Reflections on the Community Safety & Policing Act (CSPA)

By Sharon Wilmot, Peel Regional Police, and Jason Fraser, York Regional Police

Nobody said modernizing policing legislation in Ontario was going to be easy. The province’s Future of Policing Advisory Committee (FPAC) was established in 2013 to develop a plan for the effective, efficient and sustainable delivering of police services. The FPAC informed the Strategy for a Safer Ontario, and this ultimately led to the 2018 passage of the Safer Ontario Act (SOA). By the end of 2018 following a provincial election, the SOA was retracted, and in February of 2019, new policing legislation superseded the SOA.

After years of discussions, stakeholder consultations, commissioned reviews and many fiery debates, the future of policing is finally here with the repeal of the Police Services Act and the implementation of the Community Safety and Policing Act, 2019 (CSPA) on April 1, 2024. The CSPA promises to transform the governance framework for policing with a focus on modernization, accountability and transparency, and finding efficiencies in the policing sector through a community safety and well-being lens.

As April 1 came and went, so too did the implementation of the CSPA. The sky has not fallen, and Ontario police services are working out some of the challenges and assessing the actual effects of the new legislation. As police services have had an opportunity to operationalize the changes, we are now able to take a step back , reflect and evaluate the impacts of some of the changes that came about on April 1.

THE GOOD NEWS

The good news is that many aspects of the CSPA remain similar to the PSA. Although, in some regards, that is also the bad news. Some of the issues that police desperately needed clarity and positive change on have remained largely the same. Some changes that stakeholders believed would be highly problematic ended up being non-issues, while on the other hand, some changes came as great surprises and left police services scrambling for strategies as to how to make them work. Finally, some issues remain outstanding and still need clarification. In that regard, advocacy on outstanding issues continues behind the scenes.

One of the main goals of the CSPA has always been to find efficiency and streamline police oversight, while still ensuring robust transparency and accountability mechanisms. In many ways, this has been achieved through the new discipline procedures, which allow chiefs to implement discipline up to and including punitive suspensions without pay for a period not exceeding 30 days without holding a hearing. This empowers chiefs to deal with a large proportion of disciplinary matters efficiently, which in turn benefits officers, as the timely resolution of internal disciplinary matters allows them to quickly address the issue, return to the workplace and move forward in their careers.

Despite extensive consternation expressed in the months leading up to the rollout of the CSPA about the provisions requiring mandatory notification to the complaints director for certain categories of misconduct, the duty to notify has not appeared to result in any significant burden. Following successful advocacy by police stakeholders, the regulation was significantly narrowed at the eleventh hour, leaving a more limited scope in which police were required to notify the Law Enforcement Complaints Agency (LECA) of pending misconduct investigations. In addition, LECA has worked very closely with police stakeholders to streamline the process and ensure that the duty to notify regulation is applied in a practical and efficient manner. LECA continues to be open to feedback , which has helped to ensure a smooth transition to the new Act.

THE SORT OF GOOD NEWS

The CSPA has given chiefs of police some additional suspension without pay (SWOP) powers in circumstances where police officers are alleged to have engaged in serious criminal misconduct, such as serious indictable offences or criminal offences that result in the officer’s pre-trial custody or bail conditions that substantially interfere with their policing duties. However, unlike most other provinces in Canada, SWOP powers still do not apply to on-duty criminal allegations or allegations of egregious misconduct that do not result in the laying of charges where the Crown elects to proceed by indictment. Police associations should be satisfied that the CSPA retains adequate safeguards to ensure the marginal expansion of SWOP powers are not being abused, and the power is only being used for the most serious of cases.

THE CHALLENGES

The Conflicts of Interest Regulation was expected to present operational challenges. The Regulation explicitly outlines the circumstances when a chief must have an external criminal investigation conducted, and further directs the chief to notify the Inspector General’s office of all potential and actual conflicts of interest. In theory, this was intended to avoid the appearance of conflicts of interest in certain matters. However, it has proven to be difficult to implement in practice.

Most prominently is the requirement that an external police service investigate criminal allegations that are alleged or reasonably suspected to have been committed by or against a member of the service or a member of the police service board. This is mandatory where there are allegations of intimate partner violence, child abuse, breach of trust and discretionary in all other instances. Unfortunately, what is clear is that these types of investigations are not necessarily rare and often happen off-hours when it is difficult to get a neighbouring police service (if lucky enough to have one nearby) to attend and investigate. Services are encouraged to review their procedures and attempt to put into place practical protocols for making external requests for these types of investigations and are reminded that all allegations by or against members and board members must be reported to the inspector general.

Another area that has proven problematic is the assessment of McNeil misconduct disclosure requirements now that a chief is no longer required to decide whether the misconduct is serious or not of a serious nature. R v McNeil requires the police to disclose records relating to findings of serious misconduct as part of its disclosure obligations under Stinchcombe. Under the PSA, serious misconduct was relatively easy to spot since a chief was required to refer serious allegations of misconduct to a hearing while resolving less serious misconduct informally.

Practically, now, with the elimination of this distinction, matters that are dealt with pursuant to the chief’s internal procedures may necessarily be considered “serious” and should be disclosed pursuant to McNeil guidance. It is expected that further guidance regarding the assessment of seriousness and relevance for McNeil will be forthcoming soon from the Ministry of the Attorney General. In the meantime, chiefs are encouraged to continue identifying cases as serious/less serious – regardless of whether they go to a hearing – and continue to ensure disclosure of serious matters.

Finally, the Alternative Provision of Policing has presented significant operational challenges to services. The Inspector General has communicated that boards must have agreements under s. 14 where a policing function is to be provided on a regular basis; on an ad hoc basis, where one police service does not have the capacity to provide that function for itself; or, from time to time, by members of another police service even where the other service generally has capacity to provide that function. This, of course, is an incredibly broad interpretation of the provision that covers virtually all instances of external assistance requests.

It is expected that the Ministry will be producing template agreements to assist chiefs and boards to satisfy this requirement. In the meantime, police services should be assessing which functions they may be providing and/or receiving from an external service to ensure compliance with the requirements of the Act.

WHAT REMAINS TO BE SEEN

In many ways, the work in understanding the effects of the CSPA is just beginning. There are a number of areas that will take years to see the actual results of the changes. We are just starting to see matters coming into the new formal disciplinary framework , but it will take some time for the matters to run the full course of proceedings at the newly established Ontario Police Arbitration and Adjudication Commission. Similarly, we continue to await confirmation of new training requirements and course materials, which are subject to transition periods and have not yet been confirmed and/or released. And finally, of course, we continue to await the answer to the greatest question of all… will the special constables have purple or grey stripes on their pants?

Sharon Wilmot (2278C@peelpolice.ca)and Jason Fraser (5609@YRP.CA)serve as Co-chairs of the OACP’s Police Legal Advisors Committee.

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