Law Times

Page 6 June 22, 2015 • Law Times www.lawtimesnews.com COMMENT Shining a light on racial profiling mid all of the debate about random stops by police spurred by racial profiling, there was an interesting ruling from the Divisional Court last week that dealt with related issues. In Aiken v. Ottawa Police Services Board, the Divisional Court considered Chad Aiken's application for judicial review of a Human Rights Tribunal of Ontario decision regarding his com- plaint of racial profiling. He claims Ottawa police stopped him for no valid reason while he was driving a Mercedes in May 2005. The case dated back to the previous regime for dealing with human rights complaints in which the Ontario Human Rights Commission would have carriage of the case after exercising its gatekeeper func- tion in matters before the Human Rights Tribunal of Ontario. As the parties engaged in settlement discussions, one of the key issues dealt with the specifics of a proposed order requiring Ottawa police to collect race-based data for all traffic stops. At mediation, the commission and police came to an agreement on the data-collection issue, but Aiken wasn't on board. Among the differences in position was the question of including both pedestrian and vehicle stops in the data collection. As part of the agreement, the commission would withdraw from the proceedings. Despite Aiken's objections, an adju- dicator ultimately decided to dispose of his complaint in accordance with the agreement between the police and the commission. That was the wrong way to proceed and the Divisional Court ulti- mately set aside the tribunal's decision. While Justice Anne Molloy noted Hydro one actions show wynne's hollow words on transparency t wasn't that long ago that Premier Kathleen Wynne wrote an open letter to the people of Ontario announcing she wanted to not just think differ- ently but also act differently. "To get this process started, I've asked each of our 27 ministries to develop a plan on how they will become open and engaged," she wrote in October 2013. "And we've brought together an expert team that will lead a province-wide dis- cussion about how we, as a government, can be more open in everything we do. We need to make information easier to find, understand and use, so that we can design services that deliver better results to the people of Ontario." It was such a grand scheme. Transpar- ency would be the guiding light of her re- gime and we would all share everything. But don't take my word for it. Here's what she also said: "We must also unlock public data so that you can help us solve problems and find new ways of doing things." Here's the bit I really like: "I believe that government data belongs to the people of Ontario and so we will make government data open by default, limit- ing access only to safeguard privacy, se- curity, and confidentiality." Well, that was then. This is now. The last thing her government did with its majority before knocking off for the summer recess until Sept. 14 was pass its budget measures act. There are some 45 schedules attached to it covering a kitchen sink full of regulations, amendments, and rules and addressing a smorgasbord of subjects such as energy, pensions, health insurance, and contraband tobacco. The schedules that are the most damning, however, re- late to the pending selloff of Hydro One. The plan is for Ontario to sell off 60 per cent of Hydro One for $15 billion and then earmark that money for infra- structure investments. Hydro One cur- rently generates dividends to the tune of about $750 million a year, so the first thing we can expect is that payout will drop to about $300 million a year. There's no guarantee, of course. It's in the purview of the board of directors to decide the dividends passed to share- holders and, as anyone who has seen the fallout from an acquisition knows, there will be consolidations, writedowns, and cost cutting. We won't be privy to much of that, though, because the Liberal government will essentially treat Hydro One much like a private company. The shares won't trade on an exchange and the company will be able to do what it wants away from the public spotlight. So in Schedule 3, the legisla- tion amends the Auditor Gen- eral Act to deem Hydro One no longer a Crown agency or corporation and while it must give the auditor general data to allow that office to do its job, it will be "as is necessary and relevant." That's the sound of the door slamming shut. And then there's Schedule 4, which repeals part of the Broader Public Sec- tor Accountability Act to further excuse Hydro One from scrutiny, and Schedule 5, which takes it off the sunshine list of those making more than $100,000 annually. A team of lawyers must have spent hun- dreds of hours going through every statute to ferret out each clause that touches on Hydro One. The scope is truly impressive. There are other changes to the Finan- cial Accountability Officer Act, Finan- cial Administration Act, Freedom of Information and Protection of Privacy Act, Management Board of Cabinet Act, the Municipal Freedom of Information and Protection of Privacy Act, and the Ombudsman Act. Most of the changes have one pur- pose: to lower the cone of silence around Hydro One to remove its machinations from public scrutiny. They're asking us to trust them as they assure us it's all going to be fine. What could go wrong? "Our Open Government initiative will help create the transparent, ac- cessible government that the people of Ontario deserve," wrote Wynne back in 2013. "Over the months and years to come, we'll be bringing forward additional ini- tiatives that will improve transparency, accountability, and connectivity. I want to work with you to create meaningful change, both inside our government and across the province. It's part of our plan to govern for One Ontario, where every voice counts. Together, let's do govern- ment differently." Given the events since then, those were hollow words and promises. LT uIan Harvey has been a journalist for more than 35 years writing about a di- verse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. ©2015 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. 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"The Commission chose to accept a compro- mise on the systemic remedy originally sought. Mr. Aiken is not bound by that agreement. He is entitled to have his complaint heard on its merits, including what type of systemic remedy would be appropriate." Given the debate about random stops — wheth- er pedestrian or otherwise — and the Ontario gov- ernment's consideration of how to regulate in this area, this is a case that deserves a full hearing. The issue isn't unique to the Greater Toronto Area, so a full consideration of Aiken's request and any re- sulting action by Ottawa police should help shine more light on the matter. — Glenn Kauth I Queen's Park Ian Harvey A

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