REVIEW OF FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT, 1987
METROPOLITAN TORONTO POLICE FORCE
MINISTRY OF THE
SOLICITOR GENERAL
ONTARIO PROVINCIAL POLICE
CONTENTS
Thursday 7 February 1991
Review of Freedom of Information and Protection of Privacy Act, 1987
Parents Empowering Parents
Afternoon sitting
David H. Flaherty
Metropolitan Toronto Police Force
Ministry of the Solicitor General, Ontario Provincial Police
Adjournment
STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY
Chair: Duignan, Noel (Halton North NDP)
Vice-Chair: MacKinnon, Ellen (Lambton NDP)
Cooper, Mike (Kitchener-Wilmot NDP)
Frankford, Robert (Scarborough East NDP)
Marland, Margaret (Mississauga South PC)
Mathyssen, Irene (Middlesex NDP)
McClelland, Carman (Brampton North L)
Morin, Gilles E. (Carleton East L)
Murdock, Sharon (Sudbury NDP)
O'Neil, Hugh P. (Quinte L)
Owens, Stephen (Scarborough Centre NDP)
Villeneuve, Noble (Stormont, Dundas and Glengarry PC)
Substitution: Fletcher, Derek (Guelph NDP) for Mr Frankford
Also taking part: Sterling, Norman W. (Carleton PC)
Clerk: Arnott, Douglas
Staff: McNaught, Andrew, Research Officer, Legislative Research Office
The committee met at 1038 in room 151.
REVIEW OF FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT, 1987
Resuming consideration of a comprehensive review of the Freedom of Information and Protection of Privacy Act, 1987.
PARENTS EMPOWERING PARENTS
The Vice-Chair: Order, please. Let's get started with our business this morning. I would like to welcome the Parents Empowering Parents, if you would come forward, please. Introduce your people who are making the presentation, and we will get on with this.
Mrs Ryan: Good morning. My name is Brenda Ryan and I am chairman of PEP Talk, Parents Empowering Parents.
The Vice-Chair: Welcome. I understand that you are the only people who are making a presentation this morning, so there is some latitude here. I assume that we can take questions afterwards, so please proceed.
Mrs Ryan: Thank you. You will have to bear with me if I make mistakes, because we have never had an opportunity to present at a committee like this before. We sincerely appreciate the opportunity.
Mr Fletcher: Relax.
The Vice-Chair: Take a deep breath and relax. We do not bite, we just holler.
Mrs Ryan: You mean just like home?
The Vice-Chair: Yes, just like at home when you have the kids running around.
Mrs Ryan: Mrs Davies and I have been involved with a parent support group since the summer of 1989. If I may, I am just going to take a minute and briefly read through what I had written this morning as a presentation to the committee. The reason I wrote this is not because I wanted to know what I was saying, but because I know myself well enough that if I push the start button we could be here until tomorrow.
Very briefly, in the spring of 1989 I decided to start up a parent support group. I was encouraged, and in conjunction with a general practitioner in Scarborough, Dr Jackie Gardner-Nix, I attempted to find some parents who might be interested in finding -- I will start this again. I had no difficulty in finding loving parents, and we actually held our meeting with a waiting list of participating families. Our first self-help of PEP Talk was held on the 27 July 1989, and two days later my daughter died very tragically.
It is because of my daughter, Colleen, and also the information that has been shared about the child welfare agencies by members of our parent support group that we are here today. Individually, we could have been here today to present over 50 cases as examples. But we have attempted to demonstrate our position with a very few typical examples.
At this time, all child welfare agencies in the province of Ontario are governed under the Child and Family Services Act, 1984, and this particular act does not fall within the mandate of my understanding of the Ministry of Community and Social Services freedom of information legislation.
Part VIII, sections 162 to 168, of the Child and Family Services Act regulates the confidentiality and access to records of individuals under the age of 16. Other significant sections of the act are clause 163(2)(a) and clause 163(2)(b). Without a law degree, it is very difficult for me to really relate this, but I will try to give my understanding of this material as it has been interpreted.
Basically, no individual person has the right to any information from the files which are written or prepared by any person in the employ of a child welfare agency. Furthermore, any information which is shared by them at their choice will be screened, deleted, obliterated or refused at the discretion of the particular agency involved.
At first glance, this could also appear reasonable and supportive and very necessary to protect children's rights. But in reality, this particular piece of legislation has actually been a participant in the emotional destruction and even death of a child, or a former child, who has been in their files.
To substantiate this, there is an attachment to my presentation. I do not know whether the members have been given the attachments yet.
The Vice-Chair: I believe they are in the process of being printed and I understand they are coming. Is that right? They will be along for you.
Mrs Ryan: Wonderful. First, there are the results of the jury findings probing the death of my oldest child. The report and the jury recommendations stated clearly that her death was "the result of fragmented and ineffective care, with tragic results therein."
You might ask, how does a child's death relate to freedom of information? Well, in September 1989, after her death and after numerous refusals, I was finally invited by the branch office of the Children's Aid Society of Metropolitan Toronto to review the file that they had on my child. This file consisted of probably 100 pages over the years, of which it was determined I should see only four pages. It was explained to me that they decided I could not view the balance of the file. Additionally, I was not allowed to copy or remove any crumb of information that was presented to me. l will swear this information is true.
The first page that I did see refers to the events of 24 June 1979. Colleen had disclosed to a neighbour a long-term sexual abuse by her father. The society had then ripped away my child from me and investigated the allegations. This poor child had been tortured over a four-year period between the ages of 7 and 11, and the first page that I read on the file claims that my child was the seducer in this scenario and not the victim -- a seven-year-old little girl. It also stated clearly that this child was seen as promiscuous and seductive. They felt that she was actually the guilty one. At the same time, my former husband had his name placed on the child abuse registrar. There is a copy of this documentation as well.
I later found out that on all of the occasions that I had been reaching out for the children's aid society to help my child and I thought that the workers were documenting my concerns about Colleen, they were actually writing notes about what an incompetent parent I was. l had learned this later from a lawyer who was allowed during the inquest to read the files, but she was not allowed to bring any information into the inquiry. The reason that was given to me was, "Everyone knows that things are different now," and they did not want to be in court for months. You will notice in some of the documents I have that there is a copy of the jury findings in the death of my daughter, and also a deleted format of a child abuse registrar.
My daughter was a very sick and disturbed adolescent. It was a result of sexual abuse, and the agency knew this. They knew much more about this topic than I did. When Colleen was 13 years old, I helped my child through an abortion. After her death, according to the four pages that I was given privy to review, l learned to my utter horror and disbelief that Colleen had, under the care of the child welfare agency, gone through two additional abortions. This is a little girl. What kind of kid under the age of 16 is going to have three abortions? A well-adjusted, emotionally stable child? Not a chance. A child that has had her life ripped away from her by abuse, and it did not stop on 24 June 1979. It continued.
The agency really did nothing. They knew about the psychological state of this child, and to my knowledge they did absolutely nothing to help her. My feeling is that the indicators and the signs of her mental illness were there within this child, and as a welfare agency that is responsible for this child and the lives of other children, it did nothing but lay blame and responsibility on her and me for her misfortune.
My lovely daughter, and she was a beautiful girl, is gone. The only thing left of my daughter is a legacy of words, that legacy of words in a government document, to prove that she ever existed.
I heard once that once words are written, they develop a life of their own, and the life that is representing my child on those files at the CAS is an absolute and utter lie. I do not know a polite word to refer to an untruth that is a lie. There is no accountability for social workers, with or without a social worker's degree, to justify or defend their actions within the agency. At this time in our society, the child and family welfare agencies have absolute power and control. They are much stronger than any other professional organization in this country.
As the child's parent, we do have the opportunity, by invitation, of submitting a letter to the child agency stating any disagreement that we may have with its reports or findings, but there is no means of reacting in a civilized democratic process to seek clarification, justification, retraction or elimination of some of the garbage that it has disguised in its files as facts. If such agencies fell within the mandate of freedom of information, they could be accountable to an independent tribunal of professionals and possibly laypeople from the community for their findings and actions, and in some ways even lack of action.
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I have also attached a memo from the CAS explaining its complaints process. If you will read between the lines carefully, you will note that they have complete control and power. Each step of the process allows their staff to have independent negotiations and meetings before telling the complainant of their findings. If a person is not pleased after meeting with the director or the director's delegate, then basically at that point you are up the creek. That was a ladylike way of saying it.
Very few families with emotionally disturbed, high-risk children have the time, the energy or the bureaucratic savvy necessary to stand up to this organization. You have to remember that these people are also suffering through a dysfunctional family; there is a catch-all word. This point can be demonstrated with another family situation that I like to represent, again a copy of a CAS procedure with the names and significant information blocked out to protect the child and the family.
This is a man who is a blue-collar worker, a hardworking man and a passive individual who has been the subject of many years of spousal abuse. The abuse has been in many forms, including emotional and physical, and in spite of a divorce several years ago, has continued. There are three children from this marriage.
His ex has intentionally made it almost impossible for him to see his children. On one particular occasion, the youngest child spent a weekend with him covered in bruises. After carefully questioning the child, he and his friend realized that the body bruises from top to bottom were from the buckle end of a belt. He contacted the child welfare agency immediately for help, and it did nothing. He was frantic, so he called his family physician who then called the agency, and again it did nothing. Eventually the situation deteriorated further and his former spouse conveniently left the home with the child prior to the arranged pickup time. This man now became frantic, because by this time he could not even see his child to make sure that she was okay.
This man was left with no satisfaction around his concerns about his youngest child. There was no investigation done. They did nothing to assure him that his concerns were even accepted as having any merit. Then he began to feel as if the agency must be blaming him, although there was absolutely no reason whatsoever for this to happen. But again, these agencies do not have to justify or clarify their actions. So he was totally depressed and felt completely helpless at rescuing his own child.
The holiday season was coming. He had not seen his children. He had experienced significant physical health problems. Eventually everything piled up and he realized that he needed help. He reached out and he was placed in a hospital by a caring physician for psychiatric treatment. He was emotionally exhausted.
When he arrived home from the hospital, he was issued a subpoena to appear in court the following day. There was no time to find a lawyer and his emotional state was quite fragile. His subpoena could have been responsible for having him either readmitted to the hospital or possibly -- who knows? -- do harm to himself. After all, everyone has a limit and this man had just received an incredible and unnecessary kick in the teeth by the documentation you will see.
The reason his appearance was required in court was to prove to the society that he was mentally competent and responsible enough to have the right to any visitation with his children. His former wife had discovered his hospitalization and must have contacted a CAS with some kind of story; we do not know. Again, there is no clarification or justification.
As an active member of our support group for a long time, this man had shown nothing but a compassionate and loving attitude towards his children and also other family situations. In spite of his own abuse, he still had no malice towards his former spouse. If any action should have been taken by the society, it should have been an award celebration for a man on the art of fatherhood for not abandoning his children, rather than this unqualified, mentally unstable father that the agency seemed to indicate.
At this point, you could feel that maybe these are unusual cases, but I can assure you there is nothing unusual about these cases. We could have hundreds of them here.
Here is yet another example. A mother of a pre-teen called the agency for help with her daughter. This girl had bizarre behaviour, where she had been staying out overnight, swearing at her mother, physically attacking young siblings and just being a hell-raiser.
After assessing the situation, it was determined that this child should be placed in care temporarily by a child welfare agency, to give everybody a break and an opportunity, and they were going to help. During the physical examination prior to entering care, the physical examination revealed that this child had been sexually abused. She had no conscious recollection of anything. Over the next two years this child went from bad to worse. If you know about the diagnostic measuring scale 3, used by psychiatrists, all of her symptoms were clear that it was post-trauma stress syndrome. It was blatant, but no one could do anything. She would be taken to the front door of a placement by children's aid and she would walk out the back door. Sometimes, apparently, this kid did not stay any more than 10 minutes. By the age of 14, she had been involved in petty crimes and she had made the big step into some very serious legal trouble. In this child's case, it was a blessing.
Her mother adored the child and she would do anything she could to help. She had done everything the social workers told her to do, and she never gave up on this kid. After this last episode, the mom once again asked someone at the CAS to help this kid. The advice given by the agency is classic. They told the mother to pick up the pieces of her life and to forget the daughter. "She's bad news," they said, "and she's not going to get any better. It's not worth your time to get upset about her." I do not know if anyone in this room has a 14-year-old child, but how would you like someone to say to you: "Forget her. Just wash your hands of her and walk away and pretend she doesn't exist"?
Thank goodness, with the support of the group, this mother was able to make choices. She became empowered by the other parents. She decided not to listen to this worthy advice of the children's aid but to follow her own ideas. This young lady today is in the United States in an adolescent psychiatric treatment program and making fabulous progress. She will be returned to the family soon as a new person. This little lady inside the former rebellious victim of the syndrome will soon be able to present herself back to the community as an active participating member. This kid is not going to have problems, because she has the support she needs to deal with her former difficulties.
The mother is glad she did not listen to the agencies. Where would her daughter be today if this mother had listened? Imagine. What on earth could the society have been writing about this child to be content with giving that report to the parents, this kid's emotional death certificate?
Once again, you tend to think that maybe these are unusual cases, but I strongly restate that these are not unusual cases. They are everyday occurrences.
There is another story that is a cute one: a young man who within a period of one week became a one-man wrecking crew. He physically attacked his sister, having her hospitalized. He then tried to strangle his mother, snuck out the bedroom window in the middle of the night and stole the family car. While he was on his joyride, he destroyed the car. When his parents arrived on the scene, he threatened to hang himself from a tree.
After two independent psychiatric assessments, the juvenile court judge ordered the agency to assist this child in getting treatment and to be placed temporarily away from the home, obviously for the welfare of all people, including the sibling. Well, it has been a year and this kid has deteriorated. Of course, there is no psychiatric treatment. The society took it upon itself to place him in three different foster homes to date; no psychiatric facility, just foster homes. The homes are not equipped to handle psychiatric patients, and the foster parents may not even know that they have a very unstable, emotional little boy in their home.
The police are accountable to an internal tribunal, other police departments and an independent civilian committee. Doctors are accountable and controlled by the College of Physicians and Surgeons of Ontario and the judicial system. Lawyers are governed by the bar association and the courts. All types of engineers are licensed and accountable to the professional engineering association and, of course, the judicial system. All journeymen -- by journeymen I mean electricians, plumbers, driveway pavers -- are controlled by their Metro licensing commission or equivalent, but child welfare agencies under the jurisdiction of the Child and Family Services Act are given absolute impunity.
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Just look at the inadequacies in the system. A psychiatrist, for example, will spend 10 years in school learning his profession and years of internship, as do many other associations I have mentioned. Still, they have a financial liability to their client. A social worker could spend only two years in a community college and know nothing about law or the diagnosis of an adolescent in child psychiatry, yet have more power and control over the destiny and treatment of a young person than any other individual, with no fear of any kind of personal liability.
Again, under the act, this person cannot be held accountable. Our association, PEP Talk, is not asking for families to have absolute access to a child's record. I think we all know that there are children in our society that are being abused in one manner or another. If there is one child in our society being abused, that is one kid too many, and I would not want to sacrifice one child for any cause. So we do not want to suggest that families have this power, only that child welfare agencies to be accountable to an independent governing body, like all of the other agencies we have mentioned. It is ridiculous; it is bizarre.
The Vice-Chair: Thank you very much for a clear presentation. With the consent of the committee, we will start our questioning with the official opposition, because we are a bit unclear in the Chair as to where we left off. Is that agreeable?
Mr Morin: I would just like to make a statement. I am very moved by what you said. Anyone listening to what you have said who is not affected by that -- it is not the first time I have heard of cases similar to that. I had the experience of working with the Ombudsman for 10 years. It is very difficult to pinpoint that type of incident unless you investigate it. I wish the committee would pay particular attention to this complaint brought by this lady. We should do our utmost to try to find a solution and to prevent that type of thing.
The Vice-Chair: Forgive me. I am new at this. Carry on just as you wish.
Mr McClelland: I think Mr Morin has stated our position well.
Mr Villeneuve: Thank you very much for a very moving presentation. As an elected person, I have been made aware of certain situations, mostly by distraught mothers who have problems with their children, much as you had problems. Children wind up in a hospital to receive treatment, but the first thing they are told if they are over 16, is that indeed they are adults, they do not have to confide in their parents if they so desire. It is very alarming, because, in this case, I, as a non-professional person, could genuinely see the concern of the parents, yet the system was encouraging the child to distance herself/himself from the parents. Indeed, the lack of communication was part of the problem.
I think the situation you have described in one of the scenarios here is very similar to what we probably have all experienced with parents who, in total frustration with the system, come to us. We try and get involved and we are told, "Well, we just can't divulge any information." It is a chicken-and-egg situation. We are all so helpless, yet help is so desperately needed. Could you comment on the fact that institutions appear to be encouraging a kind of situation that, to me, should never exist'?
Mrs Ryan: You will have to excuse my delighted grin, because I am just busting a gut at the moment about a comment you made about 16-year-olds. Surprise, surprise. If a child is deemed to have a behaviour problem, as a parent you lose the right, when the child reaches the age of 12, to do anything about it. The child has absolute power. Interestingly, as a parent, I am told in the field that the child has a right to refuse treatment and we cannot do anything.
I have spoken numerous times with the committee at the children's services branch at the Ministry of Community and Social Services and they have assured me that the legislation under the Child and Family Services Act does not say that a kid can refuse. It says they can object. Now that makes me feel so much better, right? So I have a distraught, emotionally disturbed, acting-out, 12-year-old psychotic child on my hand, but he or she has the right to object. Then the advocacy office and other child welfare agencies say: "Of course. We know this child became this way because of dysfunctional, incapable parents, and that child is being protected from them. It's natural."
I would like to take a moment and show you some pieces of literature we have, which will verify and prove many of the things we have said. The review of legislation governing children's mental health services states very clearly that it is much more difficult to have a child treated for mental health than it is an adult. I am sure everyone here has heard how difficult it is for an adult to be treated, but it is tougher for a kid.
Also, there is a report called the Ontario Child Health Study, done in 1989 for the Ministry of Community and Social Services. If anyone here is familiar with this particular study, it indicates that 18.3% of our children require some sort of mental health service, which means we are talking almost one in five. One in five children has a diagnosable problem, but of course it is mother's and father's fault, because these kids are great, so these kids are given the power.
I am not suggesting that kids do not have rights. I am a child advocate, but as a child advocate, children do not know how to communicate and sit in a room like I am doing right now and articulate what they feel. If a child is frustrated, ill, upset, they will only communicate in the manner they know, and that might be things like picking up furniture in a classroom and throwing it at the teacher; swearing at dad; staying out all night drinking; being sexually promiscuous if you are an 11- or 12-year-old child -- because that is the only way they know how to communicate. They do not use language as an adult does.
For the legislation under the Child and Family Services Act to be written in such a way that we put a child in the position that they are expected to communicate on our level is bizarre. That is what we have done. There is very little provided under this act or any kind of program that will allow for a child to even communicate his problem in a way that is best for him, which may be music therapy, art therapy, dance therapy. There are many ways for a child to communicate, but we do not give them that right. We say to them: "You come in here and you state your case, young man. You come in this room with your mother and father and we'll sit down in front of you and you just tell us what the problem is."
Mr Villeneuve: We certainly have many dedicated people that work within ministries that you have touched through the children's aid society. I realize there are times when it is difficult and there is no clear-cut solution. Under freedom of information, you have great objection, first, that you were not allowed to see information about your child and someone's interpretation of the family background. You saw four pages of maybe 100 of documentation, and most of what you saw you certainly did not agree with. There is no mechanism. It is an even more frustrating scenario when you are able to see what you perceive to be false information and you cannot do a thing about it.
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Mrs Ryan: That information was responsible partially for the decline of my daughter's health, because they literally, with the attitudes of the reports they had written -- and not only my daughter, but some of these other children -- prevent the access of professional support and treatment. By the time she became an adult she was a chronically disturbed person.
Mr Villeneuve: And the fact that two abortions she apparently had, you were not aware of until such time as you saw some documentation.
Mrs Ryan: That is correct. Three months after her death.
Mr Villeneuve: Very difficult. Thank you for sharing your thoughts. This committee should look at -- freedom of information is great, but it had better be accurate information.
Mrs Ryan: We have to protect our children. I do not know what the solution is, and I am not really suggesting that the community at large be given access to children's files, but I think there are enough organizations of knowledgeable professionals who understand children that are not a child welfare agency, that should be able to review, maybe lawyers and police officials and doctors, maybe a layperson. But they have to have accountability. We could have a situation where we have five psychiatrists who will do a psychiatric assessment on a child, each doctor in absolute agreement that there are not just emotional problems but organic brain disease -- you could compare organic brain disease to diabetes, cancer, cystic fibrosis -- but we are stripped of the right to save our own child's life.
Mr Villeneuve: The most recent incident that occurred from my constituency office disturbed me. The young lady in question did not receive psychiatric help but was told of all her rights and the things she could prevent her parents from having access to, yet that was the problem. The interesting thing was that I could not do a thing about it, nor could the mother.
Mrs Ryan: The child has the right under the Child and Family Services Act to legal representation to go all the way to the Supreme Court to fight for the right to refuse treatment. The family, on the other hand, has to pay out-of-pocket expenses and obtain their own lawyer for the right to prove to the courts that the psychiatrist or the professionals who have done psychiatric assessment are telling the truth and that they are willing to save their kid's life. Having said that, if you win in a court of law, you win the right to prove that your child is ill. You still cannot treat the child. It is absolutely against the law.
Mr Owens: It may be a little incongruous to tell you that I want to thank you for your disturbing and frank presentation. Over the last couple of weeks, I have sat on the standing committee on social development. We dealt with children's mental health services within that committee, and the authors of the reports, Dan Offord and Colin Maloney, appeared as witnesses. We will be tabling those reports in the Legislature when the session resumes, and I am hoping you will be pleased by the recommendations you will see with respect to children's mental health services. There is a recognition that we are getting to these kids too late. It is a tragedy that these kids are dying before services are able to be effective.
The second thing, if we can have all-party agreement, is that I would like to have us invite the children's aid societies in to make a presentation on how they view freedom of information. I am very disturbed by what has been stated here today and I think our colleague Mr. Villeneuve makes a very good point about it. It is fine to have information out and available, but the accuracy needs to be there and I think we need to hear from the CAS or other child welfare agencies on how they view this legislation and the types of changes they would like to see with respect to making it more open.
It is clearly unacceptable that four out of 100 pages or so would be made available to you, and that within those documents the inaccuracies -- I suppose it goes without saying that a person who is disturbed may not be 100% on in his facts, but if the child welfare agency is using the facts as its basis for its treatment of the parents, then I think it is a fine line as to who you believe. I wrestle with that on a daily basis as we go through these hearings, especially when we start dealing with issues revolving around children and children's rights.
The Chair: Is that a request to the committee?
Mr Owens: Yes.
The Chair: Is there agreement on that request?
Mrs Marland: Definitely.
The Chair: Okay; thank you.
Mr Owens: I am intrigued by your suggestion about a panel, to have the agencies responsible to the panel. Would you see that as a method of vetting information to deem what would be appropriate for release? Could you explain to the committee how you would see that working?
Mrs Ryan: Yes. I think somewhere along the line the community at large has to depend on the discretion of the professional community. If in fact an independent committee could be established where it would review the facts and make a decision about what is or is not admissible or releasable information in a particular case, that could be in the best interest of all parties.
The child welfare agency would still be protected from information that should not be revealed. The child can be protected and have security and safety in being able to discuss whatever he needs to discuss without fear of reprisal. Also, it would give the families an opportunity, if there has been a misjudgment made -- in particular I think about this father -- it gives someone the opportunity of clarifying and rectifying that. We are talking about families and lives. It is not like a little mistake on a piece of paper.
Mr Owens: Absolutely. Perhaps if we were to make recommendations of that type to the Legislature and to the minister -- I am certainly leaning that way, because I think you have crystallized a very difficult problem. As a matter of fact, I had a meeting in my office last night with a family which is experiencing similar difficulties with respect to getting treatment for their son who has a mental illness, and he falls into this crack of rights versus reality. The child is abusing the family and tearing the house up and doing all these other things.
Mrs Ryan: But is he enjoying it?
Mr Owens: So these problems are coming to the forefront more and more as we proceed. As I say, I am leaning towards making a recommendation with that in mind, and perhaps while the committee is reviewing case work, if that is the way it were to be set up, an advocate would be there for the child to ensure that his or her rights are being respected. You have brought up so many excellent issues. Protecting the child from reprisal from either parent is another issue that needs to be discussed. We could probably spend the rest of the day discussing this and working around ways that we could make the system more effective for both parent and child.
I will turn the floor over to my colleague.
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Ms S. Murdock: I want to thank you as well. Just for clarification for me here, I see that there are two basic arguments you have. One is, of course, access to information and the reliability of that information, which comes under the purview of this committee, but then the second thing I see is that you want the people involved to be accountable to some agency. Now right off the top, and you can correct me if I am perceiving it differently, I do not see the Freedom of Information and Protection of Privacy Act as being the piece of legislation that would allow for that accountability. I would see something like the Health Disciplines Act under the Ministry of Health, where they have provisions for case workers and social workers who are not allowed to make diagnoses and judgements without penalties being imposed. So I am wondering, am I seeing that correctly? Am I stating the case?
Mrs Ryan: Yes, you are doing extremely well, and thank you for the education. Now I know who else to go to. Yes, you are absolutely right. My feeling, and the thing that we discussed as an organization, was if there was a freedom of information act committee, human nature being what it is, people would tend to be careful and a little more thorough before they documented anything. So that was number one. Number two, I guess my own self I did not realize where the mandate of one committee starts and another one stops. Health services?
Ms S. Murdock: It is under the Ministry of Health and it is the Health Disciplines Act.
Mrs Ryan: So possibly the Ministry of Community and Social Services could be involved.
Ms S. Murdock: Yes, certainly, they would have access to that information.
Mrs Ryan: Thank you for that.
Mr Fletcher: You answered one of the questions already. Just let me say that I am glad you are here and making this presentation. Mr Owens did ask my question about what you saw as being necessary for some amendments to this or some idea, and you said that.
You said that if there was more freedom of information, there would be better notes and better reports, and I think that is important. That goes for what we have been discussing here this week as far as making notes available is concerned. They would be better notes. There would be better reports and they would be probably a lot more honest than what they are. I thank you for bringing that point up.
Mr Owens: I would like to make another request of the committee, that at some point within the review period of this legislation we also invite the Minister of Community and Social Services to appear. Her ministry deals with child welfare and indirectly the type of issues that we have raised here. Certainly freedom of information is an issue within the realm of her mandate. She is struggling with it at this point through area offices. I think it would be appropriate to have the minister in, or a representative of her ministry, to discuss the type of impact this legislation is having, and the types of changes she would like to see made to the legislation.
The Chair: Is there a consensus on that? Great.
Mr McClelland: I appreciate, quite frankly, your presentation, and without even beginning to understand a sense of what it must have taken for you to come and visit us today, and for that I am grateful.
One of the things you touched on throughout the course of your presentation, it seems to me, was a real balance in the sense that you said with respect to agencies and the situation that you face, particularly the CAS, that you see there is a twofold problem.
One case might be that from an implementation point of view they may be too obtrusive in acting in a situation that in your judgement and the judgement of parents would be overstepping their bounds. Yet on the other hand there are situations -- you referred to one -- where the failure to act was the issue. It seems to me, and I will not presume to speak for them, but when we hear from them there will be an argument presented, I am sure, that says something to the effect that "We require the confidentiality in order that we can advocate and act in the best interests of the child."
How would you respond to that in general terms with respect to the need for somebody to act independently as a child advocate, your experience not only personally but as an organization with respect to who and what is there now, to act as a child advocate and the need for that role to be severed apart from the agency providing the care? That is very general, but I would like to draw on your experience individually and your experience from those parents with whom you meet and work.
Mrs Ryan: An independent advocate is absolutely required in the province of Ontario for the benefit of all agencies dealing with children. I try not to get burdened with negativism or blame or hatred, when part of it, in my heart -- I lost a child -- is there. But I do know that people can only deal with a particular situation, regardless of what their training is, based on their own emotional baggage, so mistakes are made.
When we are dealing with the most precious item in the world, which is the lives of children, we absolutely cannot compromise that. When I compare the fact that we will put security guards around a Plexiglas display of expensive jewellery, and we will let children drop off the edge of the earth and never wonder what happened, it is just not realistic. We need an absolute, independent organization which is not a government agency, which is not given any mandate except to clarify, rectify and improve children's services.
I believe that in November or December, after a lengthy inquest, I heard Mr Rae state in question period an indication that all vulnerable people in the province of Ontario should have independent advocates. It is one of the very few times I jumped out of my seat and spoke to the TV when I was watching the House. But it is true, and I keep reading the paper every day saying, "Has anybody been appointed yet?" Oh, by the way, I am up for the job.
Mr H. O'Neil: Like the rest of the committee, I would like to thank you for coming this morning and sharing this particular terrible experience which you have had, but I guess I would like to approach it in another way. I do not want you to take offence at this either, because I think what you have experienced is a terrible thing.
I come from an area where I believe we have a very good children's aid society, which is the Belleville-Trenton area, the Hastings and the Prince Edward children's aid, which I believe have a very good staff and a very good board and I think quite a fair amount of support from the municipalities. But even with that, with an excellent children's aid society, we also are experiencing some of the problems you talk about, particularly in the children's mental health area.
Having been a member of the previous government, knowing what the pressure is on the government from all areas of health care, I know that we have dealt with it before and I know that over the last five years -- even with the previous government -- a lot of money has been put into this area, very huge sums; I know when we dealt with it, over four or five years. Again, I am not trying to be apologetic, because no matter how much money we have put into it, until we start to solve a lot of these problems, it will never be enough.
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I was very pleased to hear the comments that were made about the social development committee handling this, because I think it is where we made a number of improvements over the last few years. Hopefully, the new government will also look at the area of children's mental health as being an area that really is in need of additional money to provide additional staff, so that these cases like your own can be dealt with on an individual basis.
Again, I want to reiterate that where you may have had a bad example -- there are likely many examples right across the province in all of the children's aid societies -- many and most of these children's aid societies, I believe, have some very dedicated, caring people. Maybe they have not had, as I mentioned, enough money support to hire the staff to give this individual attention, but there have been a lot of improvements made, and I think it is because of people like yourself coming forward today before this committee. You help to reiterate the importance of this particular area and how now the new government will be faced with these same demands. I think money has to be freed up to get the type of help that is needed.
Mrs Ryan: I certainly appreciate your input that there are some particular areas where there are very high-quality child welfare agencies. You may find the community enlarging very quickly with a lot of people moving up there.
Having said that, I have tried to be very careful not to specifically lay blame on the quality of personnel or a particular agency. It is the whole system around the legislation of the Child and Family Services Act. Why one particular area of this province has an extremely successful, high-functioning child welfare program, I don't know, but if it is happening, I think probably some of the other members from other areas who know it is not that way in their territory could maybe find out. Maybe that region should be teaching. I am not trying to be facetious. A little bit of good is great, but it does not begin to be enough.
I do not have little children any more. My commitment now is for the next 20 years, to make sure that my daughter's suffering will benefit children. If one child in one area is being inappropriately treated by a program, it is too many. I am here for that one child today or tomorrow or next year or 10 years from now, because it does not matter what happened yesterday; it is today and tomorrow that I am here to speak about.
Mr H. O'Neil: I think the point you make is an excellent one, as I said. I think it behooves the new government, and us as opposition parties, to give the type of financial support that is required to really rid the province of some of those problems, the one that you have talked about and many others that we have. I thank you for appearing before the committee.
Mr McClelland: I actually wanted to continue a little bit our previous discussion in part, but I might just add, further to Mr O'Neil's comments that my sense is -- I cannot say this with any empirical data that would give it any weight of authority, but just from the experience I have had, having worked within child programs professionally and in my law practice and so forth -- that in most cases, most of the time, agencies perform their job not only adequately but extremely well.
I share your very heartfelt opinion that if there is just one situation -- there are many more than one, but even that for one -- the work you are doing and the role you are playing in helping us to begin to deal with that is very worth while. I do want to underscore what I think is an important statement made by Mr O'Neil that the people, and as you said, the personnel, are only operating within the framework they are given by us. We accept the responsibility for that and also accept the responsibility of trying to appropriately make changes to assist them to do their jobs as they need to do and want to do.
Right now, freedom of information, the principle of the act, of course is that there be a presumption of availability of information. The general scheme is that there is presumption of availability of information and then exemptions are granted. As you point out, the Child and Family Services Act is exempt in total.
I am interested in your comments on two points. One is with respect to the fact that there is really a reversal of the principle in this case, that there is no onus to provide information, there is really no proof required. There is no onus on the agency to demonstrate why it ought not to disclose information. In fact, the shoe is on the other foot and you have to fight for every piece of information you are going to get as a parent.
How would you, in your view, see a balance with that? Who would be the people or person who would determine what information ought to be released to parents? Again, correct me if I am wrong, it seems to me from what you have said that you have accepted the proposition that there are times and places and certain given situations where it is not appropriate that the parent have information. I think you have indicated that, that you are willing to accept that.
Mrs Ryan: But the world is not full of good people, unfortunately.
Mr McClelland: Yes, exactly. Who would be the individual and how would they make those determinations, under what terms and at what point in time? Ultimately, legislation is words, and decisions are made with respect to timing, ages and certain rules. When is a child no longer a child? A tough question, I know. It is such a subjective element, such a subjective matter with some children. So how do you wrestle with that very issue of saying, "When I am 19, I have the right to call my own shots." In the act right now, as you have said, there is an effective giving of rights at the age of 12. Where do you find that line and that balance? And I am not asking you. I do not presume for one minute that you would even hold yourself up to having reposed the wisdom that would have the answer. I am just asking for your help on this from your broad range of experience.
Mrs Ryan: I hope I remember all the questions you asked, because they became more exciting as you went along. I think Mr Owens and Ms Murdoch had discussed this particular issue about how or who would decide, and an independent committee -- not the community and not the agency but a well-established, respected, appointed committee. That way everybody is protected and a child would not be risked.
Mr McClelland: How would you respond to the assertion that that is the role of the board of directors of the local children's aid society as it reviews the decisions of the directing staff? I am playing devil's advocate for that, because that is an argument that is going to be put forward.
Mrs Ryan: It is like putting the kid in the candy store.
Mr McClelland: At some point in time the board that you are proposing is going to become part of the institutionalized system, in any event. It is the way our society works that a body is set up and it becomes part of the mainstay.
Mrs Ryan: Maybe by then there will be some other mother here with a better idea behind me.
Mr McClelland: No, I am just asking because we are going to hear that argument.
Mrs Ryan: We can only work with what we have. We cannot plan any program to be here for eternity. That is why you guys have jobs. It is constantly improving quality of life and programs to the community.
Mr McClelland: Again from your experience, are there situations and places where the role of the local board, the volunteer board charged with the responsibility for policy and the overseeing of societies, is fulfilling that role adequately at all?
Mrs Ryan: Without appearing confrontational towards the agencies, I do not feel that independent boards of directors are beginning to even consider what is happening within those agencies, and I do not think that an independent board of directors should be lumbered with the responsibilities of reviewing independent situations.
You asked me one other question that I think was very significant: When is a child not a child? Again, you see, there is no real answer. I have known 32-year-old children, 58-year-old children and I have known 12-year-old 27-year-olds, depending on the individual. But I think the rule of thumb to say that a pre-teen is an adult capable of making absolute decisions -- that is the key, absolute decisions -- about his life, particularly when it is a mental health problem, is wrong. The analogy I will use about the mental health situation is that we would not dream of parking an ambulance two blocks away from an accident scene and telling a kid with two broken legs to walk to the ambulance. But we tell a child who has been diagnosed and assessed with severe emotional mental health problems to decide to take treatment. Now, I do not know if anyone has ever experienced this, but if anyone has ever met a psychotic, disturbed, organic brain-disordered child who came to an agency and said, "Please treat me," I am going to take my hat off to this child. There should be a statue on the corner for him or her, because it does not happen. Part of the illness itself is presented in such a way that the child does not ask for help, does not realize what is happening.
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Mrs Davies: And actively rejects it. And actively rejects help.
Mrs Marland: Mrs Ryan, I have read your brief since I have arrived and I am sorry I did not hear you present it in person, but it is very apparent that the impact you have had on the committee members here this morning is very real and I cannot help but think about the name of your organization, Parents Empowering Parents, because your presentation this morning is actually empowering other people. Probably most of us are parents, but not with the experience that you have. I have a couple of questions that I want to ask you.
I must just say one thing, where you say that your lovely daughter is gone and the only thing left of her life is a legacy of words in a government document that she was here, you know, your daughter has left a legacy in a mother who is very capable and very effective. I have been in politics 17 years and I have heard a lot of deputations in that number of years on many, many subjects, and although I have experienced the loss of a child in totally different circumstances, I cannot say enough about how effective you are. You are a tremendously commendable individual.
I am just wondering, through your work with PEP, if you could tell me where the role of the official guardian fits into all of this, or do you, through your experience and your research, find that the official guardian's office is just another bureaucratic agency?
Mrs Ryan: My experience in terms of the official guardian's office has been moderately positive. They do their work well, but my understanding again is that they are only given what they are given by a child welfare agency. So, like the rest of us, they can only work with what they have got. I think my own personal exposure to the official guardian's office is that, from what I understand, it has been doing a wonderful job in terms of addressing within its mandate and the information it has.
Mrs Marland: But their mandate is limited to when it gets to requiring litigation, and that is the problem, I suppose.
Mrs Ryan: That is right. I think that in terms of the official guardian's office, one little personal ditty that I will add, I know of a particular case where a child was orphaned and was left an inheritance, and the inheritance was, of course, being controlled by the official guardian's office. The will of this child's parent suggested that the estate be given to the child at X age. Under the mandate of the official guardian, it says that they can get it at Z age, which was younger than what the parent's will had requested. I spoke to the official guardian's office about this and I said: "I have a concern. My understanding is that the mother of this child would like her will to be honoured." They said, "Well, we will never really run out the door and down the street and tell this kid that her money's available at this time." They realized that they were of two minds, that legally they had to give the child the inheritance on a certain date and time.
Mrs Marland: Even in conflict with the mother's will?
Mrs Ryan: Even in conflict with the mother's will. The mother had wanted the child to receive the inheritance at age 25. My understanding of the official guardian is, once a child reaches the age of 18, he is entitled to his funding.
Mrs Marland: That is amazing, that there are statutes that supersede wills. I'm looking at Carman as a lawyer, because I did not know that.
Mrs Ryan: That is the other thing; we do not find these things out until it is too late. Can you imagine what this mother would have done if she had been able to pop out of her grave? So we all agreed -- wink, wink -- that we would not tell.
Mrs Marland: Yes, yes. When you talk about your vision of an independent committee or whatever other name we should give a commission to be that step-aside, perspective view, I am sure you are aware of the independent committees that were established to deal with early school leaving. They were very much community-based committees. I remember when they were set up in the early 1970s when I was on the school board in Peel, and we were very careful about the people we appointed to those committees. They were very representative of parents and other people within the community. And generally, thank goodness -- and I do not say this as a slight to professional people -- they were very much grass-roots people who had that wonderful grass-roots --
Mrs Ryan: Common sense?
Mrs Marland: -- common sense. Thank you.
Mrs Ryan: It is a wonderful value.
Mrs Marland: Yes, is it not, and a very refreshing perspective that they did not come to those early-school-leaving hearings with any biases that every child should stay in school no matter what, because that is the best thing for the child. They did hear the individual applications very sincerely, and I think that system was very successful. I am hearing very clearly what you are saying this morning about how something like that could be in everyone's best interests.
Mrs Ryan: Particularly the child's.
Mrs Marland: Yes.
Mrs Ryan: That has to be the overriding factor.
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Mrs Marland: It is very clear to me what it is that you have told us this morning. It is also reinforcing for me that I know in the last number of years here at Queen's Park, which I have only served in opposition, that we have continued to ask the government to address the fact that we have 10,000 identified kids, children, who have very special needs because of severe mental health disorders. How horrific to think that this number exists, and I know, as I have asked from time to time for us to stop doing studies and stop referring it for another report, because we do not need any more words, we do not need any more printed reports and studies, because everything is identified. The needs are out there.
I have heard some examples this morning from my colleagues about people they are dealing with in their ridings. I am certainly dealing with a number of those in my riding. If I ask anything of any government, it is that it sets priorities in terms of human needs and we stop adding new programs that we can do without. And we might have to build fewer highways and bridges and superstructures and those hard services and look at the needs for our soft services in terms of human beings in this province.
When I think of what you have brought to us and the power of what you have brought to us, as I said a few minutes ago, because it is based from a personal experience, it is like everything that is illustrated to us as politicians. I always feel that no matter what it is that is brought to our offices, it is, "There but for the grace of God go any one of us," and we should always remember that whether it is Queen's Park or Ottawa, there is only so much money. The government is the people. If the government is doing its job, it is not a body over there and the people are here. The government is the people. It is our money. I think any government of any political stripe can stand on any public platform around this province and defend spending money in a system of priority dealing with human beings. And I think if, from hearing from people like yourselves and your group, we can persuade governments to recognize that in a not perfect world where money does not grow on a tree, we can decide that what is defensible is dealing with those priorities first and letting the others fall in behind and not trying to be everything to everybody.
Mrs Ryan: If we do not do it now, I think that, having the superhighways, 50 years from now there will not be enough people to use them. Read the newspaper any day. We know how bad the situation is. I think you are absolutely right. The reports have been done. They have been done over and over. I have forgotten which article I read it in, but there was a report that stated the annual expenditure per child in the province of Ontario in mental health treatment was less than $3,000. What is the cost of keeping one prisoner in jail for one day?
Mrs Marland: A good analogy. Thank you very much for being here today.
The Vice-Chair: Mr Owens.
Mr Owens: Thank you, Madam Chairman. I would also like to thank you for the latitude that you have allowed committee members today to express their concerns about this rather important subject. I would just like to push that patience a little bit closer to the envelope by saying that the constituents that I had in my office last night sat with me in tears talking about the priorities that this society has. While it is all fine and good for us to protect animals and plants and things like that, what are we doing for the kids? That is the reality: that we need to reorganize our priorities.
I would like to talk to you again about the type of agency you would like to see set up. How far would you see the agency or board going in releasing information? I know you placed some caveat in your presentation, that you would not want to see all information. Where would you draw the line in the types of information that would be released?
Mrs Ryan: If a child has revealed to an agency information that upon release from the care of the agency would in some manner jeopardize the health, safety or welfare of that child, it should not be revealed.
Mr Owens: In terms of restricting where the information would be passed to, a parent or advocate, where would you see the restrictions being placed and how would you determine who was the fit parent, if that is an issue?
Mrs Ryan: I do not see that it is being a fit parent. I guess I am biased -- I am admitting it -- because my feeling is that if you are a guilty parent and you have abused your child in any way, you know it, the agency knows it. Who are we kidding by keeping it hidden? The parent may not have the right to have access to the specific information, but in my opinion it is quite all right for a committee to say, "Mrs Jones, Mr Jones, Mrs Smith, this information cannot be revealed because it relates to particular information that your child has given us regarding abuse."
When you think about it, a person charged with murder has the right to remain innocent until proved guilty in a court of law, but a parent or another person could be slandered and there is no avenue for verification or rectification of whatever was written in that report. If in fact a person is slandered -- and I imagine there will be occasions -- we have courts in this country. We have a family court system now where it is all confidential.
Mr Owens: This is the fine line I referred to, that I struggled with earlier. When you have got a child stating information with respect to one parent or another, at what point do we cross the line and say, "The child is wrong, the parent is right" or vice versa?
Mrs Ryan: I think that has to be addressed through experts in child abuse, both from physical evidence and psychological evidence, through legal proceedings and experts in those areas. I could not hazard to begin to suggest that I would know those, but I know that if there was a brainstorming committee of people in specified areas of expertise, jointly you could come up with a fabulous idea.
I know it could be done and it is not that expensive. I am not making a presentation here that is asking for the development of some kind of grandiose scheme that is going to cost zillions of dollars. This is just utilizing what we already have in the province, which is committed, caring people, but give them an opportunity to save lives.
Mr Owens: Sure. As I say, I tend to lean in your favour with respect to establishing the type of committee, board or agency that could review the situation. You talked in your presentation about some fairly horrendous treatment by staff people, and I would like to concur with my colleagues in opposition that for the most part agencies and persons working for agencies tend to give not only 100% but usually 110% under very stressful circumstances.
Would you see again this mythical agency that we have established today having a power to discipline or censure, something like the College of Physicians and Surgeons of Ontario or the Law Society of Upper Canada? Would you see that as being a function of that committee or would you see it strictly as an agency to vet information?
Mrs Ryan: I think it would have to be two committees. We cannot be experts in two fields. If we expect an agency to be able to take the information and neutralize all the information for the best interests of all concerned, that would be a wonderful accomplishment in itself. But to expect that same committee to look at being responsible for liability of professionals would be inappropriate. Maybe the College of Physicians and Surgeons of Ontario would like to take on the responsibility of social workers. That way we would not have to build another building.
Mr Owens: I am going to try the patience of the Chair one more time. I would like to ask you a little bit more about your organization and how many members you have and the type of catchment area that you work within.
Mrs Ryan: We have at present probably about 50 families that are members. There is no money involved. There is no catchment area. We have our meetings once a week in a public school building, in a room that has been given to us for using, and it is held in a very discreet manner because we have to protect the children and families. We do not want to have a meeting where someone could walk in off the street and hear us discussing a horror story about our children.
We meet once a week for an hour and a half for emotional support. It is getting out the stress and the tension of six and a half days of problems. It empowers the parents when they hear stories of other families and they may have failed for six and a half days at home. During that hour and a half they can contribute some successful parenting skill recommendation to another family and go home feeling better about their own personal self-esteem.
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The other thing we have done is that we have said in our group, "We cannot sit here and complain." We have the general practitioner take part, because we did not ever intend to become professional-bashers as a self-help group. We wanted to learn how to work best within and with the professional community in the best interests of the children and the family. By having a medical doctor there, that helps us with some information that we would require on different occasions.
When the families became frustrated about the situations -- and like I said, these stories are nothing; we can go for hundreds of them -- what we agreed is that, as a committee, we would do just what we are doing today. Many of the families cannot publicly come out and expose themselves because of the situation they are dealing with at home with their children. But, as a committee, we have had invited representatives to our meetings. They have attended and the families have felt very much empowered that they were able to contribute something constructive to the government.
Mr Owens: Just one final statement, Madam Chair. As a person who at this point is not a parent, but as a human being, my heart certainly goes out to yourselves and to the parents and children that you are aiming to represent. I heard you mention Scarborough in your group, and I happen to be the member for Scarborough Centre. If there is anything that we can do for you, please do not hesitate to call us.
The Vice-Chair: Thank you, Mr Owens. You did not try my patience as I am going to try yours in a minute. I wish to thank the presenters very much for coming. It certainly is a heartrending situation to sit here as a mother and grandmother and listen to it. But I do thank you very much. As Mr Owens has just indicated, if at any time we can be of any help, please call us back. l will excuse you at this time. Thank you very much. I ask the committee to please remain for a moment or two. I told you I would try your patience.
Mrs Ryan: Thank you very much for the opportunity. We do truly appreciate it. Thanks.
The Vice-Chair: Mr McClelland has asked for a few moments just on something regarding procedure. Go ahead please.
Mr McClelland: It just seems to me on reflection on the comments that Mr Owens made with respect to the Minister of Community and Social Services, I have no objection to bringing her, but as I reflect on it, it is clearly an issue with respect to welfare legislation and the Child and Family Services Act. We really do not have any mandate or authority to do that.
I think that what we have to do is turn our minds to the general principles of FOI legislation, and to the degree that it impacts Mrs Akande's purview of responsibilities, I think that is something we can recommend to both the minister and to the standing committee on social development. As I have reflected on it, Mr Owens, it seems to me that we would be spinning off into something that would really take us away from our responsibility and our mandate.
I simply leave that for your consideration in response to that, because my initial indication was to nod my head, "Yes, I think it's great for the minister to come here." As I think about it, I am not sure that would serve our purposes well, and more appropriately would be a recommendation, as I said, both to her and her staff and the standing committee on social development to consider the application of FOI with respect to legislation under her purview.
I simply say that for the record and our deliberations and for the clerk's consideration before we bring Mrs Akande here without giving it a bit further thought. I am not suggesting we determine that right now. I would just like you to think on that prior to our next subcommittee meeting.
Ms S. Murdock: Actually, it is a good point, and you are right. I think, though, it was either that the minister or the staff come in. But it probably would not be a bad idea to find out what criteria they use to determine when they refuse information to be released. That is the only thing I would like to find out.
Mr McClelland: I do not want to get into this, Madam Chair. A brief response, because I am not sure we want to get into the argument and join in a debate right here. Whatever we set out with respect to freedom of information legislation, it will still remain the responsibility of various ministers and ministries to seek those exemptions or to put it in that particular legislation. At the end of the day, this committee would have no bearing on that. I just leave that again as something to think about, that we could go through the exercise, determine whatever we want to determine and it is still going to have no impact.
Mr Villeneuve: I think Mr McClelland is right. However, we have identified a major problem, one that we as MPPs live with. Whether the honourable minister is here or not, I believe it is our mandate to address that problem, and it has been clearly identified this morning.
Mr McClelland: I just want to think about how we do it.
Mr Owens: I think Mr McClelland makes some good points. What I would like to do is, as Mr McClelland suggests, think about it and perhaps draft a letter to the Chair as to my intent with respect to the invitation to the minister or her staff to come in.
I am not sure whether my office is unique in terms of dealing with welfare offices and FBA offices, but we are having some difficulty in getting information from offices, and as we have agreed that we will allow some latitude with respect to which level of legislation we are dealing with, I think in that sense it would be appropriate to have the minister come in. She is clearly dealing with child welfare issues that were enunciated here today. So we can kill two birds with one stone, as was mentioned the other day, if that is all right with Mr McClelland. That is clearly my intent.
Mr McClelland: I understand that.
The Vice-Chair: Anyone else? No. I declare this meeting adjourned until 2 o'clock this afternoon.
The committee recessed at 1209.
AFTERNOON SITTING
The committee resumed at 1408 in room 151.
The Chair: I call the meeting to order. I see a quorum present.
DAVID H. FLAHERTY
The Chair: I would like to welcome Mr Flaherty, a professor of history and law at the University of Western Ontario. Thank you for coming today. You have about 15 minutes to make your presentation, at which time there will be about another 15 minutes of questions to be asked by the members of the committee.
Dr Flaherty: I appreciate the opportunity to briefly summarize the testimony that I submitted to you in writing.
Je veux aussi vous assurer que même si je parle anglais, je serais très content d'avoir des commentaires et des questions sur n'importe quelles questions en français pendant les discussions.
Given my interest in privacy, data protection and freedom of information, I am especially pleased to have an opportunity to participate at the beginning of your hearings to review the operations of the Freedom of Information and Protection of Privacy Act.
First, a caveat, since I am an academic. I have not conducted empirical research on how the Ontario legislation has been functioning of the sort that I have done at the federal level in Canada and in other countries. Thus I am unable to identify specific problems that I think your committee should address, although I am quite prepared to answer any kinds of questions to the best of my ability that you wish to pose on the general mandate you have under both freedom of information and privacy. In fact, my general sense of the Ontario law is that it is very progressive in international comparative terms but that it will need some additional time to become even more effective. The concept of an open society in particular is both so important and so novel that it will require a new generation of public servants in Ontario trained in openness to create the appropriate climate for implementation.
I would like to do several things in my testimony: first, set forth my view that we are living in surveillance societies; second, remind you that there is no meaningful data protection for the private sector in Ontario, and third, explain why the European Community's draft directive on data protection of July 1990 poses certain problems for the private sector in Ontario and Canada that are not receiving any attention. I conclude that a central issue facing your committee is what to do about data protection for the provincially regulated private sector in Ontario.
My fundamental argument, which is presented in my book called Protecting Privacy in Surveillance Societies -- and I have given a copy to the Chair; any of you who are insomniacs might enjoy it -- is that Ontario increasingly risks becoming a surveillance society, one in which data banks are watching us, not always for good purposes, so long as it does not mandate some type of data protection for the private sector.
The private sector in North America is the exception in the western world in terms of lack of government regulation of its practices with respect to the collection and use of personal information. In the past, it has been possible to argue that English-speaking countries did not follow such European models of data protection, but developments in the United Kingdom in particular limit the salience of this argument. Although there is no need, in my view, for a European-style registration system for the private sector in Ontario, the British initiative in creating a data registrar under its Data Protection Act of 1984 increases the international pressure on Canada, Ontario and the United States to develop an oversight mechanism for ensuring more effective controls on private sector surveillance.
Current initiatives on data protection of the United Nations and the European Economic Community, which I discuss below, point in the same direction. I actually never discuss the United Nations initiative, but the European Community one is more relevant.
I would like to take you back just briefly to what are called the Organization for Economic Co-operation and Development guidelines on the protection of personal information, which Canada committed itself to on 29 June 1984. They are called the Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. Canada accepted the obligation, among others, "to encourage private sector corporations to develop and implement voluntary privacy protection codes."
Although there now exists a joint federal-provincial task force on implementation of these OECD guidelines, it would be fair to say that concrete evidence of private sector compliance through the adoption of privacy codes is remarkably absent. A few well-known exceptions, such as the recently released model privacy code of the Canadian Bankers' Association, proves the rule.
In a 1987 federal report called Open and Shut: Enhancing the Right to Know and the Right to Privacy, which I understand you have received copies of, the House of Commons standing committee on justice and the Solicitor General, after its review of the Access to Information Act and the Privacy Act -- the same sort of thing you are doing, at the federal level, and I was involved as a consultant in that process -- recommended that the federal Privacy Act should be extended to the federally regulated private sector but without adopting the licensing and registration schemes characteristic of a number of European countries. The model was the moderate type of private sector controls incorporated in the West German federal law on data protection in 1977. That is obviously now the German law. That law has also been just updated, but I really do not know what it did to strengthen data protection in the German private sector.
An important additional reason for action in this matter was the release on 17 July 1990 of the European Community's draft proposal for a directive by the Council of the European Communities concerning the protection of individuals in relation to the processing of personal data. This document -- and I have given a copy of it to your Chair -- has raised the stakes dramatically for private sector data protection, and I think that is one of the reasons why this committee has to think about this issue.
In essence, the EC initiative in its current version selects the best, and some would say the worst -- ie, the most bureaucratic -- aspects of extant data protection laws in the seven of 12 European Community member countries that have such legislation and then recommends that this collation should apply to the entire European Community, including manual and automated data and the public and private sectors. The goal is to have an equivalent level of data protection in place for all the EC member country states by 1 January 1993.
The EC directive is especially bureaucratic and strict with respect to the private sector. It recommends a registration scheme for most personal information systems, notification to data subjects of the disclosure of data to third parties, an emphasis on informed consent for data collection, a process to facilitate the removal of individual data from files used for marketing and direct mail advertising and various remedies and sanctions against data custodians for non-compliance.
I realize that is a mouthful of information, but those basic rules are in the privacy act side of the Ontario legislation, except for the registration scheme, which I would be happy to explain to you, if you wish.
The EC draft directive determines that personal data can only be transferred by an EC member country to a third country, such as Ontario or Canada, if that country ensures an adequate level of data protection. Otherwise, a specific data export can only take place on the basis of an agreed derogation -- their term -- if neither other EC member states nor the European Commission objects.
What has essentially happened in Europe, where data protection is regarded -- data protection, privacy protection. Privacy protection covers a whole multitude of sins; data protection covers the collection and use of personal information. The Ontario act is called a privacy act. It is not really a privacy act, it is a data protection act. The British call their privacy act a data protection act. It at least makes sense. Think of all the privacy problems such as "a right to an abortion" that are not covered by the Ontario privacy act and you see one of the differences.
In Europe, data protection is regarded as an important societal objective, partly because of the Nazi past, and what has happened there is that both legislators and data protectors have realized that their own data protection for the private sector needs to be strengthened. Plus they now understand, with more than slight astonishment, that the private sector in Canada and the United States is, by their standards, essentially unregulated. The only kind of regulation we have is in the credit information field; consumer protection laws I think is what it is called in Ontario. The European data protectors view the current situation as an excellent opportunity to put pressure on Canada and the United States for improved data protection.
This whole initiative from the EC has made smoke come out of the ears of American multinationals. They see it as a big trade issue and it is quite entertaining to watch what has been happening, because they do not have anywhere near the quality of privacy protection in place at the public sector level that we have in Canada. I discuss that in my book, which is a comparative book dealing with France, West Germany, Sweden, Canada and the United States.
What may the European Community directive mean for Canadian and Ontario companies? I have just been talking about data protection as a human rights activity. If it does not appeal to you on that score, it is also a trade issue, it is also a competitiveness issue, because subsidiary companies operating in Europe will be subject to the data protection regime set up under the directive. In particular, subsidiaries operating in Europe will have to comply with the requirements of the directive when transmitting personal data to their parent companies in Canada. Finally, any Canadian company seeking to obtain personal data from a trading partner or any other source in Europe will be subject to controls on transborder data flows.
I continue to promote a process of self-regulation for the private sector in North America. The Canadian Bankers' Association code is a good example, and a number of other major Canadian companies that are federally regulated, plus a world-class credit information company, are about to announce important privacy initiatives in the form of privacy codes. But with my sort of modest enthusiasm for self-regulation, I am no longer sure that such an approach is adequate in terms of other international developments in data protection that I have mentioned. At the very least, I believe that the Ontario government has to push the provincially regulated private sector in this province to do more to self-regulate, because it has been 10 years since the OECD guidelines were first promulgated in 1981. I would suggest to you that it is very, very difficult to find a provincially regulated company, especially in a privacy-intensive industry, that has a privacy code in place. On the other hand, Quebec's Ministry of Justice, which I admit has a lot on its plate these days, has been and is directing attention to data protection problems in the private sector. Their Ministry of Justice is currently planning hearings on data protection problems in the private sector.
I obviously believe that this review committee should seriously consider action with respect to the extension of selected portions of the Ontario privacy act to the provincially regulated private sector, especially for such privacy-intensive sectors as consumer credit, insurance, employment, mailing lists, direct marketing, video rental records, CD-ROM consumer products and matters of that sort.
I would be happy to elaborate on these matters at your convenience. Thank you for the opportunity to testify.
The Chair: Thank you very much. Since we have a number of witnesses appearing this afternoon, our time frame for questioning is a little tighter this afternoon. So each party has approximately six minutes in which to ask some questions.
Mr Owens: You are so generous, Mr Chairman.
The Chair: I believe we start with the third party this afternoon.
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M. Morin: Est-ce que je pourrais vous poser une question au sujet de l'accès à l'information pour ce qui a trait aux entreprises privées ?
We heard yesterday -- or was it the day before yesterday -- from Ken Rubin, who was obviously quite adamant and wanted access to all the private sector. What is your feeling vis-à-vis that?
Dr Flaherty: He was talking about access to personal --
Mr Morin: Access to information. For instance, he was referring to the SkyDome, that you should have access to the directors and obtain all the information as to why they have financial difficulties. They want to have the names of all the financial contributors in the Ottawa Senators, for instance. Of course, he was turned down. What are your feelings vis-à-vis that?
Dr Flaherty: I much admire Mr Rubin because he has been the person who has made the greatest effort to make this openness legislation work at the federal and provincial levels and he has run into considerable roadblocks. I think on balance, despite being a privacy advocate, that the values of an open society are paramount, that we should be promoting openness, especially when the spending of government money is involved, when it is somehow a crown corporation or not even an arm's-length extension to a provincial or federal government. We need more openness of that sort. We need to know more why decisions were made, and once decisions were made, we should have much more of that information in front of us. I think that is in the public interest, in the interests of legislators and so forth.
On the other hand, there are privacy interests at stake and it is very, very difficult often to draw the appropriate balance. It certainly does not help federally or provincially when you leave jobs open for six or nine months so that offices are lacking in leadership. There has not been a federal privacy commissioner since last July. As you well know, the Ontario office has been without formal leadership at the top since last March. That is not very effective in drawing the kind of delicate balance that has to be drawn in very specific situations. I have no open-sesame, bright line that I can give you that would automatically say, within the SkyDome context, exactly where you would draw the line between openness and the privacy interests of individuals. I would be a little bit sceptical that there would be much in the way of privacy interests of boards of directors with respect to general decisions that they have made that involve the spending of public money.
Mr Villeneuve: I find it interesting that near the end of your presentation you are suggesting self-regulation for private industry. I have no problems with that. Prior to freedom of information legislation, I, as a person elected to the assembly, had less difficulty obtaining information. Now I have to go through the hoops and barriers. Could you comment a little further? If we do leave self-regulation totally to the private sector, what do you envisage, based on possibly the experience that we now have under FOI in government?
Dr Flaherty: I must say, as someone who has been involved with these information policy issues for 25 or 26 years by an accident of my career, despite my obvious youth, I am shocked to see what sometimes happens when this legislation comes into place. All of this legislation was based on the presumption that existing disclosure mechanisms, unless they were appallingly bad, would not stop. It was always understood federally and provincially that whatever access to public information that existed, that was healthy, should continue. Unfortunately, it seems to be part of the legalization of our society that is taking place that we put these rules and regulations in place and it does give more power to the bureaucracy in ways that sometimes slow down progress. I think my explanation, as I have dealt with the media over the police not releasing names of victims and people accused and so forth, has been that in some ways, at the beginning of new legislation, everybody plays games.
Roy McMurtry, on behalf of the chiefs of police of Canada, argued when he was Attorney General of Ontario against the federal freedom of information act that the end of the world was at hand. Law enforcement in Canada would cease for ever. As much as I admire Mr McMurtry, because I am also a legal historian and he contributed greatly to the advancement of the history of law in Ontario, we had a disagreement about this. Within a couple of years under the federal freedom of information act, the RCMP was saying: "Everything is just fine. We are doing what we always did. We are obeying the rules." They are a paramilitary organization, so they knew how to implement rules. I think what we are finding in Ontario, with freedom of information in particular, is that some of these rules are being applied in a very obfuscated way to counter the thrust of the legislation, which is to promote openness.
One of the things I admire in the United States is that they have had an open society officially since 1966, when their Freedom of Information Act was first put into place. I can tell you that it is dangerous to do research there, because if you ask them about anything they give you a document; they are not as uptight with information as we tend to be federally and provincially in this country. I think they show the benefits of an open society. People say to me, "If you want to know something about many Canadian companies, you file a Freedom of Information Act request with the SEC in Washington." That is an example.
I also think we have to give the act some time. I hope it does not take a generation, because I will not be around when it is finished, but it takes a while to train people in the concept of openness. You can see the difficulty. We want to promote openness but we also want to have data protection, but that is a subsection. We should be able to have an open society and at the same time protect the privacy interests of individuals, even in the kind of difficult situation you heard about this morning.
Mr Villeneuve: Maybe you could also comment on what has happened at the federal level. We now have, I gather, two individuals, one to protect privileged information so-called and one for access to more information. Who wins in a situation like that?
Dr Flaherty: Fortunately, there has been very little conflict between the two parts of the same office. You can see the problem. When I testified on this legislation before this committee in 1986, I think I suggested that it was a schizophrenic job to be the Information and Privacy Commissioner. How is the same person going to balance in his or her mind the two competing interests? As I thought at the time, freedom of information is the most politically sensitive, so that is going to occupy the bulk of the office's time.
Federally, they have managed to stay out of each other's hair, they have managed to stay out of court against one another. In fact, under the federal Privacy Act, there has been no litigation under the term of John Grace, the seven-year term that ended in the spring of 1990. They never went to court once. They were able to operate in an non-legalistic fashion. If I have any preference in this matter, provincially or federally, it is to not turn these bureaucracies, like the commissioner's office -- I am afraid that is what we have to call it -- into mini-courts. They were always intended to be ombudspersons or ombudsmen. They were supposed to be facilitators. They were supposed to promote access and privacy, and I agree that it is a schizophrenic job. On the other hand, this committee was wise enough in 1986 to split the two assistant commissioners to privacy and freedom of information. In Ontario there has been no leader in place since last March, but they have obviously continued to function and they have been getting results. Whether the functioning has been adequate is for you to decide.
Ms S. Murdock: Actually, this is in relation to conversation we had before you made the presentation. This is based on the language used in the act predominantly. Do you think it is necessary that a commissioner, for instance, who has not been there since March, should be a lawyer?
Dr Flaherty: Absolutely not. I suppose I could be accused of bias. I have legal training, I am a law professor, but I am not a member of the bar.
Ms S. Murdock: Say this again? I am sorry.
Dr Flaherty: I was about to say that I do not believe that you have to be a lawyer. The federal privacy commissioner, who is now the information commissioner, is not a lawyer. He was a very effective privacy commissioner and I predict -- he will love reading about this in Hansard, so send him a copy -- he will be a very good information commissioner. He has the right style, a facilitative style, a mediatory style, an Ombudsman style. He likes to make deals and get results. I think that is how this job has to function.
So I do not believe it has to be a lawyer. It obviously has to be somebody who is sensitive to legalities, but I also have a belief -- I teach the history of law, American and Canadian. I love the Charter of Rights and Freedoms. I like the fact that the Supreme Court of Canada has been developing the constitutional right to privacy under the Charter of Rights and Freedoms, but I am opposed to becoming as litigious and legalistic a society as one can demonstrate the United States has been since the 18th century. I think the commissioner's job is to be an advocate, to be a promoter of openness, to be an educator, a facilitator. That may be a lawyer; it may not be a lawyer. Often lawyers have skills in that particular direction, says he, deferring to lawyers on my right over here.
Ms S. Murdock: In the same vein, in terms of the language of the act, I know that as a constituency assistant, before this new position I am in, we had some occasion where our constituents had to make use of the act and had great difficulty in understanding it. Has your experience with our act been, in terms of the language used, that it is too legalistic or too complicated for the general public?
Dr Flaherty: One of the great things about having this review committee is that all of you at least will have to read the act; I am sure you would have looked at it before. You particularly, having been an assistant in a constituency, have a sympathy with what happens to the public if they pick up a document like this. If you have some legal training, it is difficult enough to understand.
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Let me say that generally speaking, the freedom of information act, which is supposed to promote openness, largely tells you what you cannot get. The privacy act, which is supposed to protect personal information, largely tells you how the government can give out personal information about you despite your inclinations. And it is all very complicated.
I said to you in private conversation that at least in Ontario, the only jurisdiction in the world, all of it is in one piece of legislation. That is the great Canadian contribution to privacy and freedom of information, to put it in one law, so at least you are not looking in two different places for it. But it is still very complicated, and I think the exemptions on both sides are much too large, much too protective. There probably should be injury tests in connection with most of these exemptions.
That is why I think many of the arguments and specific suggestions in the Open and Shut report -- which I helped to write; I admit that, and I have an obvious bias in favour of it -- will be of considerable interest to the members of this committee as you consider how to enhance and improve the Ontario legislation, which, I admit, is pretty darn good.
Ms S. Murdock: Would one of your recommendations be that we should, in our recommendations, include another mechanism for review at a later date?
Dr Flaherty: You mean judicial review?
Ms S. Murdock: A review somewhat like what we are doing here.
Dr Flaherty: Oh, yes. In the Open and Shut report -- some would argue it is because I would like continued employment as a consultant -- we recommended that there be another three-year review. The fact of the matter is that that was one of our recommendations that the federal government did not pick up on. I said to you privately, "I think it's very important that this committee really do its job carefully because it's unlikely there will ever be another three-year review." You know how difficult it is to get the attention of the busy Legislature to something as complicated and technical as this piece of legislation.
Ms S. Murdock: Would you feel it would have to be three years, or could it be longer?
Dr Flaherty: If you can get a five-year review on it, that would be terrific, because of the fact that it is going to take a long time to make this legislation meaningful.
Ms S. Murdock: One of the recommendations the commissioner's office made to us on the first day was that the commissioner should be appointed for seven years. What would your feeling be in terms of a review every seven years?
Dr Flaherty: That would be healthy. The problem is to get time in a busy legislative schedule for something as specialized as this piece of legislation. A mechanism that will facilitate that is, I think, very useful.
Mr Owens: With respect to your presentation on page 6, regarding the regulation of consumer credit, insurance, employment, etc, I heartily agree. We have had some conversation about that earlier in the week. It is of concern to myself and, I am sure, a lot of other people living in this province, about the depth of information that private companies are able to access about us as individuals, as well as the type of sharing that goes on between companies.
While we may freely give our name, address and phone number to ABC company, the next thing you know it is being shared with several other companies. I agree that we need to look at regulation in the private industry.
Just one last comment, with respect to review of the legislation. I feel that legislation of this type is evolutionary and should not be allowed to sit and not grow and change as the society it governs changes. I think it would be clearly within the mandate of this committee to recommend an ongoing review process to facilitate that growth and change as society changes.
Dr Flaherty: Could I just respond briefly to that? I would like to make the privacy issue real for you by asking you how you would feel about the local newspaper in your constituency running a story about what your recent rentals had been at the video store. You might think that was just very entertaining; your constituents might enjoy some of your tastes, peculiar or otherwise, in video rentals. But the fact is that there would be absolutely no reason in the world, as Judge Bork found in his Supreme Court hearings in 1987 in Washington, nothing to stop them from taking their lists of what you have been doing at the video store and using it. That is just an unsatisfactory situation. So in addition to your major preoccupation, which is likely to be freedom of information, you should not forget the privacy interests in the private sector. A lot of that is good housekeeping. You can do most of those privacy codes on the back of an envelope, and I think I have suggested to you in my longer testimony how that can be done.
The Chair: Thank you very much for coming along this afternoon, Mr Flaherty. We look forward to your other comments.
Mrs Marland: As our next presenter comes to the table, and I notice Mr Dear is speaking on behalf of the Metropolitan Toronto Police Force, I notice that we have now received a submission from the Sault Ste Marie police service over the signature of Kirk Kinghorn, who is an inspector of the services division. He has sent a covering letter with their brief; the chief of the Sault Ste Marie police service is Barry King. I assume that written submissions coming to the committee are going to be part of our research officer's summary. Actually, this particular one is very succinct and very easy to read, which is something I know Chief Barry King would be responsible for. But if we have a lot of written briefs, with our sitting schedule, if we are not personally able to get through them all, we can look forward to some kind of summary from Mr Pond. Is that correct?
The Chair: That is my understanding, that these become part of evidence and that there is a summary done at the end.
Mrs Marland: Thank you very much.
METROPOLITAN TORONTO POLICE FORCE
The Chair: Will the next witness come forward, please? Thank you for being here today. Maybe you could state your name and your position and who you represent today. You have 40 minutes for this presentation, so you have up to 20 minutes to make your presentation.
Mr Desjardins: Thank you, Mr Chairman. I am Staff Sergeant Ray Desjardins, and I am a member of the Metropolitan Toronto Police Force. More to the point, I guess, for this committee meeting, I am the freedom of information co-ordinator for the Metropolitan Toronto Police Force.
I have not got a presentation to make, though. The chief was apparently asked to attend the committee to be available to answer questions. The chief is tied up in the United States in a conference right now. My immediate superior, Mr Dear, has another meeting at the Attorney General's at this same time. That leaves myself to answer any questions.
The Chair: Thank you, Sergeant. I think the normal rotation this time is with the second party.
Mrs Marland: Staff Sergeant Desjardins, you actually drew the short straw today.
Mr Desjardins: Yes, you could put it that way.
Mrs Marland: I am quite sure you would not hold the position of co-ordinator if you were not fully competent and capable. I would guess you are probably far more familiar with the complexity of this legislation than we are.
You are probably aware of this too; you may even have seen some of the rerun of the committee hearings. Earlier this week we did have the presence of the top cop for Ontario, Solicitor General Mike Farnan, I think it was Tuesday afternoon for an hour. At that time Mr Farnan told us that the experience of the Ontario Provincial Police with this new legislation for the past three years was quite -- I am only paraphrasing his comments, but he kept reusing the same word. What was the word? He was talking about the fact that everything was going very smoothly and that for three years with the OPP --
Mr McClelland: A comfort zone.
Mrs Marland: A comfort zone, thank you. He said it had all been within a comfort zone, and for those first three years there had not been very serious or severe problems with the legislation.
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When I asked him if he were going to be establishing guidelines to deal with municipal police forces and their regard for the legislation, he said no, he was not going to give guidelines at this time, although four or five weeks ago he did say he would give guidelines. But he has changed his mind and he wants to sit back and monitor the situation. He said it was a matter of judgement on behalf of police forces across the province, and he wanted to listen to the Ontario Association of Chiefs of Police, but he felt it was up to the police forces to use their judgement in interpretation. I think I am being fair to what his comments were.
What I asked him was that when it comes down to the final crunch of what interpretation means in law -- unfortunately, sometimes, that interpretation is always left to the courts, and that is with any statute. In light of the decision that had been made this week by the three Supreme Court judges in relation to the right of a female resident of Toronto to sue the Metropolitan Toronto Police Force as a result of a violent personal crime against her, a violent rape, in that case the question was: If the whole information surrounding what was going on in her community at that time had not been kept private, she may have been in a position, as would any other female who lived in that Church-Wellesley community, to take extraordinary precautions to protect herself.
From what I have read, that young woman was not asking through her lawyer that victims' names be released. I can only read what her lawyer had said, because she is known as Jane Doe and is commenting only through her lawyer.
I am looking at it from the perspective of anyone in any community in Ontario who might be at risk because of a particular type of crime taking place. It could be a child molester, where children are at risk, it may be a rapist, where women are at risk, or it may be someone else who is committing violent crimes against any gender or any age. Where that is the case, there is obviously, under this legislation, a balance between how much information is released and at what point the perpetrator of that crime, until he has been proven guilty in court, is protected behind the right to privacy.
From the difficulty the municipal police forces have faced in the past month -- there again, we only know what we read and what we hear through interviews -- I know this is a very complex subject. Can I ask you as the co-ordinator for your police force whether your police force is now in a position, after four months of the new act, where you now have a policy that you have established, whereby a community would be informed of a risk to human life or safety, without releasing the victims' names, yet the public's right to know, in the compelling public interest of safety and security?
Mr Desjardins: The short answer is no, the force does not have a policy in place such as you mention or you envision. The problem here is that the act addresses the protection of individual privacy and the others of the two main thrusts. The other thrust is the access to recorded government information, which is what my unit deals with. The operational context that you are talking about, I think, is a situation whereby an investigation is ongoing. It is up to the officer in charge of the investigation or his superior in that area of the force as to whether, for instance, notice is warranted to people who might be targets or subjects of risk.
The incident that you are commenting on, of course, I know essentially what you know by reading the newspapers, but in an over 7,000-person organization, I do not really have details of that investigation over and above what I read in the paper. Our office has not been approached, nor have we initiated a type of situation that you are talking about.
For example, if someone were to make an access request to our unit, the freedom of information unit, in regard to the particulars of a certain investigation, it would almost certainly be exempted under the provisions of the act because it is an ongoing investigation. So there is an exemption that protects an ongoing investigation for obvious reasons: something is being investigated, the officers want to pursue the matter with a view to laying charges, to proceeding in court, and to release a lot of information would, of course, prejudice that goal.
The situation in question is a very contentious one and a controversial one of the young lady, and again, I am simply repeating myself, all I know is what I read in the papers.
Mrs Marland: Staff sergeant, I do not expect you to know the details of that case. I know the population of Metropolitan Toronto and therefore the population that your force is responsible for. Also that was a crime of violence that took place five years ago and it was prior to this new legislation even three years ago. But I use it as an example because here we had five rapes within a tight geographic area of a downtown city core and also within less than 12 months, I understand.
Are you saying that at the moment there is not a policy -- it is so hard to put this without putting you on the spot. Let me ask it another way. You are saying that where there is an ongoing investigation, because of this act there is an exemption to releasing that information because an investigation is ongoing, and therefore the perpetrator or perpetrators, plural, are protected and by necessity they are protected because obviously they are innocent until proved guilty.
Mr Desjardins: No, what I am talking about right now is protecting the investigative process.
Mrs Marland: Yes, I understand that.
Mr Desjardins: You see it is a question of the operational units, for example, the homicide unit, the fraud squad, the holdup squad. These are specialized areas of expertise. For example, in my 20 years on the force, I have never been in homicide and I have never been in the fraud squad, so I do not have that much expertise in these areas.
In a big city the size of Metro, we have a lot of people who are experts in that area as well as generalists. So it would be presumptuous of me, for example, to approach the investigating team relative to the incident you are mentioning and say, "Well, why did you not give this out?" I hope they have their reasons. I would assume they do have their reasons. The courts may judge otherwise.
Mrs Marland: But I am certainly not talking about fraud. I am talking about where a neighbourhood or a community is at risk because of violent crimes being committed. I gave the example of rapes or child molesters. Would it really be contrary to the act if, in the compelling public interest -- I mean there are rights of the public to know that they are at risk. Is that a difficult balance for the police? Does telling me that there have been attacks in Queen's Park, for example, put the ongoing investigation at risk? Where is the balance between putting at risk the ongoing investigation and having more crimes and therefore more investigations to follow?
Mr Desjardins: No, that would be a judgement call, and that would be a judgement call exercised by the officers who are involved in a particular investigation; or if it is a case of a number of investigations around a common theme such as sexual assault, as you mentioned, their superior would be the one to sort of advise them whether the at-risk communities should be advised or warned as the case may be. It would be on case-by-case basis. I do not think it is amenable to a sort of blanket policy of "When this situation prevails, then this must be done," because each case is different.
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Mrs Marland: Okay. My final question would be, if it is not an individual judgement call on a crime in a specific area or multiple crimes, then why was there such a concern by the municipal police forces who are suddenly putting their hands in front of the TV cameras and saying: "We can't talk to you. Leave this scene"? Suddenly we saw, certainly on the television media and some comments in the print media, that after 1 January everybody -- I am not going to say police forces were paranoid because, as I said yesterday, nobody has any higher regard for the police officers in this province and their administration than I do.
But suddenly, if they are put in a position where they might be sued under the Freedom of Information and Protection of Privacy Act, they have got to protect -- if they are being pushed back to the wall by media who want this information in return to protect the public, who is behind that wall to say to them, "Look, you can give this much information, you can say it's Queen's Park, but it wasn't So-and-so as a potential criminal or potentially to be charged"? Who is behind the police forces? Is the Solicitor General behind you saying, "Don't be worried about being sued because we'll protect you from that risk, as a police officer, as an investigating officer?"
Mr Desjardins: If I understand the question, the Solicitor General, of course, is behind the police forces in the sense that he is responsible for policing Ontario. But if you mean is there somebody giving me, for example, as the co-ordinator of the freedom-of-information unit, advice on disseminating information throughout the force, the answer is no, other than I am a member of and have been a member of since the middle of 1988 the Ontario Association of Chiefs of Police freedom of information committee, which comprises members of various forces. We have discussed common concerns and the way we are going to answer the requests and the action we will take, that sort of thing. It is simply a matter of enforcing the act really.
Most of the publicity since 1 January is concerned with what we call our major news releases, releasing victim information, that sort of thing, and that is the case where we are simply following what the act says. We have had legal advice from the Metropolitan legal department, we have had legal advice from our own force lawyer, and my office has had some inputs from the two-and-a-half years' experience we have had in various committees with the Management Board of Cabinet, with the Information and Privacy Commissioner and with the OACP commission, and it was the opinion of my office that to continue to release all victim information the way we had in the past would be quite clearly counter to the act.
This is the advice we gave to the chief. It was a difficult situation for the chief. He had traditionally enjoyed a good relationship with the press, and in the end he looked at the legal advice he was given and said, "Well, we'll have to go with it", because it was thought that it would ill behoove a police force to deliberately disregard sections of the act which we knew told us to do things this way. I know that does not address your concern about the at-risk communities. I would like to think and I believe that is certainly an anomaly. The situation you are referring to receives a lot of publicity and I do not know whether the right moves or the wrong moves were made in that situation. I would like to think that the right moves were made but I guess the court case will tell us in the end.
The Chair: I know this is a very serious topic we are talking about here so I have allowed a little extra time. I have given the political parties about 16 to 17 minutes to ask questions. You have time for one quick question.
Mr Villeneuve: Okay, do you see a different comfort zone -- and that was the buzzword that Solicitor General used -- for a force like the OPP that is across the province, as compared to the largest municipal force that you happen to be a part of or a municipal force of two officers, which we have many of out in rural Ontario? Do you see a different comfort zone from the provincial policing unit to a large municipality to a very small police force in a small town?
Mr Desjardins: Yes, I think I do. That is probably a fact. People have said before, "Why has the situation suddenly cropped up in Metro when the OPP have been operating under it for these last three years?" Well, I think the situation that involves a high-publicity case is the exception to the rule, and it is mainly a rural police force for many of the rural and smaller communities in Ontario.
I think the issue simply did not arise because, for example, where a major crime, a major incident occurs in a small community, I think everybody from the mayor to the last citizen in the community knows who the accused is, what the crime is, who the witnesses were by the end of the day, so it is kind of superfluous perhaps for the newspapers to try and get the information from the police the next day. In Toronto, which is the media centre of Ontario, the light is very hot and very bright, and I think our comfort zone, as you put it, is quite small.
Mr Villeneuve: As you know, we had a very major problem in what was referred to in previous questioning, in a small municipality in rural Ontario, and the hearings are still before the courts, but there was some degree of apprehension by local people. It was child molesting on a large scale, and the local people were somewhat unhappy that the investigating officers did not warn families that this was occurring on a relatively large scale until it all kind of came out in the wash. That is a difficult one, I know, but could you comment on it?
Mr Desjardins: Actually the Freedom of Information and Protection of Privacy Act does not really deal with that sort of situation, does not really sort of offer advice or say that we should do this or we should do that. It is kind of a passive thing, if you will. It says that if we receive requests for information, this is what we do. In this case we give it out, in this case we exempt part of it, or in the rare case all of it, because of a certain situation or things that prevail. But it does not say that police should take a proactive stance, so to speak, in terms of protecting the public.
I would think that would go without saying. You know, "To Serve and Protect" is our motto. In this situation and the one mentioned earlier, I would like to think the protection of the community is uppermost in our mind and I just do not know why these people were not -- I do not know all the details so I do not like to comment on another police force or even another police officer's performance, but it would seem that protection of the public is paramount, yes.
Mr Villeneuve: Then, of course, the obvious one, it cannot interfere with the ongoing investigation that was occurring, because if you spill too much of what you know, then you have defeated the purpose. It is a fine line.
Mr Desjardins: Yes, but even then I would suggest that in certain cases, even if the investigation would go down the tubes, so to speak, if it was a case of protecting at-risk communities, then sometimes it might be --
The Chair: Thank you. Mr Owens.
Mr Owens: We seem to be revisiting the Solicitor General's testimony here today. One of the questions that I asked was with respect to the philosophy that the Solicitor General's department has with respect to the revealing of victims' names, and I guess I am asking you the same kind of a question. For as long as I have been able to read newspapers and listen to the news and whatever, they have always identified names and not street numbers and things like that, and I think our friends in the press have been relatively and reasonably judicious in their use of victims' names.
What type of philosophy is the Metro police force going to employ with respect to any kind of recommendations that it makes to the Solicitor General, that it makes to the Management Board of Cabinet around this issue? One of the stories that I referenced was one that was reported about the Victims of Violence, the group that talked about crime statistics and people becoming faceless, and that we would be unable, for a lack of a better phrase, to reach out and touch people, to have that personal contact that, one, informs us of what is going on, and two, reassures us that we are still somehow human, that we can still empathize with victims. I am just wondering the type of philosophy that your department is going to approach with respect to that.
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Mr Desjardins: Well, I am not sure about the question of philosophy. We are, as the speaker before me mentioned, a paramilitary organization, and certainly the level below the chief, at my level and the level of most police officers, our function is to fulfil the mandate that we are given: to obey the law above all as well as enforce the law. It is simply a case of -- and I want to stress that we are not doing this to make the Toronto Star unhappy, or any other group -- we are simply doing this because the law says that in this situation victim information, in the absence of compelling reasons to the contrary, will not be given out, and in this situation it will be given out.
There were some teething problems. We initially changed over from one procedure to another at the end of the year, and the situation, the way the process works, it involves a police officer in the field determining if it meets the criteria for a major occurrence and telephoning down to a clerical person at headquarters who is merely a cipher, so to speak. The orders are printed out and they are delivered out to the duty desk, which we call the majors. This is where the press come and pick up the majors and I guess examine them and decide whether to do a story based on them or not.
It has been said that it is ambiguous, and in some cases it may well be. But quite clearly I think in a situation of releasing victim information where an ordinary crime, a very common crime, like a break and enter or an assault or someone's home being broken into and certain items stolen, the intent of the act is that person's personal information, which would personally identify him or her as an individual, will not be released to the public without his or her consent.
Something that we have to remember is that as long as they consent, that is fine, and we have told our officers when they take their occurrence reports at the scene to ask the victim, "Do you have any objections to this being released?" In most cases I gather they are saying no, because we are releasing very few of them.
You mentioned the situation of the faceless crime, and this is the situation that the newspapers seem to key on. They say that a story without an identifiable individual is not news. That is their point, and I can sympathize; I cannot empathize, but that is what they say. On the other hand, the law tells us that we have to do this. I do not think we are dragging our feet at all or being obstructionist. In fact, we have modified our procedures somewhat, to give them even more information than we first were.
For instance, now when there is a victim and an arrest has been made, then we will give out that victim's name, even though the arrested person will not be charged until the next morning in court, on the understanding that it is going to be made available publicly the next day or two days later, if it is the case of someone being arrested late Friday night. Then we will give out the information because it will be made public on the Monday anyway.
We are doing that and, of course, we are not releasing the names of sexual assault victims or a child, because we traditionally have not. But that is a judgement call.
Mr Owens: Has your relationship with groups like Neighbourhood Watch changed in any way with respect to the types of information that you release to those folks, and can you tell the committee how it has changed?
Mr Desjardins: Yes. We have had to sort of advise the street officers who are involved with Neighbourhood Watch, when they take an occurrence, to ask the victims whether they have any problems with the information being released to the Neighbourhood Watch program and, if necessary, to explain what the program involves, that sort of thing. Ordinarily, for example, a break and entry that I mentioned, you would give the street, for example, if it was Boyd Avenue or something, you would say, "A bungalow was broken into on Boyd Avenue and stolen was a quantity of money, of coins," whatever, but you would not give the address. You would simply say a bungalow on Boyd Avenue in that situation.
It was pointed out to us in my unit, the freedom of information unit, by the people at Neighbourhood Watch, that they sometimes have programs -- for example, if someone has had a lot of things stolen -- to come to them and to assist them, whether it is sort of victim assistance programs to assist them with the stressful situation they have been through, or sometimes it is with elderly people, to help them physically, to go and make a meal for them or console them, that sort of thing. So we have told them when they take the occurrence, initially investigate the crime, to explain the Neighbourhood Watch program or the victim assistance program, if they have any problems with the information being released.
Mr Owens: My colleague Mrs Marland asked about a policy and a procedure and, I guess, some type of form or method of inventorying the type of problems you have. Are you folks being proactive in that way or are you waiting for the Solicitor General or Management Board of Cabinet to come out with directives as to how this process is to be handled?
Mr Desjardins: We are being sort of proactive, I guess, in the sense of external situations, and reactive internally in the force, because of course the act applies within the force too. But we have tried to sort of anticipate situations developing outside and address them before something happens, before someone's personal information is released, before something is done sort of counter to the act, maybe not willingly but against the letter of the act. Sometimes there are things we do not think of, but they become apparent and someone brings our attention to this issue and we deal with it, sometimes by a policy, sometimes by fine-tuning the present procedure.
Mr Fletcher: I just have one question -- maybe it is a two-parter. The act itself, you work with the act. Personally, how do you feel about it? If there are any changes you would like to see in the act, what would they be?
Mr Desjardins: Actually this committee, I understand, is dealing with the provincial Freedom of Information and Protection of Privacy Act, and I am working under the Municipal Freedom of Information and Protection of Privacy Act. But I think most would agree it is essentially a simple translation of the provincial act and no substantive differences.
You sort of caught me off guard. I am not used to someone asking me personally, as a police officer, how I feel.
Mr Fletcher: Sorry.
Mr Owens: Your boss is not here, so --
Mrs Marland: No, but he is going to watch it tonight.
Mr Fletcher: No, he is not.
Mr Desjardins: I think it strikes a good balance between access and privacy protection; I really do. One of the problems -- I have been involved in this for two and a half years -- one of the really common problems I am up against is traditional police practices and traditional police attitudes. I say that. I am a traditional policeman myself. I have been on the job 20 years. But we have sort of grown accustomed to someone saying, for example, "Can I have this police document or this police report?" and we say no, because one of our regulations is that the business of the force is confidential and force documents will only be released on the approval of the chief of police.
Basically, if you want a police document prior to 1 January -- actually we have been easing into this in the last six months, but basically prior to the act -- you would probably be told no, and if the person persisted and said, "Well, why can't I see it?" we would say, "It's a confidential police document." That is it, sort of discussion closed.
Often in fact the document or the information contained in the police report has been fairly innocuous. If one stands back and looks at it, one might be tempted to say, "Why not give it to them?" whereas the traditional attitude is: "This is a police report. We cannot give this out." I find that now, three years later, there is a lot of that kind of situation, where we are looking at documents now that historically we have not given out, but we say in effect: "Why not? What harm can accrue to the force? What investigation can be imperilled or what portion of the public can be put at risk by releasing this?"
Quite often it is none. It is just that traditionally we have not done it. So we are changing that a lot. I found that attitude has been very prevalent and it has been quite an education process we have been involved in intensively in the last year and a half.
As far as the access to information that is dealt with there and the protection of privacy is concerned, really I think it is something that people do not have a legal right to, but certainly I think they have a moral right to it.
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On the question Mr Owens was mentioning before about the faceless crime and the need of the press to publicize this, we have had instances where people have complained and written letters to the chief where they felt their privacy was compromised. There was an incident: A young lady wrote a letter to the chief. It was last year -- I do not have it with me but I could get it -- where she was mugged. She was robbed in downtown Toronto. Her purse was stolen and her keys in the purse were taken as part of the robbery. The next day the press published the fact that she was mugged, her home address -- she lived in an apartment building -- and of course there are her keys in the purse with the attacker.
To make matters worse, a couple of days later her parents in Thunder Bay read the story. I am not sure whether it was the local press culling an article from the Toronto Star -- I am sorry; I do not know it was the Toronto Star -- culling an article from the press, or whether they had read the actual Toronto paper, but they phoned her up and they were all upset, "We told you what would happen when you went to the big city," sort of thing.
I guess she felt, first of all, did they have to publish her address when her keys were in the purse and everything, making her subject possibly to a second attack, then publish the information needlessly upsetting her parents when the incident had been dealt with and had been in the past? So there are two sides to this issue of publishing information.
We are finding that a lot of people we come in contact with, if given the choice, would rather the information not be made public, even to the extent of something seemingly -- I should not say "harmless" but as low-grade as a break and enter into a residence. It is terribly shattering to an individual if you have had your house broken into, but as far as the police are concerned it is not really a serious crime. They are very seldom violent people. But still, there are details in police reports of what was stolen. Maybe you collect a certain kind of china, or you collect coins, or maybe someone is a gun collector, and of course publishing that is a red flag, perhaps, to thieves who read it, or even just for the sake of the fact that they do not want certain details of the goods that were stolen made public.
I think someone should have a right to that, maybe just to fend off questioners at work the next day. If anyone has ever had a broken arm or a cast, you get tired of endlessly repeating what happened, even for something as simple as that. So I think there is a case to be made for protecting individuals' privacy.
The Chair: Mr Owens, do you have a question? You have about five minutes left.
Mr Owens: Just a quick, almost humorous anecdote: I had spent an evening shift with two officers in Scarborough travelling in the back of the cruiser, so I wanted to write letters to thank them for their interest and the information that they provided for me. When I called up the main switchboard to get the address for 41 Division, I was told that I could not have it, that it was confidential and that I would have to write care of Chief McCormack at 2 College Street if I wanted to thank these folks, which I of course did. But with respect to your comments about traditional policing and confidentiality, I think you are correct that things have not changed in a big way.
Mr Desjardins: I think someone was being overzealous.
Mrs Marland: The address of the station?
Mr Desjardins: That is definitely not classified information, I can assure you.
Mr McClelland: You indicated that the municipal act is really for all intents and purposes a clone of the provincial act and even, I think, to use your own words "easing into this in the last six months." You had legal advice from both the police force and also the city. You made your decision and acted accordingly. The Solicitor General, however, indicated early in January -- his words more or less were to the effect that the police forces in Metro Toronto, Peel region and others were clearly misreading the act and misapplying it in terms of its intent, that its intent was in fact to facilitate the distribution of information.
The question that leads to is, what input, if any, were you given as you eased into the implementation of the act? As I raised this with the Solicitor General, I indicated that we had three years, if you will, to go to school -- if I can use that expression -- with the OPP and the implementation went relatively smoothly. What input, if any, were you given and what consultation, if any, was undertaken with the Solicitor General's office as you moved towards 1 January of this year with the implementation of the legislation as it affected you?
Mr Desjardins: The Solicitor General's office had representation on the Ontario Association of Chiefs of Police -- this is a mouthful -- freedom of information implementation and study group, which was the official name of the committee I have been associated with since July 1988. There was a representative on this committee, and there continues to be, from the Solicitor General's office. As part of that committee we had meetings not only among ourselves, but we had meetings with the Management Board of Cabinet freedom of information section, which was associated with the drafting of the legislation itself. We had meetings sometimes with representatives of the Office of the Information and Privacy Commissioner as well. We had numerous meetings with, for instance, the Management Board of Cabinet and several meetings with the Information and Privacy Commissioner.
Mr McClelland: So there was input and obviously some interaction between the Solicitor General's office and police forces across the province, it would seem.
Mr Desjardins: Certainly in possibly an indirect or a peripheral way in that the person who was a member of the Ontario Police Commission, as it then was, comes under the Solicitor General, so he was on the committee and he had input into the committee and presumably he would take details of the discussions back to his superiors.
Mr McClelland: There has been, I think it is fair to say, some change, certainly some period of adjustment over the initial few weeks of the implementation of the act with respect to municipal forces. It is not for you to comment whether you feel the Solicitor General should or should not have intervened more directly and more specifically with respect to the policy and the guidelines. Had he done so, do you feel that would have eliminated the transition period and some of the confusion, I might even say the obvious confusion and inconsistency from place to place across the province? Would that have helped?
Mr Desjardins: Of course you are not going to have me criticizing the Solicitor General.
Mr McClelland: I recognize that and I said it is not for you to judge whether he ought to have done that, but had he done that? I mean, that is his call. Ultimately, at the end of the day he makes the decision to have acted or not to have acted. Would that have served a purpose for you and eliminated some of the confusion at the outset?
Mrs Marland: You do not have to answer anything.
Mr Desjardins: One of the situations is the fact that I think the confusion was more apparent than real. I know it was much publicized in the press, but basically it was a situation, as I mentioned earlier, of sort of fine-tuning a new procedure on our part and the press being taken by surprise, I think.
We mentioned that at the committee hearings back in November 1989, the committee looking at the third reading of the bill. This committee I was talking about, of the OACP, made several recommendations and suggestions at that time. One of the things they said and clearly pointed out was the fact that the press was going to raise all sorts of alarms when it found out it was not getting all the information it traditionally had received.
Mr McClelland: I might add that the press said the very same thing the day, or two days after, the delegation appeared representing police forces. Sorry to interrupt. Both parties anticipated the problems.
Mr Desjardins: Yes, we anticipated the problems then and I was not aware of any sort of big push by the press, the press association or the press council to sort of have the bill modified. But in any case, what we dealt with was the act as it was written and we are simply dealing with the law as it was written. I do not feel there is any ambiguity as far as this situation with victims is concerned; I really do not. What we are doing is it is a situation, as I said before, that it is a straightforward crime, leaving aside the question of sexual assault or child molesting. The officer takes the report and says, "Do you have any objection to this information being made public to the press?" The victim presumably says yes or no. If they say no, then quite clearly the act forbids us to release that information.
Mr McClelland: You were not here yesterday or two days ago. The Solicitor General indicated that he was going to continue, rightfully so, the interaction and dialogue with the chiefs of police and so forth. He also indicated that new guidelines would be circulated, I believe, that day, which would have been two days ago, or indeed yesterday. Are you aware of any new guidelines or directives that have appeared on your desk or at the chief's desk with respect to the flow of information from police forces to members of the media?
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Mr Desjardins: I have not seen the document. I read these stories in the press this morning and I phoned around to various other FOI people. I am led to believe it is the document we worked on about 10 days ago in this committee. with the Management Board of Cabinet. If that is the case, it is simply a synopsis of the six-page guidelines that came out at the beginning of December.
Mr McClelland: Am I correct in understanding then that your understanding is there is nothing really new or different for any further direction being offered in that documentation?
Mr Desjardins: I contacted the Management Board of Cabinet this morning and it identified the document that the press was referring to. Therefore, no, it is not new information. It is simply a distillation or a synopsis of the former report. But again, I have not actually seen the document, but that is what I am led to believe and I have no reason to think that this person would lie to me; put it that way.
Mr McClelland: I will say -- not for comment; I do not expect you to respond -- that it was my understanding the Solicitor General had indicated that he was going to, if you will, seize the issue and deal with it. I will not ask you to comment on that.
The Chair: I see no further questions. Thank you for coming along this afternoon. We are faring extremely well on some of the questions asked here this afternoon. Thank you, staff sergeant, for coming here this afternoon.
MINISTRY OF THE SOLICITOR GENERAL
ONTARIO PROVINCIAL POLICE
The Chair: Could I ask the witnesses from the Ministry of the Solicitor General to please come forward? Thank you for coming this afternoon. You could state your name and the position you hold. You have about 20 minutes to make your presentation.
Mr O'Grady: My name is Thomas O'Grady. I am the commissioner of the Ontario Provincial Police.
Ms McTavish: I am Isabella McTavish. I am the freedom of information co-ordinator for the Ministry of the Solicitor General.
Mr Guay: I am Superintendent Robert Guay. I am director of media relations for the OPP.
The Chair: Thank you. You have about 20 minutes. I do not believe the next witnesses are appearing this afternoon, so if you feel you need a few extra minutes to make a presentation, please feel free.
Mr O'Grady: We did not come under the impression we would be making, nor did we come prepared to make, an initial presentation. What we did come prepared to do was to answer questions that might be put to us.
The Chair: I believe it is the government's turn to begin questioning this time. Who would like to begin? Mr Owens, do you have a question?
Mr Owens: Not at this time.
Mrs Marland: Mr Chairman, could you ask a question on behalf of the committee so that we do not lose our turn? Remember I did this so generously last week?
The Chair: Mrs Marland can ask her question.
Mrs Marland: I just think in fairness to Commissioner O'Grady that since we probably did not give direction to our deputations necessarily to come with any kind of a brief to present, I wonder if, just to get started, the Chair might ask the commissioner, since he is with the OPP and it has been working with the legislation for three years -- I am intentionally talking to the Chair -- would he like to ask what its reaction has been to the legislation for these first three years.
Mr H. O'Neil: I would have asked that question.
The Chair: A question to the -- I do not think there is any need to repeat it through the Chair.
Mr O'Grady: I guess I would reply in this way. Perhaps for the last 10 years we have been responding to the media in a manner and adopting a philosophy that is not unlike what is laid down for us in the provincial act. Because of that, I suppose, it is not surprising that when we were seized with the act, we carried on in a manner that we had been doing for some time. As a result of that, we did not experience any great difficulties from the point of view of concerns of victims or concerns of media.
The Chair: That takes care of that question. Margaret, do you have another question?
Mrs Marland: All right. Superintendent Guay, since your area is media relations, you are probably --
Interjection.
Mrs Marland: I love Gilles too.
Obviously, with that specific area, you are the one who has probably the most difficult challenge because it is through the media that the general public is saying, "Tell us about X, Y and Z because I need to know in order to protect myself and my family," in some circumstances. I do not know if you were here earlier when I was asking the question about -- I think we all accept the fact that where there are ongoing investigations, there are all kinds of reasons why the public should not have to know some aspects of the crime, and possibly I would go as far as to say that there are a whole lot of examples that I can think of where I am not ever interested in knowing who the victim is by identification. I do not need to know that it is John Brown or Suzy Smith, but I feel personally very adamant about having to know where my constituents are at risk because of something that has happened in a community.
I do not have the OPP in my community, but I was a regional councillor when the OPP took over the policing of Caledon, which prior to that was policed by the best municipal police force in Ontario, or maybe even in Canada, which is Peel regional. But I say seriously to you, as the person dealing with media relations, have you seen a change in the job of media relations? Have you seen in the last three years with this legislation where your job is more difficult? Is the media being more demanding or less demanding? It is open the public who drive the media, because the media respond to what it is the public want to read. The media respond to what the public want to see on the 6 o'clock news on television, so I do not always feel that the media are the bad guys in all of these discussions. I mean, people are inclined to say that the media turn the wheels. I think that if the public did not want to read that on the front page of X paper, the print media would not bother printing it and if the viewing audiences dropped the 6 o'clock news on certain stations in reaction to certain styles of television news reporting, they would change that style. I really think in the final analysis that it is we, the public, who drive the media.
You have a very difficult responsibility because you certainly have a responsibility to the security and safety of the people who live in those areas under your jurisdiction of policing and you have a responsibility to victims of crime. I am just wondering whether any of those things have changed, bearing in mind that I just heard Commissioner O'Grady say that the last three years have not really made a lot of difference from the practices of the OPP prior to that. But outside of the force, is my question, have you experienced change?
Mr Guay: No, we have not experienced a lot of change. As the commissioner mentioned, our guidelines have been in place and they closely parallel the intent of the provincial act. We have worked very closely with the media and our own branch was developed so that we could facilitate the movement of information to and from the media by working closely with the media. The media have been very helpful, and so has the public been very helpful in these dealings. We do believe it is a two-way street and it is our philosophy, of course, to share the information that we have with the media, so that by the media having it, then the public is aware of what we are doing and how we are doing it. It varies, of course, from case to case, but there has been no significant impact on us. There are the odd times when the media contact me directly.
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I should explain first that as director of media relations, not all calls come to me and that we have in our province 16 districts across the province. In each district we have a co-ordinator who looks after public information, among other things, and then from that we have members in most detachments. We have something like 185 detachments across the province and I think we have -- it varies -- now about 135 public information officers out there who deal directly with the media in each town or detachment area. So the media do not have to deal directly with me but, as the director, I maintain the policy of the force and oversee the dissemination of that information.
It has been the custom, as I mentioned, to pass on this information to the media and so on, and to the public, so we have had relatively little trouble with this. The media has been very co-operative with us through the years and even now, on occasion, I get a phone call. Mainly it is not a difficult problem. Sometimes it has more to do with the timely release of the information in that sometimes the media people in the area do not realize why the information cannot be released at that particular time. It is just a matter of my contacting the local person in charge of that particular area and finding out what the problem is and it is easily cleared up. Sometimes there is a reason pertaining to an investigation or, on occasion, the privacy of the individual comes into effect. But by and large, we pass out the information that we can with the exceptions of, painting with a broad brush here, the victims of incest, sexual assault and robberies, people who can be revictimized, that type of thing. On an ongoing basis, we have a fairly free flow of information from us to the media.
Mrs Marland: Do you ever have a situation where there have been witnesses to a crime and the media are there and those witnesses to the crime are giving information to the media, which for the protection of your investigation you would rather they were not doing, and then afterwards you have to go to the media and ask them to withhold some of the information that they may have received voluntarily from a witness?
Mr Guay: I personally have not had to do that, but I know that on occasion it has happened that witnesses have told media what they saw. I cannot speak for others; I have only heard that the media has been asked to co-operate and they have done so on some occasions.
Mrs Marland: So that is not a problem. What you are saying, virtually, is that as far as the Ontario Provincial Police is concerned, you have not really experienced any difficulties as a result of the new legislation in the balancing between the protection and the public's right to know.
Mr Guay: Well, we of course look at a lot of individual cases as well as the broad picture, but we try to balance the need for the public to know with the right of privacy for the victim. It has worked fairly well so far. We have had no complaints from either side, either the public at large or the media.
Mrs Marland: Maybe I could ask Ms McTavish, are there ongoing, regular meetings between the parties to this act, such as representation from the police force, victims' services, victims' rights groups and the media?
Ms McTavish: As Staff Sergeant Desjardins was saying, the Ontario Association of Chiefs of Police has a subcommittee that has been looking into freedom of information, and certainly my office has had representation on that committee, as has policing services division of the ministry. They have had input into that process. As well, I have sat on the committee that Management Board secretariat developed in order to develop the initial guidelines and as part of that process, Management Board secretariat did consult victims' groups, the media, women's groups, and it also discussed the issue with the Ontario women's directorate.
Mrs Marland: And what are you hearing, for example, from the media groups?
Ms McTavish: I was not involved directly with those discussions. Management Board secretariat undertook those discussions because it is responsible for the legislation and it undertook the consultation directly with those agencies and groups representing the media.
Mrs Marland: So you do not know --
Ms McTavish: I have had phone calls from the media, and they have expressed concerns and some confusion around what was going on initially when the municipal legislation came into effect on 1 January.
Mrs Marland: The Solicitor General's office is responsible for all police forces, so I guess it is the responsibility of the Solicitor General to make sure that the best possible legislation works for the greatest number of people in the most equitable way. I think that is the bottom line of what we are trying to deal with here.
I do not see any one party having a right to this legislation, either under access to information or rights to privacy. I do not see any one party having a greater investment in any aspect of this legislation than another, because I think the parties to it all have different interests and therefore they have different rights -- the community at large, the victims themselves, the police forces that are trying to do a job to make sure that the public is protected in that particular crime or that the particular criminal does not have that opportunity to do the same thing again. And then we come around to where the public has a right to know, and what is it that they have a right to know?
Were you surprised, Commissioner O'Grady, that there was so much concern expressed in the past months by some municipal police chiefs and certainly quite a lot of media? Did that reaction surprise you when you had been working with it for three years?
Mr O'Grady: To some extent it did, simply because I only had our own involvement for the last three years with a similar act to go on. And since we had had essentially no difficulty with it, then indeed, I guess I was slightly surprised. But I think I should make it clear that to go further than that, it would be inappropriate for me because I really am not familiar with the circumstances that my colleagues have to deal with in various urban areas. It is difficult for me to make a comparison when I only know the one side, and so I guess I only repeat that we had no difficulty.
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Mrs Marland: Is that the very point, that the police forces that have had the difficulties and, in fairness, the media groups that have had the difficulties are in areas where the instance of crime is greater perhaps, the type of crime in some cases, the frequency -- well, certainly the frequency is greater because of the density of the population and everything else that contributes to inner-city problems -- that the OPP never has to deal with those inner-city problems in the smaller communities that it is responsible for? I mean, the OPP does a different type of policing.
I am not saying that you do not have terrible, terrible, heinous crimes that come under your jurisdiction in some municipalities for which you are responsible, but the incidence and the public involvement in those kinds of crimes have to be accentuated by the pure volume of population.
Mr O'Grady: I think I can fairly say that obviously we do not police the very, very large urban communities and therefore we do not face all the issues that relate to those communities. I should add of course that when they are high-profile crimes that you have mentioned in which we are involved, then we could expect the media from those urban areas to show an interest.
Mrs Marland: Yes.
Mr O'Grady: And therefore we have dealt and do deal on a regular basis with all the major media areas when they have a particular interest in things we are doing. In those dealings, we have not had any significant difficulties either.
Mrs Marland: Thank you.
The Chair: Ms Murdock, do you want to ask some questions?
Ms S. Murdock: Actually, I just have a quick question and it is on processes.
In terms of your detachments and your districts, who handles any kind of query under the Freedom of Information and Protection of Privacy Act? Which one is it? What level is it? Is it detachment or is it district level or is it the Toronto office or is it your department in the Solicitor General's office?
I am not just talking about a media request. I am talking about suppose I want to know how many pencils the OPP uses, whatever the question may be. If I wanted to find out that information, would I do it at a district level? Would I do it at a detachment level? What is the bureaucracy you have to deal with?
Mr O'Grady: I think again it would depend on the circumstance, but if it is an inquiry under the Freedom of Information and Protection of Privacy Act and it obviously relates to that, then it would be referred to the freedom of information co-ordinator, and therefore Ms McTavish might be able to pick up on my answer from there.
Ms McTavish: Okay. What happens is that anyone can make a request, of course, under the act. If they are at a detachment they can obtain a freedom of information request form and they can fill out that form -- that form would be sent to my office -- or they can just put something on any piece of paper invoking the act in requesting information. That again would be sent to my office. Or they can write directly to my office and request access to OPP information and the freedom of information office would then handle the request from there.
I should also point out that we are separate from the OPP; we are part of the ministry. Although I do have police officers on staff to assist me on law enforcement issues, we are completely separate from the OPP.
Ms S. Murdock: You would handle all the OPP requests.
Ms McTavish: Yes, fire marshal, etc.
Ms S. Murdock: Then in terms of numbers? This is across the province.
Ms McTavish: For the Solicitor General's ministry?
Ms S. Murdock: No, just the OPP.
Ms McTavish: Last year we received about, let's say, 300 requests and approximately 90% are OPP related. So I am sorry --
Ms S. Murdock: No, that is fine. But in terms of the 90% OPP related, are they all having to do with the kinds of questions that have been asked thus far in terms of media relations, criminal acts, or have they been statistical data kinds of things?
Ms McTavish: The types of requests that we get, and I do not have stats on how they break down, but for example unsuccessful applicants to the OPP will write in wishing access to their applicant file; police officers who have had complaints, OPP officers who have had complaints against themselves by members of the public will write in wanting access to those complaints files; legal firms or insurance companies will write in wanting access to accident information or fire information; there are some requests from the media for access to investigative files; members of families request access to OPP or fire marshal's investigative reports pertaining to accidents or deaths of family members; there are requests from students for school projects, people doing historical research -- these are getting down into the lesser ones now. It is a variety.
Ms S. Murdock: So in actual fact it is only in the last month or so that there have been any major difficulties or the perception by us watching on television that there is a problem with the release of information. Would that be since the 1 January 1991 date? Or is it that over your past 10 years of experience with release of information that there really has not been that much problem? I mean, 300 requests a year is not very many, actually, I do not think, with an operation your size.
Ms McTavish: Yes. It is increasing steadily and it is a large work load. It does not sound like a lot but it is a large work load, but that is not at issue.
It has really been in the last month that this whole issue of the oral requests and that type of release of information to the media has come up. As has been indicated, there has not been a problem in the last three years, since the legislation came into effect, there has not been a problem.
Ms S. Murdock: If you could do anything to change the freedom of information act today, what would you suggest? I am asking you; you are the head person.
Mr O'Grady: As I indicated earlier, I am quite content with it. As a police service, we have not experienced any problem with it, nor have we been required to change our general philosophy that we have adopted, certainly over the past 10 years. Essentially, it is business as usual. There is no inclination on my part to suggest any changes.
Ms S. Murdock: I know this has nothing to do with you now, but as it is another police force, one of the recommendations in the Sault Ste Marie written submission to us is that if you get a request from the same requester on the same file continuously and repetitively, that instead of having to release the entire file each time, you only release the updated portion of the file. If the last time you sent out information on an information request was last June, then if you get another request in January you would only send from June to January. That is another process thing --
Ms McTavish: That is an option you should be able to negotiate with the requester, unless they are being really sticky.
Ms S. Murdock: And that is allowed under the act?
Ms McTavish: Certainly. You are allowed to clarify requests with the requester, and that would be something my office would ask: "You've already got this information. Is it okay to just start looking for information from the date of your last request?" That is very reasonable to do.
Ms S. Murdock: Actually, I think you have partially answered it. In terms of highway traffic accidents, I would imagine there would be a fair number of requests in that regard, just to have access to the accident report.
Ms McTavish: The accident report is a public record anyway, so that can be publicly acquired. There may be additional details. The OPP sometimes produces technical accident reports that get into more technical details, drawings, of why the accident took place, and certainly if someone wants that additional information they can request it through the freedom of information act. That does occur with increasing frequency.
Mr Owens: It is nice to see happy witnesses in front of us, for a change of pace.
The Solicitor General mentioned that training programs and things like that would be put into place around the freedom of information act. Can you tell the committee what type of recommendations the OPP has been involved in, or will you be involved in developing training packages for your staff around freedom of information?
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Mr O'Grady: I think I might be wiser to refer this also to my colleague Ms McTavish. There has been ongoing training within her office with her own people, as new people come on board and so on, dealing with the act, so she has firsthand knowledge of that kind of training. I am not aware of what training the Solicitor General was proposing, but we could speak of that training we know. Perhaps I could refer it to her for that purpose.
Ms McTavish: Was that specifically with the OPP? Because we do training within the ministry and we have also trained municipal police forces in how to deal with the act.
Mr Owens: I think it was with respect to police forces across the province, the OPP and Metro and everybody else. I guess, with the positive experience the OPP has had with the FOI, I made an assumption it would have some input into the training of folks across the province.
Ms McTavish: Over the past year, during 1990, we did train municipal police officers from the major regional forces for a two-month period on freedom of information legislation and how to deal with the legislation. The OPP staff sergeant I have on staff provided a great amount of input into that training program for municipal police officers. That staff sergeant also had considerable input into the Ontario Association of Chiefs of Police training program for other police forces that took place in the fall of 1990. So there has been input into that program.
As far as the OPP goes, we have ongoing training with the OPP on freedom of information issues. We have spoken to media relations. We go out and talk to district and detachment meetings. We talk to the OPP almost on a daily basis on various issues. It is not training, but we provide advice to the OPP on a multitude of issues including media issues.
Mrs Mathyssen: I guess my question is to the commissioner. You have indicated in the last three years that the new act has not hampered you in any way to do your job. Has it facilitated you? Has it increased your ability to do a good job or helped you in any way?
Mr O'Grady: Again, because it was not a departure from the approach we had been taking all along, we really did not see any significant change at all. It was our intention and has been for years to be very concerned about the public right to know or the public interest in these matters. It has been our intention to advise them as fully as possible. The facilitator, of course, is the media. It is our intention to provide timely and as far-reaching information as we possibly can to the media so that that can be done. Since the advent of the act, that philosophy has not changed, so I really cannot say that I see any difference from the point in time when we did not have the legislation and in the last three years that we have had it. Basically, the circumstances have remained the same.
Mrs Mathyssen: I know police budgets are very often stretched and burdened by the demands made on them. I wondered if providing this information has created yet another demand in terms of photocopying or processing or staff time. Is cost a concern at all?
Mr O'Grady: I guess that question has two sides to it also. Good media relations and the good flow of information to the public, I suppose, if one took the time, could measure that in return to us. It might very well be that it is money well spent in any areas that we have increased our focus. I think we probably get it back 10-fold in being able to do better policing. That is the answer as it relates to the OPP.
Certainly, there has been expense with regard to the freedom of information unit. That may be one of the reasons, when I became the commissioner, the freedom of information unit was part of the OPP. I did not like the public perception that it was part of the OPP, but I might have had a more practical reason in that it no longer comes out of my budget either.
Mrs Mathyssen: In a way, I suppose the freedom of information does facilitate you, if, as you said, it helps you to do the job better.
Mr O'Grady: Any flow of information to the public and back to the police that increases understanding of our problems and solicits assistance to us is certainly in line with our approach of community policing these days. That is the modern concept. And the medium by which we do that is through the media. So all three parts working together in a co-operative manner is absolutely essential. If that breaks down, it is a great impairment to our activity.
Mr Morin: Our mandate is to bring in changes and to review the whole act and make recommendations to the assembly as to what the amendments should be. You have mentioned briefly to Mrs Murdock, I think, that you were quite satisfied with the act itself. I will ask you this in a very candid way: If you were to give advice to the municipal police as to how to implement their own act, what would you tell them, or what would you tell the ministry?
Mr O'Grady: I do not really think I am competent to give advice to the municipal policing authorities, because I am not walking in their shoes and I am not aware on a day-to-day basis of the problems they face in dealing with the public and the problems they face in dealing with the media. I can really only speak for myself. I think it would be extremely presumptuous of me to suggest what they should do.
The only suggestion I would make is that that type of advice and information should come from those areas that are concerned with the issue at the moment.
Mr Morin: Has the municipal freedom of information affected your release of information policies?
Mr O'Grady: No, it has not.
Mr Morin: Not a bit. It did not influence it at all.
Mr O'Grady: No.
Mr Sterling: I am very much interested in section 11 of the act and section 5 of the municipal freedom of information act. In light of the recent decision, I believe by the Supreme Court or the Court of Appeal, to allow a woman to sue the Metropolitan Toronto Police Commission, I guess it would be, in that section which is the only section in any freedom of information act in the world which requires someone to disclose information without a request, I am interested to know whether you have utilized that section in terms of the Ontario Provincial Police or are concerned about being sued for not releasing information which would endanger a member of the public.
Mr O'Grady: I do not know if I can answer on point, but I will give you an example. I am trying to recall the time frame. I am sure it would be before the municipal act was in place, but I think the provincial act would have been in place at that time. Having said that, there was probably not a great reference to the legislation when the decision was made.
But you will know that some time ago there was a threat to bomb the transit system here in Metro Toronto. That was of great concern and involved a number of police services, including my own. At that time, when that information was in the hands of the authorities, so to speak, a decision had to be made. Would this information be better kept quiet to facilitate the investigation, or were the circumstances such that it demanded that the public be advised as soon as possible? Of course, the decision was obvious: The public had to be advised. So there was a weighing there of the public right and the public need to know as opposed to any other considerations. As you will know, that was the decision, to advise the public. I think that gives an illustration of the intention of police agencies in matters such as this.
Mr Sterling: I do not doubt the intention of the police agencies. I was more interested in whether anybody had taken this new right to sue the government or agencies of the government, which you are, and had proceeded to court with it. There was some question in the case of this woman about whether she had the right to sue. There can be no question, if she is unsuccessful in her court case, in my view, that that right now springs from the new act, which is section 5 under the municipal freedom of information act and in section 11. But I was interested to know whether there had been any rights of action or legal suits against the OPP to date under that section.
Mr O'Grady: Not to my knowledge.
Mr Sterling: I suspect it is because most people do not know the section is there.
Are municipal police forces aware of their legal obligation, or have you had any conversation with them on that?
Mr O'Grady: I would not be competent to speak for them.
The Chair: I have a question to ask. I would like to vacate the chair.
Mrs Marland: We will waive. Stay where you are.
The Chair: It is basically for information. Earlier, when you first made your presentation, you indicated that it was your understanding that you just came here to answer questions from the committee. I was wondering, if you had the opportunity, would you have prepared a written submission with recommendations.
Mr O'Grady: No, I do not think I would have. For our purposes, I do not perceive that we have a problem. Therefore, I am quite content to answer anything that I am competent to answer, but it would not have been my intention to present a brief.
The Chair: I wish to thank the people from the Ministry of the Solicitor General for appearing here this afternoon and answering our questions. Thank you for coming.
Mr McClelland: The other group is not here?
The Chair: No.
Ms S. Murdock: I just have one question before we retire for the day. The book by Professor Flaherty, do we have a copy of that to be shared?
Mr Fletcher: Noel has one. He will photocopy it for you.
The Chair: You are certainly welcome to read the book if you wish.
Ms S. Murdock: Actually, could I borrow it?
The Chair: Sure.
Ms S. Murdock: Second, just a point of correction to Mr Morin: it is Mademoiselle Murdock, ce n'est pas Madame.
The committee adjourned at 1604.