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O. Reg. 400/23: COLLECTION OF IDENTIFYING INFORMATION IN CERTAIN CIRCUMSTANCES - PROHIBITION AND DUTIES

under Community Safety and Policing Act, 2019, S.O. 2019, c. 1, Sched. 1

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current December 18, 2023 (e-Laws currency date)

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Community Safety and Policing Act, 2019

ONTARIO REGULATION 400/23

COLLECTION OF IDENTIFYING INFORMATION IN CERTAIN CIRCUMSTANCES — PROHIBITION AND DUTIES

Consolidation Period: From December 18, 2023 to the e-Laws currency date.

Note: THIS REGULATION IS NOT YET IN FORCE. It comes into force on April 1, 2024, the day subsection 2 (1) of Schedule 1 (Community Safety and Policing Act, 2019) to the Comprehensive Ontario Police Services Act, 2019 comes into force.

No amendments.

This is the English version of a bilingual regulation.

CONTENTS

PART I
INTERPRETATION AND APPLICATION

1.

Definition

2.

Application — attempts to collect

3.

Application — information collected

4.

Non-application — person appointed under the Interprovincial Policing Act, 2009

5.

Interpretation — attempt to collect identifying information

PART II
PROHIBITION — CERTAIN COLLECTIONS OF INFORMATION

6.

Limitations on collection of certain information

PART III
DUTIES RELATING TO COLLECTIONS OF INFORMATION

Police Officer Duties

7.

Duties to inform before attempting to collect information

8.

Document for individual

9.

Police officer must record reason and other information

Inclusion of Collected Information in Police Databases

10.

Collected information in police databases

Restrictions on Performance Targets

11.

Performance targets not to be used in evaluating work performance

PART IV
OTHER MATTERS

Training

12.

Chiefs of police must ensure training

Policies and Procedures

13.

Boards and Minister must develop policies

14.

Chiefs of police must develop procedures

Reports

15.

Annual reports

16.

Chiefs of police must review practices and report

 

Part I
Interpretation And Application

Definition

1. In this Regulation,

“predecessor regulation” means Ontario Regulation 58/16 (Collection of Identifying Information in Certain Circumstances - Prohibition and Duties) made under the Police Services Act, as it read immediately before its revocation.

Application — attempts to collect

2. (1) This Regulation applies with respect to an attempt by a police officer to collect identifying information about an individual from the individual, if that attempt is done for the purpose of,

(a) inquiring into offences that have been or might be committed;

(b) inquiring into suspicious activities to detect offences; or

(c) gathering information for intelligence purposes.

(2) Despite subsection (1), this Regulation does not apply with respect to an attempted collection made by a police officer for the purpose of investigating an offence the officer reasonably suspects has been or will be committed.

(3) Despite subsection (1), this Regulation does not apply with respect to an attempt by a police officer to collect identifying information from an individual if,

(a) the individual is legally required to provide the information to a police officer;

(b) the individual is under arrest or is being detained;

(c) the officer is engaged in a covert operation;

(d) the officer is executing a warrant, acting pursuant to a court order or performing related duties; or

(e) the individual from whom the officer attempts to collect information is employed in the administration of justice or is carrying out duties or providing services that are otherwise relevant to the carrying out of the officer’s duties.

Application — information collected

3. (1) Subject to subsection (2), this Regulation applies with respect to identifying information collected by a police officer on or after the day this Regulation comes into force as a result of an attempt to collect to which this Regulation applies.

(2) This Regulation applies with respect to identifying information collected by a police officer before the day this Regulation came into force in accordance with the following:

1. Sections 10, 11, 13 and 14 apply with respect to identifying information collected on or after January 1, 2017.

2. Paragraph 5 of subsection 13 (1) and section 14, as it relates to that paragraph, additionally apply with respect to identifying information collected before January 1, 2017.

Non-application — person appointed under the Interprovincial Policing Act, 2009

4. This Regulation does not apply with respect to attempts to collect information by a person appointed as a police officer under the Interprovincial Policing Act, 2009 or with respect to information collected by such a person.

Interpretation — attempt to collect identifying information

5. For the purposes of this Regulation, an attempt to collect identifying information about an individual from the individual means an attempt to collect identifying information by asking the individual, in a face-to-face encounter, to identify themselves or to provide information for the purpose of identifying the individual, and includes such an attempt whether or not identifying information is collected.

Part II
Prohibition — Certain Collections Of INformation

Limitations on collection of certain information

6. (1) A police officer shall not attempt to collect identifying information about an individual from the individual if,

(a) any part of the reason for the attempted collection is that the officer perceives the individual to be within a particular racialized group unless,

(i) the officer is seeking a particular individual,

(ii) being within the racialized group forms part of a description of the particular individual or is evident from a visual representation of the particular individual, and

(iii) the officer has additional information, in addition to information about the particular individual being in a racialized group, that may help to identify the individual or narrow the description of the individual; or

(b) the attempted collection is done in an arbitrary way.

(2) Without limiting what might constitute the additional information required under subclause (1) (a) (iii), such information may consist of information about,

(a) the appearance of the individual, including information about the individual’s clothing, height, weight, eye colour, hair colour or hair style;

(b) the location where the individual might be found;

(c) the type of vehicle the individual might be found in;

(d) the associates the individual might be found with; or

(e) the behaviour of the individual.

(3) The additional information required under subclause (1) (a) (iii) may not consist solely of one or more of the individual’s sex, gender or approximate age.

(4) For the purpose of clause (1) (b), an attempted collection by a police officer from an individual is done in an arbitrary way unless the officer has a reason that the officer can articulate that complies with all of the following:

1. The reason includes details about the individual that cause the officer to reasonably suspect that identifying the individual may contribute to or assist in an inquiry described in clause 2 (1) (a) or (b) or the gathering of information described in clause 2 (1) (c).

2. The reason does not include either of the following:

i. that the individual has declined to answer a question from the officer which the individual is not legally required to answer, or

ii. that the individual has attempted or is attempting to discontinue interaction with the officer in circumstances in which the individual has the legal right to do so.

3. The reason is not only that the individual is present in a high crime location.

Part III
Duties Relating to Collections of Information

Police Officer Duties

Duties to inform before attempting to collect information

7. (1) A police officer shall not attempt to collect identifying information about an individual from the individual unless the officer, in accordance with the procedures developed under section 14,

(a) has informed the individual that the individual is not required to provide identifying information to the officer; and

(b) has informed the individual why the officer is attempting to collect identifying information about the individual.

(2) A police officer is not required to inform the individual under clause (1) (a) or (b) if the officer has a reason to believe that informing the individual under that clause might compromise the safety of an individual.

(3) A police officer is not required to inform the individual under clause (1) (b) if the officer has a reason to believe that informing the individual under that clause,

(a) would likely compromise an ongoing police investigation;

(b) might allow a confidential informant to be identified; or

(c) might disclose the identity of a person contrary to the law, including disclose the identity of a young person contrary to the Youth Criminal Justice Act (Canada).

(4) A reason required under subsection (2) or (3) must be a reason the police officer can articulate and must include details relating to the particular circumstances.

Document for individual

8. (1) A police officer who attempts to collect identifying information about an individual from the individual shall,

(a) offer to give the individual a document that provides a record of the attempt; and

(b) give the individual such a document if the individual indicates that it is wanted.

(2) A police officer is not required to comply with subsection (1) if the officer has a reason to believe that continuing to interact with the individual,

(a) might compromise the safety of an individual; or

(b) might delay the officer from responding to another matter that should be responded to immediately.

(3) A reason required under subsection (2) must be a reason the police officer can articulate and must include details relating to the particular circumstances.

(4) The document required under subsection (1) shall contain at least the following information:

1. The police officer’s name and officer identification number and the date, time and location of the attempted collection.

2. Information about how to contact the Complaints Director.

3. An explanation that the individual can request access to information about themselves that is in the custody or under the control of a police service under the Municipal Freedom of Information and Protection of Privacy Act or the Freedom of Information and Protection of Privacy Act, as the case may be, and information about how to contact persons to whom such a request may be given.

Police officer must record reason and other information

9. A police officer who attempts to collect identifying information about an individual from the individual shall record the following:

1. The officer’s reason for the attempted collection, including the details referred to in paragraph 1 of subsection 6 (4).

2. Whether the individual was informed as required under clauses 7 (1) (a) and (b) or, if informing the individual under one of those clauses was not required under subsection 7 (2) or (3), the reason why that was not required.

3. Whether the individual was offered the document as required under clause 8 (1) (a) or, if offering the document was not required under subsection 8 (2), the reason why that was not required.

4. Whether the individual was given the document offered under clause 8 (1) (a) or, if giving the document was not required under clause 8 (1) (b) or subsection 8 (2), the reason why that was not required.

5. Such other information as the chief of police requires the officer to record.

Inclusion of Collected Information in Police Databases

Collected information in police databases

10. (1) This section applies with respect to the inclusion, in databases under the control of a police service, of identifying information about an individual collected by a police officer from the individual.

(2) The chief of police shall ensure that the requirements under this section are complied with.

(3) Access to identifying information shall be restricted in accordance with subsection (10) unless the information may be included in a database, under this section, without limiting the access of members of the police service.

(4) Identifying information may be included in a database without limiting the access of members of the police service if,

(a) the police officer who collected the information,

(i) has indicated that the attempted collection complied with section 6,

(ii) has indicated that the individual was informed as required under clauses 7 (1) (a) and (b) or, if informing the individual under one of those clauses was not required under subsection 7 (2) or (3), has indicated the reason why that was not required,

(iii) has indicated that the individual was offered the document as required under clause 8 (1) (a) or, if offering the document was not required under subsection 8 (2), has indicated the reason why that was not required, and

(iv) has indicated that the individual was given the document offered under clause 8 (1) (a) or, if giving the document was not required under clause 8 (1) (b) or subsection 8 (2), has indicated the reason why that was not required; and

(b) either,

(i) the chief of police has determined, after considering the officer’s reasons for the attempted collection, including the details referred to in paragraph 1 of subsection 6 (4), that it appears that section 6 was complied with and has ensured that clause (a) has been complied with, or

(ii) the database indicates that what is required under subclause (i) has not yet been done.

(5) The following apply if what is required under subclause (4) (b) (i) was not done when the identifying information was included in the database:

1. The chief of police shall conduct a review, within 30 days after the information was first entered into a database under the control of the police service, to determine, after considering the police officer’s reasons for the attempted collection, including the details referred to in paragraph 1 of subsection 6 (4), whether it appears that section 6 was complied with and whether clause (4) (a) has been complied with.

2. If it is determined that it appears that section 6 was complied with and that clause (4) (a) has been complied with, the indication required under subclause (4) (b) (ii) may be removed.

3. If it is not determined, before the end of the 30-day period described in paragraph 1, that it appears that section 6 was complied with and that clause (4) (a) has been complied with, the identifying information shall be retained, subject to the procedures developed under section 14 in relation to paragraph 4 of subsection 13 (1), in a database under the control of the police service, but access to such retained information shall be restricted in accordance with subsection (10).

(6) At least once a year, the chief of police shall conduct detailed reviews of an appropriately sized random sample of the entries of identifying information included in a database under subsection (4) to estimate, within a margin of error of plus or minus 5 per cent, at a 95 per cent confidence level, whether it appears that sections 6, 7 and 8 were complied with.

(7) If, as a result of a detailed review under subsection (6), it is determined, with respect to identifying information included in a database under subsection (4), that section 6, 7 or 8 was not complied with, the identifying information shall be retained, subject to the procedures developed under section 14 in relation to paragraph 4 of subsection 13 (1), in a database under the control of the police service, but access to such retained information shall be restricted in accordance with subsection (10).

(8) The chief of police shall consider the results of the detailed reviews under subsection (6) and take such actions as the chief of police considers appropriate.

(9) Access to identifying information shall be restricted in accordance with subsection (10) after the fifth anniversary of the date on which the information was first entered into a database under the control of the police service.

(10) The following apply with respect to identifying information to which access must be restricted:

1. No person may access the information without the permission of the chief of police.

2. A member of the police service may be permitted to access the information only if the chief of police is satisfied that access is needed,

i. for the purpose of an ongoing police investigation,

ii. in connection with legal proceedings or anticipated legal proceedings,

iii. for the purpose of dealing with a complaint under Part X of the Act,

iv. in order to prepare the annual report described in subsection 15 (2) or the report required under section 16,

v. for the purpose of complying with a legal requirement, or

vi. for the purpose of evaluating a police officer’s performance.

(11) The chief of police shall ensure that identifying information collected contrary to this Regulation or the predecessor regulation shall not be retained longer than is reasonably necessary to ensure the information is available in the circumstances in which access may be permitted under paragraph 2 of subsection (10).

(12) For greater certainty, this section applies with respect to any member of a police service to whom the chief of police delegates the chief’s powers or duties under this section as it would to the chief, with necessary modifications.

Restrictions on Performance Targets

Performance targets not to be used in evaluating work performance

11. A chief of police shall ensure that no performance target based on any of the following factors is used to evaluate the work performance of a police officer in the police service:

1. The number of times within a particular period that the officer collects or attempts to collect identifying information about individuals from the individuals.

2. The number of individuals from whom the officer collects or attempts to collect identifying information within a particular period.

Part IV
Other Matters

Training

Chiefs of police must ensure training

12. A chief of police shall ensure that every police officer in the police service who attempts to collect identifying information about an individual from the individual and any member of the police service to whom the chief delegates any powers or duties of the chief under section 10 has successfully completed the training prescribed by the Minister for the purposes of this section within the previous 36 months.

Policies and Procedures

Boards and Minister must develop policies

13. (1) The following matters are prescribed for the purposes of clauses 38 (1) (g) and 60 (1) (f) of the Act:

1. The document to be given to individuals under section 8.

2. The contents, in relation to matters to which this Regulation applies, of the annual reports described in subsection 15 (2).

3. The report required under section 16.

4. The retention of, access to and disclosure of identifying information collected on or after January 1, 2017, including the retention of identifying information collected contrary to this Regulation or the predecessor regulation.

5. The retention of, access to and disclosure of identifying information collected before January 1, 2017 with respect to which the predecessor regulation would have applied had the collection taken place on January 1, 2017.

(2) For greater certainty, policies established in accordance with subsection (1) must be consistent with this Regulation.

Chiefs of police must develop procedures

14. Every chief of police shall develop written procedures regarding the matters listed under subsection 13 (1).

Reports

Annual reports

15. (1) In this section,

“racialized group” means a group of individuals identified by one of the following race categories, as set out with respect to the collection of Participant Observer Information (POI) in the data standards established under section 6 of the Anti-Racism Act, 2017:

1. Black.

2. East/Southeast Asian.

3. Indigenous (First Nations, Métis, Inuit).

4. Latino.

5. Middle Eastern.

6. South Asian.

7. White.

(2) The following information respecting attempted collections of identifying information shall be included in the annual report provided by a chief of police to a police service board under section 12 of Ontario Regulation 399/23 (General Matters Under the Authority of the Lieutenant Governor in Council) made under the Act or by the Commissioner under subsection 58 (1) of the Act:

1. The number of attempted collections and the number of attempted collections in which identifying information was collected.

2. The number of individuals from whom identifying information was collected.

3. The number of times each of the following provisions was relied on to not do something that would otherwise be required under subsection 7 (1):

i. Subsection 7 (2).

ii. Clause 7 (3) (a).

iii. Clause 7 (3) (b).

iv. Clause 7 (3) (c).

4. The number of times an individual was not given a document under clause 8 (1) (b) because the individual did not indicate that they wanted it.

5. The number of times each of the following clauses was relied on to not do something that would otherwise be required under subsection 8 (1):

i. Clause 8 (2) (a).

ii. Clause 8 (2) (b).

6. For each of the following categories of gender identity, the number of attempted collections from individuals who are perceived, by a police officer, to be within that category:

i. Male.

ii. Female.

iii. Transgender, non-binary or other gender identity.

7. For each age group established by the chief of police for the purpose of this paragraph, the number of attempted collections from individuals who are perceived, by a police officer, to be within that age group.

8. For each racialized group, the number of attempted collections from individuals who are perceived, by a police officer, to be within that racialized group.

9. A statement, based on an analysis of the information provided under this subsection, as to whether the collections were attempted disproportionately from individuals within a group based on gender identity, a particular age or racialized group, or a combination of groups and if so, any additional information that the chief of police considers relevant to explain the disproportionate attempted collections.

10. The neighbourhoods or areas where collections were attempted and the number of attempted collections in each neighbourhood or area.

11. The number of determinations, referred to in subsection 10 (5), that section 6 or clause 10 (4) (a) was not complied with.

12. The number of determinations, referred to in subsections 10 (6) and (7), that section 6, 7 or 8 was not complied with.

13. The number of times members of the police service were permitted under subsection 10 (10) to access identifying information to which access must be restricted.

(3) A chief of police shall establish age groups for the purpose of paragraph 7 of subsection (1).

Chiefs of police must review practices and report

16. (1) If an annual report referred to in subsection 15 (2) reveals that identifying information was attempted to be collected disproportionately from individuals perceived to be within a group or combination of groups, the chief of police shall review the practices of the police service and shall prepare a report setting out the results of the review and the chief’s proposals, if any, to address the disproportionate attempted collection of information.

(2) The chief of police shall provide the report to the police service board or, in the case of the Commissioner, to the Minister.

(3) On receipt of a report under subsection (2), the police service board or the Minister, as the case may be,

(a) shall publish the report on the Internet in a manner that makes it available to the public free of charge and may make the report available to the public free of charge in any other manner that the police service board or the Minister, as the case may be, considers appropriate; and

(b) shall consider the report and the proposals, if any, set out in the report and consider, in the case of a police service board, whether to give directions under section 40 of the Act or, in the case of the Minister, whether to give directions to the Commissioner under section 62 of the Act.

Part V (OMITTED)

17. Omitted (provides for coming into force of provisions of this Regulation).

 

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