ONTARIO CIVILIAN POLICE COMMISSION
CASE NAME: St. Marys’ Request for Approval under s. 5(1)(6) of the Police Services Act to Contract with the City of Stratford/Stratford Police Service
FILE: 2017-ADJ-006
In the Matter of the City of St. Marys’ Request for Approval under s. 5(1)(6) of the Police Services Act, R.S.O. 1990, c. P.15 to Contract with the City of Stratford/Stratford Police Service
ORDER
- The Town of St. Marys is currently policed by the Ontario Provincial Police, but is seeking to contract for services with the City of Stratford. If St. Marys was geographically contiguous to Stratford or with an area policed by the Stratford Police Service, the Town could simply contract with Stratford for policing services pursuant to s. 5(1)(4) of the Police Services Act (the “PSA”). Because there is no contiguity, St. Marys seeks the approval of the OCPC,
pursuant to s. 5(1)(6) of the PSA to “…adopt a different method of providing police services”.
- For the reasons set out below, the OCPC approves St. Marys’ proposal to provide police services by contracting with the City of Stratford for policing services to be provided by the Stratford Police Service, subject to receipt by the OCPC of the final agreement between St. Marys and the City of Stratford/Stratford Police Service.
Background: Municipal Responsibilities in Relation to
Providing “Adequate and Effective Policing”
S.4(1) of the PSA provides: “Every municipality to which this subsection applies shall provide adequate and effective police services in accordance with its needs.” Generally, the subsection applies to both upper- and lower-tier municipalities throughout Ontario.
Pursuant to S.5(1) a municipality must provide policing services through one of the following six methods:
i. The council may establish a police force, the members of which shall be appointed by its police services board under clause 31 (1) (a).
ii. The council may enter into an agreement under section 33 with one or more other councils to constitute a joint board and the joint board may appoint the members of a police force under clause
31 (1) (a).
iii. The council may enter into an agreement under section 6 with one or more other councils to amalgamate their police forces.
iv. The council may enter into an agreement under section 6.1 with the council of another municipality to have its police services provided by the board of the other municipality, on the conditions set out in the agreement, if the municipality that is to receive the police services is contiguous to the municipality that is to provide the police services or is contiguous to any other municipality that receives police services from the same municipality.
v. The council may enter into an agreement under section 10, alone or jointly with one or more other councils, to have police services provided by the Ontario Provincial Police.
vi. With the Commission’s approval, the council may adopt a different method of providing police services.
- S. 27 further requires every municipality that maintains its own police service to establish a police services board. Pursuant to s. 31, police services boards (PSBs) are further vested with responsibilities for the provision of “adequate and effective police services in the municipality”.
Request from St. Marys, Ontario
Currently, the Town of St. Marys discharges its responsibility for providing police services pursuant to s.5(1)(5): It is party to a contract with the Ontario Provincial Police (OPP). St. Marys has a PSB, with duties largely as set out in s. 10(9) of the PSA.
St. Marys is seeking to terminate its contract with the OPP and enter into a new contractual arrangement with the City of Stratford. Under the proposed new arrangement, the Stratford Police Service (SPS) would provide policing for St. Marys.
As noted, municipalities are responsible for providing adequate and effective police services pursuant to s. 4.1 of the PSA and they may decide which method of discharging this responsibility is appropriate, whether it be maintenance of a police service, contracting with the OPP, contracting with another contiguous municipality or another method.
Under s. 5(1) of the PSA, municipalities generally do not require approval from the OCPC in relation to their policing arrangements. In the current situation, for example, St. Marys would be able to enter a contractual arrangement with Stratford without any OCPC approval, but for the fact that they are not geographically contiguous municipalities. Under s. 5(1)(4) and s. 6.1, contiguity is a prerequisite for contractual agreements between municipalities.
However, s. 5(1)(6) allows municipalities to seek OCPC approval for alternative methods of providing police services: The council “…may adopt a different method of policing with the approval of the Ontario Civilian Police Commission.”
OCPC Process in Relation to s. 5(1)(6) Approval
While s. 5(1)(6) requires OCPC approval where a municipality seeks to provide police services in an alternative way, the subsection sets out no procedural or process requirements for the OCPC to follow in considering a request. The provision does not require a hearing or a public meeting.
In the present case, the OCPC asked the City of St.
Marys to provide a written submission setting out the proposed policing arrangement.
For reasons set out below, the OCPC grants approval to the City of St. Marys to enter into the proposed arrangement with Stratford. For the purpose of transparency, the OCPC has issued a public decision in relation to the approval.
S. 5(1)(6) does not set out any specific test for the OCPC to apply in determining whether or not to grant an approval under s. 5(1)(6). Decisions relating to provision of policing services in Ontario must be made with reference to the “adequacy and effectiveness” standard set out in the PSA.
However, a plain reading of the PSA places primary responsibility for providing adequate and effective police services on municipalities. As previously noted, s. 4 of the
PSA provides: “Every municipality to which this subsection applies shall provide adequate and effective police services in accordance with its needs.” S. 4(2) goes on to describe minimum standards for adequate and effective policing as including: “…1. Crime prevention. 2. Law enforcement. 3. Assistance to victims of crime. 4. Public order maintenance. 5. Emergency response.”
In addition to the broad roles of municipalities and PSBs, the “Adequacy and Effectiveness of Police Services” Regulation—O. Reg. 3/99—made under the PSA places many highly-specific responsibilities on chiefs of police in relation to the actual provision of policing in any given municipality. Further, the Minister of Community Safety and Correctional Services has a regulatory role as described in s. 3(2) of the PSA to “… (a) monitor police forces to ensure that adequate and effective police services are provided at the municipal and provincial levels”.
Although the OCPC has a role in relation to “adequacy and effectiveness” of police services, the OCPC must be respectful of the statutory roles of municipalities, PSBs, police services themselves, and MCSCS in this same regard. The only explicit role enumerated for the OCPC in relation to “adequate and effective” is set out in s. 9(2) of the PSA. That subsection provides that if the Commission finds that a municipal police force is not providing adequate and effective police services or is not complying with the PSA or regulations, it may communicate that finding to the board of a municipality and direct the board to take the measures that the Commission considers necessary. As with s. 5(1)(6), the provision sets out no specific process that the OCPC must
follow to make a determination and provides no other guidance. In a related vein, s. 23 and s. 24 of the PSA allow the OCPC to take certain measures where a PSB or municipal police force “…has flagrantly or repeatedly failed to comply with prescribed standards of police services”.
Decision in Relation to the Request for St. Marys
After careful review of the proposal from St. Marys, the OCPC grants its consent pursuant to s. 5(1)(6) of the PSA for the Town of St. Marys to contract with the SPS for policing services. The Town of St. Marys has provided a highly-detailed proposal in support of its request for approval.
At the outset, it should be made clear that the OCPC has no statutory role to play in relation to St. Marys’ decision to cease contracting with the OPP. Municipalities do not have to seek approval from the OCPC to contract with the OPP or terminate a contract. In any case, St. Marys indicates that it has given notice to the OPP that it is undertaking a review of alternate policing options and may not be renewing its current contract which is set to expire on December 31, 2017.
The St. Marys’ proposal sets out a detailed explanation of why it reviewed its existing policing model. The explanation provided significant background information for the OCPC on how St. Marys came to its decision and discussed its concerns about local service levels and needs. The proposal also sets out the various options considered in relation to provision of police services. For example, St. Marys has considered establishing its own police service. This said, decisions about
how to provide policing services in local communities are primarily decisions to be made by municipalities themselves and/or their respective PSBs. Except in extraordinary situations where the OCPC’s intervention is necessary pursuant to s. 9 or s. 23 or24 of the PSA, it is generally not appropriate or necessary for the OCPC to second-guess policy and fiscal choices made by municipalities and/or PSBs in accordance with their statutory roles under the PSA.
In the present case, the first issue to be considered is whether or not the OCPC has the authority to approve the St. Marys proposal. The language of s. 5(1) is clear in this regard. S.5(1)(1)-(5) set out a number of options for police services that municipalities may choose on their own without OCPC approval. S. 5(1)(6) allows municipalities to go with a different method of providing police services, provided the OCPC approves. Neither s. 5(1)(6) itself nor any other provision of the PSA or the regulations set out any restrictions or limits, whatsoever, on the “different methods” that may be approved pursuant to the subsection.
In the absence of any statutory or regulatory guidance for the OCPC in making a decision under s. 5(1)(6), the OCPC has considered whether or not, on its face, the St. Marys/Stratford proposal would violate the PSA or fail to constitute “adequate and effective” policing. The most important feature considered in this regard is the confirmation by St. Marys and the proposed contract police service, the SPS, that delivery of police services in St. Marys will be fully compliant with O. Reg. 3/99, Adequacy and Effectiveness of Police Services. Following the takeover of policing by the SPS, the SPS will obviously remain bound by all provisions of the
PSA and its regulations in relation to all of its activities, in both Stratford and St. Marys. This means that the SPS will continue to be subject to oversight by MCSCS and will have to maintain compliance at all times with O. Reg. 3/99 and all other applicable standards. The OCPC’s approval of the St. Marys proposal is contingent on this commitment to ongoing compliance with O. Reg. 3/99 by the SPS.
Given the lack of contiguity between St. Marys and Stratford, the proposal notes that “…there is a natural concern that responses to calls for service will be delayed”. The proposal goes on to indicate that St. Marys is currently served by an OPP detachment located 20.1 KM away from St. Marys, while the Stratford police headquarters is 20.3 KM away. The proposal further indicates that the SPS would have an officer stationed in St. Marys at all times, while the OPP does not necessarily have an officer in town at all times. St. Marys has clearly turned its mind to the issue of response time and considers policing by the SPS to provide for response times which are adequate.
The proposal makes note of public support for the initiative to contract with the SPS. The proposal indicates that a public meeting was held in January 2017 to discuss the contracting proposal. The proposal also indicates that councillors believe the change to be well-supported. The central point, from the perspective of the OCPC however, is that the decision on contracting with SPS is made by the St. Marys Town Council, the duly-elected representatives of the people of the Town. As noted previously, s. 4 of the PSA provides: “Every municipality to which this subsection applies shall provide adequate and effective police services in
accordance with its needs.” Broad decisions about how to provide policing services are clearly those of municipalities.
Finally, St. Marys’ proposal notes the financial risk of a significant policing event, such that St. Marys would be required to pay additional fees to the SPS. The decision that the financial risk is manageable is a decision that is solely and squarely within the ambit of the municipal government. The OCPC has no role to play in this regard and takes no position on the issue.
The OCPC notes that under the St. Marys proposal, a Community Policing Advisory Committee (CPAC) would be established. The CPAC would be established and appointed by St. Marys. The CPAC would meet monthly with the Chief of the SPS and would have a role akin to that of the current St. Marys’ Board under s. 10(9) of the PSA. Establishment of a CPAC would also be analogous to the appointment of an advisor under s. 6.1(2) of the PSA.
Under s. 6.1(2) of the PSA, a contiguous municipality contracting with a neighbouring police service would be entitled to appoint a person to advise the neighbouring board about objectives and priorities. The OCPC does not object to the proposal to create a CPAC, with the proviso that the principles in s. 6.1(3) and (4) should be applied when creating the CPAC, e.g., the term of office for members of the CPAC should not exceed the term of office of the council appointing the members.
Of greater significance, the document establishing terms of reference for the CPAC should be consistent with the PSA in
relation to restrictions on interference with day-to-day operations. For example, similar to s. 31(4) of the PSA, it should be made clear that the role of the CPAC is not to direct, or purport to direct, the chief of police with respect to specific operational decisions or day-to-day operations. Similar to s. 31(3), it should be made clear that the CPAC and individual members of the CPAC may not give orders or directions to other members of the SPS.
- The OCPC therefore approves the proposal put forth by St. Marys to adopt a different method of policing pursuant to s. 5(1)(6) of the PSA subject to the receipt by the OCPC of the final agreement between St. Marys and the City of Stratford/Stratford Police Service.
DATED at Toronto, this 13th day of April 2017.
D. Stephen Jovanovic
Associate Chair