Town of Napanee (Re), 1989 ONCPC 4001

Citation: 1989 ONCPC 4001

ONTARIO POLICE COMMISSION

IN THE MATTER OF a request by the Town of Napanee for the consent of the Ontario Police Commission to dispense with the services of members of the town police force for the purpose of abolishing that police force in order that the town may enter a contract for policing services with the Solicitor General whereby those services will be provided by the Ontario Provincial Police Force.

HEARING: NAPANEE, NOVEMBER 3, 1988

Presiding Members:

Dr. Bette M. Stephenson, Member

Mr. Frank Marc D'Andrea

The Ontario Police Commission held a special meeting in the Council Chambers, Municipal Building, 124 John Street, Napanee, Ontario, on November 3, 1988 to hear representations respecting an application by the Napanee Municipal Council requesting the authorization of the Ontario Police Commission to disband the Municipal Police Force of the Town of Napanee pursuant to Regulation 791, Section 27(a) of the Police Act, R.S.O. 1980, Chapter 381.

The meeting was presided over by Dr. Bette Stephenson and Mr. Frank M. D'Andrea, both members of the Ontario Police Commission. Mr. Gordon Hampson, Policy Development Officer, acted as an advisor to the Commission and Ms. Emily R. Radvansky took minutes.

We received the following documents which are relevant to this matter:

l.

Town of Napanee Brief - Hubert Hogle on behalf of Jack

McNamee, Clerk Administrator.

KOP Committee - Mr. Larry Pringle.

Ontario Association of Chiefs of Police - Chief W.B. Faragher, Chairman, O.A.C.P.

Submission of Napanee Police Association - Geoffrey J. Griffin.

Mrs. Catherine Culhane, on behalf of the Police Wives.

Mrs. June Wright, citizen of Napanee.

Letter from Mr. Earle R. Bush which was read by Neil

Lambert.

Letter read by Neil S. Storring.

The Commission heard representations from the following persons:

l. Hubert W. Hogle, Esquire, Counsel for the Council of the

Town of Napanee.

2. Mr. Larry Pringle of the Keep Our Cops Committee (KOP).

3. Chief Bert Faragher of the Ontario Association of Chiefs

of Police.

4. Geoffrey J. Griffin, Esquire, Council for the Napanee

Police Association.

5. Mr. Mal Connolly, of the Police Association of Ontario.

6. Mrs. Catherine Culhane of the Napanee Police Wives

Association.

7. Mrs. Norah Pacquin, citizen.

8. Mrs. June Wright, citizen and former civilian employee

of the Napanee Police Force.

9. Ms. Mary Koutroubis, citizen and former employee of the

Napanee Police Force.

10. Mr. Harold Perry, of the Victims of Police Officers.

11. Mr. Neil Lambert, citizen.

12. Mr. Neil Storring, citizen.

13. Mr. James Madden, Councillor, Town of Napanee Municipal

Council.

Mr. Hogle representing the Municipal Council made the first representation. He indicated that the current force consists of fifteen members inclusive of seven sworn constables and civilian employees. He indicated that the present request for disbandment was prefaced on a request to enter into a contract for policing by the Ontario Provincial Police. Mr. Hogle made it quite clear that the application did not pre-suppose the inadequacy of the existing force. Rather, he indicated that the major consideration of the application is the cost of maintaining the present force as opposed to the cost of entering into an OPP Contract. He indicated that at present the current force has been without a collective bargaining agreement since June of l987, but that the demands of the Police Association in respect of the new agreement are for an increase of wages to the extent of

21 per cent. That increase in this order would have a dramatic effect on the tax burden of the ratepayers of the Town. On the other hand, it was argued that based on the Ontario Provincial Police costing proposal tabled herewith as a proposal, there would be a direct saving of $45,000.00 and indirect saving of an additional $35,000.00 to the Town's policing budget.

In addition to the financial aspect, Mr. Hogle impressed upon us certain other issues dealing with task scheduling and the retirement of officers leaving the present force.

Mr. Hogle also pointed out that the Ontario Provincial Police Station is in Napanee and the jurisdiction of that detachment duplicates the jurisdiction of the town

force. He pointed out that at present, certain services such as the provision of breathalyzer technicians are already performed by the OPP detachment.

Mr. Hogle also pointed out

that the two issues

before

this Commission are those of

the adequacy of the

proposal and the manner in which the present force members would be taken care of upon disbandment. He argued that there was no question that the OPP would provide adequate policing in addressing the first issue. In addressing the second issue, he indicated that all members of the current force are in support of the current application and have agreed to accept employment with the Ontario Provincial Police.

On behalf of the Committee which is called "Keep Our Police", Mr. Larry Pringle urged upon us the view that the Town Council did not truly represent the views of the citizens in the passage of its resolution to disband. He indicated that in an informal poll conducted of the citizens, a majority wished retention of the present force. Again he took no issue with the adequacy of the proposed OPP contracting but rather indicated that the wishes of the citizens, or at least those that responded favourably to the poll ought to be obeyed and urged this Commission to refuse its consent. As an alternative to the present force, he urged upon us a consideration of amalgamating the police force of Napanee with those of surrounding areas, much in the same manner as the fire departments are amalgamated for the areas of Napanee, Richmond Township, and North Fredricksburg.

Chief Bert Faragher of the Ontario Association of the Chiefs of Police urged upon this Commission the benefits of a small town police force. He indicated that based on his experiences, the citizens are better served by a personal police force, the members of which know all of the citizens and are able to perform more adequately than a non-personal force.

Mr. Geoffrey J. Griffin, appeared as solicitor for the Napanee Police Association. He urged upon us the view that we must confine our inquiry to the adequacy of the proposal. In that regard, he indicated that with an OPP contract, the citizens of Napanee would be better served in that there would be more police officers available to them. In addition, because of the greater number of officers available, scheduling would not be a problem especially as regards overtime and vacations. The OPP through its facilities would be better able to train officers and would be able to make training available without impact on scheduling. Mr. Griffin advised that with the recent announcement of the pending amalgamation of Napanee with Richmond, the area will require more policing and therefore more officers. This need would be better served by OPP contracting.

Mr. Griffin also indicated that the OPP officers who presently serve in the Napanee detachment are members of the Napanee community. In addition, since the OPP has expressed a willingness to take on staff the existing town police members, they would remain in Napanee and would continue to be part of the community.

As a matter of law, Mr. Griffin indicated to the Commission that the only function of the Commission in this hearing was to examine the adequacy of the proposal and that the Commission had no right to view the adequacy of the existing service. Although Mr. Griffin could then cite no law in support of this proposition, this Tribunal afforded Mr. Griffin the opportunity of making submissions in writing, which submissions were received and are dealt with elsewhere in our decision.

Mr. Mal Connolly appeared on behalf of the Police Association of Ontario. He made it quite clear that he was not disputing the ability of the Ontario Provincial Police to provide adequate policing. He argued that the phenomenon of OPP contracting is a threat which has created unrest among

police officers throughout Ontario. Napanee force, as with other

He indicated that the small municipal forces

throughout the Province, has a long history and tradition. The individual members are members of the community and as such are better able to serve their citizenry. He indicated that he cannot accept that the present Napanee force cannot properly and adequately police this community and he cannot accept that there are extraordinary problems with scheduling. He indicated that similar municipalities throughout the Province can provide adequate policing with less force

members than are in Napanee.

Mr. Connolly also took exception with the Town's proposals for dealing with its civilian members. He indicated that the proposal of severance pay for each of the civilian members was inadequate considering the years of service of those members. He urged upon us the imposition of an arbitration procedure for those members both civilian and sworn who will not be absorbed into the OPP system.

This Commission also heard representations from Mrs. Catherine Culhane, who appeared as a representative of the Police Wives Association. She indicated that all officers of the force are in favour of OPP contracting. She also indicated that with contracting the present officers would be entitled to better training and better professional development. In addition, scheduling for vacations and sick leave for injury would be better served and as such the officers would be under less stress as would their families. She indicated that "happy, trained, well-balanced officers"

would more adequately serve the community.

Mrs. Norah Pacquin, a long time resident of Napanee, asked the tribunal for clarification of the purpose of the hearing.

Mrs. June Wright made representations as a past civilian employee of the force. She indicated that as a civilian employee, she was concerned about variance in skill levels and indicated that as a dispatcher she never received training from the existing force. Mrs. Wright indicated that there were inaccuracies in the results of the KOP findings.

Ms. Mary Koutroubis made representations as former civilian employee of the Napanee Police Force.

a

She

indicated that she was in support of OPP contracting and indicated that implementation of the l987 Russell Report prepared by the Ontario Police Commission was not at this time possible. She also indicated that OPP contracting would allow the present force members to better themselves.

Mr. Harold Perry appeared as a representative of "Victims of Police Officers". He urged us to apply common sense to the request and urged us to consider that in his opinion, the majority of the community of Napanee was opposed to OPP contracting. He drew an analogy between the loss of control by the citizenry over its police to the loss of control by that same citizenry over schooling. He indicated that the loss of control would be the result of OPP contracting.

Mr. Neil Lambert spoke on behalf of Mr. Earl Bush, who was a former police officer with the OPP detachment at Napanee. He indicated for us that Mr. Bush supported OPP contracting.

Mr. Neil Storring appeared as the past chairman of the Police Committee of Council and past councillor of the Town of Napanee. He indicated that in a community of five thousand people, and as a budgetary matter, it is difficult to strike a balance between the needs and wishes of the citizens and the ability of a relatively small community to pay for those needs and wishes.

Mr. James Madden, a member of the Town of Napanee Council, appeared and urged us to accept that the decision of Council in seeking the disbandment of the force was based on fact and not on bias. As such, we were urged to respect the resolution of Council.

This tribunal is grateful to all of the persons who made representations and to all of the citizens who filled the council chambers to take part in the proceedings.

This was a hearing conducted pursuant to a request for the consent of the Ontario Police Commission to abolish the municipal police force of the Town of Napanee. That consent is sought under the provisions of Section 27(a) of Regulation 79l made pursuant to the provisions of The Police Act, Chapter 38l of the Revised Statutes of Ontario l980. Section 2(l) of the Police Act imposes upon "every city and town" the responsibility for "the policing of and maintenance of law and order in the municipality and for providing and maintaining an adequate police force in accordance with the police needs of the municipality". Sub-section (3) of Section 2 of the Act indicates as follows:

"2.(3) Where in special circumstances a municipal police force, in the opinion of the Commission, is not capable of providing adequate policing for any part in the area for which it is responsible, the Solicitor General may authorize the Ontario Provincial Police Force to police such part for such period and on such terms and conditions as the Solicitor General may prescribe."

In addition, Section 4(l) of the Act reads as follows:

"4.(l) The obligation of a municipality to provide and maintain a police force may be discharged, ....

(c) By entering into an agreement under Section

63 or 64.

Section 64(l) of the Act provides as follows:

"64.(l) The Solicitor General may enter into an agreement with the Council of any municipality for the policing of the whole or any part of the municipality, or with any company for the policing of any area, by the Ontario Provincial Police Force."

It is clear that the primary responsibility for policing and maintaining law and order lies with the municipality. The Act is also quite clear that the responsibility of the municipality is "for providing and maintaining an adequate police force in accordance with the police needs of the municipality". There is no question but that the primary responsibility for ensuring that the police needs in the municipality are met rests with the municipal council.

However, Section 42(l) of the Act in defining the function of the Ontario Police Commission specifically mandates this Commission in sub-section l(g) thereof to "determine whether a police force is adequate and whether a

municipality is discharging its

responsibility for the

maintenance of law and order".

So that while the primary

responsibility for ensuring adequate policing rests with the municipality, this Commission is specifically mandated to determine whether each municipality is discharging its

responsibility

of providing adequate policing. Indeed

Section 58 of

the Act authorizes the Commission to

investigate, enquire and report in respect of the administration or the system of policing in any municipality. That investigation can be conducted either at the request of

the Council or without the request of the Council.

During the course of this public hearing, Mr. Griffin argued that the Ontario Police Commission has no authority to enquire into the adequacy of the existing force in order to make a decision on whether or not its consent ought to be granted under Section 27(a) of the Regulations. We are grateful to Mr. Griffin for the very able written submissions which he tendered to us in support of his position. In essence, his argument is that the elected representatives of the municipality have the primary responsibility of determining the type of policing that the municipality requires and that Regulation 79l in the context of Section 27(a) "complements and particularizes the authority of the municipality to determine the manner in which the community is to be policed." In addition, he argues that an examination of the "object, intention and scheme of the Police Act" renders it clear that the determination of how a community is policed is to be made by the elected representatives of a municipality subject to a supervisory role performed by the Ontario Police Commission. Mr. Griffin urges upon us the decisions of this Commission in the matter of the Town of Arnprior, the matter of the Town of Wiarton and in the matter of the Town of Picton. However, he submits that "the Ontario Police Commission would be committing a jurisdictional error if it were to consider such extraneous and irrelevant matters as the adequacy of the present police force when all it is being asked to do by the elected officials of a municipality is to consent to the abolition of a police force in favour of policing by the

Ontario Provincial Police."

With

respect,

we are unable to agree

that a

consideration of

the

adequacy of the present

force is

"extraneous and irrelevant" and is not within the jurisdiction of this Commission. As we have previously indicated, it is abundantly clear that this Commission not only in proceedings under Section 27(a) of the Regulation, but in respect of any other proceeding has the authority at or without the request of the relevant municipality to "determine whether a police force is adequate and whether a

municipality is discharging its responsibility for the maintenance of law and order," as is mandated in Section

42(l)(g). The wording of Section 42(l) is extremely important, for therein, this Commission is not only empowered to enquire into the question of adequacy but is mandated to so do at all times; note that Section 42(l) states that "it is the function of the Commission ...." to determine whether a police force is adequate.

In discharging the function of determining whether a proposed form of alternate policing will be adequate, one must perforce enquire into what constitutes adequacy. Adequacy in our respectful view is a question of relativity. It may well be as it was in the case of the Arnprior application that it is not necessary for this Commission to rule on the adequacy of the policing currently being provided, but we cannot accept the suggestion that we are not entitled to view the adequacy of the existing police service with a view to determining if the proposal will be as

adequate or less adequate or for that matter better.

We acknowledge that no proceedings have been taken under Section 58 of the Act. But the conclusion that must be drawn by that fact is either that the Municipality did not request an investigation into the adequacy or that this Commission did not launch its own investigation into the adequacy. Certainly the fact that no investigation was conducted is no evidence of the adequacy of the status quo.

As we have indicated, Section 27(a) of the Regulations specifically requires the municipality to seek and obtain the consent of the Ontario Police Commission in a situation where it seeks to abolish its present police force. If the position put forth by Mr. Griffin is correct, then in any situation where a municipality sought to abolish its present force in order that it can contract for policing service with the Ontario Provincial Police, a public hearing ought not to be necessary. There can be no question but that the police service provided by the Ontario Provincial Police is to say the very least adequate. It is well recognized that the Ontario Provincial Police force is one of the finest law enforcement agencies in the world. What is the function of this Commission where the Section 27(a) application for consent is coupled with the request for the provision of OPP contract policing? Is it necessary to conduct a hearing under such circumstances? We are not prepared to accept that a Section 27(a) application for our consent coupled with a proposal for OPP contracted services should preclude the holding of a public hearing and therefore the opportunity for the residents of that municipality to voice their concerns to

this Commission.

It is quite clear to us that it is not simply the resolution of the municipal council that will enable a municipality to enter into OPP contracting. Section 64 of the Act, which is that part of the legislation enabling contracting is covered in permission and not mandatory terms. In other words, the Solicitor General may or may not permit the contracting. Certainly, this Commission has a responsibility in discharging the mandate stated in Section

42(l) to make a determination of all circumstances in recommending to the Solicitor General whether the permission contemplated by Section 64(l) should or should not be granted.

In this particular instance, it was conceded by all parties that a present policing service provided by the Town of Napanee Police Force is indeed adequate. We have no evidence before us that such service is not adequate. Although we find it curious that the recommendation put forth by this Commission in a report prepared by Mr. R.E. Russell at the request of the Napanee Municipal Council have not been put into effect, we are unable to conclude that the present policing of this municipality is inadequate. By the same token however unable to conclude that the proposed alternate method of policing is inadequate. As in the Arnprior case, we are therefore not required to make a ruling on whether the present policing provided is adequate. We are therefore and for these reasons prepared to consent to either decision made by municipal council. That is we are prepared to consent to a disbandment of the present force upon terms and conditions. This consent is subject to the following conditions and will

be null and void if these conditions are not met:

l. A contract is executed by the Solicitor General and the Town of Napanee pursuant to Section 64 of the Police Act to provide for the policing of the Town by the Ontario Provincial Police Force commencing on a date to be determined by the Solicitor General;

2. Each member on the Napanee Police Force,

(a) is offered employment as a member of the Ontario

Provincial Police Force; or

(b) enters into a settlement agreement with the Town of

Napanee, or

(c) receives from the Town of Napanee a written offer to have the amount of severance payments by the Town determined by final and binding arbitration (any such offer to be delivered on or before July 31st,

An offer of arbitration must contain the following:

"The Corporation of the Town of Napanee hereby offers to take part in final and binding arbitration proceedings for the purpose of determining the amount or amounts of severance to be paid to you by the Town in the event that the Napanee Police Force is abolished and you are not offered employment as a member of the Ontario Provincial Police Force.

This offer remains open for acceptance at any time prior to abolition of the Napanee Police Force. If you accept this offer, both you and the Town will be bound by the result of the arbitration proceeding; in other words, the Town will accept the terms of the award and pay any amount of compensation awarded by the arbitrator and you will accept the terms and the amount in full satisfaction of any potential claims relating to the loss of your employment as a member of the Napanee Police Force. If an arbitrator cannot be mutually agreed upon, the Chairman of the Ontario Police Arbitration Commission will be asked to select the arbitrator from the panel of arbitrators maintained by that Commission. The Town will pay the fees of the arbitrator on the arbitration proceeding."

3. The granting of consent by this Commission is not conditional upon the acceptance by any or all of the police officers of an offer described in paragraph 2.(a) or (c).

4. Documentary evidence reflecting any of the events referred to in paragraphs 2.(a), (b) and (c) is to be filed by the Town with this Commission.

5. No members' services as a member of the Napanee Police Force are to be dispensed with until the time that the Ontario Provincial Police Force commences policing the Town of Napanee.

The consent of this Commission to dispense with the services of all members of the Napanee Police Force for the purpose of abolishing the Force is effective on the day that the Ontario Provincial Police commences policing the Town of Napanee pursuant to a contract entered into in accordance with Section 64 of the Police Act.

In the circumstances of this particular case, it is our opinion that the conditions attached to our consent will assure all members on the Napanee Police Force of fair and reasonable treatment.

DATED AT THE CITY OF TORONTO,

THE 17TH DAY OF JANUARY, 1989.

ONTARIO POLICE COMMISSION

D.W. Drinkwalter

Chairman

for Dr. Bette M. Stephenson and Frank M. D'Andrea, Members.