Part IV – Other Matters

 

PART IV: Other Matters

Snapshot

Section 11 comes into force on January 1, 2017 and covers police training. Sections 12 and 13 come into force on July 1, 2016. Section 12 outlines that boards of municipal police forces and the Minister must develop policies governing reports, its contents and its retention. Section 13 states that chiefs of police must develop procedures. Sections 14-17 come into force on January 1, 2017 and outline the regulatory regime for reports, review and compliance of same. A review of this regulation must be published no later than January 1, 2019. The Minister responsible for ensuring this review is conducted is the Minister of Community Safety and Correctional Services but this Minister must ensure the person who conducts the review must consult with the Minister Responsible for Anti-Racism.

 

Section #s Section(s) wording
Section 11
(Chiefs of police must
ensure training)
(1)  A chief of police shall ensure that every police officer on his or her police force who attempts to collect identifying information about an individual from the individual, or who acts as the designate of the chief of police under section 9, has successfully completed the training required under this section within the previous 36 months.

(2)  The training referred to in subsection (1) shall include training on the following topics:

1.         The right of an individual not to provide information to a police officer, the limitations on this right and how to ensure that this right is respected.

2.         The right of an individual to discontinue an interaction with a police officer, the limitations on this right and how to avoid unlawfully psychologically detaining an individual.

3.         Bias awareness, discrimination and racism and how to avoid bias, discrimination and racism when providing police services.

4.         The rights that individuals have to access information about themselves that is in the custody, or under the control, of a police force.

5.         The initiation of interactions with members of the public.

6.         This Regulation and its application.

(3)  The training referred to in subsection (1) shall be provided at the Ontario Police College or by a trainer who has been trained, at the Ontario Police College, to provide the training referred to in subsection (1).

(4)  The training referred to in subsection (1) shall be based on a curriculum approved by the Director of the Ontario Police College.

Commentary/Analysis on Section 11

This section governs the terms of the training that a police officer must undertake when attempting to collect identifying information; however, it is not clear if all police officers in a specific force who have not attended an Ontario Police College or all police officers in a force must undertake this training (i.e., do only police officers who interact with the public and who covers an area that police patrols in the public have to undertake this training?). While the regulation says that chiefs of police must ensure every police officer who attempts to collect identifying information undergoes this training must be trained in how to avoid bias, discrimination and racism when providing police services, other sections in the regulation indicate that racialized persons can still be targeted on the basis of race.

 

Section 12 (Boards and Minister must develop policies) (1)  A board shall develop policies regarding the following matters:

1.         The document to be given to individuals under section 7.

2.         The contents, in relation to matters to which this Regulation applies, of the annual report described in subsection 14 (1).

3.         The report required under section 15.

4.         The retention of, access to, and disclosure of identifying information collected on or after January 1, 2017, including the retention of identifying information collected contrary to this Regulation.

5.         The retention of, access to, and disclosure of identifying information collected before January 1, 2017 with respect to which this Regulation would have applied had the collection taken place on January 1, 2017.

(2)  The policy developed under paragraph 4 of subsection (1) shall provide that identifying information collected contrary to this Regulation shall not be retained longer than is reasonably necessary to ensure the information is available in the circumstances in which access may be permitted under paragraph 2 of subsection 9 (10).

(3)  The duties imposed by subsections (1) and (2) on boards in relation to municipal police forces apply to the Minister of Community Safety and Correctional Services in relation to the Ontario Provincial Police.

(4)  The policies developed under this section shall be consistent with this Regulation.

 

Commentary/Analysis on Section 12

All the policies developed in relation to this regulation must be consistent with this regulation. This is contradictory since the policies can discriminate on the basis of race but the regulation says that police officers must be trained in avoiding discrimination. All of the documents given by police officers who collect or attempt to collect identifying information from individuals must have policies developed by the municipal police board. Other policies that the municipal police board must develop in relation to this regulation: the contents of the Annual report (s 14 in this part); the report (s 15 in this part); retention, access and disclosure of information collected on or after January 1, 2017, including information collected contrary to this regulation; and retention, access and disclosure of information collected before January 1, 2017 as if the collection would have happened on January 1, 2017.

It appears the collection of identifying information that is collected contrary to this regulation does not have to be reported or retained, access or disclosed.

Section 13 (Chiefs of Police must develop procedures) (1)  A chief of police shall develop procedures regarding the matters set out in subsection 12 (1).

(2)  The procedures developed under subsection (1) shall be consistent with this Regulation and the relevant policies developed under section 12.

 

Commentary/Analysis on Section 13

All procedures developed in relation to the policies outlined in section 12 of this regulation must be consistent with this regulation.
Section 14 (Annual report) (1)  This section applies to,

(a)       an annual report provided by a municipal chief of police to a board under section 31 of Ontario Regulation 3/99 (Adequacy and Effectiveness of Police Services) made under the Act; and

(b)       the annual report provided by the Commissioner under subsection 17 (4) of the Act.

(2)  A chief of police shall ensure that his or her annual report includes the following information in relation to attempted collections of identifying information:

1.         The number of attempted collections and the number of attempted collections in which identifying information was collected.

2.         The number of individuals from whom identifying information was collected.

3.         The number of times each of the following provisions was relied upon to not do something that would otherwise be required under subsection 6 (1):

i.          subsection 6 (2),

ii.         clause 6 (3) (a),

iii.        clause 6 (3) (b), and

iv.        clause 6 (3) (c).

4.         The number of times an individual was not given a document under clause 7 (1) (b) because the individual did not indicate that they wanted it.

5.         The number of times each of the following clauses was relied upon to not do something that would otherwise be required under subsection 7 (1):

i.          clause 7 (2) (a), and

ii.         clause 7 (2) (b).

6.         The number of attempted collections from individuals who are perceived, by a police officer, to be within the following groups based on the sex of the individual:

i.          male individuals, and

ii.         female individuals.

7.         For each age group established by the chief of police for the purpose of this paragraph, the number of attempted collections from individuals who are perceived, by a police officer, to be within that age group.

8.         For each racialized group established by the chief of police for the purpose of this paragraph, the number of attempted collections from individuals who are perceived, by a police officer, to be within that racialized group.

9.         A statement, based on an analysis of the information provided under this subsection, as to whether the collections were attempted disproportionately from individuals within a group based on the sex of the individual, a particular age or racialized group, or a combination of groups and if so, any additional information that the chief of police considers relevant to explain the disproportionate attempted collections.

10.      The neighbourhoods or areas where collections were attempted and the number of attempted collections in each neighbourhood or area.

11.      The number of determinations, referred to in subsection 9 (5), that section 5 or clause 9 (4) (a) was not complied with.

12.      The number of determinations, referred to in subsections 9 (6) and (7), that section 5, 6 or 7 was not complied with.

13.      The number of times members of the police force were permitted under subsection 9 (10) to access identifying information to which access must be restricted.

(3)  A chief of police shall establish age groups for the purpose of paragraph 7 of subsection (2).

(4)  A chief of police shall establish racialized groups for the purpose of paragraph 8 of subsection (2) and shall do so in a way that allows the information required by subsection (2) relating to the racialized groups to be comparable to the data referred to in the following paragraphs, as released by the Government of Canada on the basis of its most recent National Household Survey preceding the period covered by the chief of police’s annual report:

1.         For each derived visible minority group set out in the National Household Survey, the number of individuals who identified themselves as being within that group.

2.         The number of individuals who claimed Aboriginal identity.

(5)  This section does not require the inclusion of information about anything that occurred before January 1, 2017.

Commentary/Analysis on Section 14

This section governs the Annual report provided by the municipal chief of police to a board under the Ontario Regulation, Adequacy and Effectiveness of Police Services which is another regulation under this regulations enabling statute, Police Services Act.

 

The Annual report must contain the following information:

1)    Number of attempted collections and number of attempted collections where identifying information is actually collected

2)    Number of individuals who had their identifying information actually collected as opposed to attempted collections

3)    Number of times each the following provisions were relied upon to not do something that would be required under s 6(1) (officer duties): 6(2) (the officer did not inform the individual because informing the individual might compromise safety of an individual OR 6(3)(a), (b), and (c) (the officer did not inform the individual because informing the individual would “likely compromise an ongoing police investigation”; “might allow a confidential informant to be identified”; or “might disclose the identity of a person contrary to law” (i.e., individuals who cannot be named under Youth Criminal Justice Act).

4)    Number of a times an individual was not given a document under s 7(1)(b) because the individual indicated that they wanted it

5)    Number of times a police officer did not give an individual the document required under section 7 (i.e., offered to give an individual a documents that provides the record of the attempt to collect identifying information or the individual indicates they want the document) because the police officer has reason to believe that continuing the interaction with the individual “might compromise the safety of an individual; or might delay the officer from responding to another matter that should be responded to immediately.”

6)    Number of attempted collections from individuals who are perceived by a police officer to be within the following groups based on the sex of an individual

Note: this section only refers to two genders (male/female).

7)    Each age group established by the chief of police for the purpose of this paragraph, the number of attempted collections from individuals who are perceived by a police officer to be within that age group (i.e., if a chief of police sets up an age group covering the ages 18-25 years, the police officer perceives an individual falling within that age range and attempts to collect their information)

8)    Number of attempted collections from individuals who are perceived by a police officer to be within a racialized group established by the chief of police

9)    A statement based on an analysis of the information provided in this report as to whether collections were attempted disproportionality from individuals within a group based on sex, age or racialized group or a combination of groups and if so, any additional information the chief of police considers relevant to explain the disproportionate attempt

 

Note: presumably, police officers can still discriminate against certain groups because the report does not account for number of discriminated attempts, just disproportionate attempts which are justified if explained away by relevancy. This raises the question: what is relevant under this regulation in the context of policing?

 

10)   Neighbourhoods or areas where collections were attempted and the number of attempted collections in each neighbourhood or area.

11)   Number of determinations referred to in section relating to section 9(5), that section 5 or section 9(4)(a) was not complied with (i.e., identifying information included in a database without limiting access of members if the police officer complied with section 5, or officer duties, that what was not done under the section is now done)

12) Number of determinations referred to in subsections 9(6) and (7), that section 5, 6, or 7 (i.e., detailed reviews with appropriately sized random samples of entries of identifying information, sections were not complied with, information about what was not done but was required is included in the database)

13) Number of times members of the police force were permitted under subsection 9 (10) to access identifying information to which access must be restricted (i.e., access to restricted information is granted if it relates to an ongoing police investigation; legal proceedings including anticipated legal proceedings; information relates to a complaint or an investigation or inquiry)

A police chief must establish age groups, racialized groups (where groups are comparable to data collected by Government of Canada or National Household Survey or who claimed Aboriginal identity.

 

This section does not include information collected prior to January 1, 2017.

 

 

Section 15 (Chiefs of police must review practices and report) (1)  If an annual report referred to in section 14 reveals that identifying information was attempted to be collected disproportionately from individuals perceived to be within a group or combination of groups, the chief of police shall review the practices of his or her police force and shall prepare a report setting out the results of the review and his or her proposals, if any, to address the disproportionate attempted collection of information.

(2)  A municipal chief of police shall provide his or her report to the relevant board, and the Commissioner shall provide his or her report to the Minister of Community Safety and Correctional Services.

(3)  When a board receives a report from a municipal chief of police under subsection (2), and when the Minister of Community Safety and Correctional Services receives a report from the Commissioner under subsection (2), the board or the Minister, as the case may be,

(a)       shall publish the report on the Internet in a manner that makes it available to the public free of charge and may make the report available to the public free of charge in any other manner that the board or the Minister, as the case may be, considers appropriate; and

(b)       shall consider the report and the proposals, if any, set out in the report and consider, in the case of a board, whether to give directions under clause 31 (1) (e) of the Act or, in the case of the Minister, whether to give directions to which the Commissioner would be subject under subsection 17 (2) of the Act.

 

Commentary/Analysis on Section 15

Despite disproportionate attempted collection of information, a chief of police must review practices of police forces and report on the results of the review as well as proposals to address disproportionate information. This report must be provided to the relevant board and the Commissioner must provide the report to the Minister of Community Safety and Correctional Services including making the report available on the internet for the public free of charge or in any other manner the board or Minister considers appropriate and the board or Commissioner must consider the report including any directions to give to the chief of police and monitor his/her performance or the general control and administration of the Ontario Provincial Police and its employees connected to the Ontario Provincial Police.

 

This entire section depends on the boards’ or commissioners’ directions to chiefs of police.

Section 16 (Chiefs of police must make records available) (1)  For the purpose of carrying out a duty, or exercising a power, under clause 3 (2) (b), (d), (e) or (h) of the Act, in relation to matters to which this Regulation applies, the Minister of Community Safety and Correctional Services may request a chief of police to provide any relevant information that is in the possession or under the control of the chief of police’s police force.

(2)  A chief of police shall comply with a request made under subsection (1) and shall do so in the manner specified by the Minister.

 

Commentary/Analysis on Section 16

Section 3(2) (b), (d), (e) or (h) of the Police Services Act states the following:

 

The Solicitor General shall (b) monitor boards and police forces to ensure that they comply with prescribed standards of services; (d) develop and promote programs to enhance professional police practices, standards and training; (e) conduct a systemic of inspection and review of police forces across Ontario; or (h) develop, maintain and manage programs and statistical records and conduct research studies in respect of police services and related matters.

 

Thus, the Minister of Community Safety and Correctional Services may request a chief of police to provide any relevant information that is in the possession or under control of the chief of police’s police force for the purpose of carrying out a duty, exercising a power under the section 3(2) (b), (d), (e) or (h) or matters which this regulation applies. The chief of police must comply with the request made under this section and comply with the manner specified by the Minister.

Section 17 (1) (Review of regulation); 17(2) (Review not by a government employee); and 17(3) (Consultation with Minister Responsible for Anti-Racism) Review of regulation

(1)  The Minister of Community Safety and Correctional Services shall ensure that a review of this Regulation is conducted and that a report on the findings of the review is published no later than January 1, 2019.

Review not by a government employee

(2)  The Minister shall ensure that the person who conducts the review is not a public servant within the meaning of the Public Service of Ontario Act, 2006 and is not employed in the Office of the Premier or in the office of a minister.

Consultation with Minister Responsible for Anti-Racism

(3)  The Minister shall ensure that the person who conducts the review consults with the Minister Responsible for Anti-Racism.

 

Commentary/Analysis on Section 17

The Minister Responsible for Anti-Racism is Michael Coteau and is part of the Anti-Racism Directorate. The Ministry of Community Safety and Correction Services must ensure that the person who conducts the review consults with the Minister Responsible for Anti-Racism. This review must be conducted no later than January 1, 2019. The person who conducts the review must not be a public servant as defined by the Public Service of Ontario Act, 2006 and is not employed in the Office of the Premier or in the office of a minister (including any other minister aside from the Ministers named in this section).

 

A public servant is defined as: 1. Every person employed under Part III; 2. The Secretary of the Cabinet; 3. Every deputy minister; 4. Every employee of a public body; and 5. Every person appointed by the Lieutenant Governor in Council, the Lieutenant Governor or a minister to a public body (Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sched. A).

 

 

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