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 Town of Amherstburg to the Ontario Civilian Police Commission pursuant to section 5(1)(6) of the Police Services Act, R.S.O. 1990, c. P. 15 requesting the approval of the Commission to a Proposal to have the Town of Amherstburg’s policing services provided by the Windsor Police Service.
AND IN THE MATTER of an Application by the Town of Amherstburg Police Services Board requesting the consent of the Commission pursuant to section 40 of the PSA to the abolition of the Amherstburg Police Service.
DECISION
Panel: D. Stephen Jovanovic, Associate Chair
Maureen Helt, Member
Matthew Letourneau, Member
Appearances:
For the Town of Amherstburg: Aldo DiCarlo, Mayor of Amherstburg,
Giovanni (John) Miceli, CAO
For the City of Windsor: Drew Dilkens, Mayor of the City of Windsor,
Al Frederick, Chief of Windsor Police,
Pam Mizuno, Deputy Chief of Windsor Police
Place and Date: Amherstburg, Ontario
June 26, 2018
OVERVIEW
1The Corporation of the Town of Amherstburg (Amherstburg) has applied to the Commission for its approval under section 5(1)6 of the Police Services Act (the PSA) to a Proposal to have its police services provided by the City of Windsor Police Service (the WPS). The Amherstburg Police Services Board (the APSB) has applied to the Commission for its consent for the abolishment of the Amherstburg Police Service (the APS) as required by section 40 of the PSA.
2The Commission held a public meeting in Amherstburg on June 26, 2018 in morning, afternoon and evening sessions, to obtain submissions from the residents on the Proposal and the two applications. Representatives of Amherstburg, the City of Windsor and the WPS participated in the meeting to provide details of the Proposal and to respond to questions from members of the public.
3The Commission by way of a decision dated July 26, 2018 approved of and consented to the two applications and undertook to provide reasons within 30 days. These are those reasons.
BACKGROUND
4The application by Amherstburg was submitted to the Commission on March 8, 2018 and this background is taken in large part from the application and the supporting documents.
5The genesis of the application was a report prepared by Deloitte, an international professional services organization, which was retained to undertake a comprehensive Fiscal Management and Practices Review for the Amherstburg Council. One of the recommendations in the Deloitte report was that Amherstburg “look for shared services opportunities with neighbouring municipalities.” That led to a review by Council of how police services were provided.
6In March 2016, a Joint Police Advisory Committee (the JPAC) was formed to consider and evaluate any options available other than maintaining the existing police force. The members of the JPAC were: the Amherstburg Chief Administrative Officer, two members of the Council, two members of the APSB, the Chief of Police and the President of the Amherstburg Police Officers Association (the APOA). Michael Mitchell of MPM Consulting was retained to advise the JPAC.
7The JPAC, as authorized by the Council, prepared a Request for Proposal for Police Services (the RFP) and invited the adjoining town of LaSalle, the City of Windsor and the Ontario Provincial Police to submit proposals. The RFP closed in October 2017 with only Windsor through the WPS submitting a response.
8The WPS Proposal was subsequently reviewed by the JPAC which then made the recommendation that it be accepted. The financial section of the JPAC report and recommendation set out the following:
The estimated annual average operating savings that will be realized should the Town move forward with the contracting of Windsor Police Service is estimated by the Town to be $567,802.00 per year including one-time start-up costs or $2,839,010.00 over 5 years.
The WPS proposal assumes Amherstburg Police Service staff and the post retirement benefit costs with those staff members on a prorated basis depending on years of service. The post retirement savings (The proposal submitted by Windsor offers the Town of Amherstburg a cost avoidance opportunity due to the fact that all APS would be offered the opportunity to transition to employment with the WPS for employee benefits) are estimated to be in the range of $2,800,000.00 to $3,900,000.00.
9Amherstburg held four public consultation meetings in January 2018 to discuss the Proposal. It appears from a review of the transcripts of the meetings that there was very little support expressed for the Proposal and instead a considerable amount of opposition was voiced.
10Similarly, during the Commission’s public meeting the vast majority of citizens spoke against adopting the Proposal, despite the presentations made by Mayor DiCarlo, CAO John Miceli, Mayor Dilkens, Chief Frederick, Deputy Chief Mizuno and others in favour of the Proposal. The reasons for the opposition will be detailed below.
11The Proposal would require Amherstburg to enter into a contract with Windsor for the provision of police services with four terms of five years each and the ability of either party to withdraw from the contract upon 18 months’ notice.
THE LAW
12The PSA sets out the requirements for the provision of police services in the province. Section 4(1) imposes on a municipality the obligation to provide “adequate and effective police services in accordance with its needs.” This obligation may be fulfilled in a number of ways as set out in section 5.
13Adequate and effective policing requires the provision of necessary staff, administration, equipment infrastructure and facilities to perform, at a minimum, the following police services: crime prevention; law enforcement; assistance to victims of crime; public order maintenance and; emergency response.
14The requirements for all of these police services are detailed in O.Reg 3/99 under the PSA. For example, section 12(1) of the regulation dealing with law enforcement reads as follows:
Every Chief of Police shall develop and maintain procedures for undertaking and managing general criminal investigations and investigations into,
(a) physical and sexual abuse of children;
(b) child pornography;
(c) criminal harassment;
(d) domestic occurrences;
(e) drug-related offences other than simple possession;
(f) elder abuse and vulnerable adult abuse;
(g) fraud and false pretenses
(h) hate or bias motivated crime and hate propaganda;
(i) homicides and attempted homicides;
(j) found human remains;
(k) illegal gaming;
(l) missing persons;
(m) parental and non-parental abductions;
(n) offences involving firearms;
(o) proceeds of crime;
(p) property offences, including break and enter;
(q) robberies
(r) sexual assaults;
(s) stolen or smuggled firearms;
(t) vehicle thefts;
(u) youth crime; and
(v) other types of crime designated by the Solicitor General.
15The primary responsibility for providing adequate and effective police services rests with municipalities, which responsibility shall be discharged as set out in section 5(1) of the PSA. Municipalities typically establish their own police force, contract with the OPP, amalgamate police forces with another municipality or contract for those services with a contiguous municipality. Any other method not specifically set out in section 5(1) requires the consent of the Commission, but the responsibility as to how the services will be provided always remains with the municipality.
16As Windsor and Amherstburg are not contiguous municipalities, the Commission’s consent to the Proposal is required under section 5(1)6 of the PSA. The Commission gave such a consent in an application by the town of St. Mary’s to have its police services provided by the town of Stratford in a decision reported at 2017 CanLII 22720 (ONCPC). However, that situation was vastly different from what has been proposed by Amherstburg and Windsor and is not a particularly useful precedent.
ANALYSIS
The Proposal
17According to representatives of Amherstburg, the RFP was designed to ensure to the extent possible that there would be little to no disruption to how police services were being provided to the residents by the APS. In our view, the Proposal is consistent with the intention of that design. Briefly, the highlights can be summarized as follows:
All members of the APS employed as of January 1, 2019 will be offered employment contracts with the WPS, with no loss of pay or benefits.
The APS headquarters will continue as such with no change to the business hours.
All members of the APS may elect to remain stationed in Amherstburg for the duration of their careers.
All members of the APS may elect to participate in the promotional process or transfer employment opportunities with the WPS.
The current platoon system and zone structure for policing in Amherstburg will be maintained.
A representative of Amherstburg selected by Council will be appointed to the Windsor Police Services Board (the WPSB).
A Staff Sergeant will oversee policing in Amherstburg and will attend all Council meetings.
WPS will enforce by-laws in Amherstburg.
The contract will contain detailed dispute resolution mechanisms.
18The current structure of the APS includes the following:
A Chief and Deputy Chief of Police.
One Operations Sergeant.
A uniform patrol consisting of 16 constables and four sergeants.
Three constables in the traffic branch.
A senior constable.
Nine auxillary officers and one auxillary sergeant.
Two detective constables and one detective sergeant assigned to criminal investigations.
One special constable.
Two civilian support personnel.
19The uniform patrol is the largest contingent of officers within the APS. Their primary responsibilities include responding to calls for service; investigating motor vehicle collisions; preserving the peace; laying charges and participating in their prosecutions; enforcing municipal by-laws and; other duties as assigned. APS officers have the expertise to carry out the following responsibilities and roles:
Forensic identification;
Scene of crime officers;
Sexual assault investigation;
Collision reconstruction;
Technical traffic collision investigation;
Coaching officers;
Domestic violence officers;
Drug investigations;
Fraud investigations;
Major case management officer;
Intoxilyzer operators;
Marine unit officers.
Bicycle patrol officer/ATV;
Patrol officer/motorcycle;
Pistol, shotgun and carbine instructor;
Use of force trainer;
Arson investigations and;
Trained incident commander.
20The WPS Proposal maintains all of these services and provides enhancements such as K9 support; emergency response (tactical) support; explosives disposal; a state of the art Records Management System (RMS) and; Computer Aided Dispatch (CAD) system linked to in-car laptop computers and handheld smartphone applications for all officers. A full list of services included in the Proposal is attached to this decision as Schedule A.
21In past decisions, the Commission has articulated different tests to be used when considering whether a change in a municipality’s method of providing police services ensures the continuation of adequate and effective services. In Re Municipality of Chatham-Kent (14 August, 1998) the Commission wrote the following:
Broadly those tests have been comparative or alternative. The comparative test may be applied historically or geographically. Where it is applied historically the current proposed staffing level is compared to that which the municipality has received in the past. If the past staffing levels were considered adequate, the proposed or current level is normally presumed to be adequate and effective.
When the comparative test is applied geographically, the proposed or current staffing level is measured against those found in communities of similar size or needs. If the levels are considered adequate in those communities, a similar level proposed is generally presumed to be adequate and effective. These presumptions are by definition rebuttable.
22In our view, applying the comparative test historically is most appropriate. The WPS Proposal is a testament to the sophistication and complexity of modern day policing. The residents of Amherstburg will continue to enjoy the provision of adequate and effective policing, only at an enhanced level. There will be essentially no reduction in staffing, although there will no longer be the Chief and Deputy Chief positions.
23Having so found, it is nevertheless incumbent on us to consider the concerns voiced by members of the public both at the four meetings held before the applications were made to the Commission and at the meeting held on June 26, 2018.
The Public Meetings
24Thirteen individuals responded to the Notice of the meeting before the Commission requesting the opportunity of making submissions. During the course of the three sessions a number of other individuals also had the opportunity of speaking in favour of or against the Proposal. Most spoke against. The principal concerns raised by the residents are dealt with under the headings that follow.
The town Council should hold a referendum on the Proposal.
25Whatever the merits of a referendum, the Commission has no authority to order that one be held. The roles of Amherstburg, the APSB and the Commission in policing generally are defined in the PSA, with the primary responsibility resting with Amherstburg. It is up to the Council members to gauge public sentiment and respond accordingly.
The vote by Council
26A number of speakers expressed concerns in the makeup of the town Council when voting to proceed with the WPS Proposal. Some councillors declined to vote after declaring conflicts, resulting in a vote that was 2 in favour and 2 against with Mayor DiCarlo then casting the deciding vote in favour of the Proposal. Once again, the Commission does not have the authority to challenge resolutions or motions of a municipal council. Such challenges may only be brought in a different forum.
Proposals should have been received from the town of LaSalle and the Ontario Provincial Police
27A number of speakers questioned why the town of LaSalle or the Ontario Provincial Police did not submit proposals. However, no speakers actually expressed a preference for either alternative police service. The clear preference expressed was for maintaining the APS, fully under local control, as is. We can only review the Proposal submitted and the resulting applications to the Commission. LaSalle and the OPP obviously had their own reasons for not submitting proposals, reasons upon which we cannot comment.
Loss of local autonomy
28At all of the public meetings, there was overwhelming opposition to the Proposal and near universal support to maintaining the APS, its local command structure and in particular the officers working in Amherstburg. Concerns were expressed that over time, the local officers would be replaced by officers from Windsor, many of who in fact reside in Amherstburg. Submissions were made to the effect that the two municipalities have very different needs and wants in their police services that cannot be reconciled.
29While it is the responsibility of locally elected members of Council to decide how police services are to be provided, it is worth noting that the RFP and the Proposal have addressed many of these concerns. Each current officer has the option of staying in Amherstburg for the balance of his or her career. Attrition will no doubt take place in the future but there is every reason to expect that future officers working in Amherstburg will enjoy the same respect as the current officers.
30A legitimate concern expressed by residents is the loss of the APSB. Section 31 of the PSA sets out the responsibilities of police service boards. Two of the purposes of the section are to bring about an enhanced level of interaction between the police and the community and to make police services reflective of the community they serve.
31The Proposal, as refined during the course of discussions between Amherstburg and Windsor representatives, will require that the Mayor of Amherstburg or a duly qualified person appointed by the Council, serve as a member of the Windsor Police Services Board (the WPSB). While perhaps not ideal in terms of local control, this appointment will give Amherstburg residents a voice in decisions that will be made about policing in the community.
The Commission’s investigation of the WPS and the WPSB
32From January to April 2018, the Commission received a number of complaints from members of the WPS about the workplace environment, the WPS administration and the oversight provided by the WPSB. On May 4, 2018, the Commission on its own motion decided to conduct an investigation under sections 25(1)(a)(b) of the PSA into a number of the practices of the WPS and the WPSB. Questions were raised at the public meeting about the wisdom of Amherstburg contracting with Windsor while the investigation was ongoing.
33The Commission maintains a strict separation between its adjudicative and investigative functions. Accordingly the members of this panel of the Commission deciding these applications do not have any information as to the scope of the investigation other than the Terms of Reference for the investigation released on May 4, 2018.
34Section 25 investigations are generally kept confidential to the extent necessary to allow for a thorough inquiry into the underlying concerns. However, in this matter, Chief Frederick decided before the Commission’s public meeting to make the fact of the investigation public for the purpose of transparency and full disclosure. Chief Frederick then briefly addressed the investigation but without any specifics, which under the circumstances was the correct approach to take at the meeting. He noted that the Terms of Reference for the investigation did not include section 25(c) (the manner in which police services are provided for a municipality) or section 25(d) (the police needs of a municipality).
35In our view, it is not so easy to draw a line of demarcation between the various sub-sections as Chief Frederick suggests. The “administration of a municipal police force” under sub-section 25 (1)(b) is as important as any other sub-section.
36However, the fact of an investigation does not automatically foreclose our approval of the Proposal. Realistically, the WPS continues to provide policing services to the residents of Windsor on a 24/7 basis. Individual complaints will be dealt with during the course of the investigation which may result in a consent resolution or charges under the PSA which will need to be adjudicated. There is no information before us that suggests the WPS is not currently capable of providing adequate and effective police services to the residents of Amherstburg.
Financial considerations
37Calculating the exact amount of financial savings to Amherstburg remains somewhat elusive, as is often the situation when dealing with budgets and projections. The annual savings figures contained in the materials we have been presented, range from $567,800.00 to $850,881.00. The actual savings for a resident in taxes would be approximately $67.00. As referenced earlier, the Proposal requires Windsor to assume post-retirement benefits costs with the projected savings to Amherstburg, as actuarially confirmed, in the range of $2,800,000.00 to $3,900,000.00. Surprisingly, very few of the residents who made submissions at the various five public meetings were impressed with the savings estimates. The majority would rather forego any savings and maintain the APS.
38At least one speaker questioned Windsor’s rationale for submitting a Proposal which seems to favour Amherstburg financially rather than Windsor. Mayor Dilkens explained that Windsor expected to achieve certain economies of scale and efficiencies that would make the Proposal advantageous to Windsor over time. Our role is not to second-guess the financial cost projections made by Amherstburg or by Windsor. That is the responsibility of the elected representatives of both municipalities.
Windsor and Amherstburg are non-contiguous municipalities
39Some residents expressed concerns about the possibility of police vehicles speeding from Windsor through LaSalle as they responded to emergencies in Amherstburg. This concern is belied by the realities of the Proposal. The virtually identical police services will be provided by the same number of officers from the same police headquarters in Amherstburg. There might be a rare event in Amherstburg that requires additional police resources from Windsor, but that rare event would require the same resources and possibly others such as the O.P.P. if it occurred when the APS existed on its own. Local municipal police forces are often required to assist each other in times of emergencies. There is no reason to believe that if such assistance is required in Amherstburg officers from the WPS will not respond responsibly.
The February 2000 decision of the Ontario Civilian Commission on Police Services.
40On July 28, 2018 a resident of Amherstburg wrote to the Commission asking if it had ever approved the reduction of patrol zones in Amherstburg from three to two. Her concern stemmed from a February 2000 decision of the predecessor of the Commission, then the OCCPS. In that decision, approval was given to the disbandment of the Anderdon and Amherstburg Police Services in favour of a new unified Amherstburg Police Service. The decision also provided that “The proposal as submitted will be implemented without amendment or alteration without the express written consent of the Commission.” In 2010, the patrol zones were reduced from the three at the time of the OCCPS decision to the two that exist to date.
41In our view, the February 2000 decision was not intended to create a static police service with any changes requiring Commission consent. The proposal that was the subject of that decision was implemented as submitted. No future consent of the Commission was required to create a different zone structure ten years later. Even if consent were required, this decision would constitute that consent.
SECTION 40 of the POLICE SERVICES ACT.
42Section 40 of the PSA requires the consent of the Commission when a police services board proposes to terminate the employment of a member of a police force for the purpose of abolishing the police force. The Commission may consent to the termination if the abolition does not otherwise contravene the PSA and if severance agreements are in place. If no severance agreements are in place and if the affected members of the police force have not agreed to submit the issue of severance pay to binding arbitration then the Commission will typically order that the issue be referred to arbitration.
43Collective agreements with members of a police service generally contain provisions as to severance pay. Likewise, contracts for a Chief and a Deputy Chief of Police contain provisions as to severance pay.
44Once we are satisfied that adequate and effective police services will be maintained by Amherstburg contracting with Windsor for the provision of its police services and that the abolition of the APS does not contravene the PSA, there is no reason to withhold consent to that abolition, subject to the severance pay issue.
45Accordingly, as set out in our preliminary decision dated July 26, 2018, and as modified herein, the Commission consents to the Application by Amherstburg under section 5(1)6 of the PSA to enter into a contract with Windsor for the provision of police services and consents to the abolition of the APS under section 40 of the PSA subject to the following conditions:
a. Amherstburg must deliver to the Commission a signed copy of the contract with the City of Windsor which substantially implements the Proposal.
b. The receipt by the Commission of written confirmation from the APSB that an agreement as to severance pay has been made with any member of the APS whose employment is terminated as a result of the abolition. Failing such an agreement, the APSB must provide written confirmation to the Commission that an agreement has been made with such members that any severance pay dispute will be referred to arbitration. If no such agreements are made within 90 days of today’s date the Commission will order that all remaining severance pay disputes will be referred to arbitration.
Dated August 27, 2018
D. Stephen Jovanovic Maureen Helt Matthew Letourneau
Schedule “A”