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Ontario Special Investigations Unit Act, 2018, S.O. 2018, c. 3, Sched. 4

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Ontario Special Investigations Unit Act, 2018

S.O. 2018, CHAPTER 3
Schedule 4

Consolidation Period: From March 8, 2018 to the e-Laws currency date.

Note: THIS ACT IS NOT YET IN FORCE. It comes into force on June 30, 2018, the day named by proclamation of the Lieutenant Governor.

Note: This Act is repealed on a day to be named by proclamation. (See: 2018, c. 3, Sched. 2, s. 106)

Last amendment: 2018, c. 3, Sched. 4, s. 40.

Legislative History: 2018, c. 3, Sched. 2, s. 106; 2018, c. 3, Sched. 4, s. 40.

CONTENTS

1.

Definitions

2.

Officer appointed under the Interprovincial Policing Act, 2009 deemed to be a member of a specific police force

3.

Crown bound

Ontario Special Investigations Unit

4.

Ontario Special Investigations Unit

5.

Ontario Special Investigations Unit Director

6.

Investigators

7.

Peace officers

8.

Employees

9.

Collection, use and disclosure of personal information

10.

Agreements with other entities

11.

Annual report

12.

Confidentiality

13.

Protection from personal liability

14.

Protection from giving testimony

Investigations

15.

Power to investigate

16.

Notification of incident

17.

Investigation of related persons

18.

Ancillary investigations

19.

Lead investigator

20.

Assignment of investigators

21.

Securing the scene

22.

Incident notes

23.

Notice of whether subject official or witness official

24.

Provision of notes by witness official

25.

Notes of subject official

26.

Interview of witness officials

27.

Segregation of officials

28.

Right to counsel

29.

Confidentiality during investigation

30.

Public statements by SIU

31.

Delegation

32.

Duty to comply

33.

Charges

34.

Public notice if charges laid against official re incident

35.

Public notice if no charges laid against official re incident

36.

Other public notice

37.

Investigation timing

38.

Transition

Regulations

39.

Regulations

 

Definitions

1 (1) In this Act,

“affected person” means, in relation to an incident referred to in subsection 15 (1), a person,

(a) who died or was seriously injured,

(b) at whom a firearm was discharged, or

(c) who reported that he or she was sexually assaulted; (“personne concernée”)

“appointing official” and “extra-provincial commander” have the same meaning as in the Interprovincial Policing Act, 2009; (“agent de nomination”, “commandant extraprovincial”)

“de-identify”, in relation to the personal information of an individual, means to remove any information that identifies the individual or for which it is reasonably foreseeable in the circumstances that it could be utilized, either alone or with other information, to identify the individual; (“anonymiser”)

“designated authority” means,

(a) in relation to an official who is a police officer other than a chief of police, the chief of police of the police force of which the police officer is a member,

(b) in relation to any other official, the person prescribed by the Minister for the official in respect of this Act or the regulations relating to this Act or in respect of a particular provision of this Act or of the regulations relating to this Act;  (“autorité désignée”)

“Minister” means the Attorney General or such other member of the Executive Council as may be assigned the administration of this Act under the Executive Council Act; (“ministre”)

“official” means,

(a) a police officer,

(b) a special constable who is a member of a police force,

Note: On October 1, 2018, the day named by proclamation of the Lieutenant Governor, clause (b) of the definition of “official” in subsection 1 (1) of the Act is amended by striking out “who is a member of a police force”. (See: 2018, c. 3, Sched. 4, s. 40 (1))

(c) an auxiliary member of a police force, or

(d) any other person who may be prescribed; (“agent”)

“personal information” means personal information as defined in the Freedom of Information and Protection of Privacy Act; (“renseignements personnels”)

“prescribed” means prescribed by the regulations; (“prescrit”)

“regulations” means the regulations made under this Act; (“règlements”)

“serious injury” means an injury listed in subsection (2) or any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature; (“blessure grave”)

“SIU Director” means the Ontario Special Investigations Unit Director appointed under subsection 5 (1); (“directeur de l’UES”)

“subject official” means, in respect of an incident referred to in subsection 15 (1), an official whose conduct appears, in the opinion of the SIU Director, to have been a cause of the incident; (“agent impliqué”)

“witness official” means an official who, in the opinion of the SIU Director, is involved in an incident referred to in subsection 15 (1), but is not a subject official in relation to the incident. (“agent témoin”)

Serious injuries

(2) A person sustains a serious injury if he or she,

(a) sustains an injury as a result of which he or she is admitted to a hospital;

(b) suffers a fracture to the skull, or to a limb, rib or vertebra;

(c) suffers burns to a significant proportion of his or her body;

(d) loses any portion of his or her body;

(e) as a result of an injury, experiences a loss of vision or hearing; or

(f) sustains a prescribed injury.

Interpretation, police matters

(3) Words and expressions used in this Act and in the regulations that relate to policing and police matters have the same meanings as under the Police Services Act, unless the context requires otherwise.

Section Amendments with date in force (d/m/y)

2018, c. 3, Sched. 4, s. 40 (1) - 01/10/2018

Officer appointed under the Interprovincial Policing Act, 2009 deemed to be a member of a specific police force

2 For the purposes of this Act, a person appointed as a police officer under the Interprovincial Policing Act, 2009 is deemed to be,

(a) a member of the Ontario Provincial Police;

(b) if he or she was appointed by a member of a municipal police force, a member of that municipal police force; or

(c) if he or she was appointed by a member of a board, a member of the municipal police force for which the board is responsible.

Crown bound

3 This Act binds the Crown.

Ontario Special Investigations Unit

Ontario Special Investigations Unit

4 (1) The special investigations unit of the Ministry of the Attorney General is continued as a unit outside the Ministry under the name “Ontario Special Investigations Unit” in English and “Unité des enquêtes spéciales de l’Ontario” in French.

Composition

(2) The Ontario Special Investigations Unit shall be headed by the SIU Director and shall, in addition to the SIU Director, consist of,

(a) investigators appointed under section 6; and

(b) persons appointed as employees in the Ontario Special Investigations Unit in accordance with section 8.

Ontario Special Investigations Unit Director

5 (1) The Lieutenant Governor in Council shall, on the recommendation of the Minister, appoint an Ontario Special Investigations Unit Director.

Restriction, official or former official

(2) An official or former official may not be appointed as Ontario Special Investigations Unit Director.

Restriction, requirements and qualifications

(3) A person may not be appointed as Ontario Special Investigations Unit Director unless he or she meets the requirements and qualifications prescribed by the Minister, if any.

Term

(4) An appointment under subsection (1) shall be for a term of five years, and may be renewed for one further term of five years.

Remuneration

(5) The Ontario Special Investigations Unit Director shall be paid such remuneration and allowance for expenses as may be fixed by the Lieutenant Governor in Council.

Functions

(6) The Ontario Special Investigations Unit Director,

(a) shall oversee investigations conducted under this Act;

(b) shall, in accordance with any requirements prescribed by the Minister and in consultation with such persons who represent the diversity of Ontario as the SIU Director considers appropriate, provide training for employees in the Ontario Special Investigations Unit that promotes recognition of and respect for,

(i) the diverse, multiracial and multicultural character of Ontario society, and

(ii) the rights and cultures of First Nation, Inuit and Métis Peoples;

(c) shall publish statistical reports for the purpose of informing the evaluation, management and improvement of the policing and policing oversight systems in Ontario; and

(d) shall perform the duties, and may exercise the powers, that are set out under this Act, as well as any additional duties and powers that may be prescribed.

Delegation

(7) The Ontario Special Investigations Unit Director may in writing delegate any of his or her powers or duties under this Act to an employee in the Ontario Special Investigations Unit, subject to such conditions or restrictions as the Director may set out in the delegation.

Investigators

6 (1) The SIU Director may appoint as investigators such employees in the Ontario Special Investigations Unit or other persons as he or she considers necessary to carry out investigations under this Act, and such appointments shall be in writing.

Restriction, official

(2) An official may not be appointed as an investigator.

Restriction, requirements and qualifications

(3) A person may not be appointed as an investigator unless he or she meets the requirements and qualifications prescribed by the Minister, if any.

SIU Director as investigator

(4) Any power of an investigator appointed under this section may be exercised by the SIU Director.

Peace officers

7 The SIU Director, a person to whom powers and duties are delegated under subsection 5 (7) and investigators are peace officers.

Employees

8 (1) Such employees as are considered necessary for the proper conduct of the Ontario Special Investigations Unit may be appointed under Part III of the Public Service of Ontario Act, 2006.

Restriction

(2) An official may not be appointed as an employee.

Collection, use and disclosure of personal information

Collection

9 (1) The SIU Director may, in accordance with this section, collect prescribed personal information for the purposes of clause 5 (6) (c).

Limits on collection

(2) The SIU Director shall not collect personal information under this section if other information will meet the purposes of clause 5 (6) (c), and shall not collect more personal information under this section than is reasonably necessary to meet those purposes.

Manner of collection

(3) Personal information shall only be collected under this section directly from the individual to whom the information relates, with the individual’s consent.

Same

(4) Despite subsection (3), if the regulations so provide, the SIU Director may, in the circumstances specified by the regulations, collect such prescribed personal information as the regulations specify in a manner other than directly from the individual to whom the information relates.

Notice of direct collection

(5) Before seeking an individual’s consent to collect personal information directly from the individual to whom the information relates, the SIU Director shall inform the individual of,

(a) the authority for and purposes of the collection; and

(b) the title and contact information, including an email address, of an employee in the Ontario Special Investigations Unit who can answer the individual’s questions about the collection.

Notice of indirect collection

(6) If the regulations referred to in subsection (4) provide for the collection of personal information in a manner other than directly from the individual to whom the information relates, the SIU Director shall, before collecting personal information in such a manner, ensure that notice of the collection is published on the website of the Ontario Special Investigations Unit containing,

(a) a statement that the collection is authorized under subsection (1) and setting out the purposes of the collection;

(b) the personal information and circumstances specified by the regulations referred to in subsection (4) for the purposes of the collection; and

(c) the title and contact information, including an email address, of an employee in the Ontario Special Investigations Unit who can answer an individual’s questions about the collection.

De-identification

(7) The SIU Director shall immediately de-identify, in the prescribed manner, personal information collected under this section.

Limits on use

(8) The SIU Director shall not use personal information collected under this section unless it has been de-identified under subsection (7), and may only use de-identified personal information for the purposes of clause 5 (6) (c).

Limit on access

(9) The SIU Director shall limit access to the personal information collected under this section to employees in the Ontario Special Investigations Unit and investigators, for the purposes of,

(a) de-identifying the personal information under subsection (7); or

(b) disclosing personal information under subsection (10).

Limits on disclosure

(10) The SIU Director, an employee in the Ontario Special Investigations Unit or an investigator may disclose personal information collected under this section only if,

(a) the individual to whom the information relates has identified that information in particular and consented to its disclosure;

(b) the disclosure is required by law, including as required under section 31 of the Human Rights Code;

(c) subject to subsection (11), the disclosure is for the purpose of a proceeding or contemplated proceeding, the information relates to or is a matter in issue in the proceeding or contemplated proceeding, and,

(i) the SIU Director is, or is expected to be, a party, or

(ii) any of the following is, or is expected to be, a witness:

(A) a current or former employee in the Ontario Special Investigations Unit,

(B) a current or former investigator, or

(C) a former employee in or investigator with the special investigations unit, before its continuance under this Act; or

(d) the disclosure is to the Information and Privacy Commissioner.

Same

(11) The SIU Director, an employee in the Ontario Special Investigations Unit or an investigator shall not disclose personal information under clause (10) (c) if other information will meet the purposes of the proceeding or contemplated proceeding, and shall not disclose more personal information under that clause than is reasonably necessary to meet those purposes.

Other Acts

(12) In the event of a conflict, this section prevails over sections 38, 39, 41, 42 and 43 of the Freedom of Information and Protection of Privacy Act, but the authority to collect, use and disclose personal information under this section is subject to any limits on collection, use or disclosure under any other law.

Rights of access and correction

(13) Nothing in this section limits the right of an individual under any Act to access and correct personal information about the individual.

Non-application

(14) For greater certainty, this section does not apply with respect to personal information lawfully collected by the SIU Director for a purpose other than for the purposes of clause 5 (6) (c).

Agreements with other entities

10 The SIU Director may, subject to any prescribed conditions or restrictions, enter into agreements with a First Nation in Ontario, the Government of Canada, the government of another province or territory of Canada, a Canadian municipality outside Ontario or any other Canadian entity outside Ontario, for the purpose of conducting or assisting with investigations.

Annual report

11 (1) The SIU Director shall prepare an annual report on the affairs of the Ontario Special Investigations Unit, provide it to the Minister and make it available to the public.

Same

(2) The SIU Director shall comply with such directives as may be issued by the Management Board of Cabinet with respect to,

(a) the form and content of the annual report;

(b) when to provide it to the Minister; and

(c) when and how to make it available to the public.

Same

(3) The SIU Director shall include such additional content in the annual report as the Minister may require.

Confidentiality

12 The SIU Director and every investigator, employee in the Ontario Special Investigations Unit and person exercising powers or performing duties at the direction of the SIU Director shall preserve secrecy in respect of all information obtained by him or her in the course of exercising a power or performing a duty under this Act, and shall not communicate any such information to any person except,

(a) as may be required in connection with the administration of this Act or the Police Services Act, or the regulations made under either of them;

(b) to his or her counsel;

(c) as may be required for law enforcement purposes; or

(d) with the consent of the person, if any, to whom the information relates.

Protection from personal liability

13 (1) No action or other proceeding may be instituted against the SIU Director, an investigator, an employee in the Ontario Special Investigations Unit or a person exercising powers or performing duties at the direction of the SIU Director for any act done in good faith in the execution or intended execution of the person’s duty or for any alleged neglect or default in the execution in good faith of the person’s duty.

Crown not relieved of liability

(2) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (1) does not relieve the Crown of liability in respect of a tort committed by a person mentioned in subsection (1) to which the Crown would otherwise be subject.

Protection from giving testimony

14 (1) The SIU Director, an investigator, an employee in the Ontario Special Investigations Unit or a person exercising powers or performing duties at the direction of the SIU Director shall not be required to give testimony in a civil proceeding with respect to information obtained by him or her in the course of exercising a power or performing a duty under this Act or a predecessor of this Act.

Inadmissibility of documents

(2) A document prepared under this Act by the SIU Director, an investigator, an employee in the Ontario Special Investigations Unit or a person exercising powers or performing duties at the direction of the SIU Director is not admissible in a civil proceeding.

Investigations

Power to investigate

15 (1) The SIU Director may cause an investigation to be conducted into any incident in which any of the following occurs, if the incident may have resulted from the conduct of an official:

1. The death of a person.

2. The serious injury of a person.

3. The discharge of a firearm at a person.

4. The sexual assault of a person, as reported by the person.

Application of section to officials

(2) This section applies in respect of an official if, at the time of the incident,

(a) the official was on duty; or

(b) the official was off-duty but,

(i) engaged in the investigation, pursuit, detention or arrest of a person or otherwise exercised the powers of a police officer, special constable, auxiliary member of a police force or other prescribed person, as the case may be, whether or not the official intended to exercise such powers or identified him or herself as a person who may exercise such powers, or

(ii) the incident involved equipment or other property issued to the official in relation to his or her duties.

Interpretation, firearm

(3) For the purposes of paragraph 3 of subsection (1),

“firearm” means a firearm as defined in section 2 of the Criminal Code (Canada), except that it does not include a firearm listed in section 1 of Part 1 of the schedule to the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted, SOR/98-462, made under the Criminal Code (Canada).

Former official

(4) The SIU Director may cause an incident that may have resulted from the conduct of an official to be investigated under subsection (1) even if the official is no longer serving in that position.

Past incident

(5) The SIU Director may cause an incident that occurred before subsection (1) came into force to be investigated under that subsection, but only if the incident may have resulted from the conduct of a person who was a police officer at the time of the incident.

Same

(6) For greater certainty, subsection (5) includes an incident that occurred before the establishment of the special investigations unit that is continued by this Act.

Exception, immediate medical care

(7) If the regulations made by the Minister so provide, the SIU Director shall not, despite anything to the contrary in this section, investigate an incident in which an official provided immediate medical care to the affected person in the circumstances specified by the regulations made by the Minister.

Notice

(8) Unless the SIU Director received notification of the incident under section 16, the SIU Director shall give notice of an investigation commenced under this section to the official’s designated authority.

Notification of incident

16 (1) A designated authority shall immediately notify the SIU Director of an incident referred to in subsection 15 (1) involving an official in relation to whom the authority is designated.

Same

(2) If an incident may have resulted from the conduct of an official and that results in an injury of a person, the seriousness of which cannot initially be determined, the official’s designated authority shall immediately notify the SIU Director.

Same

(3) For greater certainty, subsections (1) and (2) apply in relation to an official who was off-duty at the time of the incident, unless it is clear that section 15 does not apply to the official under subsection 15 (2).

Investigation

(4) On receiving notice of an incident under subsection (1), the SIU Director may, subject to subsection (6), cause the incident to be investigated under section 15.

Same

(5) If notice is given under subsection (2) and the incident leads to the death or serious injury of the person, the SIU Director may, subject to subsection (6), cause the incident to be investigated under section 15.

Refusal to investigate

(6) If the SIU Director determines that the incident is not within the SIU Director’s power to investigate under section 15, the SIU Director shall refuse to investigate, and shall give notice of the fact to the official’s designated authority.

Investigation of related persons

17 (1) If, in the course of an investigation under section 15, the SIU Director determines that an incident that may have resulted from the conduct of an official in respect of whom that section applies may also have resulted from the conduct of any other person acting with the official as a party to the incident, the SIU Director may cause the investigation to be extended to include that other person.

Same

(2) For greater certainty, subsection (1) includes a person listed in clauses (a) to (d) of the definition of “official” in subsection 1 (1), in a circumstance in which section 15 would not otherwise apply in respect of the person under subsection 15 (2).

Same

(3) A reference in sections 21 to 35 to an official, including to a subject official or witness official, does not include a person described in subsection (2), except as provided in subsection 27 (3).

Application

(4) This section applies only if the incident occurred on or after the day subsection  (1) came into force.

Ancillary investigations

18 (1) If, in the course of an investigation under section 15, a matter comes to the attention of the SIU Director which does not constitute an incident that may be investigated under that section, but which may constitute an offence under the Criminal Code (Canada) or under section 32 of this Act committed by an official, the SIU Director may,

(a) cause the matter to be investigated; or

(b) refer the matter to the following person:

(i) if the official is a police officer, a special constable who is a member of a police force or an auxiliary member of a police force, to the chief of police of an unrelated police force, or

(ii) in any other case, to any chief of police.

Application of section to officials

(2) This section applies if, during the alleged committal of the offence, the official met the criteria of clause 15 (2) (a) or (b), with necessary modifications.

Former officials, past incident

(3) Subsections 15 (4) to (6) apply, with necessary modifications, with respect to an investigation of a matter under this section.

Notice

(4) The SIU Director shall give notice of an investigation under clause (1) (a) to the official’s designated authority.

Access to SIU files

(5) If the SIU Director refers a matter to a person under clause (1) (b), the SIU Director may make the files of the Ontario Special Investigations Unit respecting the matter available to the person.

Lead investigator

19 The SIU Director is the lead investigator in the investigation of an incident or matter under this Act, and shall have priority over,

(a) any police force investigating the incident or matter; and

(b) any other body that may be prescribed.

Assignment of investigators

20 (1) The SIU Director shall assign investigators for the purpose of conducting investigations under this Act.

Restriction

(2) An investigator who was a member of a police force shall not be assigned to participate in an investigation that relates to a member of that police force, and shall not participate in such an investigation.

Securing the scene

21 (1) If the SIU Director causes an investigation to be conducted into an incident under section 15, every designated authority of an official involved in the incident shall ensure that, until an investigator takes charge of the scene of the incident, any officials or employees over which the designated authority has authority who are at the scene take any lawful measures that appear to them to be necessary for the purposes of protecting, obtaining or preserving evidence relating to the incident.

Contrary direction

(2) Subsection (1) is subject to any direction to the contrary given by the SIU Director or an investigator.

Incident notes

22 (1) Every official who may be a subject official or witness official shall complete, in full, notes on the incident.

Same

(2) The requirement of an official to complete incident notes applies in accordance with any duties respecting such notes to which the official is subject.

Timing

(3) The incident notes shall be completed by the end of the official’s shift, subject to subsection (4).

Same

(4) The official’s designated authority may permit one extension of the deadline under subsection (3),

(a) of up to 24 hours, on notice by the designated authority to the SIU Director with reasons; or

(b) of such longer period as the designated authority specifies, subject to the prior approval of the SIU Director.

Same

(5) In determining whether to approve an extension under clause (4) (b), the SIU Director shall consider any specific circumstances respecting the official that may be raised by the designated authority when seeking the approval.

Other notes

(6) For greater certainty, incident notes do not include other types of notes such as occurrence reports, arrest reports, use of force reports, duty reports, logs or canine training records.

Notice of whether subject official or witness official

23 (1) Before requesting an interview with an official or requesting a copy of an official’s incident notes for the purposes of an investigation under section 15, an investigator shall give written notice to the official and to the official’s designated authority as to whether the official is considered for the purposes of the investigation to be a subject official or a witness official.

Notice of change

(2) If, at any time after notice is given under subsection (1), the SIU Director determines that a subject official should instead be considered to be a witness official in respect of an investigation or vice versa, the SIU Director shall give written notice of the change to the official and to the official’s designated authority.

Provision of notes by witness official

Incident notes

24 (1) If an investigator requests a copy of the incident notes of a witness official for the purposes of an investigation under section 15,

(a) the witness official shall, no later than 24 hours after the request is made, give the original notes to his or her designated authority; and

(b) the designated authority shall, no later than 24 hours after the request is made or such later time as the investigator may permit, give a copy of the notes to the investigator.

Other notes

(2) If an investigator requests a copy of any other notes of a witness official for the purposes of an investigation under section 15, the witness official’s designated authority shall give a copy of the notes to the investigator.

Notes of subject official

Incident notes

25 (1) No person shall give to an investigator the original or a copy of any incident notes of a subject official respecting the incident that are made,

(a) after the commencement of an investigation into the incident; or

(b) after the incident, if the investigation into the incident is commenced, or notice under section 16 respecting the incident is given, less than 24 hours, or such other number of hours as may be prescribed, after the incident occurs.

Change to subject official

(2) If notice is given under subsection 23 (2) that an official who was considered to be a witness official in respect of an investigation at the time that a request for a copy of his or her incident notes was made should instead be considered to be a subject official in the investigation, the SIU Director shall return to the official’s designated authority the original and all copies of the incident notes referred to in clause (1) (a) or (b), as applicable, that are in the possession of the Ontario Special Investigations Unit.

Other notes

(3) If an investigator requests a copy of any notes of a subject official other than incident notes referred to in clause (1) (a) or (b), as applicable, for the purposes of an investigation under section 15, the subject official’s designated authority shall give a copy of the notes to the investigator.

Interview of witness officials

26 (1) An investigator may, for the purposes of an investigation under section 15, request an interview with a witness official by making the request to the witness official, to the witness official’s designated authority or both.

Duty to appear

(2) If an investigator requests an interview with a witness official in accordance with subsection (1), the witness official shall meet with the investigator and answer all of his or her questions.

Same, location and timing

(3) The witness official shall meet with the investigator,

(a) immediately when the request for the interview is first made or, if there are appropriate grounds for delay, no later than 24 hours after the request is first made; or

(b) at such later time as the investigator may specify.

Same

(4) In determining whether to specify a later time under clause (3) (b), the investigator shall consider any specific circumstances raised by the official, such as any travel requirements.

Record of interview

(5) An interview with a witness official may not be audio recorded except by the investigator, and may not be video recorded except by the investigator with the consent of the witness official.

Same, copy for witness official

(6) Unless the SIU Director determines that to do so may compromise the integrity of the investigation, a copy of the record of an interview with a witness official shall be given to the witness official, subject to any conditions that the investigator may specify.

Same, change to subject official

(7) If notice is given under subsection 23 (2) that an official who was considered to be a witness official in respect of an investigation at the time that a request for an interview was made should instead be considered to be a subject official in the investigation, the SIU Director shall give the official the original and all copies of the record of the interview, if any.

Segregation of officials

27 (1) The designated authority or authorities of the officials involved in an incident that is the subject of an investigation under section 15 shall, to the extent that is practicable, segregate those officials from one another until the investigators have completed their interviews.

No communication between officials

(2) An official involved in an incident that is the subject of an investigation under section 15 shall not communicate, directly or indirectly, with any other official involved in the incident concerning their involvement, until the investigators have completed their interviews.

Application to off-duty officials

(3) In this section, a reference to an official includes a person described in subsection 17 (2) and any other official involved in the incident, regardless of whether he or she was on duty at the time of the incident.

Right to counsel

28 (1) Subject to subsection (2), every subject official and witness official in an investigation is entitled to consult with legal counsel, a representative of any applicable union, association or collective bargaining agent, or both, and to have one or both present during his or her interview with an investigator.

Exception

(2) Subsection (1) does not apply in respect of a legal counsel or a representative if, in the opinion of the SIU Director, waiting for the legal counsel or representative would cause an unreasonable delay in the investigation.

Limitation

(3) Witness officials may not be represented by the same legal counsel as subject officials.

Confidentiality during investigation

29 (1) Information respecting an ongoing investigation under this Act or an incident or matter being investigated shall not be disclosed to any person, except as permitted or required by this Act, the Police Services Act or the regulations made under either of them, by,

(a) a member of a police force;

(b) an official; or

Note: On October 1, 2018, the day named by proclamation of the Lieutenant Governor, subsection 29 (1) of the Act is amended by striking out “or” at the end of clause (b) and by adding the following clause: (See: 2018, c. 3, Sched. 4, s. 40 (2))

(b.1) a special constable employer or person employed by a special constable employer; or

(c) a designated authority.

Exception, Interprovincial Policing Act, 2009

(2) Despite subsection (1), a police officer appointed under the Interprovincial Policing Act, 2009 may disclose the information to his or her extra-provincial commander, and the chief of police of the police force of which such a police officer is a member may disclose the information to,

(a) the police officer’s extra-provincial commander; or

(b) if the investigation relates to the police officer and the chief of police is not the police officer’s appointing official, the appointing official.

Certain disclosure permitted

(3) Subsection (1) does not prevent,

(a) a police force from disclosing to a person that the SIU Director has been notified of an incident or matter involving an official who is a member of the police force and is conducting an investigation into it; and

(b) any disclosure authorized by the regulations that the SIU Director has been notified of an incident or matter involving an official who is not a member of a police force and is conducting an investigation into it.

Section Amendments with date in force (d/m/y)

2018, c. 3, Sched. 4, s. 40 (2) - 01/10/2018

Public statements by SIU

30 The SIU Director may issue public statements respecting an ongoing investigation under this Act, if,

(a) the statement is aimed at preserving public confidence; and

(b) the benefit of preserving public confidence clearly outweighs any detriment to the integrity of the investigation.

Delegation

By chief of police

31 (1) A chief of police who is a designated authority under this Act may in writing delegate any of his or her powers or duties as designated authority to a senior officer of the chief of police’s police force, subject to such conditions or restrictions as the chief may set out in the delegation.

By other designated authorities

(2) If so provided by the regulations made by the Minister, a designated authority other than a chief of police may in writing delegate any of his or her powers or duties as designated authority to a person or persons specified by those regulations, subject to such conditions or restrictions as the designated authority may set out in the delegation.

Duty to comply

32 (1) The following persons shall comply with a direction or request received from the SIU Director or an investigator in relation to an investigation under this Act, immediately or as otherwise specified under this Act, unless it is unlawful or impracticable to do so:

1. An official, other than a subject official.

2. A designated authority or a person to whom powers or duties are delegated under section 31.

3. Any person over whom a designated authority has authority, including any employees.

4. An appointing official.

5. Any other person who may be prescribed.

Notification

(2) The SIU Director shall immediately advise an official and the official’s designated authority respecting a failure of the official to comply with subsection (1) and, in doing so, shall inform each of them of the penalty to which a person is liable under subsection (3) on conviction of a failure to comply.

Offence and penalty

(3) A person who fails to comply with subsection (1) is guilty of an offence and on conviction is liable,

(a) in the case of a first offence, to a fine of not more than $25,000, to imprisonment for a term of not more than one year, or to both;

(b) in the case of a second or subsequent offence, to a fine of not more than $50,000, to imprisonment for a term of not more than one year, or to both.

Securing the scene

(4) Nothing in this section affects or detracts from any requirement to which an official may be subject under section 21.

Charges

Criminal offences

33 (1) If, as a result of an investigation under this Act, the SIU Director determines that there are reasonable grounds to believe that a person has committed an offence under the Criminal Code (Canada), the SIU Director shall cause charges to be laid against the person.

Other offences

(2) If, as a result of an investigation under this Act, the SIU Director determines that there are reasonable grounds to believe that a person has committed an offence under any other law of Canada or under Ontario law, the SIU Director may cause charges to be laid against the person.

Public notice if charges laid against official re incident

34 (1) Subject to subsections (2) and (3), if an investigation under section 15 results in charges being laid against an official, the SIU Director shall, as soon as practicable, give public notice setting out the following, but no other, information:

1. The official’s name.

2. The charges laid and on what date.

3. Information respecting the official’s first scheduled court appearance respecting the charges, if known.

4. Any other information that may be prescribed.

Omission of official’s name

(2) If the public release of the official’s name may result in the identity of a person who reported that he or she was sexually assaulted being revealed in connection with the sexual assault, the SIU Director may omit the official’s name from the notice, subject to prior consultation with the person.

Other omissions

(3) If the regulations so provide, the SIU Director shall, in the prescribed circumstances, omit the information specified by the regulations from a notice.

Public notice if no charges laid against official re incident

35 (1) If an investigation under section 15 does not result in charges being laid against an official, the SIU Director shall publish a report on the website of the Ontario Special Investigations Unit containing the following information:

1. The reasons why the investigation was thought to be authorized under section 15.

2. A detailed narrative of the events leading to the investigation.

3. A summary of the investigative process, including a timeline.

4. A summary of the relevant evidence considered, subject to subsection (2).

5. Any relevant video, audio or photographic evidence, de-identified to the extent possible, subject to subsection (2).

6. The reasons for not laying a charge against the official.

7. Any other information that may be prescribed.

Omission and reasons

(2) The SIU Director may omit from the report any information required to be provided under paragraph 4 or 5 of subsection (1), if the SIU Director is of the opinion that a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published, and includes in the report the reasons for the omission.

Additional statement

(3) The SIU Director may include in the report a statement as to whether, in his or her opinion, a witness official failed to comply with a direction or request of the SIU Director or an investigator in the investigation when required to do so under this Act.

Excluded information

(4) The SIU Director shall ensure that the following information is not included in the report:

1. The name of, and any information identifying, a subject official, witness official, person referred to in section 17, civilian witness or affected person.

2. Information that may result in the identity of a person who reported that he or she was sexually assaulted being revealed in connection with the sexual assault.

3. Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.

4. Information that discloses investigative techniques or procedures.

5. Information, the release of which is prohibited or restricted by law.

6. Any other information that may be prescribed.

Report copies

(5) The SIU Director shall give a copy of the report to each of the following persons:

1. The affected person or, if he or she is deceased, to his or her next of kin.

2. Each subject official in the investigation.

3. Each designated authority of a subject official or witness official in the investigation.

4. The Minister.

Same, minor or incapable person

(6) If a person referred to in paragraph 1 of subsection (5) is a minor or is incapable as defined in the Substitute Decisions Act, 1992, the copy shall be given to,

(a) the person’s parent or guardian, in the case of a minor; or

(b) in the case of an incapable person who is not a minor, the incapable person and his or her substitute decision maker under that Act.

Delay

(7) Subsections (1) and (5) do not apply until the SIU Director determines that there is no risk that compliance with either of those subsections may compromise the integrity of an investigation of a public complaint under Part V of the Police Services Act or of a criminal investigation or proceeding.

Notice

(8) If, as a result of subsection (7), a report is not published under subsection (1) on the conclusion of an investigation, the SIU Director shall publish notice on the website of the Ontario Special Investigations Unit that an investigation that has not resulted in charges has been concluded but that the resulting report is being withheld pending a determination under subsection (7).

No publication

(9) Despite subsection (1), if the incident investigated under section 15 was the reported sexual assault of the affected person, and the SIU Director is of the opinion that the person’s privacy interests in not having the report published clearly outweighs the public interest in having the report published, the SIU Director may decide not to publish the report, subject to prior consultation with the person.

Other public notice

Ancillary investigation

36 (1) If the regulations so provide, the SIU Director shall give public notice, in accordance with the regulations and containing the prescribed information, respecting the outcome of an investigation under section 18.

Other person

(2) If the regulations so provide, the SIU Director shall give public notice, in accordance with the regulations and containing the prescribed information, respecting the outcome of an investigation under section 15 into the conduct of a person referred to in section 17.

Investigation timing

37 (1) The SIU Director shall endeavour to ensure that, no later than 120 days after the commencement of an investigation under this Act into the conduct of an official,

(a) the investigation is concluded; and

(b) public notice is given under subsection 34 (1), 35 (1) or 36 (1), as the case may be, subject to subsections 35 (7) and (9).

Status report

(2) If the timing requirements of subsection (1) are not met, the SIU Director shall make a public statement respecting the status of the investigation every 60 days until the investigation is concluded, subject to subsection (3).

Exception

(3) Subsection (2) does not apply in respect of a requirement to make a public statement if, in the opinion of the SIU Director, doing so may compromise the integrity of the investigation.

Transition

38 An investigation commenced but not concluded under Part VII of the Police Services Act before the day that Part was repealed is continued under this Act.

Regulations

Regulations

Lieutenant Governor in Council

39 (1) The Lieutenant Governor in Council may make regulations respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act, including regulations,

(a) respecting anything that, in this Act, may or must be prescribed or done by regulation, other than by the Minister;

(b) for the purposes of clause (d) of the definition of “official” in subsection 1 (1), prescribing additional persons and governing any transitional matters that arise as a result;

(c) permitting, requiring or otherwise providing for the disclosure of information respecting an ongoing investigation under this Act or an incident or matter being investigated, for the purposes of section 29;

(d) governing public notice for the purposes of section 36;

(e) governing transitional matters relating to the enactment of this Act.

Minister

(2) The Minister may make regulations,

(a) respecting anything that, in this Act, may or must be prescribed by the Minister or done by regulation made by the Minister;

(b) governing the requirements and qualifications for appointment as an investigator under section 6, including in relation to training, evaluation and accreditation;

(c) establishing classes of investigators appointed under section 6 and setting out requirements and qualifications for each class;

(d) for the purposes of subsection 15 (7), providing for circumstances in which the SIU Director shall not investigate an incident under section 15 where immediate medical care was provided by an official, and specifying the meaning of “immediate medical care”;

(e) governing the assignment of investigators under section 20 to investigations under this Act, including,

(i) providing for a limit on the number or proportion of former officials that may be assigned as investigators, or as a class of investigators prescribed under clause (c), in relation to an investigation or a class of investigations; and

(ii) restricting the assignment of specified investigators to participate in investigations that relate to officials or classes of officials who are not members of a police force, and requiring that such investigators not participate in such investigations.

40 Omitted (provides for amendments to this Act).

41, 42 Omitted (amends, repeals or revokes other legislation).

43 Omitted (provides for coming into force of provisions of this Act).

44 Omitted (enacts short title of this Act).

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