Adequacy Standards for First Nation Policing

1. Adequacy Standardsfor First Nation Policing STRATEGY FOR A SAFER ONTARIO: Political Technical Table Presentation 2017

2. Safety Backed By Rule of Law: “The Program Is Over” Police Services Act, RSO 1990, c P.15, section 1 Declaration of principles 1. Police services shall be provided throughout Ontario in accordance with the following principles: 1. The need to ensure the safety and security of all persons and property in Ontario, including First Nation communities. 2. The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code. 3. The need for co-operation between the providers of police services and the communities they serve. 4. The importance of respect for victims of crime and understanding of their needs. 5. The need for sensitivity to the pluralistic, multiracial and multicultural character of Ontario society. 5.1. The need to be responsive to the unique history and distinct cultures of First Nation people in Ontario. 6. The need to ensure that police forces are representative of the communities they serve. 7. The need to ensure that all communities in Ontario, including First Nation communities, receive equitable levels of police services.

3. Inequities in First Nation Policing • Program status, not an essential service • Governed by tripartite agreement; not the Police Services Act (PSA) “Police services shall be provided throughout Ontario…” BUT “Board” only means a municipal police services board “Chief of Police” does not include the Chief of a First Nation Police Service “Police Force” does not include a First Nation Police Service “Police Officer” does not include First Nations Constables

4. What is the Adequacy Standards Table? • Initiative to amend the PSA to cover First Nation policing • Goal is to provide First Nation residents with the same standard of police services as off-Reserve communities across Ontario • NAPS negotiated as “pilot” service, with APS as silent partner • Speedy process allowed for creation of draft package of legislative amendments within 18 months • Legislation designed to allow subsequent “designations” for other First Nation police services, including APS • Legislated adequacy standards would entail: • Same legal status as municipal police forces and police officers • Statutory remedy for inadequate funding or services • Increased community safety

5. Key Draft Provision: Financial Assistance 39.1(1) Where the Minister designates a board pursuant to s. 27.1(2) ,the Minister may enter agreements to give the board financial and other assistance. (2) The Minister may impose terms and conditions on the assistance, including terms and conditions regarding the types of services to be delivered, the level of services to be delivered and the manner in which services are delivered. (3) For greater certainty, the Minister may impose terms and conditions on the assistance requiring the board to enter an agreement with the OPP or another police force to have that police force provide police services in order to provide adequate and effective police services in the First Nation territory or territories or any additional area in relation to which the board is responsible for providing police services. (4) If a board established pursuant to s. 27.1(2) is not satisfied that the funding available to it pursuant to s. 39.1(1) and from all other sources is sufficient, or that the terms and conditions imposed under s. 39.1(2) will permit, the board to maintain an adequate number of police officers or other employees of the police force or to provide the police force with adequate equipment or facilities to permit the board to ensure the delivery of services required by s. [placeholder for new Part I provision] in accordance with prescribed standards, the board may request the Commission to determine the question and the Commission, shall, after a hearing, do so. (5) When making a determination under subsection 39(4), the Commission shall consider whether providing services pursuant to policies that reflect the cultural traditions of the First Nation or First Nations receiving the services affects the resources required to provide the services required by s. [placeholder for new Part I provision] in accordance with prescribed standards.

7. Mandate and Terms of Reference “The parties acknowledge the absence of a comprehensive statutory and regulatory framework for First Nation policing in Ontario and the resulting inequity this creates for the First Nations. “The goal of the Table is to develop a draft statutory and regulatory framework, including adequacy standards for the delivery of police services to NAN communities by NAPS.” “The recommendation for content of a legislative and policy framework will examine what is culturally appropriate police service delivery and be informed by the unique needs of NAN communities. Recommendations for the legislative and policy framework shall be comparable to legislated standards for other police service providers in Ontario and will also consider civilian oversight and standards for NAPS policing.”

8. What are “Adequacy Standards”? • Legislated standards of service that must be met by police services boards, police forces, and police officers • Conversely, the standard of police service that communities have a statutory right to receive • The Police Services Act sets specific requirements for police training, equipment, use of force, and codes of conduct • Regulations under the PSA prescribe detailed standards in a number of areas, including: • Community-based crime prevention initiatives; • Communications and emergency response capabilities; • Operational matters that the police force must have procedures to address; • Required operational capabilities, such as: 24-hour emergency response, general patrol, investigative supports, communications centre, and criminal investigators

9. Current Standards for Municipal Police Services

10. Implications of Adequacy Standards • Civilian oversight • Ontario Civilian Police Commission (OCPC) • Office of the Independent Police Review Director (OIPRD) • Special Investigations Unit (SIU) • Government oversight • Ontario Ministry of Community Safety and Correctional Services • Responsible for ensuring that Ontario police forces meet adequacy standards • The Ministry of the Attorney General (MAG) has committed that appropriate cultural competence will be developed by all civilian and government oversight bodies

11. Ontario Commitment to Cultural Competence • “MAG and the oversight agencies are committed to delivery of cultural competency training to the three oversight bodies… It is understood that cultural competency training is not achievable in a single session, but must be an ongoing commitment and that there should be opportunities to review and evaluate the impact of the training.” • “There is an understanding that the membership of the oversight bodies should reflect Indigenous perspectives… MAG and its oversight bodies are committed to developing strategies to support representativeness.” • “MAG is prepared to consider audit or mandatory review processes, to assess the implementation and effectiveness of cultural competency initiatives.”

12. Designation forAdequacy Standards • Designation model from Child and Family Services Act (“CFSA”) • Children’s Aid Societies (“CAS”) must be approved by Ontario Minister • The CFSA makes CAS responsible for providing services that comply with mandatory, legislated standards • Like policing, children’s welfare is normally a matter of provincial jurisdiction • CFSA allows a First Nation organization to be “designated” as an approved CAS if endorsed by both the First Nation and the Minister • Designation of agency on mutual consent brings the CAS within jurisdiction of provincial standards set out in the CFSA • Historic opportunity to learn from experiences since 1985

13. Designation forAdequacy Standards • Board Designation Model • Board would be “designated” under the PSA • As a designated board, it would be subject to the standards in the Act • Board would become responsible for a “police force” • It would have to ensure that the police force met all legislated standards • Board would gain the authority to appoint “police officers” • Same status, subject to same standards as other Ontario police officers • Civilian oversight mechanisms would apply • OCPC, OIPRD, SIU • The labour relations provisions in the PSA would become applicable • Officers must form an “association”, not a union • Ontario and/or Canada must provide sufficient funding to meet standards • Neutral arbiter (OCPC) would have authority to resolve funding disputes

14. Key Draft Provision: Decision to Designate Police Services Board for First Nation Community 27.1 (1) Where a First Nation community or communities propose that a board be designated for the purposes of this Act, the Minister shall consider the proposal. (2) The Minister may designate a board for the purpose of providing police services to a First Nation territory or territories and any additional area specified in the designation. (2.2) The Minister may, if a board is designated under subsection 27.1(2), prescribe conditions regarding the transition from any existing arrangements regarding the delivery of police services to delivery of police services by the board designated under subsection 27.1(2). (3) When deciding whether to designate a board under subsection (2), the Minister shall consider the availability of financial assistance pursuant to an agreement entered into pursuant to s. 39.1. (4) The composition of a board designated pursuant to subsection 27.1(2) shall be prescribed by regulation. (5) Subject to any conditions imposed under subsections 27.1(2.1) and (2.2), a board designated pursuant to subsection 27.1(2) is responsible for providing adequate and effective police services in the First Nation territory or territories and any additional area specified in the designation in accordance with the needs of those territories and areas.

15. Key Draft Provision: Amendment/Revocation • 27.3 (1) The Minister may, if there is a material change in the circumstances on which the designation is based, revoke or amend a regulation made pursuant to subsection 27.1(2). • (2) Before revoking or amending a regulation made pursuant to subsection 27.1(1) the Minister shall provide notice and an opportunity to respond to the board and to the First Nation or First Nations that receive police services from the board and reasons for his or her decision to revoke or amend the regulation. • (3) Before determining whether to revoke or amend a regulation under subsection (1), the Minister shall have regard to at least the following: • (a) The objective of First Nations determining the means by which culturally responsive police services are provided on their First Nation territories, and • (b) The effect of the decision on the long-term viability of the delivery of police services to the affected First Nation and other First Nations by First Nation police services boards designated pursuant to section 27.1(2).

16. Key Draft Provision: Board Responsibilities 31. (1) A board is responsible for the provision of adequate and effective police services in the municipality or the First Nation territory and any additional area specified pursuant to s. 27.1(2) and shall, (a) appoint the members of the police force; (b) generally determine, after consultation with the chief of police, objectives and priorities with respect to police services in the municipality or First Nation territory or additional area; (c) establish policies for the effective management of the police force; (c.1) establish policies regarding the manner in which police services are delivered; (d) recruit and appoint the chief of police and any deputy chief of police, and annually determine their remuneration and working conditions, taking their submissions into account; (e) direct the chief of police and monitor his or her performance; (f) establish policies respecting the disclosure by chiefs of police of personal information about individuals; (g) receive regular reports from the chief of police on disclosures and decisions made under section 49 (secondary activities); (h) establish guidelines with respect to the indemnification of members of the police force for legal costs under section 50; (i) establish guidelines for dealing with complaints under Part V, subject to subsection (1.1); (j) review the chief of police’s administration of the complaints system under Part V and receive regular reports from the chief of police on his or her administration of the complaints system. (1.1) When establishing policies pursuant to clause 31(1)(c.1), a police services board designated under subsection 27.1(2) shall consider the cultural traditions of the First Nation or First Nations receiving the services. (1.2) Prior to establishing policies pursuant to clause 31(1)(c.1), a police services board designated under subsection 27.1(2) shall consult with representatives identified by the chief and council of the First Nation or First Nations receiving the services regarding the cultural traditions of the First Nation or First Nations.

17. Next Steps • Legislation to be tabled in late-May/early-June 2017 • Expected to pass in November 2017; to be proclaimed in early 2018 • The bill will include broader amendments to the PSA, in addition to First Nation policing, as part of the Strategy for a Safer Ontario (SSO) • Ontario is currently engaging in consultations with First Nations across the province regarding the SSO and the AST

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