Important Changes to Policing in Ontario
Date: April 3, 2019
With the passage of Bill 68, Comprehensive Ontario Police Services Act, 2019 (Act) on March 26, 2019, policing in Ontario is set to undergo some important changes. These changes are not limited in their effect to police service boards, police associations and individuals who work in policing. They are also very important for municipalities and the wider community. Learn more in this FTR Now.
The Act is omnibus legislation which contains schedules amending various statutes. Key highlights of the Act are set out below.
1. A refined definition of “adequate and effective policing”
The Act states that court security and the enforcement of municipal bylaws are not functions which are included in the definition of adequate and effective policing. This allows for the possibility of different delivery of some of these services, rather than requiring the use of members of the police service. Court security remains a responsibility of the police service board.
2. Municipal diversity plans
Every municipality which has a municipal police service board must prepare and approve a diversity plan to ensure that members of the municipal police service board who are appointed by the municipality are representative of the diversity of the population in the municipality. Reasonable steps to promote appointments to the board of members of historically underrepresented groups must be undertaken.
3. Larger board size
A municipal police service board shall consist of five members unless a Council resolution is passed which sets the board at seven or nine members. The sources of the appointments of members remains unchanged.
4. Police record check for prospective board members
An appointing body or person must consider the results of a potential board appointee’s police record check that was prepared within the past twelve months before appointing him or her as a member of a police service board.
5. Mandatory training for board members
Board members must successfully complete the Ministry approved training regarding the role and responsibilities of board members, human rights and systemic racism and cultural diversity. Board members cannot begin to perform their duties until part of the training is successfully completed. For other parts of the training, a time frame will be provided within which the training must be successfully completed.
6. Board diversity plan
As part of the duties of the board, a diversity plan must be prepared and adopted which ensures that members of the police service reflect the diversity of the area served by the police service.
7. Greater clarity on the division between the board’s responsibilities and the Chief’s responsibilities
The Act brings clarity to the question of where the board cannot make policies or give directions to the Chief of Police. The board cannot do so regarding “specific investigations, the conduct of specific operations, the management or discipline of specific police officers.” These provisions should be viewed as increasing the scope of the board’s policy-making role.
8. Requirement to publish directions given to the Chief of Police
The board is required to publish any directions which it gives to the Chief of Police on the internet, in accordance with any regulations.
9. Setting the police budget
A number of the existing provisions were unchanged this area. Where the board is not satisfied with the budget set by council, arbitration can be requested by the board. Of interest, if the municipality can demonstrate that the board could have met the required standards of policing by entering into an agreement to have the services delivered by another authorized provider at a lower cost, then the budget will not be found to be insufficient to the extent of the savings.
10. Extension of police officer’s probationary period
If a police officer agrees, the twelve month initial probationary period may be extended by the Chief of Police for up to six additional months.
11. Special Constables
Significant new provisions have been added in order to more closely regulate the appointment, duties, employment and discipline of special constables.
12. Creation of the Inspector General
A new body with extensive powers has been created called the Inspector General of Policing. This role would have substantial responsibilities relating to compliance with the Act, including: inspections of police services and boards, dealing with systemic concerns regarding the provision of policing, complaints about board members and whether a police service is providing adequate and effective policing. The Inspector General does not deal with allegations of misconduct in relation to police officers or special constables.
13. Law Enforcement Complaints Agency
The office of the Independent Police Review Director is continued as the Law Enforcement Complaints Agency. This office can also examine systemic issues, in addition to specific complaints.
14. The right to report misconduct and protection from reprisal
New provisions have been added which provide the right to report allegations of misconduct and that the Chief of Police (and the board) must have written procedures providing how misconduct is to be reported. There is now significant protection from reprisal as a result of having reported misconduct. Complaints about alleged reprisal are dealt with at arbitration – with a reverse onus applying. In other words, the entity alleged to have engaged in a reprisal must prove that they did not do so.
15. Modernization of police officer discipline
Certain aspects of the discipline system for police officer have been modernized. A number of types of discipline can be imposed by the Chief of Police without first conducting a hearing. Termination and demotion still require a disciplinary hearing first.
16. Suspension without pay for police officers
The possibility of suspension without pay for police officers has been introduced. Given the conditions which must be met in order to do so, it is unlikely to occur very often in practice. If a police officer is convicted of an offence and sentenced to a term of imprisonment or in custody awaiting trial or has very restrictive bail conditions suspension without pay is possible. Otherwise, the officer must be charged with a serious offence under the law of Canada (not Ontario), the offence must not have been committed in the performance of the officer’s duties and the likely outcome of a police discipline process would be that the officer would be dismissed or required to resign. The police officer is still entitled to benefits during the suspension without pay.
17. Duty of fair representation
A new provision has been introduced to allow members of the police association to go to arbitration where it is alleged that the police association did not fairly represent the member. Oddly, subsection 219(4) provides that the “police service” is a party to the arbitration. The police service board is not listed as a party.
18. “Excluded” civilians
A small group of senior civilian managers or persons employed in a confidential capacity in relation to labour relations are prohibited from being members of a police association. The terms and conditions of employment for these persons are still determined under the collective bargaining provisions of the Act.
19. Labour relations complaints
There is now jurisdiction to make complaints about breaches of the labour relations provisions (e.g. duty to bargain in good faith). These complaints would be dealt with through the conciliation and arbitration procedures.
20. Municipal community safety and well-being plan
Each municipality must prepare a community safety and well-being plan. An advisory committee must be established as part of the process of plan development, along with a process of community consultations.
The Act and its various schedules should be consulted for coming into force information. Should you have any questions about the Act, please contact Glenn Christie at 519.883.3125 or any member of our Municipal practice group.
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