ONTARIO CIVILIAN POLICE COMMISSION
Safety, Licensing Appeals and Standards Tribunals Ontario
COMMISSION CIVILE DE L’ONTARIO SUR LA POLICE
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
In the Matter of Thunder Bay Police Services Board under section 24 of the Police Services Act, R.S.O. 1990, c. P.15
ORDER
Order made by: Linda P. Lamoureux, Executive Chair
File: 17-FIL-029
Case Name: Thunder Bay Police Services Board (Re)
A. Overview:
On May 29, 2017, First Nations leaders from Rainy River First Nation, Grand Council Treaty #3 and Nishnawbe Aski Nation made a request, pursuant to subsection 25(1) of the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”), that the Ontario Civilian Police Commission (“Commission”) exercise its powers to investigate what they characterized as the Thunder Bay Police Services Board’s (“Board”) “shocking administrative failures” in addressing the “blanket denial of the concerns of Indigenous communities”.
In response to their request, on July 21, 2017, the Commission exercised its discretion to conduct an investigation into:
- The Board’s performance in carrying out its responsibilities pursuant to s.31(1)of the PSA to ensure the provision of “adequate and effective” police services in Thunder Bay;
- The Board’s role in determining “objectives and priorities with respect to police services” in Thunder Bay, pursuant to s.31(1)(b) of the PSA;
- The Board’s role in establishing policies for the effective management of the Thunder Bay Police Service (“Service”), pursuant to s.31(1)(c) of the PSA; and
- The Board’s role in ensuring that police services provided in Thunder Bay are provided in accordance with the Declaration of Principles set out in section 1 of the PSA
- Based on evidence obtained during the course of the investigation, as summarized in this Order and explained in depth in the Commission’s investigative report1, I am of the opinion that the Board’s repeated failures to address the concerns of the Indigenous community constitute an emergency and that the appointment of an administrator to perform specified functions with respect to police matters, pursuant to subsections 23(1) and 24(1) of the PSA, is necessary in the public interest.
B. Provision and Oversight of Municipal Police Services:
The role of municipalities
Ontario municipalities are required to provide adequate and effective police services in accordance with their needs2, including all the infrastructure and administration necessary for providing such services.3 A municipality which elects to discharge this duty by maintaining a police force pursuant to subsection 5(1) of the PSA is also required to establish a police services board.4
A municipal council is required to establish the police services board’s overall budget, including the amounts that will be required to maintain the police force and provide it with equipment and facilities, and to pay the expenses of the board’s operation other than the remuneration of board members.5
The role of police services boards
Police services boards are responsible for the provision of adequate and effective police services in the municipality. Two significant aspects of this mandate are police services boards’ responsibilities to provide administrative guidance to the police force and their public oversight role.
With respect to the police force, police services boards’ responsibilities include working with the chief of police to establish priorities, objectives, and policies for policing in their communities, as well as monitoring police performance and leadership, specifically by directing and monitoring the performance of the chief. Police services boards are also responsible for submitting operating and capital estimates to municipal council.6
Police services boards’ public oversight role includes establishing guidelines for dealing with public complaints under Part V of the PSA and reviewing the chief’s administration of the public complaints system.7 Police services boards also review complaints related to the conduct of the chief or deputy chief, and hold hearings into their conduct.8 More broadly, as independent civilian oversight bodies, police services boards are required to account for and address broader systemic and societal problems. Consequently, police services boards have a positive duty obligation to combat systemic or prevalent racism within their respective police force.9
Role of the Commission
The Commission is an independent agency of the Ontario Government and has a variety of responsibilities in relation to civilian oversight of policing. It oversees the performance of police services boards and board members to ensure that they discharge their statutory duties, as well as comply with the Board Members’ Code of Conduct.10
Under subsection 25(1)(a) of the PSA, the Commission may investigate, inquire into and report on the conduct or the performance of duties of a police services board member.
Under subsection 23(1), the Commission may appoint an administrator to perform specified functions with respect to police matters in the municipality for a specified period, if it is of the opinion that a board has flagrantly or repeatedly failed to comply with prescribed standards of police services after holding a hearing.
Under subsection 24(1), the Commission may make an interim order under subsection 23(1) without notice and without holding a hearing, if it is of the opinion that an emergency exists and such an order is necessary in the public interest.
C. Findings of the Investigation:
Numerous interviews with both Indigenous and non-Indigenous people, analyses of Thunder Bay’s media coverage and statistics on rates of violent and race-based crime, and numerous previous studies and reports clearly demonstrate the prevalence of racist attitudes in Thunder Bay. The Service is not exempt from racist attitudes and, as a result, the Indigenous community has lost its confidence in the ability and, in many cases, the commitment of the Service to protect them.
The Service’s failure to address systemic racism problems can be traced back to an absence of leadership from the Board. The Board has failed to recognize and address systemic discrimination against the Indigenous community and the distrust between the Indigenous community and the Service. Instead, it has adopted and reflects the Service’s unwillingness to acknowledge the existence of acts of racism and systemic discrimination.
The Board has failed to meaningfully engage in strategic and operational planning, unquestioningly relying on input from the chief and police staff. The Board has also failed to meaningfully engage in the development of governance and oversight policies, adopting, without modification or regard to the specific policing needs of Thunder Bay, the standard policy templates developed by the Ministry of Community Safety and Correctional Services.
The Board has also failed to show leadership by proactively seeking the input of the Indigenous communities, organizations, or policing agencies, or making efforts to make its policies, plans, and activities visible and transparent.
D. Analysis:
I accept the above findings.
In my opinion, the Board has failed to discharge its duties towards the Service and the public alike. It has failed to provide administrative guidance to the Service. It has lost the capacity and credibility necessary for it to fulfill its public oversight role.
These recent failures follow years, if not decades, of escalating distrust between the Indigenous community and the Service, during which time, the repeated expressions of distrust by the Indigenous communities of Thunder Bay have been continually dismissed. Because of this history of inattention, the problems of racism and systemic discrimination constitute an emergency situation that requires urgent redress.
Although the current Board has perpetuated the conditions which gave rise to this emergency, I am of the opinion that holding a hearing in order to suspend or remove from office one or more members of the Board, or the whole Board, would not serve the public interest for two reasons:
As the issues of systemic racism have existed for decades, it would not be just or productive to lay their consequences solely at the feet of the current Board by penalizing the sitting Board members;
The Board has recently undergone a significant turnover. As a result, it is not necessary to hold hearings to determine whether any or all of the Board members should be suspended or removed from office. This remedy can be pursued in the future if any of these Board members are reappointed.
The upcoming turnover also presents an opportunity for the incoming Board members to receive training and the Board’s policies to be reviewed in order to assist the Board to fulfill its responsibilities towards the Service and the public. It is essential that the incoming Board members receive training and the Board’s policies be reviewed as soon as possible. It is also essential that the Board continue to function during this transition period.
The provision of effective and adequate police services in accordance with a municipality’s needs is essential to municipal governance and safety. As a result, all members of the Thunder Bay community, including members of the Service, will benefit from improved civilian oversight.
Based on the above, I am of the opinion that the Board’s repeated failures to address the concerns of the Indigenous community constitute an emergency, and that the appointment of an administrator to perform specified functions with respect to police matters pursuant to subsections 23(1) and 24(1) of the PSA is necessary in the public interest.
F. Conclusion:
Pursuant to subsections 23(1) and 24(1) of the PSA, the Commission will appoint an Administrator for the initial term of one year, reserving to itself the power to extend the term, if necessary.
The Administrator should possess, at a minimum, the following attributes:
The Administrator should not be a person who has a vested interest in the current situation and can be seen to be free from bias insofar as policing in Thunder Bay is concerned.
There should be no possible suggestion that the Administrator is part of the “history” of the Board;
The Administrator’s function is to be limited in time and scope and is one of organization, oversight and education;
The Administrator is to be knowledgeable in police service board matters generally;
The Administrator should also be knowledgeable in board governance matters generally;
The Administrator should be legally trained so that he or she can preside over meetings of the Board and the subcommittee thereof and guide the Board with respect to the various legal challenges currently facing it;
The Administrator should be a person who will either have or who could gain the respect of both the Indigenous and non-Indigenous community;
The Administrator should be a consensus builder.
Pursuant to subsection 23(5) of the PSA, the Administrator will have all the powers necessary to perform the following functions:
Until Board members have completed their training and are eligible to vote, the Administrator shall preside over all regularly scheduled and special meetings of the Board, including the in-camera portions. The Administrator shall also attend and preside over all sub-committee meetings. The Administrator shall have the sole vote.
Design a suitable training strategy and package for all board members consistent with the recommendations made herein, particularly those set out in Part III 3.9 of the Commission’s investigative report11. The Administrator will secure resources for its design and delivery. The Administrator will ensure that all Board members receive this training. The Administrator (and, in the future, the Chair) will certify, in writing, that the training is complete.
When some, but not all, of the members have completed their training and are, consequently, eligible to vote, the Administrator shall continue to preside over all regularly scheduled and special meetings of the Board, including the in-camera portions. The Administrator shall also continue to attend and preside over all sub-committee meetings.
The Administrator shall have one vote, except in the case of a tie when the Administrator shall have an additional deciding vote.
When all board members have completed their training and are, consequently, eligible to vote the Administrator shall attend, either in person or by conference call or video conference, all regularly scheduled and special meetings of the Board, including all in-camera portions. The Administrator shall, in the same manner, attend all sub-committee meetings. The Administrator shall have a single vote.
On his or her own initiative or upon request from any member of the Board, the Administrator shall provide advice to the Board and/or individual members, where appropriate, about inter alia: Board processes including, but not limited to issues such as the recording of votes, taking of minutes, scheduling agenda items, delegation of authority and composition of subcommittees.
Achieve and maintain compliance with the PSA and any applicable regulations made pursuant to the PSA;
Establish a suitable policy framework for the ongoing governance of the Board and review and update as necessary a protocol for its relations with the Service, Thunder Bay City Council and other organizations;
Have full power and authority to make any changes he or she sees fit to the Board processes to enhance governance over itself or the Service;
Make recommendations to the Executive Chair of the Commission on the Board’s composition, including the power to suspend any or all of its Members;
Work with the Board to engage the public in discussion about the Board and its role; and
Advise the Executive Chair about the need to vary or cancel any Order made in response to changing circumstances and in consultation with the Board.
Report on a quarterly basis to the Executive Chair.
ORDER:
Further to the above and pursuant to subsections 23(1) and 24(1) of the PSA, I order that an Administrator be appointed to carry out the terms of this Order.
I hereby appoint Thomas J. Lockwood, Q.C. to be the Administrator. Mr. Lockwood is a well-respected lawyer. He was selected due to his significant experience in relation to the justice system, policing and public law. In my opinion he has the attributes set out in paragraph 25 hereof.
The Administrator shall be given full power and authority to fulfill his or her mandate and functions and shall have unimpeded access to any and all of the Board’s past and current records as the Administrator may specify for the purpose of this Order.
The Administrator shall be appointed effective 14 December 2018 until 14 December 2019.
Date of Issue: December 14, 2018
Linda P. Lamoureux, Executive Chair
Available in French
Footnotes
- Ontario Civilian Police Commission, Thunder Bay Police Services Board Investigation – FINAL REPORT (December 14, 2018), online: Ontario Civilian Police Commission https://slasto-tsapno.gov.on.ca/ocpc-ccop/en/investigative-division/reports/.
- Police Services Act, R.S.O. 1990, c. P.15, s. 4(1).
- Police Services Act, s. 4(3).
- Police Services Act, s. 27(1).
- Police Services Act, ss. 39(1) and (3).
- Police Services Act, ss. 31(1) and (5).
- Police Services Act, s. 31(1).
- Police Services Act, ss. 69(1) and (8).
- Odhavji Estate v. Woodhouse, 2003 SCC 69, at para. 66.
- Members of Police Services Boards—Code of Conduct, O. Reg. 421/97.
- Thunder Bay Police Services Board Investigation – FINAL REPORT.