the court. We will be looking at some of the pilots that were run in past years that involved referees to effect mediation-type services with the Small Claims Court, to give parties an opportunity at an early stage to settle their cases.

We hope the court remains a court where we will not need lawyers in terms of all litigants coming before the court, because that would very much defeat the purpose. When you look at the cost of litigating a $20,000 case, you have to wonder why cases upwards of that are not being dealt with in Small Claims Court, because the cost of going into the General Division has become prohibitively expensive for the average person.

Remember as well -- and we talked about this yesterday with Mr Kormos -- that the issue of costs is dealt with as part of the decision a judge makes. There is a small allowance towards a counsel fee if a party does have counsel and is successful. As well, the disbursement costs are ordered to be paid by the unsuccessful party, so there is an equalization of those costs.

It's important to know that the government was subsidizing that court to the tune of about 53% of its costs. We felt it was necessary to take a look at letting institutions -- quite frankly, 70% of the users of the court are institutional users which use it to collect debts. We had to make sure our costs are covered.

We will continue to monitor the patterns and the effects as a result of some of the changes we've made. If we think there are access problems as a result of the changes we've made, we will look at making further changes, but so far we don't have any indication of that.

Small Claims Courts are important courts. They should have, hope, by way of referees that have existed in the past, mediation services associated with them. Most of those kinds of cases are cases that can and should settle and we should be providing some means to ensure that that can happen if possible.

I agree with you that these are difficult issues. We've made certain changes in the hope of streamlining the court and ultimately making the court work better than it has in the past.

Mr Sheehan: I'd like to suggest one thing. I'm out of time, but I think you should go and sit in and watch what goes on, because I think some of your statistics may be at variance with the facts. Operating a small business, I've had the great pleasure of enjoying it, and I want to tell you that the story's a little different from what you're telling us.

Hon Mr Harnick: I don't take issue with what you've seen, because I've been to Small Claims Courts and I've seen the same things, but it does vary from jurisdiction to jurisdiction. We will monitor the patterns as a result of changes we've made to ensure that access problems are not being created. I hope you'll let me know if that is in fact the case, and I'm sure you will.

It's important to know that we took a look at making some very radical changes to the Small Claims Court, but I elected to keep the court in the form it has traditionally been in because I think it's important for people to have a judge and a courtroom setting rather than a mediation or an arbitration centre. I think we have an obligation to provide that service and to ensure that litigants have a place they can go to resolve civil disputes on their own. That's something we want to maintain. We are very amenable to listening to any constructive ideas you might have that we can use to make the system work better.

The Acting Chair: I'd like to thank the minister and the staff and the members for participating. On Tuesday, September 9, we'll have three and a quarter hours left.

The committee adjourned at 1754.