REVIEW OF THE OFFICE OF THE OMBUDSMAN
CONTENTS
Wednesday 27 November 1996
Canteen allowance program
Ms Roberta Jamieson, Ombudsman
Ministry of the Solicitor General and Correctional Services
Mr Neil McKerrell, assistant deputy minister
Mr Kenneth Hogg, counsel
Review of the Office of the Ombudsman
STANDING COMMITTEE ON THE OMBUDSMAN
Chair / Président: Mr John L. Parker (York East / -Est PC)
Vice-Chair / Vice-Président: Mr Tom Froese (St Catharines-Brock PC)
Mrs ElinorCaplan (Oriole L)
*Mr CarlDeFaria (Mississauga East / -Est PC)
*Mrs BarbaraFisher (Bruce PC)
*Mr TomFroese (St Catharines-Brock PC)
*Mr DougGalt (Northumberland PC)
*Mr PatHoy (Essex-Kent L)
*Mr LeoJordan (Lanark-Renfrew PC)
*Mr Jean-MarcLalonde (Prescott and Russell / Prescott et Russell L)
Mr RosarioMarchese (Fort York ND)
Mrs MargaretMarland (Mississauga South / -Sud PC)
*Mr John L. Parker (York East / -Est PC)
*Mr R. GaryStewart (Peterborough PC)
*Mr BillVankoughnet (Frontenac-Addington PC)
Mr LenWood (Cochrane North / -Nord ND)
*In attendance /présents
Substitutions present /Membres remplaçants présents:
Mr John R. Baird (Nepean PC) for Mrs Marland
Mrs MarionBoyd (London Centre / -Centre ND)
Clerk / Greffière: Ms Lisa Freedman
Staff / Personnel: Mr Andrew McNaught, research officer, Legislative Research Service
The committee met at 0909 in room 151.
CANTEEN ALLOWANCE PROGRAM
Consideration of the Ombudsman's case report in the matter of the canteen allowance program (CAP) and the Ministry of the Solicitor General and Correctional Services.
The Chair (Mr John L. Parker): I call this meeting to order. Welcome to the meeting of the standing committee on the Ombudsman. We're meeting this morning to consider a recommendation-denied case. The Ombudsman is here to present the particulars of her recommendation. Before we commence, I'm going to invite the clerk to review a few of the protocols with us.
Clerk of the Committee (Lisa Freedman): Because this is the first recommendation-denied case this committee has considered, I just quickly want to go over how, in the past, the committee has considered these cases.
The committee usually hears from the Ombudsman first, and after the Ombudsman has finished, you can ask questions of the Ombudsman. We then call up the ministry and go through the same thing: The ministry will make a presentation and questions will then be asked of the ministry. We can then become informal after that. If you need the Ombudsman back or the ministry back, we can make sure that all the questions are asked.
At some point after the committee has heard everything -- and in the past sometimes it's been immediately afterwards, sometimes it's been a week later -- the committee will go into closed session and make a determination. The determination is fairly simple: It's usually whether the committee agrees with the Ombudsman or agrees with the ministry. We usually inform both parties orally what the decision of the committee is. If we immediately make a decision, sometimes the parties wait and we call them back in.
At a later date, we'll actually report to the House, and that report could be as short as three lines: "This committee considered the evidence and agrees with X." It may be a little longer if the committee so chooses. So it's a fairly informal process in terms of getting all of the information out.
The Chair: I'm proposing that we give half an hour to each side of this case, commencing with the Ombudsman, and that time can be consumed either by a presentation or by presentation followed by questions and answers. We'll see how it goes. The questions and answers would be in the usual rotation, commencing with the government side. Madam Ombudsman, the floor is yours.
Ms Roberta Jamieson: Good morning. Bon jour. Sago. Nice to see you all. I'm here this morning and I welcome this opportunity as an officer of this Legislature to present my findings that I've arrived at after investigating the canteen allowance program and how it's administered in the correctional system by the Ministry of the Solicitor General and Correctional Services.
When I table a case such as this in the Legislature and bring it to the committee, this is the last juncture of the Ombudsman process. At this stage I will have raised my findings and recommendations with the ministry, brought them to the attention of the minister and the Premier, and at each time provided an opportunity for them to take the necessary steps to correct the unfairness. My powers are not to compel any agency to follow my recommendations; I can recommend only. It's now through presenting this case that I bring this matter before the Legislature.
To be clear, my role at this stage is exhausted. I've completed everything I have a mandate to do and I'm now seeking the support of this committee to take action within its broader mandate. Your work represents the opportunity for the public to scrutinize this matter before it's brought to a closure.
With that said, let me turn to the case at hand.
I have investigated and found that it is unjust and improperly discriminatory for the ministry to withhold the canteen allowance program from inmates on remand -- these are inmates who are being held pending court proceedings -- while inmates who are convicted and sentenced, on the other hand, are entitled to this allowance. To clarify, remand inmates are those who are being held, who have not been found guilty of an offence, and who are therefore not under any sentence from the court.
The current canteen allowance program -- and I'll also refer to it as CAP for ease of reference -- currently provides a weekly $5 allowance in cash to adults or young offenders who've been sentenced to 21 days or more, and it starts after they've been in custody for at least one calendar week beyond the 21 days. It is not extended to inmates who are on remand.
I've looked at other jurisdictions outside Ontario and I have found that it is not unusual to provide this type of allowance only to sentenced inmates. However, I have also found that for the most part in these other jurisdictions, inmates on remand are not housed together with inmates who have been sentenced with the same conditions of confinement. They are held separately. In Ontario, we've got them both held together. So there is a fundamental difference in treatment that arises. It adversely affects those on remand and it disadvantages them. Why? Only because of their status before the courts. Any other differences between these two are justified on the basis of legal status. Sentenced inmates, of course, aren't eligible for bail. Remand inmates, of course, can't apply for parole and temporary absence permits.
Work is often performed by inmates in the province's jails, detention centres and correctional institutions. Rightly, inmates on remand cannot be required to perform work, but they do in some cases work in laundries and kitchens in jails and detention centres, and the system both relies on and benefits from this work. Other conditions, just to fill out the picture for you, like recreational activities and access to library materials are equally available to both remand and sentenced inmates.
Before the introduction of the CAP -- the canteen allowance program -- the ministry had what was called an incentive allowance program or IAP. That program was only paid to sentenced inmates and was directly tied to inmate participation in work programs. IAP was not extended to remand inmates. As we all know, one of the foundation stones of our criminal justice system is the belief that people are innocent until they're proven guilty by the courts. It was properly decided that involving remand inmates in a rehabilitative program, a work program of that type, would imply that they needed some form of correction and thus compromise the assumption of innocence. That was then.
When CAP was introduced in 1989, its goals were: to allow inmates to purchase personal needs, to assist inmates to assume individual financial responsibility and, finally, to encourage positive conduct. The allowance was provided as a privilege based on good institutional conduct rather than on participation in work programs.
When the link between the receipt of money and the doing of rehabilitative work was broken, there was no longer any basis to treat remand inmates differently from sentenced inmates. We know that the payment of money by itself is not rehabilitative, and in fact the effect of not extending CAP to inmates on remand is not to contravene their right to be presumed innocent, as the ministry has argued; the effect, rather, is to contravene their right to at least equal treatment when they are in institutions -- equal treatment to those who are sentenced.
We know that the conditions of confinement are essentially identical for sentenced and remand inmates -- identical, that is, except for the provision of CAP. Each week, remand inmates watch as sentenced inmates receive a $5 allowance for the purchase of writing materials, things like tobacco, deodorant, confections and magazines, while they do without. Imagine yourself in that situation of being held without conviction and not being treated equally to the convicted inmates with whom you're sharing space.
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Inmates on remand are already subject to a very high degree of tension. They are in prison, unconvicted of a crime. They are frequently housed far away from their families, doctors, lawyers, communities and cultural supports. Without access to canteen products, in a milieu where others have that privilege, they often become immersed in a pretty dangerous aspect of prison culture which involves barter-type debt. It's well known that that situation can lead to involvement in extortion and, in some cases, violence.
Inmates on remand fill half of our jails and detention centres. Their average stay is about 29 days, but more than 17% of them stay longer, and some significantly longer. One of the goals that the ministry states for CAP is to promote good institutional behaviour. Well, it surely can't be the case that the ministry has no interest in promoting good institutional behaviour among half of its population.
The unfairness that I found in this investigation is of such a basic and fundamental nature that it has been addressed in the United Nations document, published in 1971, Standard Minimum Rules for the Treatment of Prisoners. Those rules establish that untried prisoners should have rights and privileges not extended to convicted prisoners. In the case that I'm presenting to you today, not only are remand inmates not treated equally to sentenced inmates, they're treated worse. That's both unjust and improperly discriminatory, in my view. Any such differential treatment must have a valid justification to stand up to scrutiny. In this case, that justification does not exist.
This case has been ongoing for a bit of time, and in March 1993 I thought the ministry had found a solution to this problem; they seemed in fact committed to finding a solution. The ministry proposed to alter the canteen allowance program so that it could be extended to both sentenced inmates and those on remand. Under those changes, they adjusted the qualifying period of all inmates and in fact increased it to two consecutive calendar weeks.
However, six months later the ministry notified my office that financial constraints imposed by the government would not allow the program to be changed as they had planned. In my view, the right to fair treatment is not and cannot be dependent on the availability of resources. The issue of discrimination in this case didn't disappear because of funding pressures or because the money got tight. There could in fact have been further adjustments to the program both to deal with the cost and to provide equal treatment, but that was not done and has not been done by the ministry.
We've had further discussions with them. We've given more than ample time for them to find an appropriate and fair solution. As a result, I reopened my investigation and finalized my report, and we arrived at the point where this case was being presented to the Legislature.
Now, let me be clear. By continuing to rely on fiscal pressure as the reason for not taking steps to remedy this obvious unjust treatment, the ministry has effectively put a price on the right of an inmate to be free from discrimination and, in this case, on the right to be treated in accordance with not only provincial and federal standards but international standards.
The result is a situation that is grossly unfair to those among us who, although held on remand, are innocent until proven guilty and entitled to be treated in accordance with the principles of fairness to which our province and our country are dedicated.
In conclusion, my function as Ombudsman has been fulfilled in this case, and I now ask you to support the recommendation that I've put forward and my findings in this case. That recommendation is:
"That the Ministry of the Solicitor General and Correctional Services take steps within its power to extend canteen allowance privileges to remanded inmates on at least an equal basis to those privileges received by sentenced inmates."
I'm pleased to answer any questions committee members may have.
The Chair: Thank you very much. We're left with about five minutes per caucus, beginning with the government caucus. Mr Froese.
Mr Tom Froese (St Catharines-Brock): The first question is, why is this being brought before us? Why are you tabling this or bringing this before us today? As far as I understand it, this happened in 1993 after complaints were made or whatever, and you brought it forward to the ministry at that time. Why wasn't it dealt with in 1993? Why didn't you bring your report forward in 1993? Do you review these things every so often? I just don't understand why we're getting it now, three years later. It puzzles me that we wouldn't have dealt with this issue a lot sooner.
Ms Jamieson: As you know, the way the Ombudsman Act works, the idea is that cases only come here if we can't solve them with the ministry. In 1993, I thought it was solved. The ministry agreed to take the necessary steps. It was some months later that they decided they would not do that and gave fiscal restraints as the reason. We then continued to meet with them. We were hopeful that they would be convinced otherwise.
This particular case has been the subject of review by no less than three deputy ministers. The ministry restructured. There were a number of intervening matters, but I remained unsatisfied, and that's why we reopened the investigation. I was not content to leave it to the ministry to continue to try to find an answer, because I didn't think they were sincere in looking for an answer, and so that's why in 1995 I reopened it and this case went to final report. The ministry had yet another chance to respond. It went to the minister; it went to the Premier. Finally, when I heard that the Premier was not willing to take steps to correct this unfairness, we prepared it and tabled it with the House.
Mr Froese: Okay. From the documents we received and what you said this morning as well, in 1993, after the situation came forward, the ministry agreed to include remanded inmates under CAP. Correct? The reason they hadn't done it in 1993 was because of the social contract, financial restraints, and, as I understand it, it's still the same reason. I think your position is that financial restraints shouldn't be the issue, it's fairness, as far as you're concerned.
You said these individual inmates were treated worse, but it appears that it's not worse with anything else other than just not receiving the $5 a week under CAP. If the ministry is coming back and saying it's financial restraints, money's tight or whatever, what recommendations would you make to the ministry to solve the situation?
Ms Jamieson: I think there are a number of options that are open to the ministry; one, of course, is to increase the allocation so that both remand and sentenced inmates have access to the program; another is to have another look at the length of stay and adjusting the program so it's equally available to both. There are other less attractive options, but those are the two that I think have merit. But there are a variety of ways the ministry could respond to this to deal with the basic unfairness.
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The Chair: We turn now to the opposition caucus. Mr Hoy.
Mr Pat Hoy (Essex-Kent): Your case of fairness and equal treatment with regard to CAP here is well put. I just want to touch briefly on your statement on the "dangerous aspect of prison culture -- incurring barter-type debt." Do you have knowledge that this does occur and is a dangerous situation within the system?
Ms Jamieson: I think it is common knowledge within and without the system.
Mr Hoy: Okay. The previous speaker touched on what would provide equal and fair treatment, which is what you're asking for. What's your opinion of the 1993 model? Is that an acceptable option today?
Ms Jamieson: I thought at the time it could well work, which is why, when we raised the issue with the ministry and that was their response, I thought that was acceptable, yes, because it treated people equally. That's the fundamental part of this case, that people aren't treated equally, aren't treated fairly, in fact are treated worse. So, yes, I thought that model addressed it.
Mr Hoy: So, a moderate increase to two consecutive calendar weeks is not the issue; it's the issue of fair treatment?
Ms Jamieson: Absolutely.
Mr Hoy: The time period, not extending it into months and months but extending it by two consecutive calendar weeks was not a big issue; it was the issue of fair treatment, right?
Ms Jamieson: Absolutely right.
Mr Hoy: I have no other questions.
Mrs Marion Boyd (London Centre): Thank you very much for explaining so clearly what your concern is. I must tell you, I share your concern; I thought this problem was solved in 1993 too. I remember the decision going through Management Board and treasury board discussion as an adjustment -- not in the amount of money. The amount of money, I understood, was to remain constant. It was simply to be an adjustment around entitlement within the program. So I'm rather surprised it isn't resolved either.
I don't think most people know that 50% of the people in our prisons have not been convicted of anything yet and many never are. I think you raise a very serious issue for us in terms of how we treat people who are incarcerated who may never be convicted of the crime for which they're incarcerated as they go through the system and yet meet this kind of unjust treatment. I would think that would not be an encouragement for them to respect the law. Would you agree?
Ms Jamieson: It certainly exposes people who are not convicted of an offence to a situation where, especially in this case, they are without; they are with people who have this privilege, who are rightfully there because they're sentenced. There is a whole economy and culture that exists in our correctional facilities, and those among us who are there awaiting trial are subject to that culture, and you do get into the very dangerous situation, and yes, that concerns me, certainly.
The degree to which steps can be taken to treat these people fairly so that they are at least on an equal footing with those who are sentenced, I think we are obliged to do that as a humane and decent society, and I don't think no money can be an excuse for unfairness.
Mrs Boyd: Particularly since it sounds to me like your solution is not necessarily to add more money. The solution that you've tried to work out is to use the existing dollars in a different way so that treatment is equal.
Ms Jamieson: Yes, that's true. There are a number of options, and that certainly is one of them. I don't understand, if the ministry has been committed and if government is committed to treating people fairly, why a solution cannot be found to this that is equal and fair.
Mrs Boyd: In your research, you found that it's unusual for remand people to be in the same facility with convicted prisoners?
Ms Jamieson: We found that in places like Alberta, BC and some of the states they are in fact kept separate. There are remand centres and then there are correctional facilities. It's true there aren't these kinds of programs for remand and often not for sentenced, but it's also true their conditions of confinement are different. That's why it makes this situation even more dramatic, because they are held together and treated worse.
The Chair: We have some time left, and I had some names on the government side. Mr Jordan.
Mr W. Leo Jordan (Lanark-Renfrew): Thank you very much for your presentation this morning. It seems to me that we're looking at two different things here. This allowance, as I understand it, is part of a rehabilitation program. I don't know if it would be fair, if I'm being held pending trial, to make me part of a rehabilitation program. I'm not even convicted, so why should I be looking for that kind of treatment in that program?
Ms Jamieson: I reviewed what the goals are of the program -- to provide assistance to inmates, also to promote positive behaviour, positive conduct in the correctional facilities. It seems to me you'd want to promote positive conduct among half the population. Why would you promote it among only one half, that is, the sentenced, and not the other half, the people being held on remand?
Mr Jordan: I see it as a rehabilitation program that this money is part of, and that program is being applied to the convicted people there, not to the people awaiting trial.
Ms Jamieson: But the reality is that the people awaiting trial are without and are treated worse and don't have access to writing materials and are then at the mercy of the culture that occurs in our correctional centres. Surely that is not a reasonable goal that should be pursued by the ministry or by the government.
Mr Jordan: I think it's something that we have to recognize, that there are the two different situations here. As you've pointed out to Marion, even if we reduced the amount of money to $2.50 or whatever, if we made it the same amount of money but distributed it on an even basis, you would be satisfied. So really, the people who have been determined to need rehabilitation, then, would be sacrificing some of their program for people who have not yet been convicted. I would have the personal feeling that if I were awaiting trial and felt very sure of my innocence, I'm not so sure I would want to be seen as part of any rehabilitation program.
The Chair: Thank you, Madam Ombudsman. That does the half-hour I've allocated.
Ms Jamieson: Could I just respond to that question? I don't want to confuse rehabilitation with this program.
The Chair: Very quickly.
Ms Jamieson: The previous program, the IAP, connected the two: work, rehabilitation, the allowance. That connection was broken when this program came into place. This program was not based on rehabilitation, and it has never been proven that the payment of money is not rehabilitative by itself. The effect here of not giving this allowance to inmates on remand is not to contravene their right to be presumed innocent, as the ministry argues; the effect is to contravene their right to at least equal treatment. It's that point that I've placed squarely before the committee.
The Chair: I invite ministry staff to come forward. You have half an hour for your entire presentation. You can use that any way you wish -- leave time for questions or consume it all with your presentation. I'd ask that you begin by identifying yourselves for the record, please.
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Mr Neil McKerrell: I'm Neil McKerrell, the assistant deputy minister of the correctional services division in the Ministry of the Solicitor General and Correctional Services. I'm joined by my colleagues, Louie DiPalma, the director of adult institution operations, and Ken Hogg, counsel to the ministry.
I'd like to thank the committee for the opportunity to explain the ministry's position on this matter. In fact, the ministry's position is consistent and has been over the years. We believe our position is consistent with the majority of correctional jurisdictions in Canada. There are 13 in total, and only three of those 13 correctional jurisdictions provide an allowance to remand inmates. Some, in fact, don't provide any allowance to any inmates at all. Our understanding is that many, if not most, in the United States similarly follow that practice.
The ministry's view on the canteen allowance program is based on the fact that the provisions of the canteen allowance program regarding payment of allowance to sentenced but not remand inmates is contained in the regulations pursuant to the Ministry of Correctional Services Act. It is described, it is considered a rehabilitation program for sentenced offenders. It's the ministry's view that remand offenders, not having been found guilty, we have no legal mandate to rehabilitate them.
The goal of the CAP is to enhance the personal and social readjustment of sentenced offenders by providing them with a practical incentive for demonstrating positive conduct, industry and program participation. We believe that it teaches money management skills. It is not, in our view, a payment or a bribe, if you like, as some people might call it, for good behaviour. We have other legislated means for enforcing good behaviour. We have an extensive misconduct system, which is the means by which we govern inmate behaviour in the institutions. The incentive allowance is not payment for good behaviour.
We have two mandates for our correctional institutions. The first is to hold remand inmates in custody pending a change of their legal status by the court. The second mandate is to administer the sentence of custody imposed by the courts. Within that framework, there are two categories of inmates in our institutions. The remand inmates are persons accused but not convicted of a crime who have been found to pose a risk to the public or who may not appear for trial. With remand inmates in our institutions, our statistics indicate that the median stay for remand inmates is six days. Sentenced inmates are persons convicted of a crime for whom the ministry has a responsibility to provide rehabilitative programming.
Within the Ministry of the Solicitor General and Correctional Services, we have two broad categories of institutions. We have jails and detention centres -- and detention centres are a modern form of the jail -- holding remand inmates and inmates serving short sentences. We also have correctional centres, which hold exclusively sentenced inmates. There are no remands in our correctional centres at all.
In the correctional centres, which hold the sentenced inmates, we have extensive rehabilitative programming, which includes long-term educational programs, correctional industries, trades instruction, more extensive and intensive clinical programs, the canteen allowance program and we have interim release programs which include unescorted temporary absence, electronic monitoring and parole provisions.
The point has been raised that in 1993 the ministry worked out an agreement with the Ombudsman to introduce the CAP to remanded inmates. That was a result of extensive discussions with the Office of the Ombudsman over a lengthy period of time. The ministry did not fundamentally change its view that the program was intended for sentenced inmates, but it was a compromise position. The Ombudsman's office started out with a set of wishes and the ministry had a set of wishes, and there was a compromise made.
After that compromise was struck, the constraint framework was imposed across all ministries in the government at that point in time and a review was made of the programming within the Ministry of the Solicitor General and Correctional Services, and all parts of the ministry had to tighten the belt. The program for the canteen allowance being extended to include remand inmates was not cost-neutral; it was going to cost an additional three-hundred-and-some-thousand dollars. The feeling was that we could not afford it, so, the information was provided to the Office of the Ombudsman that we would not be in a position to implement the change.
The financial situation hasn't changed. In fact, it's worse. In the fall of last year, we had to reduce the overall spending in the ministry, in the division, and the amount of money that was available in the canteen program was cut in half, so inmates went from receiving $10 to $5. The constraint situation is worsening, and we're currently reviewing the level of expenditures with a view to trying to find additional means of reducing costs. I have no sense at this point in time of how much money will be available for the canteen program, period, far less any changes to it.
The bottom line is that our position and our view has not changed over the years. We believe it is a rehabilitative program and it is tied in our legislation to sentenced inmates, and we remain steadfast in our view.
The remanded inmates do in fact have all their basic needs met. They have all core, essential requirements met: accommodation, clothing, food, medical attention, fresh-air exercise. They have the opportunity to participate in their spiritual programs. They have access to counsel. They have toiletries provided to them, and they do have in fact writing material made available to them. There is a differentiated amount of writing material available to remanded inmates from sentenced inmates, and remand inmates have additional visiting opportunities that sentenced inmates don't have.
So there is a distinction between the two categories of inmates in the access to programming, in the accommodation provided to them. Only sentenced inmates go to our correctional centres. There is not a single remand inmate in a correctional centre. We believe there is a distinction. The program of canteen allowance, in our view, is part of the rehabilitative programming which is provided to sentenced inmates and not to remanded inmates. I don't know if either of my colleagues have anything they would like to add at this point.
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Mr Kenneth Hogg: The one point I would like to make and emphasize is that this is not a situation where, in accordance with existing legislation, the ministry is doing something that the legislation doesn't currently provide for. The legislation in fact makes the distinction in that it calls for the payment of the canteen allowance to individuals who have been sentenced for more than 21 days, so any decision by this committee to make changes to the existing canteen allowance program would require legislative change, because the program is currently mandated by the regulations pursuant to the Ministry of Correctional Services Act. That was the only comment I wanted to emphasize.
The Chair: We have about four minutes per caucus. We begin with the opposition caucus.
Mr Hoy: Good morning. Do the remand inmates become involved in the laundries and kitchens and other areas along with or beside inmates serving the shorter sentences, as you described them?
Mr McKerrell: On very rare occasions. We do not exclude them from the possibility of participating in the kitchen or laundry, but it doesn't happen very often. The reason for that is that the remand inmates are what we consider unknown commodities, unknown individuals. They are under a lot more tension, and they're considered maximum security risk. Because of that, we do not allow them to participate, certainly in any program that is conducted outside. For example, we wouldn't put them on groundskeeping or anything of that nature.
But if a remanded inmate expresses the desire to participate in the kitchen or laundry, his or her situation would be reviewed very carefully from a security point of view to see if we were prepared to allow that. But it's a rarity -- I shouldn't say it's a rarity; it doesn't happen very often.
Mr Hoy: You mentioned that remand inmates are provided with core provisions and you mentioned writing material, but you said that within that there were even some differences in comparison to inmates serving longer time, convicted inmates. Do they receive more or less writing material?
Mr McKerrell: The remanded inmates have writing material provided to them; the sentenced inmates do not.
Mr Hoy: In 1993 you reached a compromise position with the Ombudsman. That was withdrawn because of financial constraints. You also said today that you're under the same difficulty. It would appear to me that the sole reason for not going forth is monetary and doesn't speak to fairness at all.
Mr McKerrell: The compromise position which was put forward at that point in time in a sense died at that point in time. The issue that remains is the ministry's view that the canteen allowance program is directed towards sentenced offenders, sentenced inmates. That is consistent. The money issue has in fact worsened since then and is still very much a factor.
Mr Hoy: But in light of the fact that the dollar amounts you're allocated for this program are changing and diminishing, isn't there some way you can allocate the moneys to both parties in question here? Surely that could be done. Even if the dollar amount was diminished by 50%, you could still put out those dollars equally to each of the participants.
Mr McKerrell: Yes, that's quite correct. The amount of money that's available could be divided six ways from Sunday. There are all kinds of ways in which it could be done. We looked several years ago at a range of options. I think there were half a dozen or more possible ways of doing it.
The issue really is, do we believe we should be extending it to remanded inmates? The belief is that it is for sentenced inmates, consistent with the legislation. If there was going to be a change made, if the minister or the ministry was of the view that it should be extended to remanded inmates, it would be a matter of determining how much money was going to be available, determining a mechanism or a formula by which that money would be distributed among all eligible inmates and then having the legislation changed and also changing the system. We have an electronic system that monitors and tracks this, so that would all have to be changed as well.
So there are two sets of changes that would have to be made: legislative, and the technological changes to administer the program. But the first and foremost thing would be the belief that it should be extended to remanded inmates.
Mrs Boyd: Mr McKerrell, I'm a little confused. You're claiming that this is a legislative change that's needed, and yet your presentation says very clearly that this is contained in the regulations that are pursuant to your act, not the legislation itself. Which is true?
Mr McKerrell: Sorry. It is a regulation change.
Mrs Boyd: So there's no legislation required here. All you have to do is go through an order-in-council process for a regulation. That's a very different situation from a change in legislation, isn't it?
Mr McKerrell: Yes. I stand corrected. I'm sorry.
Mrs Boyd: The second issue is this issue of remand people. You said that the median time that remand clients of the ministry are in custody is six days.
Mr McKerrell: For remanded inmates, that's right.
Mrs Boyd: But the average, the Ombudsman tells us, is 29 days. So this means there are some people who are there for a very long time in remand, and we can think of some examples, and others who are there for overnight or for a couple of days until they have a bail hearing. Is that correct?
Mr McKerrell: Some people remain on remand for very long periods of time. Those are usually offenders with very serious offences. Some are very short indeed.
Mrs Boyd: What proportion of remand clients of the ministry, what proportion of those in percentage terms, would ever meet the 21-day threshold?
Mr McKerrell: We have that statistic here. Just give me a moment to find it. I think it would be a small percentage, off the top of my head. I can find the exact figure.
Mrs Boyd: So the dollar amount we're talking about is very small.
Mr McKerrell: Approximately 58% of remand inmates are in custody for one week or less or are on remand for one week or less. The median is six days, and 82% of remands retain their status for less than 30 days.
Mrs Boyd: If you increase the threshold to 30 days, you would be talking about a very small number of these people being eligible for the allowance and therefore a very minor cost, a cost adjustment across. By lengthening the amount of time and so on, you could in fact spread this money around equally to these two parties.
Mr McKerrell: The money could be distributed differently, there's no question. The actual dollar amounts, we have different scenarios with the calculations that are done, so any particular scenario would have to be calculated out to see what the cost would be. But there's no question that the money could be distributed differently.
Mrs Boyd: Basically, you're saying it's the culture of the ministry that dictates whether or not fairness pertains in this case.
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Mr McKerrell: Those aren't the words I would choose. It's the position of the ministry that the canteen allowance program is part of the rehabilitative programming which is intended for sentenced inmates who are deemed to be in need of rehabilitation programming, whereas the remanded inmates have not been convicted of any offence yet.
Mrs Boyd: So they're treated unequally.
Mr McKerrell: They are treated differently in a range of ways within the division, the ministry.
Mrs Boyd: Does the new change that you're planning in terms of corrections mean that there will be fewer remand clients of the ministry incarcerated together with sentenced clients of the ministry?
Mr McKerrell: There is a range of options being explored with respect to diversion. All jurisdictions are looking at that. But of those who are in custody, the new institutions which we have in mind will have differentiated living units for different categories of population. There will be wings of the new institutions for sentenced offenders and different wings of the institutions for remanded offenders, so that when someone is sentenced they will move from one area of the institution to the other area of the institution. That's the planning that we're developing at this point.
Mr Jordan: Thank you very much for your presentation. I can't help but come back to the fact that there are two different situations here. You have a rehabilitation program for people who have been sentenced which does not apply to those who are awaiting trial, and so the difference in the allotment of the money. But there are many other differences there, as you have pointed out, in general life situations at the institution. Because I'm waiting for trial, naturally some of the differences, or call them favours, that I have do not apply to the person who's already been sentenced and serving a period of time.
It's also been noted that 60% of this money is spent on tobacco products, which we generally speaking are not promoting the use of, relative to health care and so on.
I find it a little difficult that we are spending this time and money over such an item. I can't see the item being of a major concern in any institution, from the material that's been made available. I find it difficult to accept that since 1993 the previous government was attempting to review it and apparently set it aside on a financial basis and now it's being brought to light again under the same or worse financial conditions.
My feeling is that the victim doesn't seem to be of interest at all. For each person who's in there, somewhere there is a victim or circumstance or something that's happened that's against the law, and we're concentrating time, effort and money on such a minor thing as a $5 canteen allowance. That's my personal feeling.
Mr Doug Galt (Northumberland): I have been in a couple of the jails, and I'd just like to review for a second the --
Interjection: How long?
Mr Galt: No, visiting. Short stays.
I'd like to review the segregation. In a small jail, my understanding was that they were in different cell blocks, those who were under remand versus those there for short sentence. Is that consistent in the various jails?
Mr McKerrell: Sorry. You referred to segregation. Would you be good enough to repeat the question for me, please?
Mr Galt: Is there always segregation of those under remand in different blocks of the jails and therefore they really don't mix and discuss the different conditions they're serving under and the rewards they receive?
Mr McKerrell: Not as a rule. Particularly in the smaller institutions, there isn't the space to differentiate the inmates to any great extent. The inmates in the smaller institutions are usually distributed in the building according to their ability to coexist effectively. If there are serious offences involved which would put the inmate at risk, then those inmates would be kept apart from the general population. In the smaller institutions where space is very limited you do not normally find the differentiation according to remand or sentence status.
In some of the larger institutions, you have some wings that are set aside for people going to court, and inmates are moved in there so that it is less disruptive to the inmate population as a whole when they leave early to go to court.
Mr Galt: One last quick question. It seems to me the concern here is equality: one group getting the $5 canteen allowance, the other group not getting any. Have you considered, as a ministry, just simply not giving any canteen allowance to any of the inmates?
Mr McKerrell: Yes, we have.
Mr Galt: That would be equality.
Mr McKerrell: Well, yes. That is something that has been looked at as a constraint measure and it's something that may yet be looked at again as a further constraint measure, but at this point in time no decisions have been taken on that.
Mr John R. Baird (Nepean): I just have two quick questions. I want to thank you for coming this morning. In 1993 this issue arose. Did David Christopherson and the previous NDP government take any different position than the current government with respect to resolving the issue?
Mr McKerrell: Mr Christopherson was fully aware of and in support of the position that the ministry took in 1993.
Mr Baird: The second issue is with respect to -- and this is a difficult issue we deal with in virtually every public policy field -- your fiscal resources. Should they or can they play a role in your decisions, even with regard to fairness?
I look down at my three colleagues to my right and I can imagine that their school boards, for example, are probably similar to mine. The school teachers in my school board, and in a number of members' here, don't make the same as teachers in the city of Ottawa or the city of Toronto. The students there get 40% less in some cases than students would get for their education. So there's a consistent inequality among a whole host of public policy areas.
Some areas have per capita policing. In my community, for years we had one police officer for every 900, where the city of Ottawa had one for every 600.
In every public policy field there's a gulf between what you'd like to do and what you can afford to do, and I suspect it's the same for many families. Are there any policy decisions you make which involve the expenditure of funds where you don't take into account what you can afford?
The Chair: Thank you, Mr Baird. That effectively consumes the time we've allocated to this portion of this morning's proceedings.
Mr Baird: Can we give them one minute just to respond?
The Chair: Oh, you're so persuasive. One minute.
Mr Froese: He wants fairness.
Mr McKerrell: I think we have to be very, very practical about it. Everything we're doing within the ministry as a whole, all the divisions of the ministry and certainly the correctional services division, is under scrutiny from the point of view of what it costs. Is it something that should be provided, should be done? Can it be done in a different way that is less expensive and yet still meets the need? So one has to say very frankly that everything we do is done with one eye on what we're doing and one eye on what it costs us to do it. That's the reality we're living in.
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The Chair: Thank you, gentlemen. I'll invite the Ombudsman now to reappear and respond to any of the issues that arose during the ministry's case.
Ms Jamieson: I'll be very brief because I think we've had a good canvassing of the issues. First, on the question of rehabilitation which continues to be raised, a work program for which inmates receive nominal pay is rehabilitative. When this program changed from the IAP to the CAP program that's been a subject of this investigation, work was no longer a criterion for the receipt of the allowance. The allowance is not rehabilitative. It has nothing to do with rehabilitation. There are lots of other programs or a number of other programs that the ministry has described that are about rehabilitation.
Secondly, it is a fact that inmates on remand and sentenced inmates are housed together. We can list such centres in this province. We have jails; we have detention centres. Both of these routinely house both remand and sentenced inmates. We also have correctional centres. On occasion, if they think, for example, an inmate is going to be held for 60 days or more, they may also hold them there before they get to court.
Third, on the question of money, by the ministry's own calculations, in 1992 they looked at the program and said: "If it were seven days eligibility, what would it cost? If it were 14? If it were 21? If it were 30?" At 21, their own calculations, which I would say even then were generous, were something like $270,000. The break-even point, according to their calculations, was 30 days.
This is not about money, and the extent to which we keep returning to money and allowing the ministry and the government to rely on this question of fiscal resources is the extent to which we're putting a price on the right of inmates to be treated fairly and is the extent to which we're disregarding our obligations in this province, in this country and internationally. The United Nations has been very clear on this, and I'm not proud to say that I've discovered that in my own province we're not living up to these standards. That's the case, pure and simple. It's fair treatment for people who are incarcerated.
The Chair: I want to give each caucus two minutes to follow up with any questions they may have arising from your comments, beginning with the third party.
Mrs Boyd: Following the failure of the compromise in 1993, did you have further discussions with the then Minister of Correctional Services?
Ms Jamieson: I didn't personally. We had further discussions certainly with successive deputy ministers trying to solve this, because in 1993 it was clear they understood the point. They were willing to make the changes necessary. They were not insurmountable changes. The regulations are easily amended and there was a willingness to do that.
Mrs Boyd: I would reiterate that it was certainly my understanding that that was the policy of our government, to resolve it, and I am surprised that wasn't done. I was surprised to hear that this had got to this point, that it still hadn't been done.
Ms Jamieson: Well, I remain hopeful. I was hopeful then and I am hopeful now that the change will be made.
Mr R. Gary Stewart (Peterborough): Two questions. Did I understand you to say that work was not a criterion for this allowance? That's what you feel this should be, that you should just get the allowance, period?
Ms Jamieson: No. I'm saying there is no connection in the current allowance of work to this allowance.
Mr Stewart: Okay. That's not your feeling, though. You're just saying that you don't have to do any work but you get $5 a day, or whatever it might be?
Ms Jamieson: The goal behind this program was to provide assistance to inmates to purchase some items. Frankly, the ministry discontinued providing things like deodorant, after the initial issue. It was also to promote positive conduct. I'm saying that has nothing to do with rehabilitation. It is not connected to work. It is connected to providing assistance to people on a fair and equal basis to promote positive conduct. We're talking about half of the population here.
Mr Stewart: I look at a list we have here of free issue items, so really the necessities -- I was going to use "the necessities of life," but maybe those aren't the words to use -- of hygiene etc are being provided free now. The canteen allowance, as Mr Jordan says, goes either to tobacco products or a chocolate bar a day or a week or whatever. That's basically what this money is for, is that right?
Ms Jamieson: There are other things. For example, when you go into a facility you're issued very modest writing paper, and thereafter you have to buy it. Unless you're writing to me -- you can write in a blue letter and it's sealed and it comes out to me -- you can't without purchasing it. Many, many people who are incarcerated or are on remand are without any funds. That's why, as I described earlier, they're subject then to having to barter to gain access to the goods they require, because they don't have the allowance. That feeds into a very unhealthy cycle which can involve extortion and ultimately violence.
Mr Hoy: The issue here between your office and the ministry appears to be one of the principles of fairness versus financial constraint. I'm going back to the 1993 agreement and what happened there and why we are here today. Overall, though, I want to ask you, do you believe the CAP program is a valued program for those who are receiving it, notwithstanding your view that it's applied unfairly? The CAP program itself, do you believe it's a good program?
Ms Jamieson: I certainly think if you ask the inmate population, they would say it's a valued and important program. I recognize that in the institutions, because I see what would happen without it. That being said, my concern in this case is fairness in the application of the program. What government decides to do in future in its policy decisions about the provision of programs is up to government. My business is: If you do it, are you treating people fairly? In this case, they are not.
Mr Hoy: But would the removal of the CAP program for all people be viewed as a fair way to remedy this particular problem?
Ms Jamieson: I think then you'd be faced, obviously, with requests to provide the materials that you would no longer be able to purchase, things like the writing materials and so on. Whichever way you do it, there are recognized needs that inmates have, whether they're on remand or sentenced, that would need to be responded to.
The Chair: Thank you all very much. It is the custom of this committee to revert to closed session at this point, and I propose we do that now.
The committee continued in closed session from 1018 to 1027.
The Chair: I'm waiting for the clerk, but I guess there's no reason why we have to, so let's just get on with it.
We have just heard the submissions of the Ombudsman and the ministry on the matter before us. I am opening the proceedings to discussion. Do we have a motion?
Mr Baird: I move that the committee not accept the recommendation of the Ombudsman.
The Chair: We have a motion that the committee not approve the recommendation of the Ombudsman. Any debate?
Mr Jean-Marc Lalonde (Prescott and Russell): Yes. If we look at fairness and if we look at having everybody treated fairly, the fact that they all participate within the same quarter, we could call it, or same area, they participate in the same recreational activities, they also participate in some of the work in the kitchen or the laundry, I really feel that the recommendation the Ombudsman has come up with should be supported.
Mrs Boyd: It is more, I think, if we listen to the presentation of the Ombudsman, than sameness. The United Nations agreement is that if people have not been convicted but are incarcerated pending a trial, they ought to be seen to be treated differently and better than those who have been convicted.
The issue is not just treating everybody the same, although by having the allowance, whatever amount it might be applied equally across the board for everyone who's incarcerated past the certain threshold of time, that might be the effect. The issue here is our obligation to recognize very clearly that people who are on remand have not been convicted, that we are signatories to a convention that says those who are not convicted ought to be treated better within our prison system than those who have been convicted. Otherwise, what we are doing is, I would suggest, offering a greater level of punishment.
Going without this allowance means going without any of the things that an individual person might decide are necessary to them that are available in a canteen. Those might be personal hygiene products and in many cases are; it might be writing paper; it might be a chocolate bar or a tobacco product. The issue is, if you haven't been convicted of a crime in this country, you ought to have access to those kinds of things. Many of those people are never subsequently convicted. If they meet that threshold, and we heard Mr McKerrell say that only a small percentage of remand people would ever meet the threshold, then it doesn't seem to me to make much sense.
I would also say to you that it is very clear that the ministry officials have a strong view around this issue and that their view, as we have seen in many cases, unfortunately, in the recent past, has prevailed over the will of the government. I think it is unfortunate that the compromise that was reached in 1993 wasn't put into place, even if that meant a change in thresholds or a change in amount of money available. The rehabilitative issue is an issue for the ministry. It is their view that that's how this program should be. The government can change that. Nobody ever was rehabilitated for $5 a week. That's not the issue. The issue is trying to maintain some level within a prison system of those who are there incarcerated together not being able to compare and to see that those who haven't been convicted are disadvantaged in relation to those who have been convicted, and that's what happens.
Mr McKerrell was very clear with us all. These folks are incarcerated together. They're in the exercise yard together, they're in the dining room together, and it is very clear to those who have not yet been convicted that those who have been convicted are being treated better than they are with respect to the canteen allowance. I would really urge the government to understand that that's a serious matter, and I would urge you to vote against the motion.
Mr Stewart: Just an interesting comment, that things are not a great deal different now than they were back in 1993 when this was looked at. This was postponed indefinitely due to fiscal constraints and the introduction of the social contract cuts. The situation we're in now is certainly not different from what we were in back in 1993, under the previous government.
The one thing that concerns me is that we've heard a lot about equity and everybody has to be treated the same. I believe that everybody is being treated the same. Those who are incarcerated over 21 days are treated the same; those under are treated the same. I don't think there is any inequality whatsoever.
The concern I have, and it's been answered for me, is that the necessities of life, ie, for hygiene etc, are issued free in the institutions. I was thinking the other day, as I toured one, that we're going to have a great influx of people into these facilities because it will eventually be the only place in this country that you can smoke. It was interesting to see the inmates smoking like crazy and yet shortly after, a day or two after, I happened to be in a seniors' home where they're not allowed to. If you want to talk equality, then I think we better look at the whole situation in the country.
I am certainly going to support the motion, because I don't believe they are being treated unfairly and again because the cost factor is no different today than it was back in 1993, when it was indefinitely put on hold by a previous government.
Mr Hoy: Interesting comments from across the way. What we have here is a principle of fairness, and I believe it's being challenged in its delivery by a financial constraint at the current time. We're trying to put a price on the delivery of fairness, and I don't think that's the way we should rule in this matter.
The other point, too, brought up from other questioning earlier today is, in this question of fairness, we have participants in a plan who have no negotiations into the decision. I think there is a role for us to play, whereas in other situations people may decide themselves collectively what for them is fair and what for someone else in another area of the province is fair. However, in this case, to the best of my knowledge, the participants in this plan have no negotiating rights to decide themselves within their community what is fair for one segment of the population or the other. It's clearly a matter of fairness and one that is being challenged by financial constraint. I would oppose the government motion.
Mrs Boyd: You'll be surprised to hear that I agree with you: There ought to be some constraints on smoking in those institutions. In fact, our government took some actions that did constrain the smoking to some extent. I mean, there was a time when cigarettes for prisoners were, if not free, certainly considerably less. Going on to the regular canteen issue, where the cost was the same as it was to anybody else, made a bit of a difference. I don't disagree with you on that, although I quite disagree with your notion that anyone would be beating down the door of a prison to enter in order to smoke. That really gives people the impression that being in prison is no different from being in the rest of the world. It's quite different. You lose your freedoms. As Mr Hoy suggested, you don't have negotiating power. To compare this, as Mr Baird did, to the ability of different teacher groups or different municipalities to negotiate and decide upon different things is simply not a very fair comparison. It doesn't work, and it has nothing to do with the particular issue.
I will say this: I cannot speak for the former Solicitor General and Minister of Correctional Services, but I was a member of a government and a member of a cabinet that made a decision around this to seek equity between these two groups of prisoners. I was not aware that the decision of the ministry, with the constraints, was to subvert this, and I believe that was not necessary to meet the constraints. All that was necessary was changing the mix of the program, and there had been a great deal of research done to show how that mix could have been changed to stay within the same cost constraints.
This program, this decision, was subverted by a decision of the ministry, to which the minister may have been party or may not -- I cannot comment on that -- because of the belief of the ministry that CAP had something to do with rehabilitation and therefore could only apply to convicted prisoners, and we heard that today. That is the belief of the ministry, and that is the basis for their presentation and the basis for their decision. But I assure you, it was not the understanding that was originally there for me as a member of the previous government, and it was not my understanding that this agreement to treat these two groups equally, even if that meant a lowering of the allowance, had been made.
Mr Baird: In response to my colleague from London Centre, when I talked about the issue of education funding, I was just using an example of where public policy doesn't always achieve fairness, that a child in Nepean or a child in Napanee or a child in Kingston township might get less resources from the government to obtain an education than they would in another jurisdiction. I think that is the same in virtually every type of public policy field. Obviously, we'd like a degree of fairness across every public policy field, but regrettably, due to financial constraints, I assume, with the last three governments of all parties, there's a whole host of inequities that remain. I think it's just an example that we do have to make some choices. When we have limited resources available, we do have to make choices on how we expend them. Regrettably, who has to pay and how much we can pay has to form part of our decision with respect to every decision we make, like it would in every family or every small business or every trade union across the province of Ontario.
It is worth noting, though, that this issue wasn't resolved in 1993 and that the cabinet at that time may or may not have discussed it and sought to resolve it. But the minister of the day, Mr Christopherson, who's a fair and reasonable fellow, was the minister for two years after that sad decision was made and the issue didn't change. I suggested that, regrettably, Mr Christopherson had to come to a decision with respect to what he could afford with the resources made available to him. We wouldn't have the Ombudsman before us today bringing this issue up if it had been resolved back in 1993.
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I just have one other point I'd like to put on the record. We're not saying that individuals don't have access to that tobacco product or that chocolate bar, the examples brought up by the two previous members; it's should the taxpayers of Ontario be responsible for purchasing that chocolate bar or that tobacco product for someone in our institutions? I think it's a fair and reasonable assumption to say that, regrettably, with limited finances, we don't have the money to extend that program beyond where it is today.
I notice in the documentation that the canteen maximum is about $40 a week, so there's considerably more room even above that amount. If a prisoner was of a certain financial means, they could meet that by eight times the $5 allowance, which suggests there's going to be an inequity in the system as it is for someone with greater financial means who wanted to smoke more than $5 a week would allow.
What we're saying is that if someone incarcerated wanted to purchase it, they'd have to do so with their own money. There would be a user fee for tobacco, a user fee for smoking, a user fee for consuming chocolate bars, something I don't think my constituents would have a terrific problem with.
Mr Hoy: I think the government side is somewhat mixing the issue here. It's not what these people are receiving, it's who is receiving what. It's not whether they get chocolate bars or any other item you want to mention, it's who is receiving this. Some are, some are not.
I think you're clouding the issue when you drag in the purchases of what material and what items these people may buy. The question is applying the program on an equal basis. To bring in the realm of what these people are purchasing is not the question; it is the delivery of the program on an equal basis. I think you're clouding the issue by bringing in whether the program is worthwhile. That's not the question here. It's the application of an existing program and whether it is fair or equitable.
Mrs Boyd: I certainly agree with Mr Hoy that it is none of our business, if this program exists, what an individual buys with the amount they have, if they have an amount. The issue really is that those who are convicted get it under the current program. Those who have not been convicted, who've been remanded, don't.
Who gets remanded? For the most part, unless it's a very serious matter for public safety, the people who get remanded are people who do not have a job, do not have a permanent residence, do not have a permanent attachment to the community. So when my friend from Nepean says that people can have their own resources, they can use their own money, the people who get remanded are far less likely than the average person in the population to have any private money. That's why they're remanded, because they can't show an attachment to the community that will ensure that they appear for trial.
We're really looking at the systemic nature of this discrimination. We're not only looking at those who are not convicted being treated more unfairly than those who have been convicted, we're also looking at who gets remanded. We have many studies showing that in Ontario there is a very disproportionate number of people who are remanded who are already severely disadvantaged in our society. So we're looking at a double disadvantage here for people who've been accused but have not been convicted. I think we need to take very seriously what we are saying if we think that's okay and that a financial restraint is an okay reason for us to discriminate on that basis. It's a very serious matter.
Mr Bill Vankoughnet (Frontenac-Addington): I've listened very carefully to both the presentations of the Ombudsman and the ministry. Certainly the question of equity and fairness is paramount and secondary should be the cost element. Whether you're on bail, parole, remand or whether you've been convicted and you're a longer-term inmate, I believe there should be fairness and equity.
I believe, because there are different categories of people who may be pre-trial or post-trial, there are different types of accused or people who have been through certain stages of the courts. I believe if you treat people who are on bail within certain parameters, people who may be on parole within certain parameters, people who are incarcerated but are remanded -- they're a certain group -- there's fairness within that group and fairness within the group who have been convicted. I believe that's what we should be looking at. So I will support the government motion.
Mrs Barbara Fisher (Bruce): I do apologize for not being able to be here for all of this. I was in another committee. However, I did take the time to prepare for this.
One of the glaring absences, if you will, is of the statistical backup to support some of the things that have been said by all members present here today. I don't see anything in here that tells me that those on remand are highly unemployed or highly unable to support themselves and this type of thing. I don't see the statistical data. It may be a fact, if that's a fair comment, but I think my comment is also fair. If that was supported in here, maybe it would have been easier for me to see and support that statement. I'm not positive that's the case.
I also wonder a little bit about the bigger picture here. I don't really want to opinionate, nor do I think we should be opinionating on what somebody buys with this allowance. How somebody chooses to spend their money is their responsibility and their right, and nothing, quite frankly, to do with us.
How they get the money obviously has something to do with us. The history of this situation over governments is that there was a need and a reason in the past to look at whether government should be affording anything to purchase somebody's other-than-personal-care needs. Some people would consider those frills, some wouldn't, but I would support Mr Stewart's statement that in fact personal needs are taken care of. So now we're looking at something that's above and beyond that. In the bigger picture, one should question government's responsibility for buying that for somebody.
In saying that, I think the report also would have been helpful, from my perspective anyway, if it demonstrated to me how many dollars per year are spent on average by prisoners, whether they be a remand client, if you will, or an incarcerated accused-and-found-guilty client. How many dollars are really spent? In reality, are we talking about them spending $5 a week or are we talking about them spending $40? I don't know.
I can't bring any significance to the argument here, and I think we should be doing that. Yes, we look at the rights, but we also have to look at the economic impact and our responsibility on behalf of taxpayers to spend for what some people in the public would perceive to be a frill. Having said that, I don't have an idea based on the information I have here today that tells me they're actually averaging more than five bucks a week.
Having said that, and with the absence of that information -- not that it would make a difference, but I think it should be taken into consideration -- I would have to support the government motion because of that.
The Chair: It's not a government motion, it's Mr Baird's personal motion.
Mrs Fisher: I'm sorry, the motion before the committee right now. I stand corrected.
Mrs Boyd: Very briefly, I would refer the member for Bruce to the Commission on Systemic Racism report, which gives a very thorough discussion of who ends up on remand, who doesn't get bail prior to trial in this province. It's a very thorough study of that.
The Chair: Further debate? I am prepared to call the question then. Any objection to the question being called? The motion that's been placed before us is that this committee do not agree with the Ombudsman's recommendation.
Mr Baird: Could I ask for a recorded vote, Mr Chair?
The Chair: A recorded vote has been asked for.
Ayes
Baird, DeFaria, Fisher, Froese, Galt, Jordan, Stewart, Vankoughnet.
Nays
Boyd, Hoy, Lalonde.
The Chair: I declare the motion carried. Thank you all very much. There will be a five-minute recess.
The committee recessed from 1050 to 1104.
REVIEW OF THE OFFICE OF THE OMBUDSMAN
The Chair: I see a quorum; we'll resume this morning's proceedings. I just want to comment that we will adjourn at 12 o'clock, but I would like to summon a brief subcommittee meeting after the main committee breaks.
We are now here to consider the 1993 report of this committee and we are now commencing the public hearing process. We're beginning with the Ombudsman, who is appearing before us this morning.
Ms Jamieson: Good morning once again. Bonjour. Sago to you all. I appreciate the opportunity to be the first witness in your public hearings. I know today we're here to review the recommendations of the 1993 committee's report, along with the revisions to that report which this committee has put forward.
I think it's worth noting at the outset that a report prepared three years ago may not accurately reflect current circumstances, and I think it's evident, particularly in areas where practices have changed. It may also be the case that changing membership of the standing committee and the evolution of the relationship between the Ombudsman and the Legislature will have some affect as well on our discussions.
In my presentation today I will identify for you the positive aspects of the 1993 report and the working paper and address areas where I think we can work together to strengthen the role of the Ombudsman. Having said that at the outset, I do, however, want to record my very grave concern, and my very grave concern has to do with a number of the proposed changes to the relationship between my office and the Legislature.
There are several recommendations in the report which present a direct challenge to the independence and integrity of my office, of the Ombudsman as an institution which is empowered to protect and to protect the public's right to fairness in the administration of public service.
Every day my office receives enquiries and complaints from people who feel they've been mistreated by an agency of the provincial government. They're people from all walks of life, and many of them are among the most vulnerable in our society. They are persons with disabilities, they're seniors, they're people who are economically disadvantaged, and others who depend on government services.
When these people come to my office with their complaints, they are seeking a court of last resort, one which they can trust to be impartial, to be fair and completely independent of outside influence.
We all know that the origin of this institution, the whole concept behind the Ombudsman, has to do with the right of complaint. The right of complaint to an independent officer of the Legislature provides a way to hold government accountable to the people. If the public is going to perceive this right as a genuine feature of our democracy, they must be assured that their complaints can be made without fear of reprisal and to an Ombudsman who is independent, and independent not only from those agencies they're complaining about but independent from government as a whole and independent of the political influences of the Legislature.
My ability as the Ombudsman to conduct investigations thoroughly and to issue recommendations that provide a remedy for unfairness are the basic tools I have, and they embody the independence of my office and they also serve to protect the credibility of this institution.
In my view, the effect of a number of the committee's recommendations would be to dramatically alter the existing arm's-length relationship with the Legislature and to replace it with a regime that establishes the standing committee as a board of directors and the Ombudsman as an employee of the board.
Given the present structure of the standing committee, comprised of a majority of government members, such an arrangement would make it impossible to avoid both the appearance and reality of a fundamental compromise to my independence. The door would be opened, and opened wide, for government, through the standing committee, to exercise direct control over the Ombudsman's office, over my investigations, my finances and general operations. In those circumstances the public would quite properly lose confidence in the credibility of the institution.
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Twenty-one years ago the Ombudsman was established by an act of the Legislature, and that clearly set out a reporting relationship to the assembly. The act holds me as Ombudsman accountable through a requirement to report annually and, by discretion, to report on any investigation which can't be successfully resolved through a minister or the Premier.
That legislation allowed for a relationship to evolve between the standing committee and the Ombudsman which has been characterized over time by a more or less creative tension. Each of my three predecessors experienced at one time or another a degree of conflict relating to the relationship between the committee and the Ombudsman, and each was engaged in ongoing attempts to reconcile the issues of independence and accountability.
This review then, for me, looking back, is the latest stage of a long and continuing effort to provide certainty and clarity to that relationship. Perhaps, and it's my hope, we're finally about to achieve a positive resolution. I would certainly like to put on record my sincere commitment to do everything I can to promote a good working relationship, a cooperative one, between my office and the standing committee.
In particular, I want to emphasize my own desire to make this review process work. I hope we can agree, as a basic point of departure, on a common goal of strengthening not only our relationship but also the basic principles and functions of the Office of the Ombudsman as an independent institution. If together we can meet that objective successfully, it will certainly benefit the public.
In trying to establish what I believe are the main reference points -- and there are 44 recommendations -- I have broken them down into eight themes and organized them into categories under these themes, and I'd like to deal with each of the eight themes in turn.
The first one has to do with the annual report and the "Ombudsplan." Now, as we all know, the annual report is a pretty key focus for my activities as Ombudsman every year. It's a main vehicle through which I can provide to the Legislature and the public some basic information about how I'm fulfilling the mandate. It's also an outlet for me to report on trends I see in complaints, concerns I have about government's responsiveness and the responsiveness of public officials to solve complaints. It also allows me an opportunity to set the direction and the agenda for the coming year, and also to raise issues that I feel are worthy of the attention of the Legislature.
There is a requirement in the act for me to table that report and it is a key accountability check for the Legislature. It's therefore crucial for me that that report be thorough, be accessible, and be informative as a document.
The recommendations that respond to this, that the committee has put its mind to, are recommendations 4, 36 and 37. They provide for suggestions on information that should be included in the annual report. These proposals are certainly welcome. They reflect the value of our ongoing dialogue and what can be a good working relationship between my office and the committee. I should note that much of the specific information that was requested in these recommendations three years ago is already provided in our annual reports. I would refer you to the most recent one that was tabled in June.
Recommendations 31, 33 and 35 also address the topic of the annual report but raise some issues that require closer examination. My suggestion on this is that we establish a consultative process between us so that the committee can share with me its feedback on an ongoing basis on the content of the annual report and raise any issue that you feel should be addressed. In turn, I would have the opportunity to let you know of any constraints that might apply in my ability to include those in the report.
Let me turn now to recommendation 31. This is one that you have revised in the working paper. I think this serves as a good example of where dialogue would be very important to have. The recommendation as it's been revised suggests that all tentative and final reports be described and included in the report. Generally, I think this is an excellent idea. Certainly it's an excellent idea to report the outcome of these kinds of cases. Much of the success of the process, as you know, is really about public servants responding positively to tentative reports and final reports and making the improvements in the administration that are necessary, correcting unfairness and so on. I think you should know about those as well as the public.
There might be, however, a rare occasion where it would not be advisable for me to include a particular case. Let me give you an example. There may be a particular case where the circumstances are widely known, may have been the subject of public attention, a lot of press, and they may be specific to a particular individual. It would be very difficult for me to report that case without offending the confidentiality of that individual, so I would want the discretion to exclude that case. Those occasions, I think, would be very few and far between.
There are also, as you know, restrictions in the Ombudsman Act itself which don't allow me to publish the actual tentative report. This is a technical problem but one that I think should be raised. By definition, these tentative reports are an interim step in the investigative process. I give these to the ministry. They may give me more information. Those reports may be altered. So while I can't publish the actual report, which the recommendation as it's currently worded asks me to do, I certainly can and would report the substance, the content of the issue on those cases, and I certainly would be happy to provide numerical summaries of how many there are, what happened to them and so on. I think we can do that quite easily.
From my own experience, there are very good reasons why the Ombudsman Act provided for the Ombudsman -- myself -- to have discretion in deciding what to put in the annual report itself. While I am very willing to be as responsive as possible to the committee's requests regarding the information you want to see in those reports, I cannot concede that I have the final responsibility for deciding what will be contained in the report.
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Recommendations 2 and 26 under this same theme refer to an Ombudsplan. Here again, the idea of sharing my goals and plans for the year ahead with the standing committee is a good one and I'm very happy to respond to that. In fact, we already have a process of developing plans against which our outcomes are measured and we use those results and those plans and those objectives as the content for the annual report now. Those plans set out the operational objectives for the fiscal year, and I have no difficulty sharing that with the committee. Beyond that, I'm not quite sure what you mean by an Ombudsplan and I would welcome any clarification.
If what you are asking for -- let me put it this way: It would not be possible for me to share what my investigation priorities are for the coming year, and I don't think you'd expect me to do that. I should also add that any plans that are presented in this exchange of information I would happily do, aside from investigation plans I'd provide as an exchange of information but not for the committee's approval.
To summarize on this main theme, then, I'm very open and indeed solicit the views and input from the standing committee about the activities reported on annually. I agree to share my own plans as part of an ongoing dialogue between us. Given that I have not received an invitation to discuss the annual report with the committee for a number of years, I welcome the opportunity to increase the frequency of our contact.
The second theme I would like to cover of the eight has to do with public education. As you know, getting the message out to the public that the Ombudsman exists and helping them understand and be more aware of their right to complain, along with information of how and when to do that, is a very key part of my job. We do our best in that regard, with limited resources of course. Certainly we're under increased pressure given that we faced a 20% cut in the allocation to our office this year, but in general, and with that constraint, I always agree that more can be done.
For some time we have in fact focused our public education strategies towards those people who are least likely to know about our services and often, ironically, are most likely to need them. We did a survey a few years ago which told us the people who needed us most were least likely to know we existed, so we set about strategically changing that picture.
Recommendation 3(b) in your report suggests using already established communication channels of government organization as a good way of letting people know that they come to us. That certainly is used successfully in a number of settings. I'd like to see more of it and I'm happy to cooperate with that.
In general terms, then, with the qualifications I have outlined, I agree with the intent of recommendation 2, recommendation 3(a) and 3(b), recommendation 4 and recommendation 5.
I should further qualify, though, the approach of recommendation 5 in amending the act. As with a number of other topics, an amendment may be worth considering if the act is being changed for other purposes, but an amendment, in my view, is not necessary to accomplish the goal in recommendation 5. In that goal, you're proposing that the act be amended to provide that the Ombudsman may engage in public education. In fact, we can and do that each and every day. It's an integral part of our service and I don't think an amendment is necessary. If, however, amendments are to be considered, it would certainly underline the importance of this activity and I would be pleased to see it, provided it wasn't worded to be limiting as opposed to expansive.
The third theme I'd like to turn to I've grouped under "Changes to the Ombudsman Act," and there are a significant number of recommendations that call for changes. I hope, as we discuss over the next period of time, we can reach agreement on which ones can go forward in an amendment process. It's not, of course, my place to speculate whether it's realistic to expect that these changes will get on the legislative agenda, but I know there are uncertainties associated with that process as well as you do and therefore I would suggest that we focus a lot of our attention on the changes we can achieve without amending the act, at least at first.
If on the other hand amendments are felt to be necessary and the assembly agrees to devote time to considering amendments, then I think there is a need for a process to ensure that the words chosen and the statutory language that is picked are the right ones. Some of the topics in that discussion might also need further clarification.
Let me give you an example. Recommendation 13 in the committee's report refers to outlining the jurisdiction of the Ombudsman by schedule, in other words, listing the government organizations about which I can receive complaints in a schedule in the act. In my view, the current wording of the act is quite broad and I think it will suffice for most purposes. If we were to put everything in a schedule -- the change that one minister announced yesterday on the changed name from Workers' Compensation Board to the new name -- it would be very tough. We'd have to keep changing the schedule every time something was restructured, reinvented, renamed.
My suggestion would be that we have the broad definition kept in, but then a provision to add areas by schedule. So you'd keep both: the broad definition with key tests for characteristics of a public agency, and then listing by schedule. Of course, as you know, the things that I would see listed in the schedule are organizations such as those being talked about to deliver public service through private means. I've written a letter to a number of ministers on this subject and I've shared copies with members of the committee.
If, for example, government decides to provide hydro through a private agency, or any other service through a private agency, it would be important to preserve the public's right to complain if that service wasn't up to standard and for the public to complain to an independent agency outside government. Schedules would be useful to list those extra agencies that didn't fit the broad definition. That's the kind of discussion I think we ought to have to find areas of commonality on the recommendations that you've put forward.
In addition, if the act is to be opened for amendment, I also would like an opportunity for input about changes that I think are important, having worked with the act now for seven years, and changes that would streamline and make more efficient and accessible the Ombudsman process. I'd be very pleased to bring forward a discussion paper with proposals of that nature if the Legislature pursues the amendment route.
Again, I think in this theme there exists a wide area for us to reach potential agreement, where we can work together to clarify and come to terms on some improvements to the act that will govern my work. I welcome to talk more about these in detail.
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The fourth theme of the eight themes of the recommendations I have given the heading "Terms of Reference and Role of the Standing Committee" because much of the report speaks to this. Now, while I'm satisfied with the current outline of the relationship between my office and the standing committee and the existing terms of reference, I recognize that the committee would like to seek revision, and I note that recommendation 44, and to a lesser extent recommendation 18, summarize the changes to the standing orders that the committee was seeking.
Most of my concerns about the specific changes that are in your recommendation 44 I'll deal with under another category which I'm calling "Monitor and Review." I won't repeat it twice, but as a general observation I believe it would be most useful if we can work at establishing agreement on our respective roles before any further changes are made. That will give us, together, a shared understanding and agreement on the basis for our relationship.
For my part, I want to be very clear: I see no conflict between preserving the independence of the Ombudsman institution and providing for a measure of accountability to the Legislature. The Ombudsman Act is very clear in setting out the framework within which that relationship between the Ombudsman and the Legislature is defined. There are two points of contact and both involve a reporting procedure by the Ombudsman to the Legislature. The first is the annual report and the other, which we experienced this morning, allows me an opportunity to bring forward cases where recommendations for action have been denied by a minister and by the Premier, and those cases recognize the ultimate authority of the Legislature in finally disposing of the special cases. They recognize that the cases are brought to the public's view through the elected representatives.
In order, though, for us to achieve clarity in our relationship, I need to understand your present goals and objectives and you need to understand the thinking behind my responses to your proposed recommendations. I think if we can accomplish that, we'll have not only bolstered the role of the Ombudsman but we'll have created a very clear basis for the standing committee to be the effective liaison between the Ombudsman and the Legislative Assembly as a whole.
Now, the fifth theme has to do with rule-making and I've divided this into the process of rule-making and the content of rule-making, and you have a number of recommendations under this theme. First, the process. Not very many people would disagree that rules are generally not very helpful, either because they're so vague as to be unhelpful or, more likely, because they tend to be limiting. The more rules you make, the more limited will be the flexibility that the Ombudsman has, that my office has, and that's one of the key features of this process.
The flexibility was originally given to the office so that I could, as Ombudsman, adjust to the changing needs and the changing circumstances. The more formality one brings into it, the more limited that will be, the less likely there will be room to adjust to meet the needs of the people who are bringing their complaints forward.
If, for example, the rule-making was proceeded with, I would be very concerned about the limiting effect. I would also be concerned about the content, particularly if the rules attempted to direct the investigative process. Here again, I think if you have rules made by the standing committee, the public would be rightly concerned to see a committee of the Legislature, the majority of whom are government members, bringing forward such a proposal. In such a case, it would be very difficult for me to defend the integrity and outcome of my decisions as being independent.
With that said, I want to focus on a process for consultation should rules be considered. I think I've been very clear that I don't think rules are necessary and indeed there's real danger to them. If, however, the Legislative Assembly wants to proceed with rule-making, then I would like to encourage you and urge you to establish a process for consultation when you're thinking about proposals for rules.
Your recommendation 27 is of the view that I should be consulted as Ombudsman, and that's a very good start. But before we start examining the need for particular rules, there should be a process for us to identify the need for a rule, what information should be considered and how that information is to be obtained. Recommendation 34 offers an example where such a process would be necessary. In my view, we should also establish, if rules are to be made, that they should be made generally to assist the Ombudsman and my office in performing its function as opposed to limiting the role. I think this is a very basic understanding we should arrive at.
The second part of this theme, rule-making, has to do with the content of the rules. You have quite a number of recommendations on this subject; 1, 14, 29, 30, 34, 33 and 35 all address potential rules that the committee wishes to recommend to the assembly. I want to go through them briefly.
First, number 1. This deals with rule-making with respect to how I conduct investigations of a systemic nature. Systemic investigations and system-wide investigations are both a very crucial part of our present operations and our work every day, for lots of reasons. One, if you investigate complaints that you're getting one by one, you lose the opportunity to make the preventive corrections in the process, so we do these systemic investigations to prevent complaints of a similar nature in the future from arising. They also make very good use of human and financial resources as a result. Finally, they allow us and the public service to address policies and practices that seem neutral but that have a negative impact on certain groups of people.
There appears to be no disagreement between us that those investigations are necessary. The relevant question is, what will a rule do that's not already being accomplished? It's not clear to me why you want to make rules. In the past it's been argued that systemic investigations are conducted to the detriment of individual complaints. That simply is not true. Most of the systemic and system-wide issues arise out of individual cases. That's how we identify them. Where I exercise my "own motion" initiative to do investigations, we do rely on the systemic review to prevent other complaints from coming forward, other individual cases in the future.
On this point, to be very clear, my concern about creating an unnecessary rule on this case, on systemic issues, is whether the possibility of a failure in the drafting to anticipate a future set of circumstances will limit the scope of my ability to do my job. That being said, I welcome an opportunity to talk further with the committee about how we do systemic investigations, how we do system-wide, and to continue that dialogue over time, a dialogue we've not been able to have on this issue.
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Next, your recommendation number 14 is about rule-making on how we investigate the decisions of tribunals. We already have a very well-established approach to dealing with complaints about tribunal decisions, both decisions that are final and those where tribunals can rehear, and you know that we have both creatures in the public sector. In looking at the decisions of tribunals that people complain about -- and it can be the Workers' Compensation Appeals Tribunal, it can be the Ontario Human Rights Commission, it can be any number of these organizations that make decisions -- I do not sit as the court of appeal. I don't substitute my findings for their decision. That's not my job. I investigate to see whether the procedures they've used, the way they've conducted their business, meets fairness standards.
When a person brings forward a complaint about a decision of a tribunal, we first determine, can this tribunal rehear? If it can't rehear, then I look closer at the decision to see if the complaint raises an issue that would call that whole decision into question. It would have to amount to a nullity. The error would have to be so serious that it couldn't stand. Only then could that decision be re-examined. If, on the other case, they can rehear and we find something wrong, we recommend they rehear.
I also look at process questions that arise from time to time, whether a tribunal can rehear or not. Those have to do with delay; those have to do with backlog; those may have to do with the availability of translation, all kinds of issues. Here again, I don't think there is a need for a rule. This process is working very well and I'd be happy to discuss it further with the committee if you'd like further information on how it's working on the ground.
Now to turn to recommendations 29 and 30, which have to do with the role of the standing committee when a case report under subsection 21(4) of the Ombudsman Act is tabled. The recommendations that you've put forward really point, to me, for a need for a thorough discussion of our respective roles when a case report comes forward. Under the act, as I said earlier this morning, I have exhausted my role once I bring the matter to the Legislature. I will have gone through the head of the agency, raised it with the minister, the Premier, and when I table it, through the Speaker, with the Legislature, I'm looking for the support of the Legislature for my recommendation. From that point forward, I do not have a role. It is up to the committee and it is up to the Legislature to take whatever action you think is appropriate.
In that way, the influence of the Legislature is brought to bear, attended by the public scrutiny that implies. It's my hope of course that you will act to compel a government organization to respond to my recommendations, but that's up to you. I don't have the power to compel, only to recommend. In most cases, with few exceptions, that model works very well.
I'd like next to turn to recommendation 33. This is where the committee is recommending that it no longer review complaints from the public about the outcome of Ombudsman investigations. I certainly welcome the committee's support for and recognition of the Ombudsman as a place of last resort. We have instituted a policy for handling complaints against my own office and it seems to be working quite well. I'd be very happy to talk with you about the details of that process. In fact, we published the details in the last annual report of how people can come forward and register their complaints. I'd be very happy to speak further on it in our next annual report. Here again, I don't see anything to be accomplished by making a rule.
The next recommendation is number 35. This deals with information to be reported in my annual reports. I've already spoken to a process of discussion which I would like to have with the committee about the contents of the annual report, but making a rule such as that which is outlined in your recommendation 35 I believe will limit the discretion that's been given to me to determine what should be in my annual report. It is, after all, the only opportunity for the Ombudsman to report publicly to the Legislature. Sometimes I want to be critical of public officials, sometimes I want to sound alarms or caution about what I see happening in the public service, and as the Ombudsman, I must be free to do that. It is not appropriate for a committee of the Legislature, in my view, again with a government majority, to author that report. It also would make it very difficult if at the outset rules are made about what should be included. Things change throughout the year. I must have the discretion, obviously, as developments change, to change the content.
The sixth theme that I've grouped the recommendations into I've called "Monitor and Review," because this is the operative phrase that appears in recommendations 16, 17, 25 and 44. This phrase "monitor and review" does represent what I believe is a direct challenge to the independence of the Ombudsman institution and is one of two themes where I have fundamental disagreement with the approach of the committee's recommendations. The phrase "monitor and review" provides an open-ended mandate which may be interpreted to include a very wide-ranging power of control. I think the proposed changes these recommendations envisage, if they're made to the committee's standing orders, would provide nothing less than enabling authority for direct and continuous interference in the Ombudsman's operations. As the independent investigator of people's complaints, this cannot be acceptable to me if we're going to preserve the credibility and integrity of this office.
I won't restate the concerns I outlined in my introductory remarks on this except to say that independence from the political influence of the Legislature and from government organizations that may be the subject of my investigation is really the raison d'être of an Ombudsman. I have a colleague, John Robertson, who was the Ombudsman in New Zealand and the past president of the International Ombudsman Institute, and he said it best. He said: "The real test in the end is how independent the Ombudsman is to criticize executive government processes, to hold government accountable for its mistakes and to achieve credibility and trust with both the government and the governed."
Suffice it to say I have no choice, if I'm to be sincere in this role, but to interpret my mandate as calling on me to resist any measures which may have the effect, whether it's unintended or otherwise, of violating the first principle of ombudsmanship, namely, protecting the independence of the institution.
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I have included recommendation 17 in this category. That deals with requiring the Ombudsman to attend at committee at its request. This goes squarely to the issue of control. I think I've been very clear in stating that I welcome the chance to meet with committee and discuss matters of mutual concern and importance, and I think you've seen that over the last period of time. It would only be in the most extraordinary of circumstances where I'd be unwilling or unavailable to meet. So it's very difficult to see why a rule is necessary here.
The seventh theme has to do with estimates and directives. This is the second category or theme in which there is basic disagreement with that which you've set out in recommendations 23 and 24. They both propose that Ombudsman estimates be brought forward to this committee.
As you know, or as I would like you to know, the separation of the Ombudsman's funding, the separation of my funding from the standing committee's consideration of cases, I believe once again is critical to the independent operation of my office as the people's investigator. Indeed, one of my predecessors, the Honourable Donald Morand, in August 1992 said at standing committee the following words on this subject: "This committee, if it has the power to control the expenses of the Ombudsman, has the power to call the tune of the Ombudsman. That's directly contrary to what was intended when the legislation was passed."
I think the importance of preserving independence has been very clearly stated. I also would like to note, from my own experience as the North American vice-president of the International Ombudsman Institute, that the basic tenet of independence in appointment, funding, operation and accountability is a common one throughout the Ombudsman world. Indeed, in those countries which are creating new offices, particularly at the national level, it's becoming very common practice for them to enshrine that independence in the constitution, to give it constitutional protection.
On this issue of estimates and so on, section 10 of the Ombudsman Act is very clear: It requires an annual audit by the Provincial Auditor, one which I publish in our annual report. It is entirely appropriate that I, as Ombudsman, be held accountable for public funds received, but it is also necessary to structure that accountability in a way that demonstrates that I, as Ombudsman, am not a civil servant and I'm not a part of the government bureaucracy that reports to cabinet. The relationship which my office has, then, by presenting estimates to the Board of Internal Economy, achieves that, and it treats the Ombudsman -- it treats me -- in the same way as it treats all the other officers of the Legislature: the auditor, the election finances commissioner, the Information and Privacy Commissioner, the Integrity Commissioner and so on. We are all treated the same with respect to our estimates.
In this category of estimates and directives, I have a similar comment on recommendation 40. Recommendation 40, as you've put it forward, would recommend that the Ombudsman adhere to Management Board of Cabinet's directives and guidelines. I have a concern about this, because once again it creates the impression that the Ombudsman is subject to the government's control. That's compounded by the fact that I am regularly called upon to investigate the application of these directives and guidelines by government. To require their adoption by me may well create a perception of bias if they are in fact the subject of an investigation. That doesn't mean I disagree with the need for policies and procedures and so on in the same areas that these guidelines cover. On the contrary, I wholeheartedly agree. Indeed, I'm very proud of our management policies and procedures, because I think we've done a pretty good job at shaping them to reflect what I think are very progressive models that are designed to accommodate the work of our some 84 staff every day. We also are guided in this by the provisions of our collective agreement.
Finally on this theme, with respect to the recommendations about the Provincial Auditor conducting value-for-money audits, that is, recommendations 38, 39 and 41, it should be noted that I invited the auditor to conduct such an audit and it was done in 1993. In keeping with my other comments in this category, though, in my view the existing provisions of the Ombudsman Act, together with my relationship with the Board of Internal Economy, provide appropriate checks and balances for financial accountability. In that case, that report was tabled by me with the Board of Internal Economy, and that I think is appropriate.
Theme 8 I have called "Other Issues." This groups a number of recommendations dealing with a number of other issues, including the amendment power, the appointment of the Ombudsman, automatic adoption of committee reports, standing committee membership and so on. I have some views I'd like to share with you on those based on my own experience. For example, in changing or thinking about changing the Ombudsman's appointment process, it will be very important to ensure and to reinforce the concept of independence by ensuring that the process for appointment isn't conducted in a forum subject to government majority. I can't overstate the need for the public to perceive its investigator as independent from government and beyond the political influence of the Legislature.
I have organized my response to those issues and the rest of the specific recommendations I have not already spoken to in a separate document that deals with each of the recommendations one by one. I've set out the committee's recommendation, I've set out my own response, and I've provided that to the committee.
I'm looking at the clock, Chair, as I know you and other committee members are. I'm very pleased to be in the committee's hands as to how you wish to proceed with those. I would suggest that we have a further opportunity to go through those recommendations, particularly the ones I have not spoken to. I seek your direction and guidance on when you think we might have a chance to do that, as well as to consider the other special case that was tabled on Monday.
The Chair: That takes us just past the top of the hour. That was very good timing. I will take your invitation under advisement and raise that with the subcommittee immediately after this meeting is adjourned, which it is now.
Ms Jamieson: May I ask one final question? This may well be for the subcommittee's attention. Last week I understood the committee would be willing to accept submissions from the public beyond this Friday, which is the date that appears on the screen every day for those people who have the legislative channel. I wanted to know if it's going to be made clear publicly that submissions will be accepted beyond November 29, so that those people who are preparing submissions will know they will still be able to be sent forward. I certainly have let people who have been in contact with us know that, but it's a bit misleading on the TV.
Secondly, I wonder how those people who don't have access to the parliamentary channel, cable or Internet will know that they can in fact make a contribution for this committee's consideration.
May I leave also those questions and thank the committee for its attention, patience and cooperation this morning.
The Chair: Thank you very much for your helpful comments.
This meeting is now adjourned. I ask the members of the subcommittee to remain behind.
The committee adjourned at 1202.