Email from a Mississauga graffiti artist: “youth are fighting with the system because it is CORRUPT there is no way to fix it.”

May 30th, 2010  

Morally beyond redemption. That’s what almost four years of research into Ontario Municipal governance has forced me to conclude.

Morally beyond redemption.

Today I wanted to know how many times I used “morally beyond redemption” and especially when I first coined that phrase. So I GOOGLEd, “morally beyond redemption” together with “MISSISSAUGAWATCH”.

It appears that I may have first reached my “morally beyond redemption” conclusion about a year ago and it first appeared in a comment I wrote to “fthrcast” on YouTube.

I sometimes surprise myself. In this phrase’s debut, not only did I use full capital “MORALLY BEYOND REDEMPTION”, I correctly identified why Ontario municipalities are morally beyond redemption with impunity —”the Ontario government LOOKS THE OTHER FRIKKIN’ WAY”. (What a perceptive first dash out the starting gate for me on that one! “MORALLY BEYOND REDEMPTION” —YouTube says “1 year ago”).

Other appearances include:

“morally beyond redemption. It can’t be fixed”, “Simply unfixable.  Morally-beyond redemption.” Stupid, dull me took to the age of 59 to figure that out. Ontario municipalities, the Province, THE SYSTEM is “morally beyond redemption. It can’t be fixed”.

On Thursday, May 20, 2010, I received an email from a young graffiti artist and we exchanged several messages thereafter. I asked permission to use his first email to me for today’s Blog because I felt what he had to say was too important to be kept just between two people.

One theme here at MISSISSAUGAWATCH is the observation that youth who need a voice the most are also the most-blocked from expressing their voice. That’s the irony and fraud of such initiatives as the Peel Youth Violence Prevention Network and Safe City Mississauga —youth don’t have a legitimate say any more than I do.

And Pastor Andrew King simply nailed the reason at Brampton’s November 2008 “Peace to Our Streets” meeting.

On all the panels I sit on? First question’s asked is “Where are the young people? We’re talking about them but they’re not with us.” Young people are very frustrated because there’s a lot of panels. Oh, there’s reports that are written about how much money we’re going to spend! And they’re very frustrated with the system right now.

With that introduction, here are the words of a Mississauga graffiti artist —a youth, called “Anonymous”.  Information that could potentially identify him has been removed. I’ve also cleaned up the few typos he had. We begin.


Just checked out your website and appreciate the work you are doing. I really appreciate the graffiti you are documenting being a graffiti artist/writer in Mississauga and would like to share a few words with you.

Graffiti art is not recognized and acknowledged in Mississauga I have been writing since I fell in love with it the first time I ever heard Hip Hop, and hip hop would not be around if it weren’t for Graffiti , I was in Grade 4 when I started scribbling in my notebook my graffiti in the beginning was pretty bad but I never stopped and kept on drawing. I then discovered a whole new world outside of my notebook and black book.

Before moving to Mississauga in Grade 6, in Toronto the streets are filled with tags, throw ups, pieces, burners, murals, even little messages to the police and the government. I didn’t start my graffiti on the streets till just last year, working on my spray techniques and other things, I am only interested in pieces big colorful huge pieces that pop out and attract people’s attention.

Now I do not consider this vandalism as I am an artist simply coloring the streets with a message —a message that can only be seen through graffiti.

…the system is CORRUPT and this is why there is youth violence this is why there are guns on the street and drugs in the hands of children the youth are fighting with the system because it is CORRUPT there is no way to fix it because the people higher up are sitting nice in their big leather chairs, driving their nice cars, living their perfect life when some people in this world have to work hard to get by and even by doing so they get nothing, and after they realize how hard they have to work to get by they break down and no longer want to live life being part of the system because they realize that living life by the rules of the system gets you no where because it is CORRUPT!

Young people today sure are a lot smarter than I was their age!

Notice his “the youth are fighting with the system because it is CORRUPT there is no way to fix it”.  That Truth took me three years of intensive observation/research, a couple thousand in Freedom of Information and 59 years of being alive before I coughed up “ONTARIO MUNICIPALITIES ARE MORALLY BEYOND REDEMPTION. (And so is Ontario)” as a YouTube comment.

This video is for the “Anonymous” graffiti artist who’s the subject of this Blog. Just to show him Why he’s right.

To introduce him to (in his words) “the people higher up… sitting nice in their big leather chairs, driving their nice cars, living their perfect life when some people in this world have to work hard to get by and even by doing so they get nothing.”

Politicians’ Game of PRETEND.

Video: GRAFFITI MISSISSAUGA: WARNING! HIGHLY OFFENSIVE MATERIAL (but not as offensive as the politicians) (3:55 min)

Click here to go directly to the clip on YouTube

Last, it was exactly one year ago today that I visited the City of Hamilton for the first time to conduct my first graffiti survey there. I’ll be returning today to document my May 30, 2009 Hamilton Graffiti sites and how they look One Year Later.


The Mississauga Muse

GRAFFITI, CITY OF HAMILTON PARK, FIRST DOCUMENTATION (May 30, 2009) and comparative May 30, 2010

GRAFFITI near park. City of Hamilton, May 30, 2009 and again May 30, 2010 (comparative)

GRAFFITI (portion of graffiti wall), CITY OF HAMILTON PARK, FIRST DOCUMENTATION (May 30, 2009) and comparative May 30, 2010

Portion of GRAFFITI WALL near park. City of Hamilton, May 30, 2009 and again May 30, 2010 (comparative)

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May 20th, 2010  

You’ll (almost) read about what happened with the City of Mississauga hiring its own integrity commissioner in the Toronto Star’s article, “Mississauga puts off vote on new ethics measures Solicitor’s report recommends code of ethics and, to police it, integrity commissioner”.

Imagine the “integrity” direction over the next few years —to improve municipal governance in Ontario, every town, village and city, over 440 of them, is free to hire their own “integrity commissioner”.

Look how Dalton McGuinty and the Liberals dealt with the Ontario Ombudsman, when Andre Marin became too effective in advocating for improvements to public service! Watchdog with too much bite?… McGuinty gets rid of him! Expect municipalities to do the same. (Pssst. Town of Aurora.)

I’m a liberal but may the entire Liberal party go down next election for the dirt they’ve worked against Marin and his SORT Team! (I’ll be videotaping myself in a booth voting Conservative next provincial election!)

Next. As always, here’s the video of yesterday’s “Please put off the vote on the integrity commissioner” plea complete with transcript. Dedicated to our finestkind Ontario Ombudsman and his finestkind SORT Team.


(Click here to go directly to the clip on YouTube)


MISSISSAUGAWATCH (May 19, 2010 General Committee Deputation):

Good morning, Councillor Adams and Council.

I came here to discuss the minutes of meetings and then walked in and saw this one here —can I have this on?

The Code of Conduct for Mayor and Members of Council for integrity commissioner. And I consider that way more important than anything that I’ve got to say about minutes. So I kind of regret that I didn’t know about this.

But you can’t just switch, can you?


It actually is on the agenda so you can speak to it.

MISSISSAUGAWATCH (May 19, 2010 General Committee Deputation):

Yeah but I’m not good on my feet, I need to prepare ahead of time, I’m not swift.

But I was hoping that —this is really important. If people remember, it was Councillor Mullin who had said that there were issues that were chronically coming up regarding —and she was mentioning Donald Barber, as an example.

And she had recommended that, you know, once and for all to, to, to deal with it. And this is how, I think the idea of the integrity commissioner came up. And I also recall, I had urged Councillor —I think Councillor Saito was going to lead the charge on this. And I’d asked her to say “Invite the Ontario Ombudsman in” to address Council to give them some idea as to how to set up an integrity commissioner.

This is —you know I’ve been observing Council since June 14, 2006. And I’m talking about audiotape, videotape and stuff like that. This has got to be the most important Corporate Report and direction, certainly from the view of treatment of citizens and Ethical Infrastructure.

And yet this thing did not go through Audit Committee, for example. It just kind of showed up here. And Staff is recommending that you accept it.

There’s not any possibility even for public input. I don’t even know if it’s been run through (the) public.

And you know, I would think that first you’d check to see the validity of the public complaints system that you already have in place. The one for Corporate Security and the generic ones. And whether those are being handled properly.

Because if they’re not —and I’m saying they’re not, and I’ve got Freedom of Information saying it.

So you know the fact that, the fact that —well, okay, it’s not a “fact” because it’s based on evidence but it’s sort of ultimately my conclusion. And someone else may look at the evidence and see it differently.

But for me, I question any integrity commissioner that may —or a process here, because I just don’t see the Ethical Infrastructure in place to support something like that.

So I have concerns and I’d love to see Council perhaps not endorse it yet and really get  —run it through MIRANET, run it through some of your ratepayers’ associations.

Haz-Mayor McCallion was giving an address at UTM last week and I was there and she was talking about public input and the importance of it.


MISSISSAUGA MAYOR HAZEL MCCALLION (University of Toronto/Mississauga May 13, 2010):

The sky is the limit with the involvement of the people. Any decisions that politicians make, can be controlled. Believe it or not.

MISSISSAUGAWATCH (May 19, 2010 General Committee Deputation):

And this just came up —it can be rubber-stamped today. And that’s it. So I would hope that Council might look at this and say, you know this is really important, let’s put some —let the public look at this and talk about it.

Anyway I’m hoping that —I’ll be, I’ll be preparing for this at Council. Because I’m better —I’m very scattered now —sometimes, I’m sorry.


[inaudible] I think I might have some things to help you out here. If I can turn to the Councillors now who are listed, who I think may want to address some of their concerns.


MISSISSAUGA MAYOR HAZEL MCCALLION (University of Toronto/Mississauga May 13, 2010):

The sky is the limit with the involvement of the people. Any decisions that politicians make, can be controlled. Believe it or not.


HAZEL MCCALLION QUOTE (at UNIVERSITY OF TORONTO/MISSISSAUGA   MAY 13, 2010) "The sky is the limit with the involvement of the people. Any decisions that politicians make,. can be controlled. Believe it or not"

SCREEN CAPTURE TORONTO STAR, "Mississauga puts off vote on new ethics measures Solicitor’s report recommends code of ethics and, to police it, integrity commissioner "




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May 16th, 2010  

In our January 12, 2010 Blog,“Special thanks to the Fifth Estate and CBC. Plus reader comments on Ashley Smith’s “nightmarish place” we shared a report by the CBC.

In our January 30, 2010 Blog, “(Dedicated to Ashley Smith) TO ASHLEY. AS PROMISED”, I made Ashley Smith this promise.

When I find the time, I’m aiming my car for Kitchener, Ontario —hopefully before this month is over. I’m going to park on the shoulder of Homer Watson Boulevard directly opposite the Grand Valley Institution for Women.

I’m going to set up a tripod and select self-timer on my camera. Then facing Ashley Smith’s “nightmarish place”, I will raise my arms  skyward and stab both my middle fingers towards her tormentors.

And dedicate that photo to Ashley!

I’ve already got the Directions!

That’s why today’s Blog is called “TO ASHLEY. AS PROMISED”

My only regret is that I only had two arms and two middle fingers.

And I kept that promise.

TO ASHLEY. AS PROMISED (dedicated to Ashley Smith)

While raising both middle fingers at the “hellish” Grand Valley Institute for Women, I made one more promise. That on my next trip to Ottawa, I’d deliver the same defiant “F*** YOU” message right in front of the Parliament Building to ALL the politicians and bureaucraPs who failed Ashley Smith!

Here is the short video —a promise kept. Just wish I had more middle fingers…


(Click here to go directly to the clip on YouTube)


MISSISSAUGAWATCH (in front of Parliament building May 1, 2010):

It is May the 1st, 2010. I’m here at [sic] Ottawa and I’ve just had my say here at the Federal government. And with full knowledge that there’s RCMP about, including over here —and likely on all manner of Security cameras. And I don’t care.

And I have one more and it is (raised left hand in full middle finger salute) this for the Liberals.

And I’ll switch over (raised right hand in full middle finger salute). This for the Conservatives. And unfortunately I can’t flip two birds without dropping the video camera.

And now we’re going to go to the Canadian Federation of Municipalities.

Turning camera off.


My Life

My life I no longer love
I’d rather be set free above
Get it over with while the time is right
Late some rainy night
Turn black as the sky and as cold as the sea
Say goodbye to Ashley
Miss me but don’t be sad
I’m not sad I’m happy and glad
I’m free, where I want to be
No more caged up Ashley
Wishing I were free
Free like a bird.

Ashley Smith, 18 years old
October 1, 2006


The Mississauga Muse


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May 16th, 2010  

Because sometimes you find yourself gettin’ too serious and you want to have FUN!

Video: VIDEO SURVEILLANCE FAIL! (GRAFFITI defeats 6 VIDEO SURVEILLANCE cams in Mississauga, Ontario)

(Click here to go directly to the clip on YouTube)


MISSISSAUGAWATCH (Example 1 Meadowvale May 19, 2009):

I got a great example of VIDEO SURVEILLANCE FAIL. Okay, we got video surveillance camera, right there. We got two, right there.

And then we got this —right here. Including that.

All the way around. All the way around. And.


MISSISSAUGAWATCH (Example 2 Cooksville/Mississauga October 1, 2008):

I got a great example of VIDEO SURVEILLANCE FAIL.


MISSISSAUGAWATCH (Example 3 Lakeshore/Mississauga May 10, 2010):

I got a great example of VIDEO SURVEILLANCE FAIL.

Video surveillance camera. Failed!


MISSISSAUGAWATCH (Example 4, Dixie/Mississauga April 22, 2010):

I got a great example of VIDEO SURVEILLANCE FAIL.

MISSISSAUGAWATCH (Example 5, Dixie/Mississauga May 10, 2010):

I got a great example of VIDEO SURVEILLANCE FAIL.

MISSISSAUGAWATCH (Example 6, Applewood/Mississauga April 27, 2009):

I got a great example of VIDEO SURVEILLANCE FAIL.



As a followup, yesterday I took a quick tour past Example 6. The video camera has since “disappeared”.

VIDEO SURVEILLANCE CAMERA FAIL (MISSISAUGA, ONTARIO) This FAIL so bad that the camera has "disappeared"

Last the best example of VIDEO SURVEILLANCE FAIL.

Despite three outside sophisticated Pelco PTZ video surveillance cameras and at least two inside —from the MISSISSAUGA NEWS.

Vandals damage golf course

Peel Regional Police are on the hunt for the vandals who broke into Mississauga’s BraeBen Golf Course last night and trashed the place.

Officers from the 11 Division Criminal Investigation Bureau received a call from golf course staff just after 6:30 a.m. today reporting the crime.

Peel Cst. Wayne Patterson said the intruders cut the locks to gain entry to the Terry Fox Way premises sometime overnight.

Nestled in the centre of Mississauga’s Heartltand community, BraeBen Golf Course was designed more than 30 years ago to be true to the Scottish Highlands. The course includes an 18-hole championship course and a nine-hole par-three teaching course as well as full banquet and dining facilities.

And ah, what the heck, might as well toss in my City of Mississauga BraeBen Golf Course video surveillance showing that at the time of the August 25, 2009 break-in Braeben’s video surveillance cams failed to comply to Privacy Guidelines.

Video: Mississauga’s BraeBen Golf Course finally compliant with Video Surveillance guidelines

(Click here to go directly to the clip on YouTube)

Guess who had to force the City of MYTHissauga to finally be “compliant” at BraeBen?

UPDATE May 16, 2010 12:52 PM. It didn’t take long for YouTubers to comment. Check this beaut out:


video survellance didnt fail there jus there for the real crime ya hurd

2 minutes ago

So MISSISSAUGAWATCH responded with:

@thebigbender Uh, you wrote, “video survellance didnt fail there jus there for the real crime ya hurd”


UPDATE MAY 16, 2010 7:26 PM. This just in from Twitter. While I’m not sure I agree I thought it would be useful to share.


The Failure of Surveillance Cameras 42 minutes ago via web


The (I tell you, Hazel McCallion is SO RIGHT about public input being a waste!) Mississauga Muse

VIDEO SURVEILLANCE FAIL (TTC Subway) September 18, 2009

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PEEL REGIONAL POLICE “POLICE DAY” videos, photographs —and an update on Mississauga graffiti-tagger “HACR”

May 9th, 2010  

Yesterday was Police Day at the Emil Kolb Centre. While the Mississauga News reports that the Centre is “Mississauga’s Emil Kolb Centre on Derry Rd”, it was only the City of Brampton that saw fit to provide shuttle buses for their citizens to that event. WAY TO GO B-TOWN!

Here is a compilation of videos and photographs from yesterday, with brief descriptions.

Video 1: Drove around the parking lot until I found a great spot right beside a Peel Police white Dodge Charger and behind two Peel Police Impalas. Noticed the Peel Regional Police Tactical Unit perched atop the roof. Realized there was no way to get to the building in time so I documented Tactical Unit’s rappel from the car.


(Click here to go directly to the clip on YouTube)

Video 2: Went to the outdoor displays and wasn’t at the event fifteen minutes before something a Tactical police officer said pissed me off so much I decided to leave —screw that noise. I packed up to cruise the haunts of the “bad guys” and document graffiti instead!

Headed for the car and noticed a band tuning up. The rich sound from their guitars made me decide to stay.

Weather now fell from the sky and police officers retreated inside. But the band hung tough.

They managed just this one song before a blast of wind knocked a guitar stand to the ground. The lead singer unsuccessfully tried to stop the guitar’s fall and then came the roll of thunder. Thus the Music Died.

If you ever have the opportunity to hear this Peel Police Rock Band, go!

Video: PEEL POLICE ROCK BAND play “OLD TIME ROCK AND ROLL” on rainy/windy POLICE DAY (May 8, 2010)

(Click here to go directly to the clip on YouTube)

Video 3: It’s not often that citizens are allowed to videotape inside the Emil Kolb Centre so I grabbed at the chance to document the Centre’s display case on the History of Peel Police.

This video shows the old badges of (now disbanded) Township of Toronto Police, Mississauga Police, Port Credit Police, Streetsville Police and even Chinguacousy Police and Brampton Police.

The display also contains the uniform, keys and wooden head-bopper of former Chief of Police, Andrew Herkes who retired in September 1948.

1948… Different world!

Video: HISTORY of PEEL REGIONAL POLICE DISPLAY (Peel Regional Police Historic Committee)

(Click here to go directly to the clip on YouTube)

Video 3: I absolutely loved what I saw happening inside the Kolb Centre’s gym. There were all kinds of law enforcement and safety displays, yes. But best of all there were all kinds of people —as in kinds-kind. The ethnicity that should be there, was there.

And as I said before, Brampton made sure that even those who couldn’t afford bus tickets for their brood could attend Police Day. It even occurred to me that Brampton’s poorest families would have this day for free transportation and free food/drinks! (Imagine what it would cost in a fast food place for hamburgers/hotdogs for four or five kids plus drinks.)

And the officers working those indoor displays were just finestkind.

This is video of Peel Police’s “Use of Force” display. Note, brief portions of this video are blurred to protect the privacy of kids interacting with police at the display.


(Click here to go directly to the clip on YouTube)

Video 4: Also from the “Use of Force” display documenting the target used by Peel Police for shooting practice. I categorized this video on YouTube as “Comedy”.

Hint, to bad guys (and girls) —Bad News. Peel Police don’t just aim for your heart….


(Click here to go directly to the clip on YouTube)

And now for some pics.

Use of Force Display


Police Day —the only time it’s legal to pose as a police officer…

PEEL POLICE DAY: the only time when it's legal to "pose" as an officer



That was it. I then decided to continue my research into the ambitious Mississauga graffiti-tagger “HACR”. For the last two weeks I’d been documenting his east-west range. I also knew how far south “HACR” reached. Fascinated by his impressive range, it was time to map how far north “HACR” reached.

Here’s the irony.

It was only because I was at the Peel Police Day Kolb Centre event that my North-question was answered so quickly.

Mississauga's graffiti/tagger "HACR"s most northern range (May 8, 2010)

And my other question, “Is ‘HACR’ exclusively a Mississauga tagger?”. Given that I haven’t documented him (gender presumed) at the Toronto border or into Brampton, the answer appears to be Yes.

Also photographed this yesterday.


“DO YOU UNDERSTAND?”…  All this research is an attempt to try to.


The Mississauga Muse

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MISSISSAUGA JUDICIAL INQUIRY: April 30, 2010 –a motion filed by The Mississauga News calling for Peter McCallion’s affidavit, etc (in its entirety 85:21 min)

May 4th, 2010  

Video: MISSISSAUGA JUDICIAL INQUIRY: April 30, 2010 (in its entirety  85:21 min)

Click here to go directly to the clip on MISSISSAUGAWATCH Vimeo


Click here to go directly to the court transcript a the City of Mississauga Judicial Inquiry website.

The following is cut-and-pasted from the City of Mississauga Judicial Inquiry website. The video may differ slightly from the court transcript.

Last, I feel silly mentioning this but must. As the videographer, please note that I am only one of two mayoral candidates challenging Hazel McCallion in the 2010 Mississauga municipal election and we are both considered fringe candidates.

  9  Before:        Associate Chief Mr. Justice J. Douglas
 10                 Cunningham
 19  HELD AT:
 20                    Provincial Offence Court
 21                       Mississauga, Ontario
 22                         April 30, 2010
 24                          Pages 1 to 65


  1                        APPEARANCES
  2  William McDowell                  )Commission Counsel
  3  Naomi Loewith                     )
  5  Freya Kristjanson  (np)           )For Mayor Hazel McCallion
  6  Elizabeth McIntyre                )
  8  Brian Gover                       ) For Peter McCallion
  9  Lusia Ritacca                     )
 11  Clifford Lax, Q.C. (np)           )For City of Mississauga
 12  Tracy Wynne      (np)            )
 13  James Renihan                     )
 15  Michael Barrack                  )For OMERS
 16  John Finnigan  (np)               )
 17  James Roks     (np)               )
 19  Alan Mark (np)                    )For Enersource
 20  Kelly Friedman   (np)            )
 22  Don Jack         (np)            ) For 156 Square One
 23  Adam Goodman     (np)            )
 25  Ryder Gilliland                   ) Mississauga News


  1                     TABLE OF CONTENTS
  2                                                       Page No.
  3  Submissions by Mr. Ryder Gilliland                          4
  4  Submissions by Mr. Bryan Gover                             25
  5  Submissions by Mr. William McDowell                        34
  6  Reply by Mr. Ryder Gilliland                               37
  8  Discussion                                                 41
 10  Submissions by Ms. Elizabeth McIntyre                      50
 11  Submissions by Mr. William McDowell                        59
 12  Reply by Ms. Elizabeth McIntyre                            62
 14  Certificate of transcript                                 65


  2  --- Upon commencing at 10:06 a.m.
  4                 THE COURT CLERK:   All rise.  Please be
  5  seated.
  7  morning.  We have a number of issues to deal with this
  8  morning, but I think, in order to, perhaps, to
  9  convenience counsel, what we might do is deal with the
 10  motion being brought by the Mississauga News, counsel are
 11  here on that matter.  Good morning.
 14                 MR. RYDER GILLILAND:   Good morning,
 15  Commissioner.  I see we've all rather unhelpfully used
 16  white covers for our materials.  Helpfully, I'm only
 17  going to refer, I think, to two (2) -- two (2)
 18  authorities, our book of authorities, which has a white
 19  cover --
 21  have it.
 22                 MR. RYDER GILLIHAND:   -- and says
 23  "Mississauga News" on it, and the book of authorities of
 24  Peter McCallion.


  1  right.
  2                 MR. RYDER GILLIHAND:   And I don't -- I
  3  don't intend to make any reference to the -- the fact
  4  that are -- although, as you know, there's factum filed
  5  by my client, Mr. McCallion, and, of course, Commission
  6  counsel.
  7                 I wanted to deal as a pre -- I'll present
  8  it as a preliminary matter, and -- and I'm -- I'm in your
  9  hands as to -- as to how we proceed.  But My Friends have
 10  raised a question as to whether -- as to whether or not
 11  you should -- I don't know if hear this is too strong,
 12  but revisit your decision, given that you already made a
 13  ruling on -- on March 4th.  And that's undoubtedly so.
 14  There's no question that you did make a ruling on March
 15  4th on this -- on -- that's germane to this issue.
 16                 I've reviewed the transcript, however, and
 17  it -- it's clear to me that you weren't presented with
 18  any submissions with respect to open courts,
 19  Dagenais/Mentuck test, which I understand Commission
 20  counsel agrees is the co -- controlling test here.  Not
 21  all counsel agree, but Commission couns --
 22                 COMMISSIONER DOUGLAS CUNNINGHAM:   Not all
 23  counsel.
 24                 MR. RYDER GILLIHAND:   -- Commission
 25  counsel agrees, was not presented to you.  And, in my


  1  submission, it's entirely proper and, indeed, we would go
  2  further and say required that you reconsider your ruling
  3  in light of Charter principles that were not presented to
  4  you the first time -- the first time around.
  5                 And I should add that those arguments, of
  6  course, would have been raised if -- if the media had
  7  been given notice of -- of what was intended.  The
  8  practice since Dagenais, as -- as you will know, is to
  9  give notice to the media whenever there's an order sought
 10  that -- that impacts on Section 2(b) rights.
 11                 And My Friend for Mr. McCallion indicates
 12  that there was notice given, and he makes reference to
 13  paragraph 33 of his submissions on the motion in which he
 14  raised as an alternative ground, that -- that there might
 15  be a confidentiality order.  In my submission, that's a
 16  far cry from the kind of notice that would, for example,
 17  allow us to have -- to have been here before you in
 18  advance of the March 4th ruling.
 19                 So, in short, you didn't hear argument on
 20  what submit is a very important point; we think you
 21  should have.  We now want to present those arguments, and
 22  we are firm of the view that if you hear the argument and
 23  you're persuaded that there are Charter principles that -
 24  - that you should have considered and didn't and that
 25  impact upon your ruling, you -- you should revisit that


  1  ruling.
  2                 So I raise that as a preliminary issue.
  3  And if My Friends want to address it now, or -- or if you
  4  want My Friends to address it now, I'm -- I'm happy that
  5  we proceed in that fashion.  If not, I would just get
  6  straight into --
  7                 COMMISSIONER DOUGLAS CUNNINGHAM:   I think
  8  we'll just do that.
  9                 MR. RYDER GILLIHAND:   Okay.  So my -- my
 10  two (2) primary submissions, you won't be surprised, are
 11  -- are first, that the Dagenais/Mentuck test, which I've
 12  just mentioned, a) wasn't considered, but b) couldn't
 13  have been met on -- on the -- the evidence before you.
 14  And on that basis alone, there should -- there should not
 15  be a conf -- a confidentiality order.
 16                 And the second part of our submission, it
 17  -- it relates to the public interest.  Even if you were
 18  to find that the first branch of the -- of the
 19  Dagenais/Mentuck test, the necessity test, were met,
 20  there's -- there's no need for confidentiality in the
 21  present case because the public interest and openness
 22  overrides the need for confidentiality.
 23                 You -- you commented that not all counsel
 24  agree that -- that the Dagenais/Mentuck test applies, and
 25  -- and as -- as is clear, counsel for Mr. McCallion takes


  1  the -- takes the position it -- it doesn't.  I think that
  2  the -- a complete answer to this is found in -- in the
  3  Toronto Star case, which -- which is cited in our factum,
  4  but which I will ask you to turn up.  And that's at Tab
  5  12 of our book of authorities with the white cover.
  6                 The -- the context of this case, which --
  7  which obviously went up to the Supreme Court of Canada,
  8  was the Crown was -- was submitting that the
  9  Dagenais/Mentuck test, by this time well established,
 10  should not have applied when -- to -- to informations to
 11  obtain, and -- and rulings on -- on search warrants;
 12  effectively saying this is an investigative stage, the --
 13  the test that you apply at the trial stage should not
 14  apply at this very -- very premature stage.
 15                 And the answer to that came from Justice
 16  Fish in paragraph 7, where he stated that -- as follows:
 17                   "I would dismiss the appeal.  In my
 18                   view, the Dagenais/Mentuck test applies
 19                   to all discretionary court orders that
 20                   limit freedom of expression and freedom
 21                   -- freedom of the press in relation to
 22                   legal proceedings.
 23                   Any other conclusion appears to be
 24                   inconsistent with an unbroken line of
 25                   authority in this court over the past


  1                   two (2) decades, and it would tend to
  2                   undermine the open court principle
  3                   inextricably incorporated into the core
  4                   values of Section 2(b) of the Charter."
  5                 You have been asked to exercise your --
  6  your discretion to make -- to make a recommendation.  You
  7  have been presented with evidence.  In my submission, you
  8  are going to make a discretionary decision in this
  9  regard.  And on that basis and on -- on the basis of this
 10  ca -- case, you clearly are required to apply the
 11  Dagenais/Mentuck test.
 12                 And there's further support for that in
 13  the Episcopal case, which -- which I don't need you to
 14  turn up, at least now, but it will be of interest to you
 15  because it is an appeal from a commission of inquiry, and
 16  that's at -- at tab 10 of -- of my authorities.
 17                 And Commission counsel has pointed out the
 18  statement there, that there's discretion and -- and
 19  deference to the discretion, and I -- and I don't
 20  disagree with that.  I can't disagree with it, it's the
 21  Court of Appeal saying so, but the Court of Appeal
 22  indicated that the test must be applied and, in fact,
 23  highlighted that the test had been applied by the inquiry
 24  below.
 25                 I also don't need to dwell on the


  1  importance of -- of openness in the context of this
  2  Public Inquiry and court proceedings generally.  I know
  3  you, Commissioner, have already cited some of the law on
  4  that in -- in your earlier ruling, which I also have in
  5  my authorities --
  6                 COMMISSIONER DOUGLAS CUNNINGHAM:   Right.
  7                 MR. RYDER GILLILAND:   -- at tab 8.  In
  8  fact, the first paragraph of that ruling summarizes, to a
  9  large extent, what -- what would have been my submission
 10  in that regard.
 11                 In passing, I don't think that ruling
 12  could possibly have been dated April 26th.  I wanted to
 13  refer to it by the date, but it's -- it says at the back,
 14  April 26th, 2010.
 15                 MR. WILLIAM MCDOWELL:   That's the date it
 16  was signed.
 17                 MR. RYDER GILLILAND:   Oh, I see.  But --
 18  so that was -- when it -- it was released earlier.
 19                 So based on -- on your authority and based
 20  on these authorities, in my submission, the principle of
 21  openness is alive and well in this proceeding, and the
 22  test that's to apply -- to be applied when there's a
 23  limit on openness is the Dagenais/Mentuck test.
 24                 The test itself is found at -- in -- in
 25  many places, but in the Sierra Club decision, which is at


  1  tab 11 of my authorities, and Sierra Club starting from
  2  paragraph 40 forward takes you through the -- the genesis
  3  of this test in the -- in the Dagenais case, and also
  4  mentions -- so that's at paragraph 40.  And in paragraph
  5  43 you see reference to the Mentuck case, so obviously
  6  the two (2) leading cases in relation to this test.
  7                 And if -- if I can ask you to turn the
  8  page and look at paragraph 46.  This is after the court
  9  had slightly reformulated the Dagenais test in -- in
 10  Mentuck.  And in paragraph 46, the court states that the
 11  court had emphasized that under the first branch of the
 12  test the three (3) important elements were un -- were
 13  subsumed under the necessity branch.
 14                 I just add in passing that -- that
 15  necessary in the original Dagenais case, which isn't
 16  before you, was italicised, so it -- it's emphasis on --
 17  on the -- the need.
 18                 First, the risk in question must be a
 19  serious risk well grounded in the evidence.  And, in my
 20  submission, I'll come back to it but, in my submission,
 21  that's where -- that's where the failure is here because
 22  there is no evidence of the harm or the risk.
 23                 The second point is -- is less relevant
 24  here.  It talks about the administration of justice.  And
 25  then third, the test requires the judge ordering the ban


  1  to consider not only whether reasonably alternatives are
  2  available, but also to restrict the ban as far as
  3  possible.
  4                 And then, this is Justice Iacobucci at
  5  paragraph 48 states, first, that Mentuck illustrates the
  6  flexibility of the approach and then, secondly, the
  7  Dagenais model can and should be adapted to a situation
  8  in the case at bar where the central issue is where the
  9  discretion should be exercised so as to exclude
 10  confidential information from a public proceeding.
 11                 So Dagenais was to protect fair trial
 12  rights.  Mentuck was to protect the administration of
 13  justice, and Sierra Club was designed to protect
 14  confidential information, where necessary.  And for that
 15  reason it's -- it's the most germane case for you -- for
 16  -- for today's purposes.
 17                 The test itself is -- is set out at
 18  paragraph 53.  The first requirement is the:
 19                   "...order is necessary [again] to
 20                   prevent a...risk to an important
 21                   interest, including a commercial
 22                   interest, in the context of litigation
 23                   because reasonably alternative measures
 24                   will not prevent the risk; and..."
 25                 And I emphasize that it's a conjunctive


  1  test, because you could find that it was necessary, and
  2  still find in favour of my client's position on the basis
  3  of the second branch:
  4                   "...the salutary effects of the
  5                   confidential -- confidentiality order,
  6                   including the effects on the right of
  7                   civil litigants to a fair trial,
  8                   outweigh its deleterious effects,
  9                   including the effects on the right of
 10                   free expression, which in this context
 11                   includes the public interest in open
 12                   and accessible court proceedings."
 13                 And then Justice Iacobucci, who had
 14  written Mentuck, as well, emphasizes again that the risk
 15  has to be well grounded in the ev -- in the evidence.
 16  That's at paragraph 54.
 17                 And then, at paragraph 55, he draws out a
 18  point that it actually is unique to this setting.  In a
 19  -- and I'm reading from paragraph 55:
 20                   "In addition, the phrase 'important
 21                   commercial interest' is in need of some
 22                   clarification.  In order to qualify as
 23                   an 'important commercial interest', the
 24                   interest in question cannot merely be
 25                   specific to the party requesting the


  1                   order.  The interest must be one (1)
  2                   which can be expressed in terms of a
  3                   public interest in confidentiality."
  4                 Gives the example, saying the private
  5  company can't claim that a particular contract should be
  6  kept confidential, because it would cause the company to
  7  lose business, or harm its commercial interest.  That's
  8  not enough, in this example.
  9                   "However, if...[the] information would
 10                   cause a breach of a confidentiality
 11                   agreement, then the commercial interest
 12                   affected can be characterized more
 13                   broadly as the general commercial
 14                   interest of preserving confidential
 15                   information.  Simply put, if there is
 16                   no general principle at stake, there
 17                   can be no 'important commercial
 18                   interest' for the purposes of this
 19                   test."
 20                 And then he adds, in paragraph 56, a
 21  further caution that:
 22                   "It must be remembered that a
 23                   confidentiality order involves an
 24                   infringement on freedom of
 25                   expression...and courts must be alive


  1                   to the fundamental importance of open
  2                   court[s]..."
  3                 So that -- that is the test that, in my
  4  submission, should have been presented to you, and -- and
  5  -- and that -- that you should -- should consider in --
  6  in determining whether or not there should be public
  7  access to the materials in question.
  8                 I'm not aware of -- of any evidence
  9  relating to specific harm if these -- if these materials
 10  were -- were released.  And in my submission, in order --
 11  in order to comply with the Dagenais/Mentuck test, what
 12  you would have required at a minimum was some form of
 13  evidence indicating what harm would flow from the release
 14  of this information.
 15                 And as I say, there's no such evidence.
 16  And -- and weighing the other way is what is in the
 17  public record.  If you look at -- and now I will ask you
 18  to turn up the -- the book of authorities of Peter
 19  McCallion.  I'm just taking you to the transcript of the
 20  March 4th proceeding, which is at Tab 2.
 22                       (BRIEF PAUSE)
 24                 MR. RYDER GILLILAND:   So this is a
 25  transcript that's available to the public.  And I'm


  1  looking at page -- there's a page 25 and the -- sorry,
  2  it's actually page 28 of the transcript.
  3                 And I know -- I appreciate that you,
  4  Commissioner, will be aware of this from other sources,
  5  but here, it's -- it's City counsel indicating that:
  6                   "There dispute that the letter
  7                   from Mr. Gover on Mr. McCallion's
  8                   behalf sets out -- Mr. McCallion's
  9                   earnings, that he does not file income
 10                   tax returns and that he owns no real
 11                   property..."
 12                 Now, then there's a complaint about the
 13  extent of the information but, nevertheless, it is
 14  information that has been provided on the public record,
 15  albeit it's been established insufficient information for
 16  -- for your purposes.  It's information of the very
 17  nature which -- which now seeks to be protected.
 18                 And -- and I add here something that I
 19  would have raised earlier if I had been going through the
 20  importance of -- of openness and the underlying
 21  principles.  One (1), of course, is to assist in the
 22  truth-finding exercise.
 23                 And that goes back to -- to Wigmore,
 24  Bentham, all the jurists which are cited in many -- many
 25  of the leading Supreme Court of Canada decisions,


  1  including -- including the McIntyre (phonetic) case.  I'm
  2  not going to ask you to turn it up, but it's at tab 7 of
  3  my authorities.
  4                 Now -- so on that basis, in my submission,
  5  there just isn't the evidence before you that -- that you
  6  would require to -- to make a finding to -- to close the
  7  -- the proceeding to the public.
  8                 And, in addition, there's not -- there's
  9  not evidence that goes the step further, that -- that
 10  Sierra Club requires, that there's some interest that's
 11  also of a broader public interest.  There's no evidence.
 12                 I appreciate there is a submission by, I
 13  think, both Commission counsel and Mr. McCallion, that
 14  people wouldn't -- that basically you need to -- you need
 15  to have this confidentiality in order to the protect the
 16  process.  I appreciate there is that larger argument.
 17                 There's no evidence to support it.
 18  There's -- and the problem with that is that it turns the
 19  presumption of openness on its head.  Effectively, that
 20  means if anybody comes to you and asks for a
 21  recommendation for funding, the presumption should be
 22  that it'll be closed because they don't need to lead
 23  evidence because the presumption is that if -- if it were
 24  otherwise, the entire inquiry's process would fail.
 25                 And, in my submission, that -- that can't


  1  be right, particularly in light of what we know
  2  transpires daily in -- in the courts.
  3                 COMMISSIONER DOUGLAS CUNNINGHAM:   Do you
  4  see a distinction, Counsel, between this issue, which
  5  relates entirely to funding, and the larger issue, which
  6  is the terms of reference under which this Inquiry is
  7  charged with the responsibility of investigating evidence
  8  and pursuing in whatever means appropriate the terms of
  9  reference?
 10                 MR. RYDER GILLILAND:   Well, this --
 11  this --
 13  been suggested by counsel opposite that this is a
 14  peripheral issue to the terms of reference, and that all
 15  of the evidence having to do with the terms of reference
 16  will be forthcoming during the course of the Inquiry.
 17                 What do you say about that?
 18                 MR. RYDER GILLILAND:   I say, first of
 19  all, that it is indisputable that -- that issue doesn't
 20  fall squarely within the terms of reference.  However, in
 21  my submission, the -- the open court principle or, in
 22  this case, the open quiry -- inquiry principle doesn't
 23  tie in that way.
 24                 You wouldn't, in -- in a court proceeding,
 25  deal with a peripheral issue and say, We're going to


  1  exclude the public for this part because it's peripheral,
  2  because it's not squarely relating to the lead.
  3                 But perhaps more importantly, everybody is
  4  submitting that you need to consider this issue, the
  5  merits of the issue that's raised, because it touches on
  6  the fairness of this whole process.
  7                 And, of course, the key -- the key reason
  8  we have openness, among the key reasons, is to protect
  9  the integrity of the process, and that means to ensure
 10  that everybody is doing things the right way and the
 11  public can scrutinize it, and that means scrutinizing, of
 12  course, you, Commission counsel, Mr. McCallion, all the
 13  participants, the City, and -- and that's what's denied
 14  if you take it away.
 15                 And, as I say, it is something that --
 16  that everybody is saying goes to the fairness of this
 17  proceeding.  Mr. McCallion is saying, It's unfair to deny
 18  me this -- this funding.
 19                 Commission counsel is saying, You have to
 20  at least consider this on fairness principles, and you've
 21  -- and you've made that decision, as well, that you will,
 22  to protect the integrity and fairness of the proceeding.
 23                 So it's an overstatement at the least to
 24  say -- you know, to create this strong division between,
 25  okay, well, here's the terms of reference and that's what


  1  the public should know about, but we could have this
  2  other little area here, which does touch on the fairness
  3  of this whole process, but we're going to keep that
  4  secret.
  5                 So just to circle back to -- to -- to the
  6  -- to conclude the point on the first branch of -- of --
  7  of the Dagenais/Mentuck test, there is no evidence, and
  8  that, in my submission, is dispositive.
  9                 Now, I want to -- I -- I do want to talk
 10  at -- at -- at the end about the balancing exercise.  But
 11  before I do that, because -- because Mr. McCallion has
 12  raised a fairness point that -- that relates to the point
 13  I raised at the outset, saying, Jeez, I -- you know, now
 14  I've led this evidence and -- and I did so on the
 15  understanding that -- that it would be kept confidential,
 16  and now I've stepped into this and -- and now you're --
 17  it would be unfair to undo that.
 18                 And I think my opening submission
 19  addresses that to some extent but, of course, as a
 20  practical matter, that doesn't help Mr. McCallion.  I
 21  think the practical solutions to -- to that situation in
 22  which he would find himself if you were to -- to order
 23  that this be made public, is -- is twofold.
 24                 Number one, Mr. McCallion doesn't have to
 25  seek funding.  And if he withdraws his request for


  1  funding, then the openness issue won't be engaged.
  2                 Another alternative, and -- and in my
  3  submission, this -- this is one (1) that -- it -- it's
  4  open to you, but it's not one (1) that I recommend, is
  5  that Mr. McCallion can now make submissions relating to
  6  the harm, and lead evidence relating to the harm, which
  7  is what I submit, as you know, he would need to do to
  8  protect that confidentiality.
  9                 The reason I -- I -- I say that -- that I
 10  -- I'm against that is because it was, frankly, incumbent
 11  upon Mr. McCallion, if he was seeking to -- to get
 12  confidentiality in the first place, to put -- put
 13  everyone on notice, including the media that -- that he
 14  was seeking a confidentiality order.  And if -- had he
 15  done so, these arguments would have been presented to you
 16  in advance of your ruling.
 17                 That said, it is open to you if you have
 18  concerns about -- about his position, which -- which
 19  aren't addressed through basically saying, take it or
 20  leave it.  It's an open process.  If you -- if you want
 21  to come in here and ask for public funds, you're going to
 22  have to do so publically.  An alternative is to allow --
 23  allow him to now address the Dagenais/Mentuck test head
 24  on.


  1  motion of yours is dated April 26th, which -- and the
  2  date of the cross-examination was --
  3                 MR. WILLIAM MCDOWELL:  The 23rd.
  4                 COMMISSIONER DOUGLAS CUNNINGHAM:   -- 23rd
  5  of April.  My ruling was made on March the 4th.  Was
  6  anything done between March the 4th and the cross-
  7  examination of Peter McCallion --
  8                 MR. RYDER GILLILAND:   Yes.
  9                 COMMISSIONER DOUGLAS CUNNINGHAM:  -- to --
 10                 MR. RYDER GILLILAND:   Commission counsel
 11  will -- will confirm that it -- it wasn't March 4th, I'll
 12  concede that, but I think it was a -- I think it was
 13  April 15th, frankly.  April 14 or April 15 is when I
 14  first wrote to -- to Commission counsel and asked
 15  Commission counsel to raise this issue before you.
 16                 At that time I wasn't convinced, and I --
 17  and I told Commission counsel that my preference was to
 18  not, frankly, appear before you, but rather that this
 19  just be raised because it was an issue that -- that, in
 20  my view, should have been -- that, in my client's view,
 21  should have been raised, and hadn't been.
 22                 So it was certainly -- it was -- you know,
 23  it was not March 4th, but it was well in advance of -- of
 24  -- of the actual cross-examination on -- on April 23rd,
 25  and after our initial correspondence, and I can confirm


  1  -- I could confirm on a date the exact -- or on a break,
  2  the exact dates, but it -- it is in or around April 14th
  3  -- we -- we had some back and forth and -- and Commission
  4  counsel advised, and I -- I expect this was likely after
  5  consulting with -- with you, Commissioner, but -- but I
  6  don't know that, that -- that the proper course was for
  7  us to bring this -- this motion, which we did.
  9                       (BRIEF PAUSE)
 11                 MR. RYDER GILLILAND:   So then, in
 12  closing, I just come back then to the balancing exercise
 13  that's -- that's before you, before you only if you find
 14  that there's evidence that shows that -- that a
 15  confidentiality order is necessary.
 16                 And so, in my submission, it's a bit of a
 17  hypothetical here because, as you know, my position is
 18  that there is no -- no such evidence.  But assuming that
 19  there -- that there were, the -- the bottom line here is
 20  that when we get to the balancing point, we're talking
 21  about public funds.  We're talking about -- I appreciate
 22  your -- your order is not binding, but it's a
 23  recommendation relating to taxpayer money.  And, in my
 24  submission, that -- when we talk --
 25                 COMMISSIONER DOUGLAS CUNNINGHAM:   What's


  1  your recommendation?
  2                 MR. RYDER GILLILAND:   As I just said, I
  3  -- I appreciate that, but obviously Mr. McCallion
  4  wouldn't be bringing the application and -- if -- if he
  5  didn't feel that there was some significance to your
  6  recommendation and -- and Your Honour wouldn't have
  7  requested additional evidence, et cetera, if Your Honour
  8  wasn't taking the task seriously, as -- as, of course,
  9  you should.
 10                 And there's no question, in my submission,
 11  in those circumstances that the recommendation can, not
 12  will, but can impact on the expenditure of public monies.
 13  And that's something that, when we're at this balancing
 14  stage, we're not then just dealing with openness
 15  principles, which, of course, are -- are very much alive
 16  and well, but we are dealing with a recommendation
 17  relating to the expenditure of taxpayer money.
 18                 And I can't speak for the ratepayers, but,
 19  in my submission, it's not too much to ask from a
 20  ratepayer perspective that if you want a recommendation
 21  in a public inquiry in which you are implicated, rightly
 22  or wrongly, but in which you -- you're clearly
 23  implicated, if you want a commi -- a recommendation from
 24  the Commissioner that there be public funds used to your
 25  benefit, then it's entirely fair, if evidence is required


  1  to support such a recommendation, that it be done in the
  2  open.
  4                       (BRIEF PAUSE)
  6                 MR. RYDER GILLILAND:   Those are my
  7  submissions.
  8                 COMMISSIONER DOUGLAS CUNNINGHAM:   Thank
  9  you very much.
 10                 Mr. Gover...?
 13                 MR. BRIAN GOVER:   Yes, good morning, Mr.
 14  Commissioner.  Mr. Commissioner, I would preface my
 15  submissions by saying that in your March 4th ruling you
 16  took a context sensitive approach, and, of course, that
 17  approach is what is urged by the Mentuck case itself.
 18                 And in the Toronto Star case, Justice Fish
 19  emphasized that this is meant to be a flexible approach,
 20  it's not to be applied mechanistically.  And all of that
 21  leads us to the conclusion, in my submission, that, in
 22  this particular context, the context not of a court
 23  proceeding, and, of course, in the -- the authorities
 24  that Mr. Gilliland took you to we heard repeated
 25  reference to open courts and court proceedings, but your


  1  context, or course, is as the commissioner of a public
  2  inquiry, tasked with making a recommendation which itself
  3  was peripheral to the terms of reference.
  4                 As Commission counsel have recognized in
  5  paragraph 19 of their submissions, and I quote:
  6                   "Mr. McCallion's intimate personal
  7                   financial information is not relevant
  8                   to the terms of reference.  The terms
  9                   of reference address Mr. McCallion's
 10                   business dealings, not his personal
 11                   financial status."
 12                 This is unlike the Cornwall case to which
 13  counsel for the Mississauga News has referred.  There, of
 14  course, the identity of the supposed perpetrators was
 15  central to the terms of reference.  There was a real
 16  public interest in lifting the veil of secrecy
 17  surrounding allegations of sexual abuse by persons in
 18  authority, but that's not this case.
 19                 And in your March 4th ruling, Mr.
 20  Commissioner, you recognized the intrusive nature of the
 21  inquisitorial process that is a public inquiry.  As you
 22  recognized in your March 4th ruling, the City has put
 23  Peter McCallion's dealings at the heart of the Inquiry,
 24  but, of course, that relates to his business affairs in
 25  relation to World Class Developments.  And, plainly, the


  1  terms of reference warrant a probing examination of those
  2  business affairs at the appropriate time and in the
  3  appropriate manner.
  4                 The Supreme Court of Canada has emphasized
  5  that the task of any commissioner is to balance the
  6  Inquiry's roles with the rights of those being
  7  investigated.
  8                 And, in this case, using that context
  9  sensitive approach, you concluded that the right balance
 10  entails respecting Mr. McCallion's privacy interests and
 11  right to fair treatment at the stage of determining what
 12  recommendation to make to City counsel.
 13                 And we submit that was a sound exercise of
 14  discretion well grounded in authorities, such as the
 15  Blood Inquiry case.  And I'll provide the reference, sir.
 16  It's at tab 1 of our brief of authorities, and I refer in
 17  particular to Justice Cory's comments at paragraph 31.
 18                 Further, in the Phillips case, or also
 19  known as the Westray case, Justice Cory again, in tab 3
 20  of our brief of authorities, paragraphs 175 and 176.  And
 21  this issue of managing the inquiry process in a way that
 22  will be fair was, as Commission counsel have pointed out,
 23  addressed by Justice Binnie in the Consortium
 24  Developments case at tab 7 of Commission counsel's brief
 25  of authorities, paragraph 27.  And, of course, the


  1  comments in Consortium Developments were made in the
  2  context of a public inquiry arising under the Municipal
  3  Act.
  4                 Returning to this point about context and
  5  the importance of considering it, of course, in Mentuck
  6  itself Justice Iacobucci, writing for the Court,
  7  emphasized that context must be taken into account.
  8                 In that respect, I might briefly take you
  9  to tab 10 of our brief of authorities.  This is Mentuck,
 10  tab 10, paragraph 37, where Justice Iacobucci said this:
 11                   "It also bears repeating that the
 12                   relevant rights and interests will be
 13                   aligned differently in different cases,
 14                   and the purposes and effects invoked by
 15                   the parties must be taken into account
 16                   in a case-specific manner."
 17                 Now, what really has been left unaddressed
 18  by counsel for the Mississauga News is the fact that when
 19  we consider this question of whether and how the
 20  Dagenais/Mentuck test applies, we have to consider it in
 21  the context of a public inquiry and in the context of the
 22  recommendation, this peripheral task which you are now
 23  concerned with.
 24                 The Commission, it bears emphasis, is not
 25  a court and is, therefore, not bound by the open-court


  1  principles articulated in Dagenais/Mentuck, Toronto Star,
  2  and Sierra Club.
  3                 Your order of March 4th was not a
  4  discretionary court order, as described by Justice Fish
  5  in paragraph 7 of the Toronto Star case.  As well, you
  6  are not bound by the public hearing requirements set out
  7  in Section 135 of the Courts of Justice Act.
  8                 In our submission, this matter can be and
  9  should be resolved by reference to Rule 34 of your
 10  inquiry rules of procedure, which confer upon the
 11  Commission the discretion to conduct hearings in private
 12  and/or issues -- issue orders prohibiting disclosure of
 13  intimate financial or personal details.  Commission
 14  counsel point out, as do we, that that is consonant with
 15  the approach taken in Section 4 of the Public Inquiry's
 16  Act.
 17                 So in that respect, although as has been
 18  said, this has a different legislative genesis, this
 19  particular Public Inquiry, we get a sense of what the
 20  Legislature's expectation is.  The Legislature in that
 21  sense has spoken.  We go further.  We say it's spoken
 22  again.  We have a -- an as yet unproclaimed replacement
 23  for the Public Inquiries Act, the Public Inquiries Act
 24  2009, which we've included at Tab 14 of our brief of
 25  authorities, which reflects the same sort of approach


  1  taken by the Legislature as recently as the fall of 2009.
  2  So although not directly applicable, we have a good sense
  3  of what the Legislature has to say on this, and recently,
  4  of course, it has spoken again.
  5                 I point out, as well, that when confronted
  6  with a similar issue, Justice Goudge, at what I'll term
  7  as the Goudge Inquiry, recognized that it was appropriate
  8  to protect personal information at the standing and
  9  funding stage.
 10                 And we see that in the excerpt from the
 11  Goudge Inquiry report, which you'll have at Tab 12 of our
 12  brief of authorities.  And if I could take you briefly,
 13  sir, to paragraph -- pardon me, to page 645 at Tab 12,
 14  you'll see in the sidelined portion, Justice Goudge said
 15  this:
 16                   "The Rules of Standing and Funding
 17                   instructed applicants on the basic
 18                   information to be included in support
 19                   of their application.  Through
 20                   Commission counsel the applicants were
 21                   advised that it was not necessary to
 22                   prepare formal application records with
 23                   sworn affidavits.  Ultimately, many of
 24                   the applicants did choose to submit
 25                   formal application records, while


  1                   others did not.  By July 16, 2007, I
  2                   had received eleven (11) applications
  3                   for standing.  Of the eleven (11)
  4                   applicants, seven (7) also sought
  5                   funding.  Once Commission counsel
  6                   reviewed the applications to ensure
  7                   that they did not disclose confidential
  8                   information, they were posted on the
  9                   Commission's website."
 10                 So Justice Goudge made the decision to
 11  protect confidential information in the applications for
 12  funding that were before him.  And earlier in my opening
 13  remarks, Mr. Commissioner, I had referred to the Toronto
 14  Star case, and the proposition that the test ought not to
 15  be applied mechanistically, but as flexible and
 16  contextual.  I won't take you to it, sir, but you may be
 17  assisted by the reference.  It's at paragraph 31 of
 18  Toronto Star.
 19                 Commission counsel have agreed that Mr.
 20  McCallion's affidavit does not address matters at the
 21  core of this Inquiry's mandate.
 22                 The affidavit and transcript contained
 23  private information, such as that which was considered
 24  confidential by the Goudge Inquiry, and we submit that
 25  the release of it would serve no legitimate purpose in


  1  furthering the Commission's mandate.
  2                 Now whether or not the -- the
  3  Dagenais/Mentuck test applies directly, and you've heard
  4  my submission, that Rule 34 is where this issue ought to
  5  be resolved, I submit that Commission counsel got it
  6  exactly right in paragraphs 15 through 37 of their
  7  submissions.
  8                 The confidentiality order is necessary to
  9  ensure fairness to Mr. McCallion or, as they have put it,
 10  there is a substantial risk to the public interest in
 11  fairness of the Inquiry if confidentiality is not
 12  maintained.
 13                 Now we say, with respect, that is clearly
 14  specific harm.  And on this subject that Mr. Gilliland
 15  has raised about evidence being necessary, commissioners
 16  of public inquiries have never demanded hard evidence
 17  before taking steps to ensure the fairness of an inquiry.
 18                 As an aside, I would submit, addressing
 19  one (1) of Mr. Gilliland's submissions, that there has
 20  been no waiver on Mr. McCallion's part in asserting that
 21  he is unable to fund legal representation himself.  That
 22  -- that doesn't warrant an intrusive examination into all
 23  of his financial circumstances that would be open to
 24  public scrutiny at this stage.
 25                 Returning to Commission counsel's


  1  submissions, they're right in saying that the openness of
  2  the inquiry's pursuit of its mandate, as set out in the
  3  terms of reference, is not compromised by your March 4th
  4  ruling.  Of course, anything relevant to the terms of
  5  reference, and that's consistent, of course, with the
  6  Court of Appeal's decision in Bortolati (phonetic), will
  7  be the subject of evidence led by your counsel.  We can
  8  count on that.
  9                 Thirdly, there are no reasonable
 10  alternatives, as Commission counsel have pointed out.
 11  What we're left with is this:  The salutary effects of
 12  your March 4th ruling outweigh any deleterious effects.
 13  And here we really need to put ourselves in the position
 14  of Mr. McCallion or any person who is swept up in the
 15  process of a public inquiry.
 16                 Imagine the position that someone in that
 17  position would be in if a context sensitive and balanced
 18  approach were not taken.
 19                 Faced with the intrusive process of a
 20  public inquiry examining certain of his business dealings
 21  that would take several weeks and in need of counsel to
 22  protect his reputational and other interests and unable
 23  to fund legal representation for that purpose on his own,
 24  such a person would be left with a Hobbesian choice.
 25                 He or she would have to either abandon his


  1  or her request for funding, and, actually, Mr. Gilliland
  2  as much as said this, or relinquish his privacy rights
  3  over his intimate financial and personal matters.
  4                 And it's precisely what it -- what your
  5  Rule 34 is meant to address.  It's precisely what you
  6  have addressed in your March 4th ruling, and that is
  7  completely consistent with the approach taken by
  8  commissioners of other public inquiries in ensuring
  9  fairness of the process which they are tasked with
 10  overseeing.
 11                 Those are my submissions, subject to any
 12  questions.
 13                 COMMISSIONER DOUGLAS CUNNINGHAM:   Thank
 14  you, Mr. Gover.
 15                 Mr. McDowell...?
 18                 MR. WILLIAM MCDOWELL:   Yes, sir, I -- Mr.
 19  Gover having substantially adopted our submissions, I
 20  don't propose to repeat them, but just a number of -- of
 21  points on the -- on the submissions by Mr. Gilliland.
 22                 First of all, on the -- on the question of
 23  the record, the factual basis for your order, you don't,
 24  in my submission, need to have evidence of precisely the
 25  harm that would ensue from disclosure of intimate


  1  personal and financial information.  You're entitled to
  2  draw that inference.
  3                 And I say that in part because we know
  4  that there is extensive statutory protection given to
  5  personal financial information, including in the public
  6  -- in the Personal Information and Protection of
  7  Electronic Data Act, better know as PIPEDA, the federal
  8  legislation, and similar provincial legislation.
  9                 And that -- that interest of protecting a
 10  zone or privacy around a person's personal financial
 11  affairs is one which is capable of being elevated to the
 12  kind of interest that Justice Iacobucci was talking about
 13  in the -- in the Sierra Club case.
 14                 I underline the unfairness to Mr.
 15  McCallion, who, in the wake of your ruling, gave a good
 16  deal of information to us by way of affidavit, agreed to
 17  be cross-examined, you having made an order, as -- as
 18  both the Public Inquiries Act and our rules permit under
 19  Section 34.  So the fact that there is detrimental
 20  reliance by Mr. McCallion I think is -- is a very
 21  significant factor.
 22                 We do take Mr. Gilliland's point about the
 23  relationship between the evidence to be disclosed and the
 24  truth-finding process, but as I have discussed with Mr.
 25  Gover, to the extent that anything in the affidavit or


  1  the cross-examination is relevant to the matters in the
  2  terms of reference, that evidence will be led in the
  3  Inquiry as it unfolds.
  4                 And, therefore, the public interest will
  5  be discharged in anything that is actually related to the
  6  terms of interest -- or terms of reference.  It's just
  7  that it won't be immediately disclosed now.
  8                 There is, I think, a risk here of
  9  conflating the public interest with the fact that the
 10  media have demonstrated interest in getting this
 11  information.  And as Justice Iacobucci noted in the
 12  Sierra Club case, at paragraph 85, the mere fact that the
 13  media are interested in this material gives rise to no
 14  inference as to whether or not there's a public interest
 15  in getting it.
 16                 Now on the question of the -- of the test
 17  which you must apply, you have our factum, but I just
 18  draw your attention in the Cornwall case as paragraph 32,
 19  Justice Sharpe sets out the submission of the Cornwall
 20  police, having conceded that the Public Inquiries Act
 21  requires the Commissioner to engage in a balancing test
 22  very similar to, if not identical to the Dagenais/Mentuck
 23  test.  It's in our -- it's at Tab 5, paragraph 32.
 24                 And so whether or not you, you know,
 25  recited the -- the appropriate language from


  1  Dagenais/Mentuck in coming to your decision really
  2  doesn't matter because the test that you were required to
  3  apply and you did apply is substantially the same test.
  4                 And again, as -- as Mr. Gover says, and --
  5  and he was there, after all, the evidence in that case
  6  that was sought to be concealed was at the heart of the
  7  -- of the terms of reference of that inquiry.  Here, how
  8  much cash Peter McCallion has in a particular bank
  9  account and how much he pays in -- in mortgage payments
 10  and has to set aside for gas money and so on is simply
 11  irrelevant to -- to the exercise before you.
 12                 So subject to any questions, sir, those
 13  are my submissions.
 14                 COMMISSIONER DOUGLAS CUNNINGHAM:   Thank
 15  you, Mr. McDowell.
 16                 Mr. Gilliland, would you like to respond?
 19                 MR. RYDER GILLILAND:   Very briefly.  Mr.
 20  Commissioner, the -- I think both -- both counsel, and
 21  certainly Mr. Gover has rai -- raised the point that --
 22  that I left out the -- the context consideration.
 23                 Well, it's indisputable that we consider
 24  the context.  All the cases do say that.  They also all
 25  talk about the necessity of -- of a serious risk well


  1  grounded in evidence.  One doesn't -- the -- the
  2  contextual considerations don't eliminate the
  3  requirements of the test.
  4                 You saw -- Mr. McDowell just took you to
  5  -- I was going to take you to it on this point, but he
  6  just took you to the portion of the Episcopal case where
  7  they -- they -- all parties were in agreement that that
  8  test applied, and -- and the court went on to -- to note
  9  that there is deference in the application of the test,
 10  but not to say that you don't have to apply the test.
 11                 Mr. Gover states that the legislation has
 12  spoken.  All the legislation does is provide you with the
 13  discretion to address this issue; that's no different
 14  than, for example, the Toronto Star case.  They --
 15  there's Criminal Code provisions that allow the Justice
 16  in that case to consider whether or not to impose a
 17  sealing order over search warrant materials; that's the
 18  discretion.  That's the genesis of a discretion.
 19                 The application of a discretion has to be
 20  consistent with Charter principles, which means it has to
 21  be consistent with the Dagenais/Mentuck test.
 22                 Mr. Gover states there's no waiver on Mr.
 23  McCallion's point to -- to give certain particulars about
 24  his economic situation.  I'm not suggesting it's waiver.
 25  I'm suggesting that's far from being evidence that he


  1  can't provide such evidence or that it would cause harm,
  2  he has gone some way down that road.  And -- and I
  3  appreciate that it's two (2) different things.  That's
  4  general, and he has provided now specific, but those are
  5  two (2) different things.
  6                 Mr. Gover made some comments about the --
  7  the -- effectively suggesting that -- that you don't have
  8  to consider open-court principles here because this is a
  9  public inquiry.  I think -- I think, frankly, your --
 10  your earlier judgment deals with that.  I think, clearly,
 11  openness principles are engaged in a public inquiry.  I
 12  think the Court of Appeal affirms that in the Episcopal
 13  case.
 14                 Commission counsel makes the point that
 15  you don't really need evidence because you can infer that
 16  this kind of information is -- is private.  And I will
 17  tie this back then to the litigation context, in court
 18  proceedings.
 19                 How many court proceedings involve, for
 20  example, well, detailed -- detailed financial
 21  information, in all different kinds of context, of course
 22  in relation to damages, but can arise in any number of
 23  circumstances?  And -- and the courts just don't, and
 24  they wouldn't because they -- they can't meet the test to
 25  say, oh, well, don't worry, you get -- you get a


  1  confidentiality order on your tax returns.
  2                 That's not how it works, particularly when
  3  those tax returns are going to form the basis for a
  4  subsequent ruling or in this case, I appreciate the
  5  difference, a recommendation.
  6                 And I think on that point that the
  7  Commission counsel has slightly misstated my position in
  8  a -- in a portion of his submission where he was giving
  9  me, I think, some credit and -- and talking about the
 10  connection between the terms of reference and -- and this
 11  issue.
 12                 My point is:  This issue goes to the
 13  fairness of this entire proceeding.  That's how it's been
 14  presented to you, and that is what needs to be
 15  scrutinized.  I'm not focussing on whether there's
 16  overlap between this particular evidence and what will
 17  ultimately come out in the Inquiry - that's not my point.
 18  And I think -- I think -- that's how I understood
 19  Commission counsel to phrase it.  My point is:  This
 20  issue touches on the fairness of the entire Inquiry,
 21  that's how it's presented to you, and that's why, among
 22  other reasons, it should be open.
 23                 That's all I have in reply, Mr.
 24  Commissioner.
 25                 COMMISSIONER DOUGLAS CUNNINGHAM:   Thank


  1  you, Mr. Gilliland.  Well, I appreciate the thoughtful
  2  submissions of counsel.  I will take this matter under
  3  consideration and, in short order, will post my decision
  4  on the website.  Thank you.
  5                 MR. RYDER GILLILAND:   Mr. Commissioner, I
  6  understand we have other matters to attend to today.  May
  7  I be free --
  8                 COMMISSIONER DOUGLAS CUNNINGHAM:   Yes.  I
  9  wanted to convenience you as much as I could, so you're
 10  free to go.
 11                 MR. RYDER GILLILAND:   Thank you.
 12                 COMMISSIONER DOUGLAS CUNNINGHAM:   Thank
 13  you.
 14                 All right, Mr. McDowell...?
 15                 MR. WILLIAM MCDOWELL:   Just a moment,
 16  please.
 18                       (BRIEF PAUSE)
 20                 COMMISSIONER DOUGLAS CUNNINGHAM:   Perhaps
 21  you could give us an update as to where we are.
 24                 MR. WILLIAM MCDOWELL:   Well, there's an
 25  issue about documents with each -- in relation to each of


  1  the City and -- and OMERS, but just to give you some
  2  idea, we -- we have now reviewed and categorized
  3  something like sixteen thousand (16,000) documents.
  4                 We have a dedicated review team of
  5  contract lawyers that's going through all of the
  6  documents because we think we've got a responsibility to
  7  have a lawyer actually look at every document that's
  8  being produced.  So that's going well.
  9                 We've now interviewed approximately thirty
 10  (30) witnesses, and we're well into the production of
 11  Will Says for the Enersource portion of the hearing.  So
 12  that's the good news.
 13                 We think that we've located most of the
 14  key documents for both phases, but every day the review
 15  team draws something to our attention that we had not
 16  otherwise found.
 17                 The less positive news is that we still
 18  don't have coded documents in their entirety from -- from
 19  the City and from OMERS.
 20                 So dealing first with the City, the City
 21  has worked pretty diligently to get us material.  There
 22  is one (1) further tranche of several thousand documents
 23  to come and significantly it includes the bulk -- excuse
 24  me -- the bulk of materials to come from the Mayor's
 25  office.


  1                 So that is, I confess, slowing us up a
  2  bit.  However, I think we're going to get those
  3  imminently.
  4                 OMERS, we've got very few coded documents
  5  from OMERS.  Coding is important, just to underline,
  6  because it allows rapid circulation of documents among
  7  the Commission counsel team.  It allows us to produce
  8  almost instantly a disc of documents to -- to be produced
  9  to a witness or to -- to a party, rather than having to
 10  spend the better part of a day photocopying, creating
 11  multiple copies, and spending two (2) or three hundred
 12  (300) bucks a crack, as -- as we've had to do with some
 13  of the OMERS documents.
 14                 Candidly, and I raised this with Mr.
 15  Barrack, he's done different cuts at this.  The material
 16  that we get is immaculately organized.  The last cut that
 17  we got had some documents that were of particular
 18  relevance to the Inquiry.  They came on Tuesday night,
 19  and in an ideal world we would have been able to put some
 20  of those documents to witnesses who we -- we have
 21  interviewed up to this point, and we're going to have to
 22  go back around and -- and repeat that process.
 23                 So that is where we are.  And you may want
 24  to hear from counsel to the City and counsel to -- to
 25  OMERS.


  2  perhaps I could hear from counsel for the City.  When can
  3  we expect the balance of the documents?
  4                 MR. JAMES RENIHAN:   The tranche that
  5  Commission counsel just referred to, Commissioner,
  6  arrived at our office yesterday at the end of the day.
  7  So I imagine they will be going on to Commission counsel
  8  today.
  9                 There are a few remaining documents that
 10  we have recently received from the Mayor's office, and
 11  from other departments in the City.  The bulk of those
 12  from the City have already been turned over in a non-
 13  coded form to Commission counsel.  Coded documents will
 14  be coming as soon as we're able to get them.
 15                 And the rest of the Mayor's documents,
 16  which we just received, will also be -- copies of those,
 17  prior to coding, will be delivered to Commission counsel
 18  so they can review them, with coded documents to follow
 19  shortly thereafter.
 20                 COMMISSIONER DOUGLAS CUNNINGHAM:   You now
 21  have all of the Mayor's documents?
 22                 MR. JAMES RENIHAN:   Yes, we -- we have
 23  all of the Mayor's documents at this point.
 25  right.  Thank you.


  1                 Mr. Barrack...?
  2                 MR. MICHAEL BARRACK:   By no later than
  3  Wednesday of next week, Mr. McDowell will have all of the
  4  coded documents.
  5                 If I can just, Mr. Commissioner, just to
  6  put it into context, OMERS' approach was to take all non-
  7  privileged documents and make them available to the
  8  Commission.  And we tried to do that in a manner that
  9  best assisted the Commission.  And how we did that,
 10  there's a decision point at the beginning.  Do you dump
 11  all the documents, or do you cull the documents?  And the
 12  decision we took was to cull, not to dump.
 13                 And what that involved really was a
 14  process:  first, meeting with Commission counsel to set
 15  the groundwork.  Then we identified all of the relevant
 16  custodians who might have documents and we went and we
 17  got all of their documents.  And that's the big dump.
 18                 Now we could have coded that big dump and
 19  just given it to the Commission counsel, or we could have
 20  gone through it.  And the decision we made on behalf of
 21  OMERS was to go through the document, and we told
 22  Commission counsel about that.
 23                 And what we've done is, we have released
 24  the documents in three (3) batches.  The first batch was
 25  a -- the most relevant documents.  You'll recall you got


  1  some small packages of very, very relevant documents so
  2  that the key issues were identified.
  3                 The second pass was to take the big dump
  4  and to go through and really try and develop a chronology
  5  where we could make sure that all of the events were
  6  identified, and those we gave in hard copy.  We probably
  7  should have coded them a little quicker, but we gave them
  8  in hard copy.
  9                 And then we've gone back, as a result of
 10  discussions with Commission counsel, and done a further
 11  pass.  And that further pass has been delivered in hard
 12  copy and will be coded by next week.
 13                 At all times -- and we continue to -- to
 14  make the offer, that if the group of contract lawyers
 15  wants to come in and look at the OMERS documents in their
 16  raw form, other than the privileged, we're happy to have
 17  them come in and do that.
 18                 So all I would say to you is that, going
 19  into this process, I'm not sure Mr. McDowell did but I
 20  certainly didn't have my Eagle Scout badge in document
 21  production.  And I might have earned it part way through
 22  this and I may ask you, on some plenary jurisdiction you
 23  have, to confer one (1) on both me and Mr. McDowell at
 24  the end of the process.
 25                 But I -- I can say to you that the


  1  responsibility for any delay or perceived delay in
  2  delivering the documents is not my client's, it's mine,
  3  it's not Mr. McDowell's.
  4                 COMMISSIONER DOUGLAS CUNNINGHAM:   Thank
  5  you.
  6                 Mr. McDowell...?
  7                 MR. WILLIAM MCDOWELL:   There's one (1) --
  8  there's one (1) issue that I should flag because we may
  9  have to come back to -- on it, and that is that there is
 10  a limited class of documents which we have which we would
 11  like to produce to the Mayor, and the City has taken a
 12  position that we can't do so.
 13                 We're going to try and work through that
 14  because I think that, depending on which particular
 15  document we're talking about, there may be some
 16  significance attached to that, so --
 18  are you meeting with the Mayor?
 19                 MR. WILLIAM MCDOWELL:   The 11th of May, I
 20  believe.  The 13th of May, sorry.
 22  right.
 23                 MR. WILLIAM MCDOWELL:   So between now and
 24  then we may have to get a ruling from you if we can't --


  1  right.  If you can't --
  2                 MR. WILLIAM MCDOWELL:   -- sort this out,
  3  work it out.
  5  right.  What about what Mr. Barrack says about the
  6  balance of the documents coded by next Wednesday?
  7                 MR. WILLIAM MCDOWELL:   That -- that's
  8  suitable.  As it happens, I'm out of town next week, but
  9  the bulk -- the rest of the team isn't, so that -- that's
 10  fine.
 12  right.
 13                 MR. WILLIAM MCDOWELL:   It -- you know, it
 14  -- it will, I think, impact our schedule a little bit,
 15  we're going to come to the schedule, but it doesn't knock
 16  us off as much as I had -- had feared.
 17                 COMMISSIONER DOUGLAS CUNNINGHAM:   Well,
 18  it looks as though our hope of starting on May 17th may
 19  have been overly optimistic, but we are beginning to hear
 20  evidence on May 25th?
 21                 MR. WILLIAM MCDOWELL:   That's correct.
 22                 COMMISSIONER DOUGLAS CUNNINGHAM:   And we
 23  will sit that week.  We'll sit the 25th, 26th, and 27th.
 24  And we could sit a part of the 28th if that doesn't cause
 25  problems.  Then we will sit the 31st, the 1st, the 2nd,


  1  and the 3rd of June.
  2                 Then we will sit, hopefully, the -- yes,
  3  we will sit the 7th, 8th, and 9th of June.  I would like
  4  to think that we could use the week of the 14th, but that
  5  may -- it may be that we will have passed the first
  6  portion of the Inquiry --
  7                 MR. WILLIAM MCDOWELL:   Right.
  8                 COMMISSIONER DOUGLAS CUNNINGHAM:   -- by
  9  that time and whether Commission counsel is ready to
 10  launch into the second portion will be determined.  But
 11  if you are, we can use the week.  I'm available.  I'd
 12  like to use it --
 13                 MR. WILLIAM MCDOWELL:   Sure.
 14                 COMMISSIONER DOUGLAS CUNNINGHAM:   -- the
 15  week of the 14th.  And then we will sit the week of the
 16  28th, although Canada Day falls on the Thursday, and the
 17  week -- the week of July 5th.
 18                 We may be able to sit the week of July
 19  19th and the week of July 26th, but we'll determine that
 20  as we go along, and the week of August 9th, if necessary,
 21  and the week of August 16th, if necessary.
 22                 I'd really like to get as much of this
 23  underway --
 24                 MR. WILLIAM MCDOWELL:   Sure.
 25                 COMMISSIONER DOUGLAS CUNNINGHAM:   -- as


  1  we can in a timely fashion.  For reasons that have been
  2  thoroughly discussed, and through no fault of anyone's,
  3  you know, our earlier anticipated start date has been
  4  delayed, but once we get going I'd like to get this thing
  5  underway and move ahead with it.
  6                 It may involve sitting through portions of
  7  the summer that might be inconvenient to some, but I
  8  think it's important that we keep going --
  9                 MR. WILLIAM MCDOWELL:   Oh, understood.
 10                 COMMISSIONER DOUGLAS CUNNINGHAM:   -- as
 11  best we can.
 12                 MR. WILLIAM MCDOWELL:   The one (1) --
 13  just looking ahead, the one (1) thing that seems sensible
 14  to do is -- is not sit the day after Canada Day.  I don't
 15  know if that was your intention, but...
 16                 COMMISSIONER DOUGLAS CUNNINGHAM:   I don't
 17  think so.
 18                 MR. WILLIAM MCDOWELL:   All right.  Now,
 19  Ms. McIntyre has a submission to make.  You -- you may
 20  have taken the wind out of her sails, I don't know, but
 21  we'll see.
 23  morning.


  1                 MS. ELIZABETH MCINTYRE:   Good morning,
  2  Mr. Commissioner.  Yes, we've been in discussions this
  3  week with respect to the schedule, and I appreciate the
  4  difficulties that have confronted Commission counsel in
  5  getting this matter launched, but it was with some alarm
  6  that I learned that the Commission may go into the fall.
  7                 And, as counsel on behalf of Mayor
  8  McCallion, that raises significant fairness concerns
  9  because that then takes us into the election period.  The
 10  election is scheduled to be held on October the 25th.
 11  And the closing date for the following nomination papers
 12  is September 10th.
 13                 So essentially, that sets up a six (6)
 14  week election period, a length -- a time frame in which
 15  it's the opportunity for the candidates to engage with
 16  the electorate with respect to -- with respect to the
 17  issues.  And we submit that it's fundamentally unfair,
 18  particularly to the Mayor to have hearings of the Inquiry
 19  overlap that period.  Now it may be a moot point.  You
 20  know, I'm -- I'm very encouraged to hear that the -- that
 21  you're committed to -- to using as much time as we can in
 22  the summer.
 23                 I'm sure when the Inquiry was called in
 24  October of last year, it was clearly the expectation of
 25  everybody that the matter would proceed and would be


  1  finished by now, certainly would be well done in advance
  2  of the --
  4  thought we'd be finished by the end of June.
  5                 MS. ELIZABETH MCINTYRE:   -- the election
  6  campaign.  And, sir, that would have given to the
  7  citizens of Mississauga the opportunity not only to have
  8  heard the evidence but, importantly, to know what your
  9  findings of fact were at the end of the day, and also to
 10  hear what recommendations you had to make in the context
 11  of those facts, because at the end of the day it's not
 12  the evidence and the question and all the -- the media
 13  around the Inquiry, it's your findings of facts at the
 14  end of the day that are important.
 15                 And as is the nature of these inquiries,
 16  unfortunately, it's taken much longer than anticipated to
 17  get the matter launched, and we've heard details on
 18  difficulties with disclosure.  I might say in passing
 19  that with respect to any reference to the Mayor's office,
 20  her staff have worked overtime to get the documents to
 21  the City, which then have to be reviewed by the City and
 22  go to Commission counsel.  But I don't think there's any
 23  question that she's been part of -- of the holdup in --
 24  in that matter.
 25                 In any event, we're -- we're now -- the


  1  participants and the public are in the unfortunate
  2  position of probably not having the benefit of your
  3  report, or possibly not having the benefit of your report
  4  before the election.
  5                 We certainly hope that we can.  The Mayor
  6  is committed to doing anything she can to expedite this
  7  process, to get it done.  She welcomes your report, your
  8  recommendations.  But given the terms of the ref --
  9  reference of the Inquiry, and the focus on the Mayor, in
 10  the normal course she would be, if not the last, one (1)
 11  of the last witnesses.  So what we've then got is a
 12  prospect of a schedule that has her testifying and being
 13  under cross-examination during the -- during the election
 14  period.
 15                 And in the context of the -- not your
 16  findings and the report, but the smoke and dust that's
 17  thrown up by the Inquiry, and the media's focus on it, we
 18  submit that it would be fundamentally unfair to conduct
 19  the Inquiry during that relatively brief six (6) week
 20  campaign period.
 21                 So in terms of principles, we've heard a
 22  lot of discussion about the -- about the principles of
 23  fairness that govern these inquiries, and we've heard
 24  Commission counsel talking in his factum and in his
 25  submissions about the need to balance the -- the


  1  principles of fairness and those who are targeted with
  2  the interests of the pursuit of truth and, at the end of
  3  the day, the report.
  4                 And so it's quite clear that the rules of
  5  procedure of the Commission itself recognize the
  6  Commission's commitment to fairness in process.
  7                 I would also like to make reference, if I
  8  may, to some comments made by Justice O'Connor on the
  9  application of fairness to those adverse -- adversely
 10  affected individuals in an inquiry.  And if I could ask
 11  that that article be passed out to you.
 12                 It's -- it's a paper pre -- presented by
 13  Justice O'Connor, who we know was commissioner in both
 14  the Walkerton Inquiry and the Arar Inquiry for the
 15  Canadian Institute for the Administration of Justice.
 16                 And on page 13/14, he gets to focus on the
 17  principle of fairness as applied to adversely affected
 18  individuals.  And, if I may, I'll just quickly go through
 19  this.
 20                   "My second observation about the
 21                   inquiry process relates to the need to
 22                   ensure procedural fairness to those who
 23                   may be adversely affected by the
 24                   information that emerges during the
 25                   course of the inquiry or in the report.


  1                   This is critically important.  There is
  2                   enormous potential for an inquiry,
  3                   particularly a public inquiry, to
  4                   seriously damage personal and
  5                   professional reputations.  Because of
  6                   the nature of the issues that give rise
  7                   to an inquiry, there is often [intense]
  8                   publicity both with respect to the
  9                   evidence called during the hearing
 10                   process, and to the report which is
 11                   issued by the commissioner.
 12                   Inquiry hearings are frequently covered
 13                   live on television, and news media
 14                   often assign reporters to cover the
 15                   inquiry on more or less a full-time
 16                   basis.  During the course of [the]
 17                   hearings, the evidence is reported in
 18                   newspapers and on the radio before the
 19                   commissioner has formed any conclusions
 20                   with respect to the facts."
 21                 And I pause there to say that facing that
 22  prospect is of particular concern.
 23                   "News is frequently generated by
 24                   focussing on evidence that points to
 25                   fault by individuals or institutions."


  1                 Then they refer to the internet.
  2                   "Those caught up in [the] inquiry
  3                   process face a very real danger
  4                   of...their professional or personal
  5                   reputations [being] seriously affected
  6                   by the exceptional amount of public
  7                   attention generated by the inquiry
  8                   process."
  9                 He then makes reference to the Federal
 10  Inquiries Act and the Ontario Public Inquiries Act, and
 11  concludes by saying:
 12                   "That said, there remains a significant
 13                   danger that those caught up in an
 14                   inquiry process can have their
 15                   reputations unfairly tarnished in a
 16                   serious way.  I'm not sure of the
 17                   complete answer to this.  The amount of
 18                   public attention and what the media
 19                   will focus on is beyond the control of
 20                   the inquiry.  I do suggest, however,
 21                   that it is essential that Commission
 22                   counsel, in deciding what evidence to
 23                   call and how to lead it, lean over
 24                   backwards to be fair and balanced and
 25                   alert to the potential for unfair


  1                   damage to reputations.  Equally, a
  2                   commissioner crafting a report should
  3                   be careful in the use of language that
  4                   may [generate] this type of adverse
  5                   effect.
  6                   It's important to bear in mind
  7                   throughout that the primary purpose of
  8                   the inquiry is not to find fault but
  9                   rather to face facts, and to report on
 10                   what happened in order to make
 11                   recommendations to ensure that there
 12                   not be a repeat [of the crisis] in the
 13                   future."
 14                 How does that then apply to the particular
 15  circumstances we're dealing with here?  And, to me, it
 16  goes without saying that it is unfair to put the Mayor in
 17  the position of the Inquiry proceeding through the
 18  campaign period, and this is for two (2) reasons.
 19                 First, the potential interference with the
 20  campaign itself and the Mayor's ability to focus on the
 21  campaign while the Inquiry is running at the same time is
 22  basically putting her in the position of having to choose
 23  between participating in the Inquiry, which -- following
 24  the proceedings, instructing counsel, giving evidence
 25  perhaps, rather than focussing on the election campaign.


  1  This is, I would submit, unfair to someone who has
  2  devoted so many years to the public service.
  3                 Also concerned about the impact on the
  4  election itself, potential impact of holding hearings
  5  during the campaign, particularly when we're facing the
  6  prospect that the Inquiry may not be able to complete its
  7  work and issue a report prior to the election.  So what
  8  we're left with is the allegations and questions of
  9  counsel as interpreted through the eyes of the media.
 10  That, we would submit, poses a real danger of magnifying
 11  the pre -- prejudicial impact on reputational interest
 12  referred to by Justice O'Connor.
 13                 So what are we proposing?  First of all,
 14  we've had discussions with your counsel, sir, and we
 15  appreciate the effort to commit more time to this matter
 16  and get it launched.  That being said, I would point out
 17  that we have not yet received any disclosure and, of
 18  course, it's critical in the process that we get
 19  disclosure.  But assuming that can be done, we welcome
 20  the opportunity to get the matter done.
 21                 This is not that big of an inquiry.  It's
 22  limited to two (2) particular -- two (2) particular
 23  transactions.  One would have thought we could have had
 24  it done.  Let's -- let's get at it and get it done.
 25  There is all sorts of efficiencies that are set out in


  1  the rules that -- agreed statements of facts, summaries
  2  of facts, summaries of documents.
  3                 We are -- welcome the opportunity to work
  4  with Commission counsel and other counsel to get it done.
  5  However, in the event that it is not completed by the
  6  commencement of -- by September 10th, we would propose
  7  and submit to you that it be put over for that six (6)
  8  week period and so it does not interfere with the
  9  democratic process in Mississauga.  Thank you.
 10                 COMMISSIONER DOUGLAS CUNNINGHAM:   Thank
 11  you, Ms. McIntyre.
 12                 Anything further, Mr. McDowell?
 15                 MR. WILLIAM MCDOWELL:   I confess to being
 16  a little bit troubled by those submissions.  First of
 17  all, to put them in context, the complaint about
 18  disclosure is a bit ironic because we don't have the
 19  documents from the Mayor's office ourselves yet, so it's
 20  pretty -- don't see how we would do that.
 21                 I wouldn't -- I wouldn't overstate the
 22  simplicity of the issues here.  I mean, we have found
 23  that there are -- there are real complexities, that there
 24  are corporate relationships which we've had to explore.
 25  There are money -- there are money flows which we've had


  1  to follow.  And there are a number of witnesses, frankly,
  2  on whom we have served subpoenas, summonses, and where
  3  we're in the -- in the position that we'll have to see
  4  whether they turn up on May the 17th and whether we'll
  5  have to take enforcement mechanisms.  And some of these
  6  witnesses are ones who are absolutely central to the
  7  Inquiry.  So I would say that.
  9  have been summonsed for the 17th of May with their
 10  documents?
 11                 MR. WILLIAM MCDOWELL:   With their
 12  documents.
 14  some have taken the position that that's when they will
 15  arrive with their documents?
 16                 MR. WILLIAM MCDOWELL:   Right.  And -- and
 17  others, including, frankly, some public institutions,
 18  have been a bit coy about it, which I -- I find
 19  unhelpful.  And so I just say that anything that the
 20  Mayor can do in the exercise of her moral suasion to --
 21  to assist in this would be appreciated.  And I -- I would
 22  make that request of -- of any party in like
 23  circumstances.
 24                 The other thing though, at -- at the level
 25  of principle, the suggestion that somehow the Mayor's


  1  campaigning needs trump the process that's going on here
  2  is a difficult proposition.
  3                 If that's going to be seriously advanced,
  4  I'd want to hear some evidence about the Mayor's
  5  historical campaigning needs.  But beyond that, if you
  6  think of the Gomrey situation, which in a different
  7  capacity some of us lived through, objection was taken to
  8  many aspects of what Justice Gomrey was doing to his
  9  extrajudicial interviews, and his fact-finding processes
 10  and so on.
 11                 But the one (1) position that neither the
 12  government nor the Prime Minister took was that he could
 13  not hear evidence.  He could not release his report out
 14  of electoral concerns.  And my submission is that those
 15  considerations are -- are simply irrelevant to what we're
 16  doing.  If the Mayor comes and testifies, she has to be
 17  treated with immaculate fairness, and she will be.  And
 18  you will reinforce to the public and to the media that
 19  what you're hearing are facts upon which -- or evidence
 20  upon which you have formed no conclusion.
 21                 And the electors of Mississauga will
 22  understand that, just as the Supreme Court expected in
 23  its Dagenais decision that jurors would understand that
 24  what appears on television should in no way influence
 25  them.


  1                 We have to trust the judgment of -- of
  2  electors just the way we trust the judgment of jurors.
  3  And so I don't know that Ms. McIntyre is seeking any
  4  ruling from you today.
  5                 I think we should see how this rolls out,
  6  but I just wanted to make those statements for the
  7  record.
  9  McIntyre, did you want to respond to that?  I got a sense
 10  that you did.
 13                 MS. ELIZABETH MCINTYRE:   There was just a
 14  couple of comments.  First of all, with respect to
 15  documents from the Mayor's office, just those were given
 16  to the City some time ago, and we don't have them either.
 17  So with respect to -- they have to go, I guess, through
 18  the chain and come back.  I just wanted to comment on
 19  that.
 20                 With respect to our position, we are
 21  certainly not saying that the residents of Mississauga
 22  shouldn't hear the evidence.  We want them to hear the
 23  evidence.  We want them to see the report.  It's just the
 24  matter of timing on which perhaps Commission counsel and
 25  I disagree.  And perhaps it will become a moot point that


  1  we can resolve as -- as we move along.
  2                 With respect to the -- the suggestion that
  3  the Mayor, through her office, facilitate the attendance
  4  of witnesses, I -- I am quite, to use Mr. McDowell's
  5  term, mystified by that suggestion, so perhaps if he
  6  could give me -- give me some -- some further details on
  7  what he has in mind, we'll consider it.  Thanks.
  8                 COMMISSIONER DOUGLAS CUNNINGHAM:   Thank
  9  you.
 10                 MR. MICHAEL BARRACK:   If I could just
 11  make a -- a brief comment.  You know in the past that --
 12  that I have written to you on behalf of my client, OMERS,
 13  asking for expedition in the process.
 14                 On behalf of my client, I want to thank
 15  you for the personal sacrifice of being willing to sit
 16  through the summer.
 17                 COMMISSIONER DOUGLAS CUNNINGHAM:   Well, I
 18  think you've heard my commitment to move forward with
 19  this Inquiry with dispatch.  I think those of you who
 20  know me will know that I won't be wasting time.
 21                 I think I heard somewhere earlier on that
 22  it is expected there might be something in the order of
 23  forty (40) days of evidence.  I'd like to think that
 24  would be the limit of it.
 25                 But I think the sooner that all of the


  1  documents are received, the sooner we can get on with the
  2  evidentiary portion of the Inquiry.  It's important that
  3  appropriate preparation be done before the evidence is
  4  led and that all of the interviews are conducted so that
  5  we aren't wasting time once we get into the evidence.  I
  6  think that is well underway.
  7                 It looks as though we're going to be back
  8  here on May 17th in the event that certain parties
  9  respond to summonses at that time.  I'm urging those
 10  people who feel that it's their duty to produce evidence
 11  on May 17th simply because the summons has that date, I
 12  would urge them to communicate with Commission counsel
 13  prior to that date if they have documents to produce so
 14  that we don't waste time.
 15                 And having said all of that, I intend to
 16  proceed with the evidentiary portion of this Inquiry
 17  efficiently and to use as much of the time available
 18  between now and the end of August as we possibly can.
 19                 I think some of the concerns that counsel
 20  for the Mayor has registered are perhaps somewhat
 21  premature, but I take them under advisement.  I
 22  understand the concern that has been raised, but I also
 23  understand the importance of proceeding with this Public
 24  Inquiry.
 25                 Thanks very much, and we'll see you on May


  1  17th.
  3  --- Upon adjourning at 11:32 a.m.
  7  Certified Correct,
 12  __________________
 13  Wendy Warnock, Ms.


The (only one of two “fringe” mayoral candidates challenging Hazel McCallion) Mississauga Muse

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