Chapter 14: Justice Sector

Historical Context

The justice sector is primarily responsible for providing legislated front-line services including policing, correctional services, legal aid funding, administration of the court systems (criminal, civil, family and youth courts) and victim services. Ontario’s justice system supports community and personal safety, and values such as individual freedom, personal security, respect and responsibility, the rule of law, as well as other public safety (e.g., Ontario Fire Marshal).

Justice services in Ontario are provided by three levels of government: the federal government (through jurisdiction over criminal law, including the Criminal Code); the province (e.g., for courts and policing services); and municipalities (e.g., for municipal policing and prosecutions under the Provincial Offences Act). Provincially, the justice sector comprises the Ministries of the Attorney General (MAG) and Community Safety and Correctional Services (MCSCS). In 2011–12, the province will spend about $4.7 billion for justice services, primarily for policing, correctional services, courts, legal aid and provision of victim services.

In the last 11 years, provincial justice spending has grown by an average of six per cent annually; it currently represents about four per cent of all program spending. The table below outlines historical spending in the justice sector:

TABLE 14.1    Historical Spending in Justice Sector
($ Millions)

	2001–02	2002–03	2003–04	2004–05	2005–06	2006–07	2007–08	2008–09	2009–10	Actual 2010–11	Current Outlook 2011–12
Attorney General1	1,029	1,088	1,223	1,209	1,291	1,348	1,652	1,749	1,663	1,737	1,908
% Growth	–	5.7%	12.4%	(1.1%)	6.8%	4.4%	22.6%	5.9%	(4.9%)	4.4%	9.8%
Community Safety & Correctional Services2	1,689	1,819	1,713	1,750	1,767	1,876	2,003	2,121	2,201	2,610	2,755
% Growth	–	7.7%	(5.8%)	2.2%	1.0%	6.2%	6.8%	5.9%	3.8%	18.6%	5.6%
Justice Sector Total	2,718	2,907	2,936	2,959	3,058	3,224	3,655	3,870	3,864	4,347	4,663
Justice Sector % Growth	–	7.0%	1.0%	0.8%	3.3%	5.4%	13.4%	5.9%	(0.2%)	12.5%	7.3%
1 MAG: 2008–09 to 2010–11 restated to reflect the transfer of adjudicative tribunals into MAG.
2 MCSCS: Ministry of Public Safety and Security changed to MCSCS in 2003–04.
Note: Numbers may not add due to rounding.

The integrated nature of the justice sector, including services provided by the federal and municipal governments, means that changes to one part of the sector often drive program changes and costs in other parts of the sector. For example, the hiring of additional police officers or new federal legislation could lead to increased costs for courts/correctional facilities.

Justice spending grew by an average of 5.6 per cent annually from 2001–02 to 2010–11. Spending under our Status Quo outlook is projected to grow by 1.0 per cent per year from 2010–11 to 2017–18. This sharp slowdown in projected spending growth can be explained by the high rate of spending on special initiatives in recent years; no further special initiatives are assumed in the Status Quo projection.

Recent Expenditures

Over the past few years, significant investments have been made across the sector, including:

• Legal Aid Ontario (LAO): Beginning in 2009–10, the government invested an additional $150 million over four years in LAO. The government provides over $300 million annually for legal aid services to low-income Ontarians. Legal Aid Ontario provides low-income Ontario residents with legal assistance in matters including criminal charges, child protection and custody cases, and representation for refugee claimants.
• Justice Infrastructure: Construction is complete on a new consolidated courthouse in Durham and underway on courthouses in Quinte, Waterloo, St. Thomas and Thunder Bay. There is also construction underway on two new detention centres in Toronto and Windsor, as well as a Forensic Services and Coroner’s Complex in Toronto, and 18 Ontario Provincial Police (OPP) modernization initiatives across the province.
• Provincial-Municipal Fiscal and Service Delivery Review (PMFSDR): As part of an agreement with Ontario’s municipalities, the government committed to upload the costs of court security and offender transportation from municipalities. This expenditure by the province is to be phased in over seven years, beginning in 2012, to a maximum of $125 million annually.

Current Context — Key Fiscal Challenges Facing the Sector

Moving forward, the justice sector faces fiscal challenges that will need to be addressed to bend down the cost curve for justice services. Key challenges facing the sector include compensation, increasing remand costs, infrastructure costs, the impact of federal legislation and greater expectations from the public for justice-related services.

Compensation: The primary cost driver in the justice sector is compensation, including salaries and benefits for the 25,000 staff. Compensation costs represent about 70 per cent of total expenditures. Increases in compensation are almost entirely driven through collective bargaining awards or compensation commissions (e.g., for lawyers, judges/justices of the peace, OPP and AMAPCEO/OPSEU). As pointed out in the Auditor General’s Review of the 2011 Pre-Election Report on Ontario’s Finances, the OPP negotiated an 8.5 per cent wage increase for 2014 (the three-year contract starting in 2012 begins with wage freezes in 2012 and 2013), while the correctional officers’ collective agreement (the OPSEU collective agreement) ends on Dec. 31, 2012.

Custody Remand: There has been a substantial increase in remand, particularly in the Greater Toronto Area. Remand refers to accused individuals who have been charged and detained in custody and have either been denied bail or have yet to appear before a judge. They are in custody while awaiting trial. There are currently more people on remand than there are sentenced offenders in Ontario correctional facilities.

Infrastructure: The justice sector’s infrastructure is aging and deteriorating. There are now 103 courthouse facilities and 26 correctional facilities that are over 30 years old and require significant renewal or replacement.

Federal Legislation: The impact of federal legislation is a significant challenge. The federal government has jurisdiction over criminal law, including amendments to the Criminal Code. The September 2011 omnibus crime bill, the Safe Streets and Communities Act, includes proposals for tougher sentences and mandatory jail time for serious offences. The provincial government has estimated that the minimum annual operating impact for Ontario on an ongoing basis will range from $22 million to $26 million at maturity, but this estimate could be much higher and we will return to this later in the chapter. The Safe Streets and Communities Act follows another federal crime initiative, the Truth in Sentencing Act, passed in October 2009, which contained several changes including ending two-for-one credit for time served. Both of these are expected to have fiscal implications for Ontario’s justice system. Increased incarceration rates and more trials in Ontario’s criminal justice system will result from these bills.

Public Expectations: There are increasing expectations from the public for justice-related services and for assurance that public safety remains a key consideration for the government. In Toronto, there are increasing rates of certain violent crime. As a result, the public may not perceive that the crime rate is, in fact, decreasing. Criminal investigations (e.g., organized crime, gangs and Internet crime) are increasingly complex and require significant resources. There has also been a significant increase in family court workload due to increased child protection initiatives. As well, public focus on emergency management has increased due to catastrophic events (such as 9-11).

The spending reduction targets proposed in Chapter 1, The Need for Strong Fiscal Action, to get Ontario back to balance by 2017–18, clearly illustrate that the sector will need to transform its service delivery and find efficiencies to meet its spending targets, while also ensuring public confidence in the system and meeting the criminal justice system’s standards. Several of the Commission’s recommendations should assist the sector in reaching those objectives.

Commission Principles and Goals for the Justice Sector

Evidence-Based Data Collection

Recommendation 14-1: Improve evidence-based data collection in the justice sector to achieve better outcomes in sector programs.

To support evidence-based decision-making, the sector needs to improve its collection of standardized data that can be used to evaluate whether policies and programs are meeting their intended objectives, and how efficiently. The Justice On Target (JOT) program, which uses existing court activity data, is an example of a provincial program using evidence-based data to achieve better outcomes. Decision-making and analytical tools (e.g., dashboards) have been developed to help decision-makers measure success.

An example of where the Ontario broader public sector (BPS) can improve its evidence-based data collection is through the municipal costing of court security and offender transportation programs. As part of the PMFSDR agreement, this year the province is scheduled to begin  the phased upload of up to $125 million annually at maturity to municipalities for court security and offender transportation costs. However, neither the province nor the municipalities have created a standardized inventory of what should be included in municipal costs for court security and offender transportation. The province will distribute funding to municipalities based on an expenditure-based model from municipally self-reported data.¹ For example, if a municipality reports it has 10 per cent of the provincial costs for court security, it will receive 10 per cent of the available funding. Standardizing cost data for municipal court security and prisoner transportation programs will lead to a more equitable distribution of provincial funding to municipalities and improved outcomes for the sector.

The sector should identify areas where standardizing data and improving data collection will assist the evaluation and analysis of policy and service delivery and then commence doing so.

Other areas in which improving evidence-based data collection could help the sector include:

• Correctional services delivery models, including private alternative service delivery;
• Ontario’s policing services model;
• Ontario’s public safety training programs, including but not limited to police, fire and emergency medical services (EMS);
• Impact of federal legislation on the Ontario justice sector;
• Working with the judiciary and stakeholders to improve data collection;
• Building a new integrated court-case tracking system that will automate data entry and support the collection of more detailed data (e.g., types of motions); and
• For family mediation and information services, standardized data collection can help determine the effectiveness of services and the speed at which cases are resolved. Recent developments include the development and use of a new database to track non-identifying information about clients including income, issues, referral sources and settlement rates. Future improvements will include linking of non-court mediation and information activity with court-case activity to illuminate the linkage between use of services and court activity.

Continuous improvement of standardized data will achieve better outcomes, and in turn will create better data for further evaluation and progress. Yet, to achieve better outcomes for the sector, it will be important for various institutions to work collaboratively. This will include further standardization of data across the federal, provincial and municipal governments, and the court and correctional system working together towards shared outcomes.

Transformational Options to Address Fiscal Challenges

Leading transformational change and altering the culture in Ontario’s justice system presents a unique set of challenges. Ontario’s justice system is based on an adversarial model. The justice system is operationally interdependent, yet many of the key players have independent decision-making powers that are guaranteed by the Canadian Constitution. These are foundational principles that must be respected and protected. These same principles mean that systemic change cannot be led by a single group. Indeed, all members of the justice community must collectively and collaboratively lead restraint efforts and transformational reforms within Ontario’s justice system.

Recommendation 14-2: Increase use of the Justice On Target program to assist with the reduction of custody remand, and implement evidence-based approaches to increase efficiency in the field of family law and family courts.

Reduction of Custody Remand

Custody remand in Ontario is increasing and so are the associated costs. In 2009–10, the daily average count of remanded individuals in Ontario’s correctional facilities was about 5,700 and they accounted for 67 per cent of the total custodial population. From 2000–01 to 2009–10, the number of people in remand increased by 55 per cent.² According to MCSCS, the per diem cost of incarcerating an adult is about $183 as opposed to about $5 per day in community supervision. The median number of days spent in remand by adults in Ontario was eight in 2008–09; although this figure has not changed since 1999–2000, it is the third-highest number among the provinces and territories on record.³

Given the projected annual expenditures for this sector, Ontario must address the trend of increasing custody remand and the additional costs associated with this trend if the province is to balance its budget by 2017–18.

The MCSCS needs to work in tandem with MAG to address the growing challenge of increased custody remand. The Commission recognizes that the JOT program, launched by MAG in June 2008, is one initiative that is working towards this objective. Justice On Target’s strategy is to move cases through the criminal justice system more effectively, with an original goal of reducing by 30 per cent the average number of appearances and days required to complete a criminal case. For instance, JOT local and regional leadership teams have implemented enhanced video conferencing, using existing equipment, to perform video pleas, or scheduled private and secure consultations between defence counsel and in-custody accused, to reduce the number of appearances and time in between appearances. The program has not met the goal of 30 per cent reduction, but criminal court statistics from July 2010 to June 2011 demonstrate that Ontario has reversed the trend in criminal court delay. The average number of appearances needed to complete a criminal charge provincewide has fallen more than seven per cent since its outset. Over 360,000 court appearances have been eliminated since inception. Previous to this reduction, the number of appearances needed to complete a criminal charge increased for nearly 20 years. This strategy has the potential to reduce the number of inmates on remand in institutions as criminal cases move through the system faster and with fewer appearances. To date, the province has been unable to quantify the impact of JOT on the remand population.

Using Evidence-Based Approaches to Increase Efficiency in Family Law and Family Courts

The 2010 Report of the Ontario Civil Legal Needs Project found that the breakdown of a family relationship is a major underlying reason why low-income Ontarians encounter multiple civil legal problems.⁴ This phenomenon often leads to greater demands on the justice system and other social welfare programs, such as housing, legal aid, welfare, and physical and mental health programs. In the 2008 Ontario “Report of the Legal Aid Review,” based on research from Canada and the United Kingdom, it was found that early intervention in civil legal problems is cost-effective from a broader fiscal perspective in that it can prevent the occurrence of multiple legal problems and other health and social issues in the future.⁵

Building on the progress of the JOT program in Ontario’s criminal justice courts, MAG should implement the principles of the program to family law and family courts. Working with justice participants across the sector, the focus should be to remove less contentious family disputes from the court resolution stream, and divert them to non-court alternatives (mediation, information services). This builds on the previous initiative that expanded family mediation and information services to all courts in the summer of 2011. Expansion of family mediation would help families avoid the courtroom by providing faster, more affordable, out-of-court resolutions.

Mental Health Diversion Programs

Recommendation 14-3: Expand diversion programs for low-risk, non-violent offenders with mental illness as an alternative to incarceration.

The sector should implement additional mental health diversion programs to divert low-risk, non-violent offenders with mental illness away from incarceration and into the mental health treatment system. In 2010–11, MCSCS estimated that 19 per cent of remanded inmates in the Ontario correctional system required some form of clinical intervention for mental health issues, and, over the last decade, the number of accused with mental health alerts remanded to provincial custody increased by 69 per cent. This would help those with a mental illness (who commit minor, low-risk offences and come into conflict with the law) receive appropriate support outside the criminal justice system. The sector will need to assess the impact of these initiatives on other ministries, including the Ministry of Health and Long-Term Care. The sector should also collaborate with the Ministry of Children and Youth Services (MCYS) on youth custody. The MCYS is undertaking a needs assessment of government-owned, youth-justice, secure-custody facilities across the province to determine their ability to meet the unique programming needs of youth in conflict with the law. The sector, with MCYS, should ensure that services for youth are aligned with the principles and provisions of the Youth Criminal Justice Act and contribute to community safety by focusing on prevention, diversion and rehabilitation, and addressing the underlying causes of youth crime.

Review of Core Responsibilities for Police

Recommendation 14-4: Review the core responsibilities of police to eliminate their use for non-core duties. This review would include an examination of alternative models of police service delivery. Criteria for the review would include determining the relative costs of the various security providers and an evaluation of their respective comparative advantages.

Many factors have contributed to the rising cost of policing, including technology and increasing labour costs; the changing nature/complexity of crime and the complexity of the criminal justice system; and federal legislative changes. At the same time, public expectations, demographic change and environmental factors influence policing. Policing is an essential service for the maintenance of public safety and is also one of the fastest-growing areas of public expenditures in Canada. Stakeholders such as the Ontario Association of Chiefs of Police, Ontario Association of Police Services Boards and municipalities have voiced concerns over rising policing costs and the risk that this poses to the provision of police services in the future.

The Commission recommends that the province review and define the core responsibilities for policing services to eliminate use of police officers for non-core policing duties. Instead, alternative models of service delivery can be used that would result in improved fiscal sustainability for police services throughout Ontario. Alternative models of police service delivery could include increasing use of private security and expanding the role of special constables, in circumstances deemed appropriate. The review should examine a range of alternative models of police service delivery, determine the relative costs of the various security providers for service delivery and evaluate their respective advantages.

Alternative Service Delivery for Non-Core Services in Corrections

Recommendation 14-5: Use alternative service delivery for the delivery of non-core services within correctional facilities, where it is feasible.

Using alternative service delivery for non-core services would help to bend down the cost curve within the sector by taking advantage of the potential for cost savings and efficiencies and the ability to use the private sector. Currently, MCSCS provides a number of services under the purview of corrections that are not necessarily core correctional service business functions, such as inmate transportation and community escorts, inmate health care, food services and laundry services. Use of alternative service delivery arrangements would enable MCSCS to focus on the delivery of core correctional services business functions, such as the safety and security of institutions and supervision of offenders in the community. The Commission notes, however, that this would have to be examined on a case-by-case basis because there is a high probability that implementation of this recommendation would require upfront investment capital to produce the requisite savings for the sector over the longer term.

Facilitating Voluntary Movement towards Municipal Centralized Bargaining for Police and Fire

In Chapter 15, Labour Relations and Compensation, we recommend that the province facilitate a voluntary movement to centralized bargaining, for municipalities, particularly in relation to police and firefighting bargaining. Please refer to that chapter for a more complete discussion of this recommendation.

Efficiencies

Clustering OPS Adjudicative Tribunals

Recommendation 14-6: Continue the process of clustering adjudicative tribunals across the Ontario Public Service (OPS).

In 2010, the government strengthened agency accountability, efficiency and oversight by creating two new agency clusters covering 13 adjudicative tribunals under MAG;

1. The Environment and Land Tribunals Ontario (includes the Assessment Review Board, Board of Negotiation, Conservation Review Board, Ontario Municipal Board and Environmental Review Board); and
2. The Social Justice Tribunals Ontario (includes the Custody Review Board, Ontario Special Education Tribunal — English, Ontario Special Education Tribunal — French, Landlord and Tenant Board, Human Rights Tribunal of Ontario, Social Benefits Tribunal, and Child and Family Services Review Boards).

The intention of clustering was to co-ordinate, align and enhance services with existing resources, improve access to justice, and enhance the efficiency and effectiveness of the clustered tribunals. Several advantages have been gained from the clustering of adjudicative tribunals:

• Common administrative functions: Clustering enabled a permanent shift to common administrative functions supporting all tribunals within the cluster. Combining staff under a cluster infrastructure allows for greater mobility and addressing financial oversight at a cluster level has enabled greater flexibility for management. As the organization matures, it is expected that further streamlining of administrative operations may occur. Additionally, legal services, program development and communications have been consolidated at the cluster level, allowing the individual agencies within the cluster to focus on case management.
• Co-location of offices: The Environment and Land Tribunals Ontario cluster has been successful in co-locating its organization in a single building with contiguous floors, including all hearing and mediation rooms.
• Procedural improvements: As these cluster organizations evolve, it is expected that procedural improvements will begin to emerge in the adjudicative process. The individual agencies will begin to leverage best practices and have access to technology and an ability to streamline physical resources (hearing rooms, regional offices).

The remaining 23 adjudicative tribunals could be clustered around themes of health, community and consumer safety, agriculture, commerce and labour. Service improvements and cost efficiencies may be found through consolidation of administrative functions, co-location of offices and procedural improvements. The lessons learned by MAG through its clustering efforts for adjudicative tribunals would provide insight and strategies for further strengthening agency accountability, efficiency and oversight throughout the OPS.

Integration and Consolidation Opportunities for Public Safety Training

Recommendation 14-7: Examine integration opportunities and consolidate where possible public safety training in policing, fire services and correctional services, which are currently delivered individually through their respective colleges.

Consolidation options could also examine the use of alternative service delivery models in delivering training (e.g., increased use of e-learning) and partnerships with community colleges to provide training. The following chart provides some of the business models that can be examined for delivery of public safety training:

TABLE 14.2    Business Models for Delivery of Public Safety Training

Business Models	Description
Privatization (Divest Functions)	Full transfer of public safety training delivery to a private operator(s)
Agency (Divest Functions)	Transition of public safety training delivery to a classified operational enterprise agency
Public Private Partnership (Alternate Financing)	Transfer of some training delivery to a private operator
Maximize efficiencies (Modernization of Status Quo)	The ministry retains responsibility for training delivery with a focus on capitalizing on opportunities for efficiencies and revenue streams

Analysis will be needed to determine the specific efficiencies associated with each business model identified. A new business model for delivery of public safety training could:

• Increase efficiencies, resulting in opportunities for primary stakeholders to guide or contribute to strategies that support training delivery through effective governance; and redefine roles in a manner that supports a focus on the core business;
• Contribute to fiscal savings to potentially reduce funding and redeploy labour;
• Increase and diversify revenue streams, thereby contributing to enhanced and financially self-sufficient training; and
• Depending on the preferred model, there may be opportunities to increase the revenue streams and redirect dollars generated to support ongoing training delivery for financial self-sufficiency.

Capital Infrastructure

Recommendation 14-8: Have the justice sector continue to work with Infrastructure Ontario to use alternative financing and procurement to assist in replenishing its capital infrastructure.

Much of the infrastructure in this sector is dated. For example, over 70 per cent of Ontario courthouses are over 40 years old, and over 80 per cent of Ontario’s correctional facilities are over 30 years old, including 21 per cent that are more than 100 years old. To address the issue of aging justice infrastructure, the sector should continue to work with Infrastructure Ontario (IO) to use alternative financing and procurement (AFP) models that better assess the risk and value for money of capital projects. The sector should also evaluate the performance of completed AFP projects to assess if value for money was achieved as intended and to identify potential improvements to the AFP model for future projects.

One of the key requirements for projects that are delivered using the AFP method versus traditional financing is that IO ensures that the project would provide value for money. If IO determines that value for money would not be achieved for a project using the AFP model, a traditional procurement model would be favoured. Savings achieved can differ from project to project as value-for-money analysis is conducted for each project. However, more often, AFPs achieve savings because certain project risks are transferred to the private-sector actors that have the expertise in construction, project and contract management to be able to better mitigate those risks. Risks include construction price uncertainty, project delays and facilities maintenance risk.

The sector should collaborate more effectively to improve asset management and explore options to better consolidate existing assets and options to collaborate on future AFP projects. For example, the sector should explore options of shared facilities to reduce construction and operating costs.

The sector must answer one question to meet its upcoming fiscal challenges: will the existing infrastructure footprint be sustainable in the medium and long term? Tough decisions will need to be made regarding the potential for consolidation and even the closure of some aging and underutilized facilities. A comprehensive plan is needed. Additionally, the questionable existing infrastructure is one reason why higher incarceration rates might require about $1 billion in new infrastructure. Broader discussion of Ontario’s infrastructure challenge is captured in Chapter 12, Infrastructure, Real Estate and Electricity, and Chapter 19, Liability Management.

Federal Government

Recommendation 14-9: Improve co-ordination between federal and provincial governments in areas such as justice policy and legislation, law enforcement and correctional services.

There needs to be better clarity and agreement on the roles and responsibilities of each of the federal and provincial levels of government. Particular attention should be paid to better estimating the impact of federal legislation on the sector. For example, recent bills such as the Truth in Sentencing Act will result in additional fiscal pressures.

Responsibility for the Criminal Code rests with the federal government while responsibility for implementation lies mainly with the provinces. Recent crime legislation will place further demands on the provincial court and corrections systems, only adding to the fiscal burden of the provinces as the federal government has not yet recognized or addressed the additional cost. The provincial government has projected Ontario’s daily inmate count to increase by 1,265 to 1,530 inmates in 2015–16 as a result of Bill C-10. The lowest cost estimate of the impact of the federal crime bill is ongoing annual increases in operating budgets of $22 million to $26 million per year at maturity. Staying with this minimum cost impact would require fitting the larger number of inmates into the existing infrastructure. That may not prove feasible, or at least may not be consistent with the province’s strategy to modernize and increase its institutional capacity. Under that plan, the province would close four older facilities and build two new facilities to bring Ontario’s utilization rate to 88 per cent. The current rate is 95 per cent, but, under this bill could rise to a provincial average of between 101 per cent and 104 per cent; some institutions could have rates as high as 125 per cent to 150 per cent. In the worst-case scenario, the province would be required to build a new 1,000-bed facility, with an estimated capital cost of $900 million and ongoing operating costs of $60 million per year. The ministry could consider retrofits to existing institutions but, here too, the capital implications would be significant.

Recommendation 14-10: Negotiate the transfer of responsibility for incarceration for sentences longer than six months to the federal government.

Offenders sentenced to two years or less serve their terms in provincial prisons while offenders sentenced to over two years serve in federal penitentiaries. Effective rehabilitation services can be provided for inmates serving longer than six months. We recommend that the province negotiate uploading the responsibility for inmates serving six months and longer to the federal government, which would better align fiscal incentives for corrections and would give inmates access to federal rehabilitation services. Government should determine the potential savings, efficiencies and improved outcomes gained by transferring the responsibility for incarceration for sentences longer than six months to the federal government.