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Community Safety and Policing Act, 2019

ONTARIO REGULATION 401/23

CONFLICTS OF INTEREST

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 11 (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

1.

Definitions

2.

Interpretation

3.

Requirement to notify

4.

Personal conflicts

5.

Identifying actual institutional conflicts

6.

Referral of actual institutional conflicts for investigation

7.

Referral of certain potential institutional conflicts for investigation

8.

Reporting institutional conflicts

9.

Other investigations into criminal conduct

10.

Duty to continue investigation

11.

Conflict procedures to be established by chief of police

12.

Conflict policies to be established by police service boards, the Minister

 

Definitions

1. In this Regulation,

“actual institutional conflict” means a potential institutional conflict for which a determination has been made under subsection 5 (1) that an informed and reasonable person would not believe that a member of the police service who must take action or make a decision in the situation could do so impartially; (“conflit institutionnel réel”)

“conflict policy”, in respect of a police service, means the policy established in accordance with section 12 that applies to the police service; (“politique en matière de conflits”)

“conflict procedures”, in respect of a police service, means the procedures established under section 11 that apply to the police service; (“procédure en matière de conflits”)

“intimate partner” has the same meaning as in section 2 of the Criminal Code (Canada); (“partenaire intime”)

“personal conflict” means a situation in which a member of a police service’s private interests or personal relationships place, or may reasonably be perceived to place, the member in conflict with their professional duties with respect to the provision of policing functions; (“conflit personnel”)

“personal relationship” includes, but is not limited to, a relationship with any of the following persons:

1.  A current or former spouse, common-law partner or other intimate partner of the member.

2.  The member’s children, including biological and adoptive children and stepchildren.

3.  A legal dependant of the member.

4.  A child in the member’s care.

5.  A grandparent, parent or sibling, including grandparent-in-law, parent-in-law or sibling-in-law, of the member; (“rapports personnels”)

“potential institutional conflict” means a situation in which a member of a police service must take action or make a decision in relation to criminal conduct that is alleged or reasonably suspected to have been committed by or against any of the following persons, but does not include criminal conduct that is alleged or reasonably suspected to have been committed against a peace officer acting in the course of their duties:

1.  Any other member of the police service, including the chief of police or a deputy chief of police.

2.  In the case of a member of a police service maintained by a police service board,

i.  a member of the police service board, or

ii.  a member of a municipal council or of a band council of a First Nation, as applicable, in the area for which the police service board has policing responsibility.

3.  In the case of a member of the Ontario Provincial Police,

i.  a member of an O.P.P. detachment board or a First Nation O.P.P. board, or

ii.  the Minister or a deputy minister of the Ministry. (“conflit institutionnel potentiel”)

Interpretation

2. (1) Nothing in this Regulation shall be read as requiring a member of a police service to refrain from doing anything that must be done immediately to,

(a)  prevent harm or death to any person;

(b)  apprehend a person;

(c)  detain a person for investigative purposes;

(d)  obtain or preserve evidence; or

(e)  protect property.

(2) Nothing in this Regulation shall be read as requiring the provision of a policing function by a police service if the chief of police determines that doing so has given or is likely to give rise to an actual institutional conflict or personal conflict respecting a member of the police service and, as a result, the chief of police of a different police service has assumed responsibility for providing the policing function.

(3) Failure to comply with a requirement of this Regulation does not, in itself, impugn the lawfulness of any step taken in an investigation by a police service into criminal conduct.

(4) For greater certainty, subsection (3) shall not be read as having any effect on whether a failure to comply with this Regulation constitutes misconduct under a prescribed code of conduct.

Requirement to notify

3. A member of a police service shall notify a supervisor, in the form approved by the Minister and in accordance with the conflict procedures, as soon as possible if a potential institutional conflict, actual institutional conflict or personal conflict respecting the member arises, or the member believes is likely to arise, with respect to a policing function that the member is required to provide.

Personal conflicts

4. (1) If it is determined, in accordance with the conflict procedures, that a personal conflict respecting a member of a police service has arisen or is likely to arise with respect to a policing function that the member is providing, the chief of police shall, subject to the conflict procedures and the conflict policy,

(a)  require a different member of the police service to provide the policing function or refer the matter to the chief of police of a different police service; or

(b)  if the chief of police or deputy chief of police is the member of the police service in respect of whom a personal conflict has arisen or is likely to arise, refer the matter to the chief of police of a different police service.

(2) The chief of police shall record the steps the chief takes under this section, in the form approved by the Minister.

(3) If the chief of police or deputy chief of police is the member of the police service in respect of whom a personal conflict has arisen or is likely to arise, the record required under subsection (2),

(a)  shall include either a statement that the chief of police complied with the conflict procedures and the conflict policy or a statement that the chief of police did not comply and an explanation for the non-compliance, as the case may be; and

(b)  shall be submitted by the chief of police to,

(i)  the Inspector General, and

(ii)  the police service board or, in the case of the Commissioner, the Minister.

Identifying actual institutional conflicts

5. (1) If a chief of police determines that a potential institutional conflict respecting a member of a police service has arisen or is likely to arise, the chief of police shall determine whether an informed and reasonable person would believe that a member of the police service who must take action or make a decision in the situation could do so impartially.

(2) In making a determination under subsection (1), the chief of police shall consider,

(a)  whether any of the members of the police service who are required to act or make a decision are likely to be in a reporting relationship to or know a person who is or would be under investigation in respect of the criminal conduct;

(b)  whether the police service has procedures for consulting with the Crown Attorney regarding the conduct of the investigation of the criminal conduct, and has undertaken to consult with the Crown on the investigation; and

(c)  any other relevant factor.

(3) Subsection (1) does not apply if,

(a)  an incident to which the potential institutional conflict relates is reported to the SIU Director under section 16 of the Special Investigations Unit Act, 2019 or the SIU Director causes the incident to be investigated under section 15 of that Act; or

(b)  the potential institutional conflict has arisen or is likely to arise in an area for which the police service board or the Commissioner, as the case may be, does not have policing responsibility, and is the subject of an investigation by a different police service.

Referral of actual institutional conflicts for investigation

6. The chief of police shall refer an actual institutional conflict to the chief of police of a different police service for investigation.

Referral of certain potential institutional conflicts for investigation

7. (1) This section applies if the chief of police makes a determination under subsection 5 (1) that a potential institutional conflict is not an actual institutional conflict.

(2) The chief of police shall refer the potential institutional conflict to the chief of police of a different police service for investigation if the potential institutional conflict involves,

(a)  the chief of police or deputy chief of police;

(b)  any other member of a police service who is a police officer, if the criminal conduct is alleged or reasonably suspected to,

(i)  be motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, gender identity or expression or any other similar factor,

(ii)  involve abuse against the member’s current or former spouse, common-law partner or other intimate partner of the member,

(iii)  involve abuse of a vulnerable person, such as a person with a mental or physical disability, a person under 18 years of age or an elderly person,

(iv)  involve abuse of a position of trust or authority in relation to the victim of the conduct, or

(v)  be for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1 (1) of the Criminal Code (Canada); or

(c)  a person referred to in subparagraph 2 i or ii or 3 i or ii of the definition of “potential institutional conflict” in section 1.

(3) In the case of a potential institutional conflict to which subsection (2) does not apply, the chief of police shall,

(a)  cause the matter to be investigated in accordance with the conflict procedures and the conflict policy; or

(b)  refer the matter to the chief of police of a different police service for investigation.

(4) If the chief of police decides to retain a matter under clause (3) (a), the chief of police shall report that fact to the Inspector General, in the form approved by the Minister, as well as the steps taken under the conflict procedures and the conflict policy.

(5) The chief of police to which a matter is referred under subsection (2) or clause (3) (b) for investigation shall, in accordance with the conflict procedures and the conflict policy, cause the matter to be investigated by the police service or take steps to ensure that responsibility for the investigation of the matter is assumed by a different police service.

Reporting institutional conflicts

8. (1) The chief of police shall notify the Inspector General, in the form approved by the Minister, of every actual institutional conflict and of every potential institutional conflict that is determined under subsection 5 (1) to not be an actual institutional conflict.

(2) If the chief of police or deputy chief of police is the member of the police service in respect of whom the actual institutional conflict or potential institutional conflict has arisen or is likely to arise, the chief of police shall also notify the police service board or, in the case of the Commissioner, the Minister, in accordance with the conflict policy.

(3) The chief of police shall record the steps the chief takes under this section, in the form approved by the Minister.

Other investigations into criminal conduct

9. (1) This section applies in the case of an investigation by a police service into criminal conduct, if there is no actual institutional conflict or potential institutional conflict.

(2) If the chief of police of the police service reasonably believes that the impartiality of the investigation cannot be ensured, the chief of police shall take steps to ensure that the chief of police of a different police service assumes responsibility for the investigation.

Duty to continue investigation

10. Where an investigation may or must be referred to or continued by the chief of police of a different police service under this Regulation, the chief of police of the police service that would otherwise be responsible for the investigation shall continue to take all steps necessary to ensure that an effective investigation is conducted, until the assumption of responsibility for the investigation by the chief of police of the other police service, if applicable.

Conflict procedures to be established by chief of police

11. (1) Every chief of police shall establish written procedures respecting actual institutional conflicts and personal conflicts in the provision of policing functions by the police service.

(2) The procedures shall,

(a)  provide for steps that must be taken to avoid or address potential institutional conflicts, actual institutional conflicts and personal conflicts;

(b)  identify, for the purposes of section 3, a supervisor to whom a member of a police service is required to report potential institutional conflicts, actual institutional conflicts and personal conflicts and, if the matter to be reported relates to the member’s own supervisor, an alternative supervisor;

(c)  identify, for the purposes of section 4, the members of the police service who are authorized to determine whether a personal conflict has arisen or is likely to arise; and

(d)  ensure the impartiality of investigations by the police service under this Regulation.

Conflict policies to be established by police service boards, the Minister

12. (1) The avoidance of actual institutional conflicts and personal conflicts in the provision of policing functions is prescribed for the purposes of clauses 38 (1) (g) and 60 (1) (f) of the Act.

(2) A policy established for the purposes of subsection (1) shall include actions to be taken by a chief of police in the circumstances described in subsection 4 (1), clause 7 (3) (a) and subsections 7 (5) and 8 (2).

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

 

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