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
ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER of an Application by the Corporation of the Municipality of West Nipissing pursuant to section 40 of the Police Services Act, R.S.O. 1990, c. P.15 for consent to abolish the West Nipissing Police Service.
Decision made by: D. Stephen Jovanovic Associate Chair
Application heard by way of written submissions.
DECISION
OVERVIEW
1The Corporation of the Municipality of West Nipissing (West Nipissing) has submitted an application to the Commission pursuant to section 40 of the Police Services Act (the PSA) for consent to abolish the West Nipissing Police Service (WNPS). If consent is granted, West Nipissing intends to enter into a contract to have the Ontario Provincial Police (OPP) provide its police services.
2The application is strenuously opposed by the West Nipissing Police Services Board, (WNPSB) which has brought an application in Divisional Court for judicial review seeking to quash by-law 2017/85 authorizing West Nipissing to proceed with the OPP proposal. The WNPSB alleged that in passing the by-law, the West Nipissing Council failed in complying with its duty of procedural fairness, was biased and acted in bad faith. Counsel for the parties were advised that the Commission would consider the application before it, subject to any court order the WNPSB obtained.
3On July 12, 2018 Justice A.D. Kurke of the Superior Court of Ontario granted a motion brought by the WNPSB for an order staying the implementation of the by-law until the final disposition of the application for judicial review. Justice Kurke wrote in his decision, “The OCPC is encouraged in the meantime to continue to conclusion its assessment and determination of the West Nipissing s. 40 application.”
4Under section 40 of the PSA the consent of the Commission is required where a police services board intends to terminate the employment of a member of a police force for the purpose of abolishing a police force. The consent will only be granted if the Commission is satisfied that the abolition does not otherwise contravene the PSA and if severance pay agreements have been reached with any member of the police force whose employment is being terminated. If no such agreement has been reached and if the parties have not agreed to refer the dispute to arbitration, the Commission may order the parties to submit to arbitration.
5Section 40 appears to contemplate that the application to the Commission will be made by the police services board. However, if the police services board declines to make the section 40 application, the municipality may do so instead. In Kenora Police Services Board v. Ontario Civilian Commission on Police Services, 2008 CanLII 51772 (ONSC), the court wrote the following:
A review of the powers and responsibilities of municipal councils and police services boards set out elsewhere in the legislation leads me to conclude that it is only council and not the board that has the authority to disband or dissolve a police service and to select an alternate method of police servicing for the community. This interpretation is also in accord with the legislative history of the legislation and the 1997 amendments which shift authority and responsibility for providing policing services to municipalities and away from police boards.
If municipal council has the exclusive power to choose the method of delivering police services to the community, then how could it not have sole jurisdiction to decide to reduce or abolish a police service if it decides to change the manner in which police services are to be provided? Viewed from a different perspective, it is legally inconsistent for a police services board to have jurisdiction to decide to disband when it plays no role in selecting the manner of service delivery.
6In light of the decisions of Justice Kurke and Kenora, the Commission is required to proceed to consider the application by West Nipissing, notwithstanding the position taken by the WNPSB.
BACKGROUND
7The current composition of the WNPS is as follows:
- The Chief of Police employed pursuant to a contract.
- One Inspector employed pursuant to the Senior Officers’ collective agreement.
- One administrative assistant employed pursuant to the civilian members’ collective agreement.
- Twenty full-time uniformed officers employed pursuant to the Uniform Officers’ collective agreement.
- Two full-time special constables, two full-time dispatchers and five part-time dispatchers employed pursuant to the civilian members’ collective agreement.
8It is not certain at this time how many of these individuals will be offered or accept employment with the OPP.
9West Nipissing began considering alternative methods of providing police services as far back as April 2012 when the municipal council adopted a resolution to request the Ministry of Community Safety and Correctional Services to provide a costing for policing by the OPP. A proposal was received by council in June 2013 but was rejected the same month after three public meetings to discuss the proposal were held.
10The process of obtaining costing with the OPP began again in October 2016 after a new billing model had been implemented by the OPP. A Contract Policing Proposal was delivered to the council by the OPP on November 14, 2017, the details of which will be reviewed later in this decision. The Executive Summary set out the following:
This contract will be for a defined number of contractual hours of service as represented by uniform Full Time Equivalent (FTE), plus civilian FTEs. It is based on hours of service and reflects the integrated service delivery model, whereby service can be provided from any detachment uniform position. The contract term will be 3+ years, meaning it will cover the remaining days and months in the year the contract takes effect, plus three calendar years thereafter. The contract is intended to be a transition contract after which time the municipality will be integrated into the OPP Billing Model. The OPP Billing Model is based on a municipality paying an amount equal to the sum of the municipality’s allocated portion of the OPP’s total municipal policing base and calls for service costs, and costs for overtime, cleaning/caretaking, accommodation, court security and offender transport as applicable. This proposal is based on the level of policing services required to provide adequate and effective policing as set out in Regulation 3/99 of the PSA, Adequacy and Effectiveness of Police Services.
11The resources in the chart below would be deployed from the Sudbury OPP detachment and a satellite detachment in West Nipissing. Section 10 of the PSA requires that West Nipissing maintain a police services board with the responsibilities enumerated in section 10(9). These include under 10(b) to “generally determine objectives and priorities for police services, after consultation with the detachment commander or his or her designate.” The board is also required to participate in the selection of the detachment commander and required to monitor his or her performance.
12West Nipissing took various steps to encourage public engagement in the consideration of the OPP proposal culminating with a public meeting on November 22, 2017. Representatives of West Nipissing, the OPP, the WNPSB and the Chief of Police made presentations and/or answered questions at this meeting, which was live streamed. Copies of the proposal were circulated at various municipal facilities and on social media. The Commission has been provided with summaries of the comments and concerns with the proposal made at the meeting.
13The proposal was debated at a council meeting held on December 5, 2017, at which time Mr. Bertrand, the Chair of the WNPSB, spoke against the proposal. At the conclusion of the meeting, in a six to two vote, council adopted a resolution authorizing by-law 2017/85 and accepting the proposal.
14The Commission may also hold a public meeting to receive submissions from municipal officials, police service board members, officers and civilian employees of the police force, representatives of police Associations, proponents and opponents of any proposal to change the method of policing. The current practice, however, is for the Commission not to hold a public meeting if it is satisfied that a proposal has been widely circulated and residents of the affected municipality have had sufficient opportunity to consider and debate the proposal. As the Commission was so satisfied in this matter, a further public meeting was not convened.
ANALYSIS
15The roles and responsibilities of the Commission, municipalities and police service boards are set out in the PSA, which provides in part the following:
4(1) Every municipality to which this subsection applies shall provide adequate and effective police services in accordance with its needs.
(2) Adequate and effective police services must include, at a minimum, all of the following police services:
- Crime prevention.
- Law enforcement.
- Assistance to victims of crime.
- Public order maintenance.
- Emergency response.
(3) In providing adequate and effective police services, a municipality shall be responsible for providing all the infrastructure and administration necessary for providing such services, including vehicles, boats, equipment, communication devices, buildings and supplies.
5(1) A municipality’s responsibility to provide police services shall be discharged in one of the following ways:
- 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.
16O. Reg. 3/99 under the PSA sets out in considerable detail the necessary services that must be provided so as to constitute adequate and effective police services.
17West Nipissing was amalgamated in 1999 taking in the incorporated towns of Sturgeon Falls, Verner, Cache Bay, Field, the Township of Springer as well as 17 formerly unincorporated areas. Prior to that amalgamation all of West Nipissing, except Sturgeon Falls, was policed by the OPP. The most recent population figure for West Nipissing was 14,364.
18The OPP has a number of detachments that to an extent surround West Nipissing. These include Sudbury, Temiskaming, North Bay, West Parry Sound and Manitoulin. West Nipissing will become one of the four zones covered from the Sudbury detachment. The chart below sets out the current complement of police officers and civilian employees of West Nipissing, the Sudbury OPP detachment, and what will become the integrated Sudbury detachment. The police to population ratio in West Nipissing is one uniformed officer for every 652.9 residents. The ratio of police to population under the proposal will be one uniformed officer to every 296.8 residents.
19The Facilities Section of the OPP conducted a Threat Risk Assessment of the current WNPS headquarters and found it unsuitable. The current OPP Sudbury detachment office will not have the capacity to accommodate the increased staff levels under the proposal. Accordingly, a new facility approximately 17,000 square feet in size will be built by West Nipissing, at its expense, in Cache Bay, which facility will become the new OPP Sudbury detachment.
20The services offered by the OPP to the residents of West Nipissing are set out in Schedule “A” attached to this decision. In reviewing the proposal for contract policing and with the Commission’s knowledge of the provision of OPP policing services to a large number of communities throughout Ontario, I am satisfied that adequate and effective police services will continue to be provided to the residents of West Nipissing under the proposal.
21The financial impact of contract policing with the OPP is a matter for the consideration of municipal officials rather than the Commission. Nevertheless, it would be useful for readers of this decision to have some understanding of the numbers involved. The rationale for contracting with the OPP by West Nipissing is an attempt to rein in the escalating costs of maintaining its municipal police force. The estimated annual policing costs should West Nipissing contract with the OPP, at least for the first year, would be $4,112,939.00, with initial costs for uniform, equipment and vehicles an additional $617,429.00 , for a total of $4,730,368.00. However, there will also be “facility” charges annually starting at $601,263.00 in 2018. According to the information provided by West Nipissing, it may not achieve any savings in costs until 2021.
22Once the Commission is satisfied that adequate and effective police services will be provided under a proposal and that there is no contravention otherwise of the PSA, the Commission must also be satisfied that appropriate severance agreements have been made or if not, that any dispute will be resolved by arbitration.
23As is typically the situation, it is not known at this time how many of the current employees of the WNPS will be offered, or will accept if offered, employment with the OPP. The Commissioner of the OPP reserves the right to review the suitability of any civilian or uniform employee of a municipal service prior to offering any individual a position. OPP Career Development Bureau staff will arrange information sessions to explain its process for determining eligibility to be hired.
24The information provided by West Nipissing to the Commission includes the following:
- Chief of Police employment contract, 2017-2019
- Senior Officers’ collective agreement, 2015-2019
- Uniform Officers’ collective agreement, 2011-2013 with memoranda of settlement for subsequent years
- Civilian employees’ collective agreement, 2011-2013 with memoranda of settlement for subsequent years.
25Each agreement contains provisions dealing with severance pay in the event the WNPS is disbanded. Accordingly, the conditions in section 40 dealing with agreements as to severance pay have been satisfied.
CONCLUSION
26Pursuant to section 40 of the PSA the Commission consents to the abolition of the West Nipissing Police Service in order to allow West Nipissing to enter into a contract with the Ministry of Community Safety and Correctional Services for the provision of police services by the OPP. West Nipissing is required to file a copy of the contract with the Commission immediately after its signing.
Released: August 29, 2018
D. Stephen Jovanovic
Schedule “A”