Police Services Act, TPAC's proposed amendments
November 30 2015
Toronto Police Accountability Coalition
c/o Suite 206, 401 Richmond Street West, Toronto ON M5V 3A8.
416 977 5097. firstname.lastname@example.org , www.tpac.ca
November 26, 2015.
Minister of Community Safety.
Dear Mr. Minister:
The following are our comments on amendments that are needed to the Police Services Act.
Section 1 is the Declaration of principles about police services. Several subsections require amendments to reflect emerging issues.
Section 1(3) now states: The need for co-operation between the providers of police services and the communities they serve.
It should be amended read: The need for co-operation between the provider of police services, social agencies and institutions, private security companies, and the communities they serve, including the establishment of formal methods of interaction.
Section 1(4) now states: The importance of respect for victims of crime and understanding of their needs.
It should be amended to read: The importance of respect for those in mental crisis and the victims of crime and the understanding of their needs.
Subsection 1(5) now states: The need for sensitivity to the pluralistic, multiracial and multicultural character of Ontario society.
It should be amended to read: The need for respect for and sensitivity to the pluralistic, multiracial, multi-ethnic, and multicultural character of Ontario society and to the disparity of incomes.
Section 1(6) now states: The need to ensure that police forces are representative of the communities they serve.
It should be amended to read: The need to ensure that police services reflect the values of, and are sexually and culturally representative of, the communities they serve.
Section 3.2 sets out the Duties and Functions of the Solicitor General. These functions should include monitoring of programs, as well as of service, and the establishment of good benchmarks to assess performance. Accordingly,
Sec 3.(2) (d) should be amended to read develop, monitor, and promote programs to enhance professional police practices, standards and training;
A new Section3.2(f) should be added: establish a comprehensive set of benchmarks by which police performance may be assessed.
Section 3 (3) is the only reference in the Act to the Ontario Police College, and it is not substantive.
We believe prospective officers should receive police training on the campus of an established community college or university, rather than being isolated in a small town. Isolation helps re-inforce a police culture which assumes police are different than everyone else and should only trust each other. Integration of the education of officers with others is critical, and that can only occur when police training is integrated with the training of others.
Further, those retained to teach should exhibit high standards of teaching skills: simply having practised policing is not sufficient.
Section 4(2) defines minimum core police services to include crime prevention, law enforcement, assistance to victims of crime, public order maintenance, and emergency response.
The list must be more reflective of what officers actually do. Core police services should be as follows:
1. Respond to, and investigate, in a timely fashion violence, threats of violence and crime, criminal acts and public disorder
2. Investigate the incidents in 1
3. Undertake, with other social institutions and agencies and civil society organizations, steps to prevent crime and criminal behaviour including, where appropriate, diverting individuals from the criminal justice system
4. Co-ordinate activities with private security firms and other organizations within the security web, to create the most effective approach to a safer and more secure society.
5. Extend assistance to victims of crime
6. Protect and respect human rights and the rule of law.
Section 17 outlines the control of the Ontario Provincial Police by a Commissioner (acting as a chief of police) under the direction of the Solicitor General. The OPP should be responsible to a Board, in the same way that municipal police services are controlled by a Board.
Accordingly, Section 17 should be amended to read: There shall be an Ontario Police Services Board consisting of no less than 12 members appointed by the Lieutenant Government and it shall be responsible for the governance and control of the Ontario Provincial Police. The Commissioner will be the chief of this police force and will report to the Ontario Police Services Board.
Section 21 establishes the Ontario Civilian Police Commission, but the section does not specify the number of members on that commission. In keeping with the idea that a larger board can incorporate more diversity reflecting societys different interests, Section 21(2) should be amended to provide that the Commission shall consist of no less than 12 members appointed by the Lieutenant Governor.
Section 21(10) outlines the obligations of secrecy of the Commission, a secrecy which does not serve the public interest. Instead, the Commission should be as transparent as possible. Section 21(10) should be amended to read, The Commission will be transparent in respect to its activities and the information made available to it, recognizing the publics right to know while protecting individuals who provide information and/or make complaints. Generally the rules regarding the release of information by the Commission and its members will be no different that rules which apply to a municipal council.
Section 27 deals with the establishment of police services boards, and S. 27(1) requires such a Board for every municipality that maintains a police force. But some police forces have less than a dozen members. It makes much more sense for the government to encourage smaller municipalities to share a mutual Board.
Accordingly, there should be a new 27 (1A): The Solicitor General shall encourage smaller municipalities with populations less than 30,000 to join together to share mutual a Police Service Board, and where this occurs and the Minister so approves, that Board shall serve as the Board for those municipalities.
Section 27 also establishes the size of Boards, ranging from three to seven members, depending on the size of the municipality. To reflect diversity and encourage debate, Boards should be larger, and should represent a variety of interests.
Section 27(2) should read: The Boards serving municipalities with a population of less than 200,000 shall consist of no less than nine members, and Boards serving a population of more than 200,000 shall consist of no less than 12 members. One third of the members of the board shall be appointed by the provincial government; the other two thirds by the local council or councils, providing not more than one half of the local appointees are not members of municipal councils.
Section 31(1) outlines the responsibilities of boards. The list does not make it sufficiently clear that the Board is responsible for operational policies, that it is responsible for the police budget and for encouraging public discussion of, and research into, policing issue.
Accordingly, the following changes should be made:
Section 31. (1) (c), which now states establish policies for the effective management of the police force should be amended to read establish policies for the effective management and operation of the police service.
Section 31.1 (e), which now states direct the chief of police and monitor his or her performance should be amended to read direct the chief of police and monitor his or her performance and compliance with operational policies
The following new subsections should be added:
(k) review and approve annual operating and capital budgets
(l) encourage community discussion of policing issues and lead public debate on policing issues and policies
(m) ensure active research on police activities and efficiencies
(n) regularly review the structure of the police force and the policies by which it operates
(o) ensure that before new technology is purchased or used by the police service that appropriate constraints are in place that the technology does not infringe on the Charter of Rights and Freedoms; and
(p) ensure the police service is pursuing its core services as set out in Section 4.
Section 31 (4) states that the board shall not direct the chief of police with respect to specific operational decisions or with respect to the day-to-day operation of the police force. Too often this is interpreted to mean that the Board is not able to establish operational policies, whereas the clear meaning of the section is to prevent the Board from muddling in day to day operations. At the same time, it must be made clear that the chief reports to and is subordinate to the Board.
To provide clarity, Section 31(4) should be amended to read: (a) The Board is responsible for operational policy and for ensuring that officers comply with those policies and perform their duties as set out herein. (b) The chief reports to and is subordinate to the Board. (c) The Board shall not direct the chief of police with respect to specific operational decisions or with respect to the day-to-day operation of the police force.
It is important that the Board be as transparent as possible in respect to the manner in which issues are dealt with and information is provided to the public. Accordingly, a new section 31(8) should be added, parallel to the section regarding the Ontario Commission on Policing:
Section 31(8) The Board will be transparent in respect to its activities and the information made available to it, recognizing the publics right to know while protecting individuals who provide information and/or make complaints. Generally the rules regarding the release of information by the Board and its members will be no different that rules which apply to a municipal council.
Section 42 sets out the duties of a police officer. These duties should begin by reflecting the core police services set out in Section 4, then include the matters in the current legislation. The section should be amended to read:
Section 42. (1) The duties of a police officer are to
(a) Respond to and investigate, in a timely fashion, violence, threats of violence and crime, criminal acts and public disorder;
(b) Undertake, with other social institutions and agencies and civil society organizations, steps to prevent crime and criminal behaviour including, where appropriate, diverting individuals from the criminal justice system;
(c) Co-ordinate activities with private security firms and other organizations within the security web, to create the most effective approach to a safer and more secure society;
(d ) Extend assistance to victims of crime; and
(e) Protect and respect human rights and the rule of law.
Section 42 (1A) The duties of a police officer also include
(a) preserving the peace;
(b) preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention;
(c) assisting victims of crime;
(d) apprehending criminals and other offenders and others who may lawfully be taken into custody;
(e) laying charges and participating in prosecutions;
(f) executing warrants that are to be executed by police officers and performing related duties;
(g) performing the lawful duties that the chief of police assigns;
(h) in the case of a municipal police force and in the case of an agreement under section 10 (agreement for provision of police services by O.P.P.), enforcing municipal by-laws.
Sections 43 and 44
Section 43 sets out the criteria for hiring a police officer, and it assumes that new hires will usually start at the bottom of the organization and that the officer has no particular skills, although the person must be at least 18 years of age with high school education, and a `good moral character and habits. Just to emphasize this approach of hiring young and inexperienced officers, Section 44 sets out a probationary period with specific reference to completion of training at the Ontario Police College.
Hiring should be according to the skills required by the police force doing the hiring, and that can be set by the job description so that rather than new officers being hired as generalists, police forces start being clear about the particular skills needed at the time of hiring.
Section 43 should read: An individual may be hired by a police department if that individuals skills and/or experience align with the skills needed for that job or function and lateral entry should be encouraged.
Section 44 should read: A police board may establish probationary periods for employees.
Section 49 sets out restrictions on the secondary activities of officers. The underlying principle seems to be that secondary activities should not interfere with the duties of an officer. One secondary activity not stated in the current section, but which certainly could interfere with duties is paid duty work. Looking at reported income, some officers seem to spend an inordinate amount of time doing paid duty work, and that surely must cause interference with normal duties, something which be handled by limiting the amount of paid duty work an officer can provide.
A new Section 49(1)(e ) should be added to the limitations:
( e) Paid duty work may not be greater than 20 per cent of the hours devoted by the officer to regular police work that week, and may not be greater than 20 per cent of an officers annual income from policing.
Section 53 deals with special constables. In regard to independent oversight, special constables should be treated no differently than police officers.
Accordingly, a new Section 53(4) should be added: The activities of all special constables shall be subject to the Special Investigation Unit and the Officer of the Independent Police Review Director, and the same rules and procedures which apply to police officers shall apply to special constables.
Given the limited training given to special constables, they should not have access to weapons. Accordingly, a new Section 53(5) should be added: Special constables shall not carry guns or conducted energy weapons.
Sections 56 98
Sections 56 - 98 deal with the Office of the Independent Police Review Director.
The Office was established in 2009, and cannot be called a great success. Every year more than 3000 complaints are filed about police activities, but less than a handful are considered serious enough to require disciplinary action by the police force involved and often the discipline is extremely restrained. Some who go through the complaint process feel they have accomplished nothing of value. The cost of the OIPRD is more than $7 million each year, and it is reasonable to ask whether it is a worthwhile expenditure.
Several changes to the structure of the OIPRD may improve its operation, although the improvement may not be enough to make the OIPRD relevant. One is the independence of investigations. Most complaints are referred by the Director to the police force involved and be investigated by that force. It is of little assistance to know that after the police have completed their investigation, perhaps taking two or three months, the police report will be submitted to the Director who can then wonder whether the investigation has been done in a satisfactory manner. By that time, so much time has passed that it will be impossible to do a reasonable investigation. The lack of a guarantee of an independent investigation from the day the complaint is filed may be a serious limitation.
Many of the investigators working for the director are former police officers. Does the police culture prejudice their work? Patrick Lesage, the former judge who did the report recommending the complaints system suggested no more than half the investigators should be former officers, but that was never reflect in the OIPRD legislation.
A further issue is the power to levy discipline. This is left to each individual police force in the handful of cases every year referred back to local police forces for action, and from the limited information available, penalties are very mild. Perhaps the OIPRD should be required to suggest to the local chief of police the discipline which should be levied on an officer.
We are suggesting the above changes if a decision is made to keep the OIPRD functioning. Our preferred recommendation is to abolish the OIPRD and devote the monies saved to the expanded role outlined herein for the SIU in Section 113.
Section 82(1) deals with the individual who will conduct and make decisions at the misconduct hearings of officers. The section currently states that the hearing officer (called a prosecutor in the section) can be a police officer of equal or higher rank of the officer being disciplined, or a person authorized by the Law Society Act.
We believe the hearing officer should be someone with an interest that is different than the officer, that is, someone not involved in policing work.
Accordingly, Section 82(1) should be amended to read: The chief of police shall designate to be the prosecutor at a hearing held under subsection 66 (3), 68 (5) or 76 (9) a person authorized under the Law Society Act to be a prosecutor at the hearing providing that person is not and has not been, a police officer in Ontario or any other jurisdiction.
Section 86 states that the hearing board and the chief of police will make disciplinary decisions public in the manner that they consider appropriate in the circumstances. No such personally determined limitation should attach to disciplinary decisions being made public, but as of right such decisions should be in the public realm. Accordingly, Both Section 86(1) and 86(2) shall be amended to delete the limitation, and state that the decision is made available to the public.
The further provision that it be forwarded to the Independent Police Review Director for posting makes sense.
Section 89 permits a police officer to be suspended, but only with pay. There are many cases where the actions of the officer charged are such that there is no merit continuing to pay that officer. The police force should have the ability to suspend an officer with or without pay. Accordingly, the last part of Sections 89(1) and 89(2) should both be amended to read may suspend him or her from duty with or without pay.
Section 113 deals with the Special Investigations Unit.
The unit is only permitted to investigate whether a criminal offence was committed. The objective of the investigation should be expanded to include whether changes could be made to processes and procedures to prevent such injuries in the future, whether or not a criminal offence was committed. In this way, the investigation could actually help make improvements in policing rather than simply be concerned about possible punishment of wrong-doing.
This change can be effected by simply replacing `criminal offences committed with `actions, so Section 113(5) reads: The director may, on his or her own initiative, and shall, at the request of the Solicitor General or Attorney General, cause investigations to be conducted into the circumstances of serious injuries and deaths that may have resulted from actions by police officers.
Section 113(8) should also be changed, for the same reason, to read: The director shall report the results of investigations, including recommendations to change police policies or procedures to help prevent similar occurrences in the future, to the Attorney General.
Section 113(9) states that members of police forces shall co-operate fully with the members of the unit in the conduct of investigations.
Many instances have arisen where the co-operation of officers with the SIU is less than fully given. Officers have refused to answer questions claiming a right to protection from self-incrimination, they have delayed meeting with the SIU, and have refused to provide notebooks. Being a police officer should mean that one must be accountable for ones actions, fully explaining what happened, particularly when actions have resulted in the injury or death to others, and the law should be clarified to so state.
Accordingly, an addition should be made to Section 113(9), including making themselves available to the unit in a timely fashion, truthfully and fully answering questions, and making their notebooks available to the unit. Specifically, police officers may not claim the possibility of self-incrimination as a reason for not answering questions from the unit. The SIU may lay obstruction charges against officers and/or the chief where this section is not adhered to.
This section deals with arbitration boards. Section 122(5) outlines the factors the board must take into consideration. One factor which should be added is the extent to which t6he service has pursued and enacted efficiencies so that a police service should not be rewarded by being inefficient.
An addition should be made to the seven factors: Section 122(5) 8. The extent to which the police service has pursued and enacted reasonable efficiencies to make the best use of officers time.
Section 135 deals with regulations to be made by the Lieutenant Governor in Council. We believe that regulations should be considered with the following impact:
1. Hiring officers by job description, not be starting everyone at the bottom and working up..
2. Providing that a large sector of the police service, perhaps as high as one third of all employees, should be civilians, not officers, to reflect that too much work done by police do not require police training.
3. Specifying the manner in which police will work and co-operate with other social agencies
4. Limiting the guns available to officers, perhaps specifying that officers require at least five years in service before they may be issued a gun.
5. Enabling plain clothed officers and public health nurses to be first responders in cases of mental crisis.
John Sewell for
Toronto Police Accountability Coalition