Part III – Police Officer Duties

PART III: [Officer] DUTIES RELATING TO COLLECTIONS OF INFORMATION

Snapshot

QUESTION: What must a police officer do before and after attempting to collection identifying information?

This part includes sections 6-10. Sections 6-9 become law on January 1, 2017. Section 10 became law on July 1, 2016.

Sections 6-9 set out an officer’s duties related to a collection or attempted collection of identifying information.

Section 6 sets out an officer’s duties before an attempt to collect identifying information. Most important is that in general,

(1)  An officer must inform the individual whom they are trying to collect identifying information from that the individual is not required to do so

(2)  The officer must also inform the individual why the officer is attempting to collect the information

There are certain situations where the police officer is not required to follow one of both of the requirements. If the officer did not follow the required steps, the officer must be able to explain and include details in their notes about the particular circumstances.

Section 7 sets out the officer’s duties following an attempt to collect information. Most important is that individuals who are stopped by an officer to provide identifying information are entitled to receive a document that that provides a record of the attempt. The section specifies certain information that must be included in the document such as the officer’s name and identification number and the time and location of the attempted collection. If a police officer collects identifying information or attempts to collect identifying information the police officer must:

(1)  Offer to provide a document that provides a record of the interaction

(2)  Give the document to the individual, if the individual indicates that they want it

There are certain situations where the officer is not required to follow this requirement. Like section 6, if the officer did not follow this required step, the officer must be able to explain and include details in their notes about the particular circumstances.

Section 8 requires police officers to keep detailed notes of their attempts to collect identifying information. Officers must explain in their notes whether they’ve followed the required steps and if the step was not required (i.e. one of the situations excepted in the regulations applied), they must include the reason the step was not required.

Section 9 refers to the inclusion of and access to identifying information in the police database.

Section 10, which became law on July 1, 2016, states that an officer’s work evaluation cannot be based on their numbers relating to attempted collections of identifying information.

Section #s Section(s) Wording
 

Section 6 (Officer Duties)

(1)A police officer shall not attempt to collect identifying information about an individual from the individual unless the police officer, in accordance with the procedures developed under section 13,

  1. has informed the individual that he or she is not required to provide identifying information to the officer; and
  2. has informed the individual why the police officer is attempting to collect identifying information about the individual.

(2)  A police officer is not required to inform the individual under clause (1) (a) or (b) if the officer has a reason to believe that informing the individual under that clause might compromise the safety of an individual.
(3)  A police officer is not required to inform the individual under clause (1) (b) if the officer has a reason to believe that informing the individual under that clause,

  1. would likely compromise an ongoing police investigation;
  2. might allow a confidential informant to be identified; or
  3. might disclose the identity of a person contrary to the law, including disclose the identity of a young person contrary to the Youth Criminal Justice Act (Canada).

(4)  A reason required under subsection (2) or (3) must be a reason the police officer can articulate and must include details relating to the particular circumstances.

Commentary/Analysis on Section 6

Section 6(1):  A police officer must not try to collect identifying information about a person (by the person), unless the police officer does so as per the procedures that are developed by chief of police and has told the person that they are not required to give identifying information to the police officer; and has told the person why the police officer is trying to collect identifying information about them.

Section 6(2):  A police officer is not required to tell the person under clause (1) (a) or (b) if the police officer has reason to believe that telling the person would put their safety at risk.

But what are examples of when a police officer’s safety is at risk? Without lapel cameras or physical evidence, it’s the police officer’s word against the person being questioned if their safety was truly at risk.

Section 6(3):  A police officer does not have to tell the person under clause (1) (b) if the police officer has reason to believe that telling that person under the clause, would potentially  negatively impact an ongoing police investigation; could possibly allow an informant’s identity to be exposed; or might illegally disclose the identity of a person, including disclosing the identity of a young person as defined in the Youth Criminal Justice Act (Canada).

Section 6(4):  A reason required under subsection (2) or (3) must be a reason the police officer can explain and must include details relating to the particular circumstances that they are carded in the first place.

Section 7 (Document for Individual) (1)A police officer who attempts to collect identifying information about an individual from the individual shall,

  1. offer to give the individual a document that provides a record of the attempt; and
  2. give the individual such a document if the individual indicates that he or she wants it.

(2)  A police officer is not required to comply with subsection (1) if the officer has a reason to believe that continuing to interact with the individual,

  1. might compromise the safety of an individual; or
  2. might delay the officer from responding to another matter that should be responded to immediately.

(3)  A reason required under subsection (2) must be a reason the police officer can articulate and must include details relating to the particular circumstances.

(4)  The document required under subsection (1) shall contain at least the following information:

  1. The officer’s name and officer identification number and the date, time and location of the attempted collection.
  2. Information about how to contact the Independent Police Review Director.
  3. An explanation that the individual can request access to information about himself or herself that is in the custody or under the control of a police force, under the Municipal Freedom of Information and Protection of Privacy Act in the case of a municipal police force, or under the Freedom of Information and Protection of Privacy Act in the case of the Ontario Provincial Police, and information about how to contact persons to whom such a request may be given.

Commentary/Analysis on Section 7

In general, as of January 1, 2017, an officer who makes an attempt  to collect identifying information from an individual must be prepared to give that individual a document containing details about the interaction. There are two situations where an officer is not required to provide documentation, which are explained below. Overall, this section is important to be aware of so that if need be, individuals can rely on an official document to reference their experience.

Section 7(1)(a) states that a police officer must offer to give the individual from whom they attempted to collect identifying information from “a document that provides a record of the attempt”.

Section 7(1)(b) states that an officer must give the individual the document if the individual asks for it.

This means, that at the very least, an officer must offer to provide this document to the individual. Once the officer offers to provide the document, the individual who was stopped must indicate that they want the document. It appears the officer does not have to provide the document if the individual does not ask for the document or the officer is not required to provide the document if the individual does not want the document. It is not clear what happens if the individual remains silent. It seems that the individual must verbally indicate that they want the document in order to receive it.  
If the individual who was stopped indicates that they want the document, the officer must provide it as stated in Section 7(1)(b), unless one of the situations described below applies.

There are two situations, set out in Section 7(2), where an officer does not have to offer such a documented record of the interaction if the officer has a reason to believe:

1. That there is a concern about the safety of an individual (s. 7(2)(a)); or

2. That it might cause the officer delay in responding to another matter that needs immediate attention (s. 7(2)(b)).

The phrase to pay attention to in Section 7(2)(a) is, “might compromise the safety”. The phrase first appears in Section 6(2), and it is not defined in the regulations. The words “might” and “compromise” are vague and appear to create set a low standard for when a police officer can rely on exceptions to the rules. (**may need to expand a bit more here, perhaps with an example?). The second scenario in Section 7(2)(b) is understandable, i.e. if the officer needs to respond to an emergency situation, but what is the individual’s recourse at that point? Should they at least get the officer’s name and badge number? Is the individual entitled to receive the document at a later time/date?

Section 7(3) seems to address the potential issue noted above (to a certain extent). This section states that the police officer must be able to explain and provide details about why they believed one of the two above situations applied.
We assume the police officer will include this information will be included with their reporting requirements.

Finally, section 7(4), 1-3, sets out information that the document must contain.

The officer may choose to include more information in the document, but it must contain at least what is set out in 1-3: the officer’s name/identification number and the date/time/location of the attempted collection; information how to contact the Independent Police Review Director; and an explanation that the individual can request access to information about him or herself that is in the custody or under the control of the police force under respective Privacy Acts and information about how to contact persons to whom such a request may be given.

Section 8 (Police officer must record reason and other information) A police officer who attempts to collect identifying information about an individual from the individual shall record the following:

  1. The officer’s reason for the attempted collection, including the details referred to in paragraph 1 of subsection 5 (4).
  2. Whether the individual was informed as required under clauses 6 (1) (a) and (b) or, if informing the individual under one of those clauses was not required under subsection 6 (2) or (3), the reason why that was not required.
  3. Whether the individual was offered the document as required under clause 7 (1) (a) or, if offering the document was not required under subsection 7 (2), the reason why that was not required.
  4. Whether the individual was given the document offered under clause 7 (1) (a) or, if giving the document was not required under clause 7 (1) (b) or subsection 7 (2), the reason why that was not required.

5. Such other information as the chief of police requires the officer to record.

Commentary/Analysis on Section 8

Section 8 requires police officers to keep detailed notes that document the reasons for their actions. Section 8 essentially serves as a checklist for the information that an officer must record following the collection of identifying information from an individual.

Section 8(1): First, the officer must explain the reason for the attempted collection and include details that demonstrate they had proper grounds to believe that the information collected would assist with one of the purposes set out in section 1(1)(a)-(c).

Section 8(2): Second, the officer must confirm that they followed the proper steps before attempting to collect identifying information. Recall, that in general, a police officer must first inform an individual that they are not required to provide identifying information and they must explain to the individual why they are collecting identifying information about the individual (s. 6(1)(a) and (b)).

If the officer did not take these steps due to one of the situations mentioned in section 6 (2) or (3), the officer must still identify the reason this step was not required and explain the surrounding circumstances.

Section 8(3): Third, the officer must confirm that they followed the proper steps after attempting to collect identifying information. Recall, that in general, a police officer must offer to give the individual who they collected identifying information from a document that provides details of the interaction.

If the officer did not offer the document due to one of the situations mentioned in section 7 (2)(a) or (b), the officer must still identify the reason this step was not required and explain the surrounding circumstances.

Section 8(4): Fourth, the police officer must confirm that the document was given to the individual. If the officer did not give the individual the document due to one of the situations mentioned in section 7(2)(a) or (b), the officer must still identify the reason this step was not required and the surrounding circumstances.

Section 8(5): The chief of police may instruct officers to record additional information. Officers must follow instructions accordingly.

Requiring officers to collect this information is especially important for the purposes of the annual report required by section 14. Specifically, it will be prudent to note the number of times officers relied on exceptions to the rules in order to proceed with collecting identifying information from an individual.

Section 9 (Collected information in police databases) (1) This section applies with respect to the inclusion, in databases under the control of a police force, of identifying information about an individual collected by a police officer from the individual.
(2)The chief of police shall ensure that the requirements under this section are complied with.
(3) Access to identifying information shall be restricted in accordance with subsection (10) unless the information may be included in a database, under this section, without limiting the access of members of the police force.
(4)Identifying information may be included in a database without limiting the access of members of the police force if,

    1. the police officer who collected the information,
      1. has indicated that the attempted collection complied with section 5,
      2. has indicated that the individual was informed as required under clauses 6 (1) (a) and (b) or, if informing the individual under one of those clauses was not required under subsection 6 (2) or (3), has indicated the reason why that was not required,
      3. has indicated that the individual was offered the document as required under clause 7 (1) (a) or, if offering the document was not required under subsection 7 (2), has indicated the reason why that was not required, and
      4. has indicated that the individual was given the document offered under clause 7 (1) (a) or, if giving the document was not required under clause 7 (1) (b) or subsection 7 (2), has indicated the reason why that was not required; and
    2. Either,
      1. the chief of police or a person designated by the chief of police has determined, after considering the officer’s reasons for the attempted collection, including the details referred to in paragraph 1 of subsection 5 (4), that it appears that section 5 was complied with and has ensured that clause (a) has been complied with, or
      2. the database indicates that what is required under subclause (i) has not yet been done.

(5) The following apply if what is required under subclause (4) (b) (i) was not done when the identifying information was included in the database:

    1. The chief of police or a person designated by the chief of police shall conduct a review, within 30 days after the information was first entered into a database under the control of the police force, to determine, after considering the officer’s reasons for the attempted collection, including the details referred to in paragraph 1 of subsection 5 (4), whether it appears that section 5 was complied with and whether clause (4) (a) has been complied with.
    2. If it is determined that it appears that section 5 was complied with and that clause (4) (a) has been complied with, the indication required under subclause (4) (b) (ii) may be removed.
    3. If it is not determined, before the end of the 30-day period described in paragraph 1, that it appears that section 5 was complied with and that clause (4) (a) has been complied with, the identifying information shall be retained, subject to the procedures developed under section 13 in relation to paragraph 4 of subsection 12 (1), in a database under the control of the police force but access to such retained information shall be restricted in accordance with subsection (10).

(6) At least once a year, the chief of police or a person designated by the chief of police shall conduct detailed reviews of an appropriately sized random sample of the entries of identifying information included in a database under subsection (4) to estimate, within a margin of error of plus or minus 5 per cent, at a 95 per cent confidence level, whether it appears that sections 5, 6 and 7 were complied with.
(7) If, as a result of a detailed review under subsection (6), it is determined, with respect to identifying information included in a database under subsection (4), that section 5, 6 or 7 was not complied with, the identifying information shall be retained, subject to the procedures developed under section 13 in relation to paragraph 4 of subsection 12 (1), in a database under the control of the police force but access to such retained information shall be restricted in accordance with subsection (10).
(8) The chief of police shall consider the results of the detailed reviews under subsection (6) and take such actions as the chief of police considers appropriate.
(9) Access to identifying information shall be restricted in accordance with subsection (10) after the fifth anniversary of the date on which the information was first entered into a database under the control of the police force.
(10) The following apply with respect to identifying information to which access must be restricted:

    1. No person may access the information without the permission of the chief of police or a person designated by the chief of police.
    2. A member of the police force may be permitted to access the information only if the chief of police or a person designated by the chief of police is satisfied that access is needed,
      1. for the purpose of an ongoing police investigation,
      2. in connection with legal proceedings or anticipated legal proceedings,
      3. for the purpose of dealing with a complaint under Part V of the Act or for the purpose of an investigation or inquiry under clause 25 (1) (a) of the Act,
      4. in order to prepare the annual report described in subsection 14 (1) or the report required under section 15,
      5. for the purpose of complying with a legal requirement, or
      6. for the purpose of evaluating a police officer’s performance.

Commentary/Analysis on Section 9

This section sets out the process by which all collections of identifying information is entered and accessed in police databases. It appears to create an additional check on police officers to ensure that they have followed the proper steps and procedures in collecting the information. If it is determined that the information was not properly collected, police access to the information will be restricted.

To simplify, this section can be described as creating two levels of access to collections of identifying information: (1) normal access (2) limited access.

(1)  Normal access

Police access to the information in the database will not be limited if:

The police officer indicates that they followed the proper steps and procedures to collect the information as set out in sections 5, 6, and 7 (s 9(4)(a)).

(2)  The chief of police has reviewed the officer’s entry and double checked that the information was collected for a proper purpose as set out in section 1, that it was not done in an arbitrary way, and by following the proper steps and procedures (s 9(4)(b)(i)).

If the chief of police or designated person did not review the officer’s notes upon entry into the database, it will be flagged and must be reviewed within 30 days after it was first entered (See the list in section 9(5), above).

So it seems it is possible for some files to be sitting in the database without having been reviewed, yet still accessible to members of the police force. This raises questions about what can be done (or not done) with this information.

Identifying information in the database that has been collected in compliance with proper steps and procedures will remain in the database for up to five years after the date it was first entered. After that, it will move to the “limited access” database (s 9(9)).

(2) Limited access

If within 30 days following the date the data was first entered into the database it is not determined that the identifying information was collected according to the proper steps and procedures, the identifying information will be retained according to a policy to be developed by the Board (i.e., the municipal police boards). The identifying information will remain in a database under the control of the police force, and it will be part of the  “limited access” database – i.e. access to it will be restricted as set out in section 10 (s 9(5) para 3).

According to section 9(6), at least once a year, the chief of police or a designated person take an appropriately sized random sample of the entries of identifying information and review it to estimate whether the proper steps and procedures set out in sections 5, 6, and 7 were followed. The section states that there is an acceptable margin of error of 5 percent, meaning the reviewer must estimate compliance in at least 95% of the cases in the sample.

Questions remain about how “appropriately sized” will be defined.

If, after the review, there are entries found that were not collected according to proper steps and procedures, the identifying information will be retained according to a policy to be developed by the Board. The identifying information will remain in a database under the control of the police force, but access to it will be restricted as set out in section 10 (s 9(5) para 3).

Section 9(8) states that it is the responsibility of the chief of police to consider the results of the detailed yearly review and “take such actions as the chief of police considers appropriate.”

Section 9(10) applies to identifying information to which police access has been restricted. According to this section, a member of the police force is only permitted access to the information if the chief of police is satisfied that access is needed for certain specified circumstances (set out in clauses i-vi in the list in Section 10), such as for the purpose of an ongoing police investigation or if it is in connection with current or future legal proceedings.

This is troubling since we know at least some of the entries in this database will be those that were found not to be in compliance with proper collection procedures (other entries might not have a compliance issue, but is in the restricted database by virtue of it being 5 years since the date of entry). It seems contradictory to allow access to information that was wrongfully collected.

Section 10 (Performance targets not to be used in evaluating work performance) A chief of police shall ensure that no performance target based on any of the following factors is used to evaluate the work performance of a police officer on his or her force:

  1. The number of times, within a particular period, that the officer collects or attempts to collect identifying information about individuals from the individuals.
  2. The number of individuals from whom the officer collects or attempts to collect identifying information within a particular period.

Commentary/Analysis on Section 10

According to this section, performance targets related to the number of times within a particular period, an officer collects or attempts to collect identifying information, or the number of individuals from whom an officer collects or attempts to collect identifying information from, must not be used to evaluate an officer’s work performance.

Again, questions remain over the term “performance target” and the use of this term indicates that there is some sort of performance target has to be met and thus, leads us to ask whether these performance targets include collecting information (i.e., is there a quota that has to be met and what does this performance target actually entail?).

 

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