Volume 35 (December 1, 2022)

Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you, Commissioner, and good morning, everyone. My name is Dennis Baker, and I'm an Associate Professor of Political Science and Acting Director of the Criminal Justice Programs at the University of Guelph. It is my honour to be moderating this roundtable this morning. We have an impressive array of experts here, and I am going to introduce them briefly. Going around the table, Malcolm Thorburn is Professor of Law and Associate Dean of Graduate Studies at the University of Toronto. Next to him is Michael -- is Professor Michael Kempa, who is an Associate Professor of Criminology at the University of Ottawa. Kate Puddister is Associate Professor of Political Science in the Department of Political Science at the University of Guelph. Ryan Teschner is Executive Director and Chief of Staff on the Toronto Police Service Board; and James Ramer is Chief of the Toronto Police Service. And joining us online is Christian Lepreucht, who is the Class of 1965 Distinguished Professor of Leadership at Royal Military College, and Director of the Institute for Intergovernmental Relations at Queen's University. So our topic here this morning is the relationship between police and governments. As Professor Puddister and I can attest, having taught many Guelph students over the years in a class called Governing Criminal Justice, this is a relationship that is fraught with challenges and does not lend itself to easy answers. We know that neither extreme is appealing. The idea of government-directed police force, where the police become an arm of the government of the day, is repugnant to our commitment to the rule of law and threatens our democratic right to express our displeasure with the government. The other extreme, fully independent police, risks allowing those police services to be a force unto themselves, disconnected from civilian control and legitimate democratic authority. The relationship must be somewhere in the middle. But that middle, as my students know, and Professor Puddister's students know, is sharply contested and often difficult to operationalise. So today, we're going to talk in some detail about the capacity of governments to direct police, the sharing of information, and the relationships between different police services and the multiple levels of government. My hope, Commissioner, is that even if we cannot provide you with definitive answers today, we can at least assist you by outlining the contours of the debate and where some of the reasonable disagreements may lie. With that, I'm going to turn the session over to our panelists for opening statements. I've asked each panelist to speak for about five minutes, introducing their approach to the topic, and then we're going to have rounds of questions focussed on different aspects of the relationship. One final reminder to everyone on the panel, speak slowly, something I'm going to have to struggle with, and always identify yourself when speaking for the benefit of our translators and transcribers. So Professor Michael Kempa, I have you in alphabetical order, so you are up first.

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Michael Kempa, Prof. (Criminology – University of Ottawa)

Great. Thank you very much for including me, Commissioner. And as you know, the issue of political engagement and civilian oversight engagement with policing has plagued the Canadian system since the McDonald Report in 1981, so over 50 years, but I have every confidence that we will resolve these issues here today and through the work that you'll do on the Commission after all this time. I approach policing basically as a window into politics and political economy, which is simply to say, the way that a society sets up its policing system, divides responsibilities between public policing authorities, private policing authorities and civil or volunteer policing authorities says a lot about their broader views of the proper role of the state generally, what a market is and what its purpose is, who it serves, what a civil society is and what a civil society can contribute to the broader political economic context, how to define citizenship and how rights of citizens are to be institutionalized, including who is included and sometimes accidentally excluded from these regimes of rights. So that's at the theoretical level. At a practical level, I'm simply interested in who makes the decisions around policing policies, operations and the exercise of policing power. And my general concern is that all three of these things are as democratic as possible, which means as close to community as possible, as reflective of community values and needs as possible, balanced by the need for the exercise of policing power as a form of legal power to be independent and democratically accountable. Now the way that those things come together in different circumstances will vary. The answer will not always be the same depending on what type of policing powers we're talking about and what circumstances, but generally by interrogating those questions, you get a good window into democratic theory and political economic theory. Thank you.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you, Professor Kempa. So next up is Professor Leuprecht, who's on Zoom.

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Christian Leuprecht, Prof. (Political Science – Royal Military College)

Yeah, so if we frame the problem here -- donc, merci de l'invitation aujourd'hui -- so we had a modest but tenacious protest in Ottawa and the system comes under moderate strain and is unable to come together to achieve strategic effect. I mean, we get more people in Kingston for homecoming than we did in Ottawa for the convoy, so let's think about that. So Police Services Acts call for adequate and effective policing. What does that mean? It means policing in response to the needs, values and expectations of the local community. On the other hand, police swear an oath to protect life, property and prevent crime. So the question for police is, what's the best way to keep the public safe? And you can already see emerging here the fundamental problem, which is the delta between public expectations on the one hand, as well as the quantity and the quality of policing. And I would say that delta in Canada continues to grow. And so we can use the Ottawa convoy as a critical case study and a laboratory of experimentation of generally what ails the national security system, because what we have here is a fundamental failure of the entire intelligence, law enforcement and national security system. So police resources are always oversubscribed, even in normal times, and so they'll follow risk. And so that means that police planning, decision making, and action depends on the intelligence cycle, planning and direction, collection, processing, analysis and production, dissemination. We had multiple agencies generating those, CSIS, the RCMP, Criminal Intelligence Service of Ontario, OPP, OPS, open source through media, and it seems we never were able to come together to actually produce a coherent picture. Just think about who would let all these trucks downtown after the Royal Trade Centre bombing in 1990 and the Oklahoma City bombing in 1998. So there's four, I think, key elements here. The issues with regards to the Chief in Ottawa I think are more symptomatic of broadly issues in Canadian policing when it comes to police leadership, police management, police institutional culture and policing posture. Issues with regards to the Board are emblematic of challenges of police governance more broadly, but also what happens when we don't have adequate police governance. We have interagency issues of -- and in particular, police didn't ever appear to have an appreciation of the totality of circumstances that affected this situation, and we have intergovernmental issues where the Premier, the Prime Minister and the Mayor should have stood together with their chief law enforcement officers, and instead, we got squabbling among them, all this in the capital of a G7 country, so the system was unprepared. And so I think what we get here, this was more symptomatic of a number of broader issues. One is we have good incident response among law enforcement in Canada. We have difficulty with sustainment, in particular, on issues of intelligence, planning and logistics that a medium-sized police service such as the Ottawa Police Services cannot simply be expected to have for a national protest. That's where we need national, and to some extent provincial agencies to come in. Where was the RCMP surge capacity? We're always told we have this national police force of 17,000 people, so we can surge at times of a crisis. Between A-Division, C-Division, O-Division and headquarters, we have well over 2500 people that could have simply gotten in their cars, that are not on frontline patrol. Where were they? We had a loss of trust and confidence by the public. That caused politicians to meddle. We had issues of outdated policy, which are governance issues. There's a broader debate about what constitutes national security. We have this very realist and traditional approach that I think does not do well in coping with economic security and political stability, issues of hate crime, ideologically motivated violent extremism and so forth. Six, we have a reactive national security posture in preserving national security when we need a proactive and intelligence driven one where federal agencies have to have a firm and clear understanding of their mandate and on issues, so that they can clearly advise local agencies. And I'd say there's a general vulnerability that was created in Ottawa where this vulnerability public safety, national security then created multi-dimensional issues of destabilizing Canada and its democratic institutions more broadly. The conclusion is that the Emergencies Act shouldn't and wouldn't have been needed had the system performed well to achieve strategic effect. The fact that we had -- that the Emergencies Act was invoked is an indictment of the system and its inability to perform for Canadians, for the government and for local citizens in Ottawa.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you, Professor Leuprecht. I'm going to remind the panel to please try and speak slowly for the benefit of our transcribers and translators. Professor Puddister?

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Kate Puddister, Prof. (Political Science – University of Guelph)

Thank you. Good morning. My name is Kate Puddister and I'm an associate professor in the Department of Political Science at the University of Guelph, and I am pleased to be here with you today. My research and teaching are in the areas of law and politics and criminal justice policy. With colleagues, I have researched and written on several aspects of police governance and accountability. This work includes a study of the RCMP's Mr. Big undercover technique as a test for various types of police oversight for a routine but covert policing operation. My current research examines civilian police oversight in Canada with a focus on Ontario in particular. I've written on the investigation, prosecution and sentencing of police officers in Ontario and the work of the Ontario Special Investigations Unit as a method of police oversight and accountability. My work demonstrates the very complex and challenging nature of these cases for the justice system. Through my work, I try to highlight the importance of public legitimacy and police oversight and the various sites of accountability for police. My research has shown that for some matters of policing, parliamentarians, responsible Ministers and police oversight agencies either show little interest or are incapable of regulating police conduct in an ongoing basis or in approaches that are more systematic and comprehensive. To this end, there are examples of elected officials in Canada being unwilling to take on difficult matters of police policy and operations instead of choosing -- instead, choosing to rely on a notion of police independence that is too expansive and unhelpful for effective democratic governance of policing. I see my role on this panel to think about connections to police accountability and civilian oversight with respect to police government relations. In thinking about this topic, we are often presented with discussions about the importance of police independence and the dangers if police independence is not taken seriously in a democracy. Too much government direction of the police and overreach presents a problem for the rule of law, but too much police independence raises issues for democratic accountability and other problems for the rule of law. This conversation usually turns to distinctions between policy, something that is the rightful domain of governments and police service boards compared to operations, something that is the rightful domain of police themselves. I know that we'll discuss these issues this morning, but my perspective is that this distinction and an attempt to draw clear line between the two does a disservice. This focusing on the distinction between policy and that of operations leaves out critical conversations about the role of the public, through civilian oversight, and the importance of other sites of accountability, such as the courts, the media, and inquiries like the present. Importantly, this formulation allows governments to shirk responsibilities with respect to policing. Perhaps as a method of political strategy. Instead of having a more nuanced discussion about the respective roles of each and how this might change based on the nature of policing that is required, considering the wide scope of responsibilities of the police. Police in Canada are tasked with a wide range of responsibilities, as laid out in legislation: crime prevention, law enforcement, assistance to victims, public order maintenance, and emergency response. Each comprise different and occasionally competing demands. When thinking about the governance of the police, there’s value in having a nuanced conversation about these different roles and how police independence or operational responsibility might take on a different meaning and importance. Perhaps there’s a greater role for government oversight when responding to issues of public order policing, compared to the core responsibilities of the police to investigate a particular person or persons and to lay charges. My perspective is, is that there’s value in establishing, through public policy, the responsibilities of both government and the police, to articulate the accountability mechanisms, to define procedures of communication, information sharing and direction, and so we can identify cases of undue influence if they deviate from these guides. Enacting policy and legislative guidelines can promote openness by allowing for the setting of policy priorities, debating the direction of those priorities, and for policy evaluation. All of which can be aimed at ensuring democratic values and principles are alive and well in Canadian policing and police policy. Clear rules can articulate lines of accountability and oversight, which can not only guide police/government relations in the future, but it can also further public confidence. And with that in mind, I look forward to our discussions this morning.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you, Professor Puddister. I’ll call on Chief Ramer.

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Jim Ramer, Chief (Toronto Police Service)

Good morning. Let me first thank you, Mr. Commissioner, for inviting me to participate in this very important exercise. I’m a lifelong practitioner, having devoted my working life to policing, public safety, and crime prevention. I hope that I can provide some insight into how theory is applied. The title of this session is Police/Government Relations. The essence of the discussions is how do we construct and reinforce public institutions that preserve or promote democracy? I firmly believe that democracy is more than just voting. Many institutions promote democracy and the balancing of rights. Some institutions, however, can promote democracy or detract from it, depending on how they are administered. Policing is one such institution. In my view, we must be careful to avoid adopting strategies at remedying a particular problem that tend to undermine a system that, generally speaking, works well in this province and across Canada. A system of policing that is independent of political interference is a system to be protected and nurtured is a key aspect of democracy and must, of course, be accountable to the people, and the leadership must be responsive to the people and ensure that the rule of law is maintained. The police cannot be seen as a tool to be used by any particular government, but must be seen to be operating on the basis of democratic principles. The leadership in policing need to be experienced, trained, empathetic, and humble in order to be effective. Long ago, in response to political interference in Toronto, born of divisions transplanted from abroad, the Provincial Government created a police commission designed to protect the police service from actual and perceived interference. That system has evolved into the police services board system we have today. That system has evolved and matured to ensure that politics does not intrude into operations, but that the direction of policing is responsive to the legitimate needs and expectations of the people. I am of the view that while I accept there is room for improvement in the system we have developed in Toronto, we are currently positioned as well as we ever have been to ensure responsive, accountable, and independent policing for the people who depend on us. The Service embraces the role of the Board. We do all we can to ensure they have the information and assistance they need from us to fulfil their role, which is often stated to be ensuring adequate and effective policing. I’m sure Mr. Teschner will unpack that concept through the course of our time together, but for me, it includes providing the Service with policy direction that informs our operations. It is a relationship that recognizes that the Board can and should collaborate with the service, and can do so in a way that augments its oversight ability and does not detract from it. The Service has also matured, and we realize that the Board can provide unique civilian perspectives that actually enhance our operations. So we have policy and operational discussions frequently, and each of us are the better for it. However, a key to those discussions is that we each honour the other’s roles. The Board also plays a key role for the police in being a contact point with government. The Board is, in that respect, another key democratic institution. The Board allows the government to learn of some aspects of policing, and even questions operations with the Board. Thus, the government will not be seen as directing operations or attempting to do so. The Board also assists in resourcing in concert with the Service and assists the Service in speaking to government in terms of powers and authorities that would assist the police in carrying out their duties. That encapsulates my view on police/government relations and I look forward, as well, to today’s discussion. Thank you.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you, Chief Ramer. Mr. Teschner?

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Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

Thank you, Professor Baker. Good morning, Mr. Commissioner. Bonjour. I have spent over a decade focused intensely on police/government relations, first as a lawyer, then as lead counsel to Judge Morden for the G20 review, and then now, a front row seat as executive director and chief of staff to Canada’s largest municipal police services board. And so I have some reflections. I approach this as a discussion of principle, and there are three that I think animate the approach to effective, appropriate, well-balanced police/government relations in Canada. The first is an acceptance that we must keep politics out of policing. Law enforcement decisions, in their core fashion, should not be made or directed by those in elected office. Police officers have common-law authority independent of government and must undertake their core law enforcement functions separate from government direction in order to maintain the rule of law. But we have to be careful no to lean too heavily into creating a bubble of immunity that prevents governance and oversight of police in terms of their plans, actions or inactions, or otherwise impedes the flow of information essential for governance and oversight to function. The second principle is that we need governance and oversight in some form. Policing requires, in my view, some form of independent governance that is forward looking, that is perspective, and that embeds due respect for community norms. We need this to maintain the public approval required for democratic community policing systems to function. It helps ensure that the public’s accepted values and norms, as many of the other panelists have mentioned in their intros, guide the delivery of policing. And it puts in place the policy infrastructure that sets the rules and limits within which specific law enforcement decisions will be made and actions taken. We also need independent oversight after the fact, accountability processes that examine decisions or acts once they have already occurred and help us learn from them. Third principle is that we need an intermediary who mediates and sometimes arbitrates interests. There must be a way to, without government being the decision maker improperly, translate public values and expectations into a framework within which policing services will be delivered. Someone must balance competing interests of different constituencies, a diverse public, police leadership, elected officials, oversight actors, interest groups, but ultimately make the policy decisions, set the priorities and objectives from which police actions flow. There are a few other key points I’m sure I’ll expand on today. One is that the ability of independent governance and oversight bodies to function and fulfill their important statutory mandate requires a healthy information exchange and that that is not the same as impermissible direction of the police. The second is the need to balance the concepts of independence and accountability in a way that avoids political interference but avoids political shirking of responsibility. And the third is that community connection that the boards and commissions across this country provide help ensure that a community needs and their expectations as they evolve are matched, that there is a feedback loop, so that policing evolves alongside. And very quickly, I'll put this by way of analogy. I look at the role of police boards and commissions the way that I look at building a house. You have an architect and you have a general contractor. Police boards are the architects. They have a vision, they develop the blueprints, they set the plan. Police chiefs and police services are the general contractors. They are the experts. They come in and they mobilise the trades, the resources, the equipment, the tools in order to bring that plan to life. Each have an important role. But for anyone who has built a home, renovated a home you know that you have to respect the roles of each in order for the system to function properly. And I look forward to expanding on that more today. Thank you.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you, Mr. Teschner. Professor Thorburn?

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Malcolm Thorburn, Prof. (Law – University of Toronto)

Thank you. Bonjour, et merci, Monsieur le commissaire, pour l’invitation à participer aujourd’hui à la discussion. Je m’appelle Malcolm Thorburn, je suis professeur titulaire et vice-doyen aux études supérieures à la Faculté de droit à l’Université de Toronto. Je tiens aussi la Chaire de recherche pour l’innovation. J’enseigne le droit pénal et le droit de la preuve et j’effectue des recherches sur la police et sa place dans l’ordre constitutionnel au Canada, plutôt sur le plan théorique, mais aussi sur le plan pratique. Je donnerai mon discours en anglais aujourd’hui, mais je serai ravi de répondre à des questions dans les deux langues officielles. I'll start my presentation by outlining what I take to be the main concerns that should structure our thinking about police government relations. I know that many of my fellow panelists are criminologists, police officers, political scientists, who will bring enormous -- who have already brought enormous insight into the policy considerations that pull us toward one arrangement or another. I'm going to focus my own thoughts on some of the legal considerations, common law doctrines, constitutional principles, and so on, that I believe should structure our thinking on this topic. And the central idea I want to put forward is one that we've already heard mentioned here, that in Canada, I believe we have for too long had a rather vague and sometimes often overblown conception of police independence from government. As a matter of common law doctrine, and of constitutional principle, made clear in many places, our Supreme Court's decision in '99 in Campbell, for example, it is clear that the police should be fully independent of the government, police services boards, minister, whoever, while engaged in criminal investigation, commencing or ending investigations, laying charges and the like. That much, I think, is clear as a matter of law, and I think I would agree, as a matter of policy. And that is because in these situations, when the police are targeting specific individuals for the attention of the criminal justice system, full independence is essential to the integrity of their operations. Without it, there is a significant danger that the criminal justice system might become a tool of the government of the day. As with other parts of the criminal justice system, impartiality is crucial to its legitimacy. But outside the context of criminal investigation, there is no good reason, I think, to think that the police should be fully independent of government. Indeed, there are plenty of good reasons to think that they should not. So the police have wide discretion, considerable coercive power over increasingly wide variety of different areas, well beyond the scope of criminal investigations. It is, I think, intolerable in a democracy that all that power and discretion should be exercised without significant democratic accountability and input. When making decisions about crowd control at large-scale protests, for example, there are important public policy considerations at play. The possibility of economic life for the surrounding community, access to education, healthcare, other important services, sometimes matters of international trade, and so on, that must play a part in decision-making about how to police those protests. So we've seen in a number of important judicial reports on policing, from Justice Morden about the G20, Justice Linden on Ipperwash, and others, urging a more pragmatic allocation of decision-making power, and certainly an increasing flow of information over an array of police activities. Unfortunately, though, many politicians, solicitors general, police services boards, others, have assumed that police independence should cover much more than just the investigation of crime. What's more, of course there is legislative language in Ontario, section 31(4) of the Police Services Act, that draws this sharp distinction between operational decisions with respect to day-to-day operations and policy matters. But I believe that broader understanding of police independence undermines the accountability and ultimately democratic legitimacy of policing outside the area of criminal investigation. So how then should we demarcate areas where the police should maintain strict independence from areas where more government input is appropriate? Well, first, I think we should continue to ensure full police independence over criminal investigations, and we should do so in clear, unambiguous, statutory language. But outside that area of criminal investigation, we should make clear, also in clear statutory language, that police independence is not a bar to the free flow of information to and from police services and boards, and to some direction from government. Making clear that these other areas of police operations are not subject to strict police independence will allow for a proper flow of information between police services and government. As Justice Morden pointed out 10 years ago, in his report on policing the G20 Summit, police services boards cannot perform their oversight function if they lack adequate information about the police services operations. And further, we should allow for more guidance and input from government in crafting policies, priorities and objectives in these other policing areas. As we have seen at virtually every large-scale protest in Canada over many years, including earlier this year, the police lacked clear guidance about how to regulate those protests. The police need more and clearer legal guidance about how to deal with these large-scale protests and other critical points, as there sometimes would. That said, I wish to acknowledge that it is very important that political guidance and the sharing of information should not become a road into partisan capture of policing. The police mission must be one that is subject to democratic oversight, accountability and input, but not to become the servants of the government of the day. So to that end, I think we ought first to make any government input clear, publicly accessible, and in writing, such that those -- that guidance can be subject to democratic accountability, also that, where possible organisations, such as police service boards, can act as intermediaries between elected officials and police departments. I look forward to the discussion later this morning. Thank you very much.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you, everybody. It's tempting just to let you all ask questions of each other right now, but we're going to have slightly more structure than that. Our first set of questions relates to directions from police -- to police from government. And we've already heard a little bit about that in many of the statements. So the questions we're going to specifically look at are what direction a police boards and governments legitimately provide to police? And in particular, I know this Commission is interested in whether, specifically, may governments provide directions, establishing priorities for which a region's police resources should be deployed during a major event that impacts multiple locations. So that question is before us. What decisions in relations to managing protests should be made by police alone? Is the policy operations distinction, that we've already heard about, meaningful and can it be usefully applied? So with that, I'm going to ask Professor Kempa to start us off.

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Michael Kempa, Prof. (Criminology – University of Ottawa)

Thank you. So Commissioner, I've made a real commitment to our panel chair to be as practical as possible in my discussion today and to really try to avoid getting bogged down in the theoretical weeds that have accumulated over the last 50 years on this particular topic. The issue of whether or not the policy operations distinction is even useful, in terms of discussing what types of questions political overseers or civilian overseers can ask of police organizations, what types of direction these same bodies can give police is a good one. And I think the metaphor that’s come up over and over again over the course of this Commission is the separation of church and state, where the idea was that political direction or questioning should definitely not cross some sort of a threshold which was understood as church throughout the Commission. But the opinions as to what exactly the line was within the church were mixed from the evidence that you heard here. There were some that would have given you the idea that political overseers or civilian overseers should not even put a toe into the church, for example. And there were others who said no, political overseers can come in and ask questions, but certainly not even make a suggestion or tell us what to do on any operational level whatsoever. So what I would suggest when we go through the history of the reports looking at these matters at the level of civilian oversight bodies, police services boards, Linden is the report that is most helpful for us -- excuse me; rather, the Morden Report is the most helpful for us. At the provincial level of political direction, it’s Linden. And at the federal level, of course, it’s the McDonald Report, and the more recent Brown Report looking into these matters with the RCMP. So what I would suggest, rather than thinking of church and there’s really no role for the state or political or civilian overseers inside the church; in fact, they’re fully welcome in. They can ask questions about operations; they can give advice about operations at a general level, but they ought not to be allowed into the confessional, which is to do with the exercise of police powers, specifically. So my answer to the question on whether that dichotomy is useful is, I would say yes, but I actually prefer to think in terms of a trichotomy that just makes it a little bit more specific. So on the one hand we do have policies, which is the domain of either civilian oversight bodies where they exist, or the political Ministers responsible, if we’re talking about the federal level of the RCMP. Then there are plans, which can be conceived as the more general level of operations, where there is a legitimate role for any of these bodies to ask questions; demand answers to these questions; offer even suggestions about overall plans. But in the end it is the final decision of the chief whether or not those suggestions will be executed at the level of plans on the ground. And then finally, powers. Powers -- the exercise of powers is the most specific level of operations. This is the confessional, and this is where there is absolutely no role for civilian oversight bodies or for the political directors of policing; the Ministers responsible. So where we think about some of your more specific questions, for example; what directions may police boards in governments legitimately provide to police? Well, obviously they’re setting policies, but in terms of an operation, like something for a major protest event, there is no precise legal definition for what type of advice a board would give a chief of police on how to generally go about strategizing to deal with a mass protest. This comes from the Linden Report as well. Rather there needs to be a deliberative discussion process in place where these issues would be worked out. I know that very many would say it’s difficult to define these things in law, and it’s important to leave some space for your professionals to have room to work these things out amongst themselves, within a framework. So I’m suggesting this is a general but specific enough framework; policy, plans, and powers, that within plans, there’s the space for the participants to negotiate where the board would offer advice and where they would stop. Some of this would be common sense, for example. The boards members are typically not police professionals, so they don’t have experience in deciding exactly where you would send contingents of officers on particular corners, and so forth, nor would they even have very many questions about those issues at that level for their Chief. They would have questions about whether certain laws might be used as tools to be enforced, but not when and where those laws would be enforced or not. The timing and the ultimate decision to use those authorities would be for the police and the police alone. What types of information can boards or political masters ask for? On matters of operations, they should be asking questions about planning before and after plans are designed and executed. So before, again, the types of questions that a common-sense approach within this framework would dictate, would basically be what any good board of management would be asking; “Chief, how did you come up with this particular approach? Were other alternatives considered?” The board may have no idea what other alternatives would look like, but a good board of management makes sure that their executive officer in whatever branch has considered alternatives, for example. “Is there any evidence to suggest that this would be a better approach than something else?” The chief might simply reply, “Yes, this was a model that was deployed to good effect in protests in Seattle. We feel that there’s some similarities and that’s why we’re following this model here.” It’s a standard, deliberative-type approach in that sense. On your next set of questions here, we have a question, “May governments provide directions establishing priorities for which regions, for example, police resources should be deployed during a major event that impacts multiple locations?” So the simple answer to that is yes, absolutely, and that’s by Linden, where it’s clear that the provincial government could issue such direction, providing they do so in writing, so that this direction would be publicly visible. If the public felt that this was unreasonable direction, the government would then be accountable for providing that level of detailed instruction to the police. Further, if the head of the OPP, for example, were to feel that those were unreasonable directions on the basis that they could compromise public safety, that Commissioner would provide that explanation; again, in a public fashion, so that the logic of where the police were going, either before, if that could compromise the safety of the operation before, that could be explained after, where the police are going and why. What decisions in relation to managing protests should be made by the police alone? At the level of power, nobody should have any say as to how exactly when or in what fashion an operation will be executed by the police organization. So while a board may ask are certain laws going to be enforced, for example, around the transportation of jerry cans of fuel, that board cannot direct that at a specific time of day you will begin enforcing these laws in any location in Ottawa; or elsewhere, for that matter. So finally, on that question of policy operations, I would suggest it is a helpful distinction, providing you break operations down in terms of plans and powers. Powers are obvious and legally defined. Plans don’t need to be legally defined, it’s just within that space, there has to be that deliberative process. And if there is confusion, if the agreement as to what constitute a plan breaks down, we do have mechanisms to take this disagreement to other bodies. So for example, my understanding would be when the new COPS Act for Ontario is proclaimed, the Inspector General would serve this role advising police services boards whether or not they within their rights to ask for certain information, and to enforce compliance on the part of police chiefs, if they were withholding information that a board was legitimately entitled to. But hopefully, with that sort of hanging over them, they would be able to resolve these things through the deliberative process. I think that the last thing I’ll say about that is that it is only Ontario and Manitoba in their Police Services Acts that specify any notion of police operational independence. I think it would be beneficial to remove the word “Operational” entirely from any legal definition of police independence. Simply refer to it as “Police independence,” referring to the exercise of police powers, and to specify that boards and political overseers are entitled to issue this type of direction at the level of policy and plans, providing that they do so in writing. For this reason, the private Member’s bill at the federal level for the RCMP, C-308, does have some improvements, but is probably wrongheaded on its specific mention that nobody shall provide any operational direction to the RCMP on any level, although the rest of the private Member’s bill does have a lot to recommend it. So I can leave that there.

Volume 35 (December 1, 2022), page 28 35-028-05

Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you, Professor Kempa. So Professor Puddister, I know that we’ve had lots of discussions about the policy operations distinctions, and Professor Kempa is already breaking it down, the plans, policies, and power, which I think is an interesting way of looking at it. But would you share your thoughts on some of these questions?

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Kate Puddister, Prof. (Political Science – University of Guelph)

Thanks. Yes. So yeah, I want to focus more on the policy operations part of this questioning that we’re going through right now. And I think the distinction that we tend to rely on, policy on one side, and operations on the other, is really not useful. And of course, this is not a novel opinion. This has been written time and again in commissions of inquiry, starting I think with the McDonald Commission in 1981, but also more recently in the Missing and Missed Report by Justice Epstein in 2021. So this is a conversation we’ve been having for a long time. The reports make it clear that it’s difficult to draw a bright line between policy and operations in every scenario, and I would suggest that’s not how things actually operate in practice, that we need to avoid these absolutes. So a few examples that are a little bit different than what we’ve been talking about so far is, you know, if a government is concerned about the disproportionate use of force against a particular group, can it direct police policy and resources to address this, or is that a matter of operations? Other examples that complicate this are mandatory charging policies developed by governments in issues of intimate partner violence, policies that have existed for decades. We also see examples where the police must have approval from the Attorney General to lay particular types of charges. So even just saying police operations is something that policy makers, like boards, and governments, and Ministers have no space, doesn’t reflect how things actually operate in practice. As a political scientist, I’m really interested in those questions of policy. And I think police policy should be open to debate. It should be created and evaluated in a manner that ensures accountability for decision makers and transparency. As a student of public policy, I know that its development is not a straight line. We often speak of the policy cycle, the need for ongoing analysis, and review of policies. This is important because we want policies that can be revisited if new circumstances or problems arise so we can amend and revise those policies. But good policies will reflect, as best possible, the situation on the ground. Generally when we’re having discussions about police/government relations and the policy operations distinction, references are made to the principle of police independence that Malcom mentioned earlier. Routinely we see elected officials comment on the proper role of government as limited in the face of respecting police independence. Statements like, “We can’t direct the police,” or, “we can’t tell the police what to do” are not necessarily accurate. Here we see references to the police being answerable only to the law itself. In my view, this is not a helpful understanding for police independence. As was mentioned earlier, the Supreme Court of Canada discussed police independence in the 1999 decision, R v. Campbell and Shirose. Here the Court articulates that when an officer is investigating a crime, they are not acting as a government functionary or agent of anyone. The Court draws connections between police independence from the executive as fulfilling the constitutional principle of the rule of law. However, I want to emphasize that in this case, the Court was only speaking on police powers of investigation and the decision does not provide guidance for other forms of policing, or the other duties of the police. I also urge us to think about the distinction between accountability and answerability versus that of control. My perspective is, is that there’s need for more government responsibility in policing, certainly at the federal level, and not less. Police independence, or some prefer the term operational responsibility, should not be interpreted in a broad manner to cover all things operational, which I think Michael agrees with. Instead, it should be narrowly tailored to respect what are sometimes called the quasi-judicial role of the police: investigation, charging, and prosecution of particular individuals. In other matters, this is where the space for government and policy can come in. Democratic models of police/government relations recognizes that for some decisions of policing, it would be improper for the government to make determinations. Of course, for example, a government cannot say, “Arrest this specific person.” But it is important for the police service board or the relevant Minister to be informed of aspects of police operations to ensure accountability and democratic input and to allow ministerial authority to intervene in policy matters, should they arise. Ministers have an obligation to develop policies, review those policies, and explain and defend them in the legislature. When governments do not fulfil their duties to provide direction, we have to rely on after the fact accountability mechanisms, like courts and oversight bodies. Based on my research, these are limited mechanisms for accountability. They only come into play after the fact and they are difficult to ensure outcomes. Courts are highly restrictive, they’re expensive, they’re hard to access, and I can speak later, if necessary, about the very important challenges faced by police oversight agencies. Importantly, after the fact accountability mechanisms, the harm has already been caused. They have a limited function to act in a preventative manner, whereas policies set by police boards and governments that reflect on the ground operations can potentially serve a preventative function. So the final thing I’d like to say before turning it over to one of my colleagues is that I think public order policing can be understood as different from other types of policing and may invite greater government involvement, whether that’s from the Minister or the Police Services Board. And I’d like to articulate why this is different. Public order policing, we have competing demands and rights between those who are engaging in protest, but also third parties and other communities that can experience significant consequences because of those protests. There can also be concerns about regarding access to public and government services, and of course concerns about foreign relations. There might also be important considerations of protecting vulnerable groups. Here the line between policy and operations becomes much less clear and specific processes and procedures for government direction may be warranted. I’ll leave it there.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you. Mr. Teschner?

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Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

Thank you. Judge Morden, in his report, used a constitutional law analogy and talked about the importance of no longer seeing this idea of policy and operations as watertight compartments. I would certainly agree with that. I would also say that we have to stop seeing it as “versus” and start seeing it as “and”. There’s a symbiotic relationship between the policies that are set, the priorities and objectives that are set by a police board, or in the case of other police organizations in Canada, by the government, and the way in which the operations are carried out by our law enforcement actors. Judge Morden also provided, I think, some very important thresholds that we should keep in mind. Not every instance of police action will merit the application of a board’s governance and oversight function in the circumstance. And Judge Morden coined the term “critical points”. These were the threshold at which a police board or commission should become engaged, because the policing operation that is being contemplated or unfolding, the event is organizationally significant. It’s not focused on one detachment or one division. It brings into play the entire police service and the command of the police service. Judge Epstein, in her report, Missing and Missed, expanded on Judge Morden’s critical point definition and said that it should also include major operations that could have an impact on the police service’s reputation. Again, classically a role that a board of directors would become engaged in. And also operations that are likely to have an impact on the police service’s relationship with marginalized communities. But when I look at Ontario’s Police Services Act, which I actually think is a pretty decent structure that requires, perhaps, some interpretative improvement, I’m less concerned about section 31(4) that talks about the board's role and the board's limits, and actually think a lot can be gleaned from section 41(1)(a), which speaks about the role of chiefs. And it says that it's the duty: "...of a chief of police...[to administer] the police force and [oversee] its operation in accordance with the objectives, priorities and policies established by the board..." So the board does have a role in providing direction, and governments, where there are no boards, have a role in providing direction. They do set the priorities and objectives. And Judge Morden said not just in general with respect to an annual business plan for the police service, but in the context of a critical point. When a particular event is being planned or unfolded, it's the board's role to establish, in consultation with the chief, what are the priorities for the policing of this event? What are the objectives that the police service should be seeking to fulfill? And what policy infrastructure is going to be put in place in order to carry out those functions? Once the board defines those priorities, objectives, and policies, the police service does its work. It develops the operational plans required to carry out that mission and achieve the identified objectives. I would argue, though, that the board's role is not over them. The board should stay engaged in the life of the operation. It should review what has been put in place by the chief, not for the technical elements, for which it really doesn't have the expertise, but to confirm that the plans are consistent with the priorities, objectives, and policies, and importantly, that the board is satisfied that adequate and effective policing will be delivered in the municipality or jurisdiction for which it is legally, that is, the board is legally responsible. And of course, the board should ask questions about the plan. Was anything else considered? Why are you confident that this plan will work? If Plan A doesn't work, what is your Plan B? These are all kicking the tires that boards should do. So let's talk about this policy and operations distinction. Judge Morden in his report said that: "Apart from being impossible to apply in its own terms, this statement does not represent what the statute [that is, the Ontario Police Services Act] provides." (As read) Not only is it not meaningful, in my view, it's the culprit for decades of misunderstanding of the police board role, and in some sense, the reason that the full promise of independent civilian police governance and oversight has not been fully realised. A board can develop policies, priorities, and objectives that affect operations without impermissibly directing the chief of police with respect to core law enforcement functions. And policies and directions that have no impact on a police service's operational activities are meaningless. A board, of course, does have limits, and both Professor Kempa and Professor Puddister have talked about the case in Campbell and some of those limits. I would say that there could be, perhaps, a gloss put on the Campbell case. Really, where boards should step back and not direct police is with respect to the discretionary law enforcement power that police possess in our system. Whether that's a determination about who to investigate, how to conduct the investigation, who to arrest or not arrest, what search warrant to carry out, or what to do on the ground in the context of public order maintenance in a protest, these are discretionary law enforcement decisions that are within the full view and protected sphere of police independence, if you will. But the infrastructure in which its carried out, the priorities, the objectives, the policies, that is the role of the board. And so I think in approaching it this way, rather than an either/or, we can start to appreciate the symbiotic relationship that should exist between these two functions. Now, Dr., or Professor Puddister talked about this in the context of policies, and she mentioned one that I just want to illustrate through an example. A disproportionate impact on use of force against particular populations. In Toronto, the Toronto Police Services Board put in place a race-based data collection analysis and public reporting policy that is lengthy, is dense, and is detailed. It's not just high-level, it talks about what the priorities and objectives are in that particular space. And it compels the chief of police and the service, through him, to put in place action plans to identify the results of the analysis, the disproportionality, where it's found. Many would say, in the past or even today, that's an impermissible intervention in day-to-day operations. You're telling the chief that they have to develop plans to address a specific issue, and you're creating the infrastructure in which that occurs? And the answer is, absolutely. That's the role of the board. And the Toronto Board has taken this role in the context of artificial intelligence, body-worn cameras, things that traditionally have been seen as the domain, the sole domain of the police service. But that infrastructure in which it's carried out is absolutely the domain of the Board, in consultation with the operational leader that has the expertise, to express how these things are going to impact the way they do their job in an effort to try and find a place that makes sense.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you, Mr. Teschner. Professor Thorburn?

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Malcolm Thorburn, Prof. (Law – University of Toronto)

Yes. Thank you. I am glad to see that there is some convergence on some of these questions among the panelists. The question of what exactly the scope of government input might be into police operations turns on a number of questions. As Professor Kempa already pointed out, there's a big difference between providing specific directions and asking for information, and even making suggestions and calling for a response. In those kinds of questions, I think what we need to do is keep in mind, also as Mr. Teschner pointed out, recognise that it is not a simple model of setting down policy and then leaving it to the chief to create specific day-to-day directions based on that, but rather, a relationship with the flow of information in both directions and a give-and-take on questioning how those particular implementations are going to be made out. What I want to suggest, though, is that in certain contexts the foreshortened prime window of planning and execution is going to make that dynamic ever denser. That in some contexts, planning and priority setting can take place well in advance, that kind of discussion can take place in a way that is more easily insulated from day-to-day operations because it happens long before those day-to-day operations take place. In circumstances, like the ones we saw earlier this year, in Toronto at the time of the G20, and a number of other events, sometimes the flow of information needs to occur much more quickly and decision-making as well. And so I think the easier distinctions that we're drawing, as to whether or not we are making specific directions to day-to-day operations, becomes much more difficult to draw. So bringing this conversation back to one of the questions we were first asked to discuss, about whether governments should provide directions in establishing priorities for which regions' police resources should be deployed in, in the usual case where timing is such that it is much -- where we have time to set out broader policies with a broader set of directions, that may not be required. In situations, in some of these critical point situations, the time window is going to be such that the flow of information, the flow of directions will be virtually simultaneous with some of those policy day-to-day decisions. So the kind of input -- it would be unrealistic, I think, to say that the kind of input boards might have could be fully insulated from that kind of operationalisation. So would it be best to try to insulate oversight boards, and particularly Ministers, in the case of RCMP and so on, from directing chiefs on those specific matters, absolutely. That -- although I would want to emphasize, I think, that public order policing is a step, a very significant step, away from the specific law enforcement role of police with charging and so on. It is true that, nevertheless, we want to make sure that the government of the day is not giving specific directions on those questions. Given that time window, however, I think it’s unrealistic to suggest that we can keep them quite so separate.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you. So I knew when I budgeted 20 minutes for operations versus policy, that would be too limited and we could probably do another hour on that, and we won’t, I’m sad to say. But I did want to just make sure -- because I haven’t been looking closely at our online component -- whether Christian, or Professor Leuprecht wants to make any comment here, or Chief Ramer because you haven’t been in this discussion. Or can we move along to information sharing? Oh, Christian’s got the hand up function. Yes, Professor Leuprecht, please speak slowly.

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Christian Leuprecht, Prof. (Political Science – Royal Military College)

Christian Leuprecht au microphone. I’ll just keep this brief, but I think we’ve had this theoretical and legal conversation. Let’s take a sociological approach to this, and look at the G7, G20 in Toronto. On the Friday afternoon, it got rowdy, and the locals complained, and police took a heavy-handed approach, and we know what the consequences of that were. And so I think that response and the subsequent Morden Report and so forth have had a chilling effect on the way we police mass gatherings ever since. And given that the Chief in Ottawa at the time was present at G7, G20, I think this very much would have informed his response. We also need to consider that in Ottawa, under the circumstances, with only the Ottawa Police Service on the ground, had there been, for instance, a more aggressive posture, there’s a high risk that the police would have had a rebellion in his own ranks on his hands. And so this is why I think this dialogue and conversation is so important. And I think ultimately these questions of direction need to take into account also particular circumstances and also the size of a police service. And so inherently the question of direction, I think, looks differently in Toronto in a large service with large capacity than it does, for instance, in Ottawa of a more medium-sized service. And so trying to marry the theoretical and the legal remarks, I think, with the sociological reality and the reality of resources is, I think, important to keep in mind for this conversation.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you. That’s very useful. Chief Ramer?

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Jim Ramer, Chief (Toronto Police Service)

Yes, sorry, just one quick comment. What I would say is that police know and have training and expertise to execute law enforcement functions. But what we do is made more legitimate when it has the benefit of independent oversight that’s framing what we do. And I think that’s the essential read

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you. So now we’re going to turn to information sharing between police and government, and some of these discussions ,I think, will overlap. But we’re going to focus more particularly on the following questions: What information would -- may police boards and governments legitimately request from police? How can requests for information be distinguished from direction; is there a danger of it being taken as an implicit direction? In what circumstances, if any, may the police decline to provide information as requested by police boards and governments? Is a problem for departmental officials to speak directly to police below the Chief Commissioner level to get that information, and what about elected officials doing that, making those kinds of communications? What report should police routinely provide to public authorities about their plans, activities in relations to protests? So there’s a lot there but Mr. Teschner is going to give us the first attempt at answering those questions.

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Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

I’m batting first on this one, I guess. Let me again pay homage to a great mentor of mine and somebody who I think made a significant contribution to this space, and that is Judge John Morden. In his report on the G20, he talked about a consultation protocol that should exist between boards and chiefs of police. And I’ll substitute “boards” for “government entities” or “Ministers” where there isn’t, currently at least, a proper governance board. That information exchange was the first element of Morden’s consultation protocol. Without access to all relevant information, the ability to ask specific questions about the operation and the plans, details that are contemplated, ongoing or completed operations, independent police governance bodies cannot fulfil their statutory function. A board can’t ask a chief questions, or turn its mind to articulating priorities, objectives, or policies about things of which it’s unaware of; you don’t know what you don’t know. And so the concern about a board not asking questions out of a misplaced fear that it will be accused of treading on operational matters, this is, I believe, as Professor Kempa put it, a timidity that has become dangerous to a board fulfilling its statutory mandate. It’s created escape hatches through which the policy maker; that is the board, and the policy implementer; that is the chief have each avoided responsibility. And so the burden, in my view, is on the chief to take initiative in ensuring that the board is probably informed about matters; past, present, or future, that fall under the purview of the board’s responsibilities. And once he or she does so, that kicks in this consultation protocol beginning with the information exchange. An information exchange, by the way, that is reciprocal in that the board should be consulting with the chief on areas that it’s considering. Judge Epstein more recently doubled down on this information exchange and said that only after a full appreciation of contemplated or completed operations occurs, will the Board be able to truly deliver on its statutory mandate to ensure adequate and effective policing. The only informational no-go zones, in my view, is information that a police chief if prohibited from providing to a board as a result of a specific statutory prohibition; so an example to that would be information about an ongoing wiretap operation, because that’s prohibited under the Criminal Code, or where otherwise prohibited by common law; so an example there would be informer privilege; or, thirdly, where they’re precluded from doing so as a result of a specific court order. Otherwise -- and I know some may consider this controversial -- boards have, and should have, full access to all information, and that includes, for example, information about intelligence that a chief of police believes is important in helping define the plans for a specific event. And so as Judge Epstein said, the answer to a concern about whether giving access to information could be seen as direction is not to foreclose boards from making non-binding recommendations, expressing opinions, or gaining access to that information, but reminding boards that when they’re getting this information, they should be anchoring it to their priority, objective setting, and policy-making functions to their mandate. We also need to remember that board members and chiefs of police are adults; if a chief of police believes that the way in which a board is engaging in a conversation goes too far, and gets into the direction of police discretion, they should say so. And there are mechanisms in law and in certain statutes that if saying so isn’t enough, that decision can be reviewed. But the board has a role to play; we cannot say that as a matter of law boards are statutorily responsible and liable for ensuring adequate and effective policing, and on the flip side say that they’re not entitled to a whole bunch of information about how policing is going to unfold in the jurisdiction for which they’re responsible. Now, in terms of elected officials, my argument here would be that elected officials should not be reaching in to police leaders in order to understand what’s unfolding, what the plans are, because it puts both the police leadership and the elected official in a potential precarious position. A board or commission is the conduit so that we can maintain both a real and perceived independence of that core police discretionary function. And at least where a statutory police governance exists, it is the board’s role to ensure adequate and effective policing, not elected officials. It’s the board’s role. And so that’s where the elected officials can come. And then it’s up to the board to keep those officials up to date on areas of concern, listen to their concerns, and help translate those concerns through their governance function to the Chief of Police. In terms of what kinds of reports or information police should routinely provide to public authorities about their plans and activities relating to protests, I would say that the model that we adopted in Toronto for the Freedom Convoy is a good one. This was clearly a critical point, to use Judge Morden’s term, and the Chief came to the Board and said, “We have something unfolding and I want to make sure that you’re fully briefed.” And the Board’s Institutional Report, at page 13, outlines the various types of information that the Chief and his team provided in that briefing. The key context for the major event and operation, including known intelligence that’s animating the operational planning. Suggested priorities and objectives for the Board to consider. The command-and-control approach that was going to be taken, especially if other police services from outside the jurisdiction were going to be involved, a lesson learned from the G20. Confirmation that the Board’s existing policies and legal authorities in place provided an adequate framework for the policing of the Freedom Convoy. A discussion about whether the Service required any specific Board approval associated with its planned operations. A discussion about the adequacy of the Service’s resources for handling both the major event and whether there was a need for other services to participate and lend support, and what the legal infrastructure was going to look like for that. Of course, all the adequacy of general policing services, so that while that event was happening, the Board’s statutory role to ensure adequate and effective policing generally in the city can’t be forgotten. And so business continuity was discussed. And then importantly, public and stake holder communications before, during, and after the operation. All of these areas of information were put on the table by the Chief and his team, were discussed by the Board, gave them an opportunity to ask questions, and ultimately to determine whether they were satisfied that the plan that was in place would ensure adequate and effective policing in Toronto.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you. I’m going to let Professor Thorburn in in a second, but I just wanted to allow, Chief Ramer, if you wanted to have any comments about the Toronto information sharing?

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Jim Ramer, Chief (Toronto Police Service)

What I would say to you is when I was appointed Chief in August of 2020, one of the things I instituted was a morning brief to the Executive Director and the Chair of the Board to give them an idea of what was happening overnight and what we, as a police organization and the City were being confronted with. And then, of course, when you had a priority incident occur during the City, I would give them an immediate briefing as to what was transpiring on the ground and what we were doing about it and keep them apprised, just so that they were aware of what was going on. I found that it was an essential part of that information sharing, so that the Board had an appreciation of what we were doing, what our capacity was, where our weaknesses were, what our resource issues were. These are all important things for the Board to understand, because it was important in terms that they oversaw budget recommendations, you know, guidance, policy, and direction, and they had to be involved so that anything that they decided to implement was what was going to be the operational effect of those decisions? So they had to be done in collaboration, and they had to be done with the knowledge of actually what we were being faced with as an organization. So I just wanted to add that point in, and to the importance of it. And I -- with respect to, you know, how can requests for information be distinguished from direction? And I think there’s always an opportunity where the lines are going to be blurred there. You know, when you look at the danger of actual or perceived direction from government to the police. But that’s the origin of commissions and police boards, and that’s why we need them.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Do you have any comment on the question about whether a police chief may decline to provide information? Mr. Teschner gave us an example of where it’s statutorily barred, ---

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Jim Ramer, Chief (Toronto Police Service)

Yeah.

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Dennis Baker, Prof. (Political Science – University of Guelph)

--- but do you have any reservations about other types of ---

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Jim Ramer, Chief (Toronto Police Service)

You know, quite frankly, no. I mean, there’s things like informant privilege that we do, any type of, you know, secret operations that we’ll have going on, we don’t discuss. We might discuss them after they’re done and talk about some success. But not while they’re undergoing, not while they’re occurring. But other than that, as far as I’m concerned, there’s an oath of secrecy and the Board cannot perform an effective oversight function if they don’t understand what we’re doing. Many of them, it was mentioned earlier by the Professor, they are not police professionals, in some cases we have lawyers, and then you’ll have city councillors and people selected, like social workers selected from -- by government to be on the Board. But we have to inform them so they have an understanding. And without that information coming into them, it makes it very, very difficult for them to do their job. And then conversely, as I think one of my colleagues mentioned earlier, one of the benefits is that when we’re having these discussions, and my team is letting them know what we’re going to do, and by the way, we’re letting them know that this is going to cost several millions of dollars, so you need to be aware of this, they’re also making, sometimes, suggestions, “How about, are you communicating with City Councillors so they’ve got an understanding of what’s going on? They could become helpful to this discussion to the City.” You know, that’s a good idea. And so we then got on and we made sure that we communicated with every City Councillor and gave them a little bit of a briefing of what was going to happen over the next couple of days. So that collaboration has benefits. It makes us much more successful in what we do.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you, Chief. Professor Thorburn, thank you for being patient.

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Malcolm Thorburn, Prof. (Law – University of Toronto)

Thank you very much. I guess I just wanted to say a couple of things. I think what we saw in the operation in Toronto on the Freedom Convoy was convergence of greater democratic accountability and successful operation. And so the extent to which information was shared and this not only provided greater input and democratic accountability, but also greater operational success, I think you can show that there’s kind of synergies that are at work there. What I want to emphasize though is that there are plenty of places where that has not happened, and in the existing framework, other police services have felt still constrained, even 10 years after the Morden Report, constrained in the kind of information they’re sharing, not ensuring the kind of free back and forth of advice that Chief Ramer was just describing, that you were able to benefit from in operation with the Freedom Convoy there. And so what I want to emphasize here is a little bit -- is quite similar to what I want to emphasize on that first question, which is that it’s one thing to say, “Here’s how we ought to operate,” and there’s another to provide clear guidance to police forces across the country and to police boards across the country as to exactly how to make sure that they live up to that. And this is where clear statutory language is helpful and sometimes clear regulations. But on the level of the kind of successful integration of information and democratic input, I think that’s a good one.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Professor Kempa, briefly, please.

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Michael Kempa, Prof. (Criminology – University of Ottawa)

Just I wanted to emphasize Ryan Teschner’s point that the first point of entry for political influence is a board, rather than direct political engagement by an elected representative in police matters for the reason that that political engagement is rendered publicly visible through the board structure. So there’s not a person in Ottawa, for example, who is not aware of the Police Services Board in Ottawa at this point. However, that’s not the case for other police organizations. So OPP, the precise board structure is a bit of a mystery to most people in the Province of Ontario. Most Canadians would not even be aware that there is an advisory board for the RCMP. At this time, through the RCMP’s difficulties, there have been very few public statements of that body. So that is something that has been unresolved more at the provincial and federal level than at the independent municipal level of policing, that the primary port of call for political influence at the municipal level is a board. It’s fuzzier at the provincial and federal level.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you. Professor Leuprecht, very quickly?

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Christian Leuprecht, Prof. (Political Science – Royal Military College)

Well, I'd say one litmus test is that we have a long way to go on this. If you look at police budgets, for instance, it can be exceedingly difficult even for boards, let alone the public to understand where exactly the money is going and where exactly people are being deployed. So that, I think, is an interesting exercise. The issues that were mentioned here, ultimately, this comes down to policy, right? So do we have -- and in Ottawa, an outdated major events policy? There's -- we need to establish these beforehand. So we need -- boards need to establish a policing designated major events policy. They need to establish a policy with regards to a chief to board communications. They need to establish a policy on information sharing, information sharing protocol during emergencies. And that ultimate looks different for different police services and different boards, but I think we've heard that Toronto here is leading by example, and there's a lot to be learned.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you. And actually, that’s a good segue to our next set of questions, Professor Leuprecht, where we're going to talk about different police services and different relationships, because right now we've been talking about kind of the police and the government, right, but we actually know it's much more complicated. Some of the issues arising from this Commission are much more complicated because we have the RCMP, the OPP, municipal police force, the Ottawa Police, the Parliamentary Protectory Service. So we've got all these relationships going on, so we want to probe that a bit. Does it -- does the RCMP's relationship with the government and the Minister change when it's in a contracting role as it might be in other provinces other than Ontario where we have the OPP and we don’t contract with the RCMP? What role does the provincial government play in those situations? And thinking more about police services boards, particularly when we have one force, the RCMP, that doesn’t have a police services board, right, so we don’t have that model. So we've got all these different forces with different institutional arrangements. How does that complicate everything we've been discussing? Professor Leuprecht?

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Christian Leuprecht, Prof. (Political Science – Royal Military College)

So there's four police services in this country that I'm aware of that do not have the board -- sort of board structure that we are talking about, the RCMP, the OPP, the Sûreté du Québec, and the Royal Newfoundland Constabulary. And we see the challenges that that raises, for instance, for the RCMP when we look at the Mass Casualty Commission in Nova Scotia. So that’s, I guess, the first observation. The second is that boards can find themselves challenged. Most appointees to boards don’t necessarily have the expertise, have the experience, and have the time that they need, because in most cases, they are volunteers and they don’t necessarily come from any sort of public safety background. And so I think there's a considerable gap, and that a symmetry often works for chiefs in the sense that chiefs can sometimes rule with an iron fist, especially when they face boards that don’t quite understand their particular agreement. The third is that it is the benefit of boards is that you have, as Mr. Teschner outlined, the ability to develop a strategic plan that sets outcomes which we refer to as priorities, but that also defines outputs that are measurable. Those are what is known as objectives, and the way we translate those outputs is then through policies. And while that happens at the strategic level, it also needs to happen with regards to certain elements of operational elements as defined sort of by policy as we had sort of in the previous conversation. Ultimately, information sharing on a high level is also always about trust, and I think we have serious challenges when it comes to trust within police services, between the chief and often associations, not to speak of any particular service here, but people will be familiar with forces in this country where this has come to the fore. So it's difficult, I think, for a force to be effective, and so boards ultimately need to make sure that those relations are working well. If you have a police service without a board, it is going to be, I think, more difficult to have insights in that regard. And you also ultimately need to have trust with other stakeholders and agencies. We'll get back to that in a couple of questions. I would like to close, when we're talking about the relationships among different police services that this ultimately are fundamental questions about police governance, and I would say that if you look at the recent webinar on police governance held by the Canadian Association of Police Governance with some terrific interventions, I would say that police governance in this country is extremely challenged, and that one of the opportunities for the Commission here is to provide a way forward on police governance more broadly, because if we can remedy the shortcomings on police governance that were on full display during the Ottawa convoy and the meltdown of the Board during a local and arguably national crisis, then that means we wouldn't need to invoke emergency measures to try to remedy, because ultimately, we need robust governance mechanisms.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Anyone else want to comment on that set of questions? Oh, Malcolm?

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Malcolm Thorburn, Prof. (Law – University of Toronto)

Just a quick intervention. I just want to emphasize that it's all the more important, first of all, that board -- we look at board composition, not only in their representativeness, but also in their ability to provide useful interventions and to know what questions to ask when serving on the board, to be able to provide useful insight. The model that several of us have been discussing this morning of a flow of information, question and answer between board and the chief requires that the board members have a certain level of ability and knowledge of some of those areas in order to engage in that kind of conversation. I just want to emphasize also something that I think goes a bit, maybe too much emphasis, but the centrality of some kind of intermediary between elected government officials and police chiefs that organizations like RCMP and so on. Where there is -- where we lack that board structure, there is a real concern about sliding from democratic accountability to too much -- a too close relationship with the government of the day.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you. Oh, Mr. Teschner? Sorry.

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Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

Just very quickly, I do think that this is a circumstance in which even though they don’t have constitutional status, municipalities can teach the rest of the country, perhaps, a lesson. Where there are governance gaps when it comes to independent civilian governance, they should be filled. The management board for -- the management advisory board for the RCMP was mentioned today, and while I think that’s an important step along the transition, and I know that the more recent mandate letter to the Minister of Public Safety asks for enhancements in this area, I don’t see any real barrier, statutory, legislatively, legally, or otherwise, as to why the RCMP cannot one day have a truly independent civilian governance and oversight body. And I would say the same for the others that Christian mentioned here. The reality is that those boards are the intermediary if they do their job effectively, and it gives real definition to some of the principles that we've been talking about today. And so I would just urge the decision makers and perhaps you, Mr. Commissioner, to give some consideration to that.

Volume 35 (December 1, 2022), page 61 35-061-26

Dennis Baker, Prof. (Political Science – University of Guelph)

In the interests of time, I'm going to collapse some of our questions and I'm going to turn now to the related issue with respect to the varieties of different police forces, and that’s about collaboration. So Chief Ramer, I wonder if you could give us some insights about how collaborations between police organizations should be managed? Particularly, I know this Commission is interested in the deployment of multiple police agencies' resources, how they can be coordinated during a major event, and especially one that affects multiple locations through the province?

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Jim Ramer, Chief (Toronto Police Service)

I think when it comes to collaboration, there should be informal as well as formal avenues to secure collaboration. The formal ones should be available when the informal ones, frankly, are not working. I find that we work very effectively in collaboration with our other police services. When -- you know, if you look at the Freedom Convoy in Toronto, during the course of that entire event, we created public order hubs throughout the province because we knew, you know, the participants had information and they were being very strategic in how they deployed. So they were in Ottawa, they were in Windsor, they were in Toronto. There's a reason for that. The reason for that is because there's only limited POU assets in the province and they want to spread them around. That was very strategic on their part. So we create these hubs to sort of manage that and we designate people to oversee those hubs, and quite frankly, they worked very effectively. When we were looking at resources in Toronto, the OPP provided resources, Waterloo provided some POU assets for us, and then Peel, York and Durham were also communicated with, and they were going to help with business continuity if we were finding ourselves stretched and unable to meet our business continuity demands. Those were all just informal communications, easily set up, easily maintained, and they were reciprocal if all of a sudden events ended up being staged in Peel Region. And so Nish Duraiappah, and Jim MacSween in York, we were all having those conversations, very easy to move those assets around, and worked collaboratively together. And I have to tell you it works very, very effectively. Now, when you have -- and even despite, you know, what was going on at the time here in Ontario, and we had -- you know, you had what was happening in Windsor, you had Toronto, there was up London way as well, we had events, as well as in Ottawa, we were managing those assets. When you look at what happened in Windsor, quite frankly, in my view was textbook in how that was addressed. And when you think of lack of injury, you know, people being -- you know, wrestling around and rolling around on the street and people in handcuffs, none of that happened. It was done very, very effectively. It was communicated what was going to be done, and then you made sure you had the resources in place to conduct it. And so that was all done with that kind of collaboration. I think sometimes when I talk about the formal processes is, you know, within the Police Services Act it's almost like an all or nothing thing. So in other words, you know, if someone's not managing, then maybe the OPP are coming in. Well, I'm not sure that's the answer as well. If you look -- I think -- I refer to Windsor again. If you look what was happening there, the OPP were brought in with assets to really to conduct that public order because they had the expertise in that area of the province to actually exercise that, and they did that in conjunction with the Acting Chief at the time. They sort of looked after -- Windsor was looking after business continuity. The OPP came in to do POU. They worked collaboratively together. It was very, very effective. So I don't think it has to be an all or nothing thing. I think if it gets -- if we were to hypothetically look at potentially being something so overwhelming and bad, if we are going to have the application of something more formal, it needs to be more easily done, and there needs to be a formal path to do that much easier, in my view.

Volume 35 (December 1, 2022), page 63 35-063-03

Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you. Mr. Teschner, briefly, please.

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Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

Yeah, just a brief point. I do think that the police service and police board sector would benefit from a little bit more rigidity in terms of the structure. Flexible but structured. And so I'm aware, for example, that the Ontario Association of Chiefs of Police is working on template MOU or agreements so that where boards need to seek assistance from other boards for a particular operation on the basis of a chief's recommendation, there is already a framework agreement that's in place that boards and police services would be aware of. It would address things like cost-sharing; training, if there any issues; command and control considerations, so those things are clarified; insurance matters, if those things come up. And so having some of this on the ready that everybody's familiar with and understands means that the to-ing and fro-ing that can sometimes happen during the life of an event has already been resolved. And so I think that there's an opportunity there, perhaps even to take that around the country.

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Jim Ramer, Chief (Toronto Police Service)

And if I could just -- that's actually a good point. Because I think when it comes to MOUs, quite often we're only looking at MOUs if there is going to be a financial cost. So in other words, if a region says no we'll send you to POU and don't worry about overtime or salary dollars, we don't bother with an MOU. And we do -- already training is all done together amongst all those Public Order Units, so they already train well together and they know each -- what each other are doing. But the point of the MOU is generally, it's usually a financial component that initiates that MOU discussion.

Volume 35 (December 1, 2022), page 66 35-066-06

Dennis Baker, Prof. (Political Science – University of Guelph)

Chief Ramer, I wonder if we could -- we talked a lot about police independence pretty vaguely and generally, basically, the police as a whole independent from government. Could you comment on police independence within the force? So Incident Commanders might be -- have some independence, right down to the line officer, every police officer has a scope of independence. I wonder if you could tell us more about that?

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Jim Ramer, Chief (Toronto Police Service)

Well, I mean, all police officers are independent agents of the Crown, but when you have an operation and you designate an Incident Commander, the Incident Commander is in charge, not the Chief, the Incident Commander is in charge, and he will direct all operations. Really, the role of the Chief, my only role is to oversee, ask questions if I have any concerns, and if I'm unsatisfied with the performance of the Incident Commander, to replace them. But my role is not to direct operations. If the chiefs were constantly directing operations across, you'd see us in court every day, and that doesn't happen for a reason. It's not our role in managing an event. You have trained experts, and those are the ones that you allow to carry out the event. We have expert planners. The, you know, the Operational Plan is approved. It's not approved by me. I'm briefed on the Operational Plan after it's approved, but it's briefed at a senior command level, but not by me, and then it's operationalised. And then that Incident Commander has -- there's a real view team of chief superintendents that will sit and be an advice to that individual to help guide them, provide some instructions, just as a secondary thing to help that Incident Commander fulfill their role, particularly in a very high- profile event. And that's something we found was missing in the G20, and it was something we implemented afterwards. But you have to allow the people that are designated in their role to actually carry out the operation. And then once -- because when designate who's clearly in charge everybody else now knows who's making the decisions and what that chain of command is. And to me, that's what leads to a successful operation. When that G20 was going on, I was sitting in my Command Boardroom and I was watching what was happening on TV. With a couple of -- with the fire chief, my deputy, we would brief our Executive City Managers every couple of hours just to let them know what was going because there was so many different assets that we were using throughout the city, but that was our role. And I might have a question or something, but that's it. The Incident Commander was in charge.

Volume 35 (December 1, 2022), page 66 35-066-25

Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you. Do any of the academics want to probe that a bit? We've talked a bit about police independence. Does that complicate any views on that? No? Okay. Everybody's happy. So we're nearing the end of our time. We've got about 15 minutes left, and we've got a big section of questions next. I'm going to call a little bit of audible here and restrict us just to the first two questions on the list, which are what changes to legislation might be appropriate, and what laws, regulations, policies or norms governing powers of responsibilities of police in relation to public processes and their relations to public authorities, boy this is a long one, should be revisited? So this is really the question, to think about the rules we have in place, the legislation, what would your prescriptions be if a Commissioner was to make such recommendations? Professor Puddister.

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Kate Puddister, Prof. (Political Science – University of Guelph)

Thank you. Yes. So I'm going to suggest two. The first is not novel or new, and has actually already been mentioned already, but I think one of the biggest challenge for police- government relations in Canada is thinking about the RCMP Act. So we've had a lot of really great conversation about what Toronto has done, and I think that's a really great model, and I think things are working well there. The Ontario Police Service's legislation has some more defined roles about police-government relations and police independence. But when we look to the RCMP Act, in section 5, in particular, we find none of this sort of guidance. So the current situation federally with the RCMP really lacks a statutory framework in articulation of police independence. It's unclear who can intervene and when, the nature and scope of that intervention, there is no clear guidance on what process should happen if there's a disagreement between the Minister, so the Minister of Public Safety, and the Commissioner. This, of course, results in a lack of transparency and accountability for those who are involved. Because of this, with the RCMP, our situation relies heavily on leadership and decisions of key actors and that they will act in good faith. Here, I'm going to put the suggestion on the table that policy has an important place here to set a framework to deal with these situations in the future. Having defined codified definitions of police independence can help address these issues and make it less likely that political or partisan interests on behalf of the government will come into play. So here, I'm thinking we can look certainly to the legislation in Ontario as a good starting point. We also want to be reminded of the Supreme Court’s decision in R v Campbell as a definition for that core function of the police. So here, legislation could specify that independence applies to specific operations such as specific arrests, investigations, and charging. I urge any recommendations to avoid just operations. I think we’ve spent a lot of time discussing why that’s not a useful demarcation point. Thinking through this, it might be legitimate for governments to provide direction to policy as it relates to crime prevention, maintenance of public safety, delivery of services, general law enforcement, while other areas might be less legitimate, like enforcement of law in a particular case, decisions regarding individuals, including individual police officers, and issues regarding individual members of the police service. Of course, reasonable, informed people may disagree where this direction from the government is proper and where it is not, but these are important conversations that can only be had once we take a step towards articulating these matters in legislation, and that legislation can be amended when it's clear that there are errors or gaps. This ensures that we don’t have to start from scratch each time. I also agree with the proposal that’s been put forward by Kent Roach in a variety of publications that this legislation could require directions be made in writing and be made public between the Minister of Public Safety to the Commissioner, and that these written directions are provided within a set period of time unless, of course, it would compromise an ongoing police operation or investigation, but, of course, that would be the limited exception. The second suggestion I want to put before the Commission and has come up on the side of some of the conversations we’ve had already, is the consideration of a role a truly civilian police oversight board for the RCMP. The RCMP roots are paramilitary in nature and the force has evolved in a manner that is distinct from other police forces in Canada that have taken a more civilian approach to policing, like the situation in Toronto. Civilian oversight for the RCMP, in my opinion, is lacking and is out of step with other police services in Canada. The agencies tasked with providing oversight for the RCMP in matters criminal and conduct leave much to be desired. Creating a version of a police service board for the RCMP would help to increase democratic accountability and create opportunities for increasing diversity of those who are involved in governance and moving away from that troubling line -- direct line from the minister to the Commissioner that was mentioned earlier. A board can ensure that ministerial direction is appropriate and given when necessary. This can be helpful to transition the RCMP away from being a paramilitary organization, which was a recommendation from the recent House of Commons Standing Committee that examines systemic racism in policing. Membership of this board, like boards in Ontario, could have a combination of elected and appointed members, but appointed members could provide an important opportunity to ensure diversity of representation, especially of groups that have a history of distrust of the police and have experienced over-policing from the RCMP in particular. It could also include members that have particular expertise or lived experience that would be helpful in police governance. Like other police boards, the majority of these meetings could be held in public, receive submissions from the public. Similar boards could be considered for provincial jurisdictions in which the RCMP provides policing on a contract basis. I want to end with just one criticism that’s going to be obvious. And important criticism would be that a police board would serve to diffuse responsibility. But given the framework that I’ve suggested and the public nature of these proceedings, the decision of the board and policies enacted would create more potential for accountability and lay true any overt attempts to diffuse responsibility. Of course, the minister would have to chair the board and answer to parliament to maintain ministerial responsibility, but I’ll leave it there.

Volume 35 (December 1, 2022), page 68 35-068-27

Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you, Professor Puddister. Professor Kempa?

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Michael Kempa, Prof. (Criminology – University of Ottawa)

I -- just to say that I agree with everything that Kate Puddister just said, except I would add one precision, or maybe a slight difference which also follows Roach and I think can be inferred from other sections of Campbell, that when defining police independence, you simply jettison the terms “operations” altogether, and define “police independence” itself in terms of the exercise of their powers of investigation, arrest, and delaying of charges. Of course, they do that in consultation with the judiciary and the Crown, but that is the area -- and that also follows, as I say, Kent Roach. To echo Kate as well, the importance of the minister being on any board for the RCMP is, I feel, replicated at the municipal level. Mayors should be on their police services boards, if for no -- for two reasons, number one, to align policing direction with broader city municipal planning, such as in areas of community safety and wellbeing, but also just to ensure that there is no perception or reality that there could be any political meddling in policing from any other mechanism behind the curtains or whatever other than through that board, if, for no other reason, to eliminate that public perception.

Volume 35 (December 1, 2022), page 72 35-072-23

Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you. Professor Thorburn?

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Malcolm Thorburn, Prof. (Law – University of Toronto)

Very briefly, I think Professor Puddister put it very well and I -- like Professor Kempa, I would say I endorse all of the recommendations that she made. And I just want to summarize of this by saying that clarity and direction is needed, that there are practices that have been enormously successful, as we saw in Toronto Police Services handling of the Freedom Convoy, but what we need is guidance to police services across the country to make sure that information sharing, these kinds of decision-making processes are widespread. The same thing is true of clarity of a board structure, and that there should be a board structure for those without one, such as the four organizations that Professor Leuprecht identified. And on -- the last thing on board structure, I think we can’t underestimate the importance of representativeness, both the matter of the mayor representing the city’s interest as a whole, but also of underrepresented groups who have a very important role in providing insight to police services.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you, Professor Thorburn. Professor Leuprecht, do you ---

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Christian Leuprecht, Prof. (Political Science – Royal Military College)

So, as I documented in my book, Public Security and Federal Policies, there is no other democratic federation in the world that either sturtures their police services the way Canada has or that funds their police services that Canada has. And so, inherently, there’s only so much we’re going to be able to do if we try to adjust governance mechanisms as long as we have a model that seems rather peculiarly unique, and so I think those are questions we need to ask. We also have a federal and national police force where the commissioner has a span of control that is unlike that of any other national or federal police force in a democratic country across the world. I mention this in the context of the current review of federal policing by the National Security Intelligence Committee of Parliamentarians that was announced in February. And so I do think that the Commission may perhaps want to take the RCMP’s and the commissioner’s span of control into consideration because I am not sure that this is a model that serves the public interest particularly well, in part because the RCMP is torn in too many directions, and when called upon when a situation, such as in Ottawa, transitions from public safety to national security, and you need federal involvement on the national security side, we had a considerable, I think, breakdown in both resources and interagency collaboration. I also believe that there need to be clear qualifications and certification laid out for members of police services boards because that’s essential to them performing their function. And so simply getting an appointment, I think, is not enough. We need to have -- Canada is also a bit of an outlier in the way we generate police managers and police leaders. Many of the functions that in other democracies are managed by civilians, in Canada are managed by folks in uniform. I’m not sure that necessarily serves the best interest. Similarly, on the leadership side, there’s not a country -- a federal country that I’m aware of that requires less in terms of education of senior police leaders that Canada does. And so we have this assumption that somehow people will acquire the skillsets for this extremely complex task, and the fact that only a couple of months ago, I believe, 13 forces in Ontario had been looking for a chief of police, suggests that we’re perhaps not quite generating the leaders that the country needs under these particular circumstances. And I’ll close on saying that effective policing -- adequate and effective policing is essential for democratic legitimacy, and I think what happened at Ottawa severely undermined the legitimacy of our democratic institutions and so it's inherently essential for the health of our democracy that the Commission find ways to ensure that we not witness these types of breakdowns again, not just for operational and tactical reasons, but for the broader reasons of safeguarding our democracy and our democratic institutions and our public's faith in them.

Volume 35 (December 1, 2022), page 74 35-074-12

Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you. We only have two minutes left, and the Toronto model has received so much praise today, but if you want to capstone it off by some comments, it'd be ---

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Jim Ramer, Chief (Toronto Police Service)

Actually, if I could go first, I'll just be very, very quick. In terms of potential legislation, I think two things. There should be a board or commission for all police services that currently do not have one. I think that's essential. Secondly, sufficient protection for board appointees to do their jobs, to be free of political influence or the appearance of, so they just can't be all of a sudden removed from it by a council motion. And I think and more importantly too, boards need the funding. They need the funding to have the people in place. Some of the excellent people that we have in Toronto, that really enables us to actually ultimately perform a better function. And then Professor Leuprecht comment, something I've been advocating for now with the Ontario Association of Chiefs of Police, and that's really standard senior command training. That's something that I've met with the UK on and they're going to do -- I'm bringing some of their trainers here to Toronto in the spring to conduct some of that, and I'm just trying to sort of speed up the process and invite other organizations in. I think it's very much needed, so that anybody who wants to be a chief superintendent, a deputy chief or chief, has to have undergone this training. Right now, our training is piecemeal. Some members are getting it. Some members don't get it. It largely depends on municipal funding. And perhaps if you're federally or provincially funded, you're getting more access to training. If you're municipally funded, you're getting less access to training. That shouldn't be the case. It should be something where the province or federally it's a standard either across the country, or certainly at least in our province of Ontario, where we have that kind of standardized training I think would be very, very effective. And a final comment I make is we currently have two deputy chiefs in Toronto that are civilians. Our Innovative and Technology Deputy Chief Colin Stairs and our CAO, inner CAO Svina Dhaliwal, and they make -- they are an excellent addition to the team, and they bring in expertise and an outside thinking that we have not -- you know, we generally in policing you don't experience. And, in fact, I will tell you that Colin Stairs, our IT specialist, leads our race-based data discussion and is doing an incredible job with it. He's not a police officer. So there's great value in that as well, so I just wanted to echo that with the Professor's comments.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you, Chief. Mr. Teschner?

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Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

Okay. Thank you. I'll just amplify some of the recommendations. First, Commissioner, I would say that harmonizing the approach to police governance through legislation and otherwise does not necessarily need to upset the constitutional order. And so there's an ability to make recommendations, to bring to bear some of what was discussed today in terms of best practice. For example, the statutory roles and functions of police boards and commissions being made more clear; the definition of police independence that piggybacks off what happened in the case of Campbell, and I would suggest with my suggested modification, narrowing it more to the exercise of police discretion and the law enforcement function; a legislative definition of critical point with the attendant information exchange obligations; mandatory training requirements for exercising the governance function and for chiefs and command officers to receive mandatory training on engaging with their governance bodies; and then the Chief mentioned mechanisms to protect from a security of tenure perspective, if you will, board members in certain circumstances. Secondly, I would just say again, ensuring through legislation and other tools the ability of local police boards and services to seek assistance nimbly and in real time without compromising their ability to remain the police service of jurisdiction; template agreements, MOUs and the like established in advance, so that some of the legal issues can be thoughtfully worked through and not necessarily dealt with on the spur of the moment. I've talked about, as many have, a fully independent civilian governance and oversight body for the RCMP, so I won't repeat that. And then I would say two things from my front row seat living within the world of police governance every day. All of these recommendations are great in theory, but you have to set boards and Commissions up for success. And I would say there are two ways that you could potentially do that. One is, I am not aware of another government function where the tall order that boards and commissions need to fulfill are not fundamentally and adequately supported by professional civil staff that supports those boards and commissions. And I think resources and a consistency of approach needs to be brought to bear to ensure that part-time board members who are doing other things and may not necessarily have the expertise within the public service or otherwise are supported by independent civil servants. And the second would be to establish tripartite partnerships, municipal, provincial, federal, with the mandate to establish regional centres of excellence for police governance across Canada that can again bring some consistency to the approach that boards and commissions take, allowing them to still manage local issues, but on things like critical points, information sharing, consultation protocols with chief, approaches to certain policies, so there's a consistency of best practice approach. Those would be my recommendations.

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you, and thank you, everybody, for a very enlightening discussion. And I said at the beginning there are no easy answers, but there was lots of consensus and I think lots of things that the Commissioner can use and draw upon.

Volume 35 (December 1, 2022), page 79 35-079-27

Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you, Commissioner. You’ll be all pleased to know that your comments generated lots of questions, and I’ve got a whole list of things that we probably won’t be able to get through in a half an hour. But let’s try and move through them as quickly as we can. We talked a lot about prohibited direction. So when we talked about police independence we said you can’t interfere with investigations; everyone basically has that kind of understanding. But how does that apply in the public order policing context? So what would constitute a prohibited direction in specifically that context? So not in investigations but in public order. So the Commission would -- the parties would like to know about a sharper definition of that. So some examples that were proposed were whether -- should you negotiate with the protesters or enforce -- or act? Should you enforce provisions or not? What if the priority is established as Ottawa first, Windsor second? When does timing become an operational concern? So what are the types of prohibited directions you would see in the public order context? Professor Kempa.

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Michael Kempa, Prof. (Criminology – University of Ottawa)

Sure. So I would just say the moment it has to do with the actual carrying out or execution of the operation; that’s the moment where the board cannot direct. So the board may have a policy that PLT or negotiation is an important part of mass protest management, but exactly when that negotiation would be carried out would be a police leadership decision because they would be weighing in the safety of their officers; whether they had identified groups to negotiate with. But then the board would be asking -- properly asking questions if they felt that they didn’t see, for example, PLT started. They could ask why, and demand a response. And if they were given an adequate reason along those lines, that’s basically the end of the matter. And if they weren’t given an adequate, they could say, “Well, when will it be starting?” But, fundamentally, they could not force the chief to begin on a particular moment.

Volume 35 (December 1, 2022), page 81 35-081-10

Dennis Baker, Prof. (Political Science – University of Guelph)

Okay. Any other comments on that?

Volume 35 (December 1, 2022), page 81 35-081-28

Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

I would just come back, Mr. Commissioner, to my suggestion that you add on to the Campbell definition, or clarify it, in terms of the exercise of law enforcement discretion. And so what happens on the ground during a protest in a variety of ways, whether it’s what tactics to use; when to mobilize your POU; when to negotiate; when to cease negotiations; whether the circumstances don’t, in the view of the person on the ground, allow for negotiations, even though that may be the policy, because of safety risks or otherwise. These are all exercises of law enforcement discretion that should be protected once the operation is being carried out. And to use an administrative law analogy, the board should not fetter that discretion. They can, again, set the stage for it, set the context for it, identify the priorities and objectives, put in place policies, kick the tires of the plan, ask that certain things be reconsidered, but when the operation is underway, as Professor Kempa said, who’d be in -- who’s investigated; who’s to be arrested or charged; whether someone should be arrested or charged; the number of officers to be deployed for specific tasks on the ground; the timeframe for those actions, that is all the exercise of that law enforcement discretion.

Volume 35 (December 1, 2022), page 82 35-082-02

Dennis Baker, Prof. (Political Science – University of Guelph)

So could I just follow-up? And Professor Leuprecht, I’ll get with you -- to you in a second. If the -- would we say it is a policy matter or an operational or planning matter to say, “You have to enforce -- we want you to start enforcing the law,” right? Instead of -- I accept, Mr. Teschner, that you don’t want to say you have to charge person X; like, that would be clearly an operational ---

Volume 35 (December 1, 2022), page 82 35-082-25

Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

Sure.

Volume 35 (December 1, 2022), page 83 35-083-06

Dennis Baker, Prof. (Political Science – University of Guelph)

--- or a prohibited kind of a direction. But what about saying, “We want you to enforce the law”? Like, you’re not taking as proactive an approach; ---

Volume 35 (December 1, 2022), page 83 35-083-07

Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

I would ---

Volume 35 (December 1, 2022), page 83 35-083-10

Dennis Baker, Prof. (Political Science – University of Guelph)

--- would that be prohibited?

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Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

I would argue that that would be an odd direction ---

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Dennis Baker, Prof. (Political Science – University of Guelph)

Okay.

Volume 35 (December 1, 2022), page 83 35-083-14

Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

--- from the board. Police officers are -- have that independent authority, and are required by law to enforce the law based on the exercise of their discretion. They are the experts in knowing what tools to use and when. And so a general direction to enforce the law, I think is, as Judge Morton put it, one of those policies that actually are meaningless. That should be the starting point in any event. But when to enforce it; how to enforce it; what tools in the law enforcement toolbox to use, that is the discretion that we need to ensure police officers can exercise. Again, based on a plan, with priorities, objectives, and policies staked out in advance.

Volume 35 (December 1, 2022), page 83 35-083-15

Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you. Professor Leuprecht.

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Christian Leuprecht, Prof. (Political Science – Royal Military College)

Yeah, I think this sounds good in theory, but in practice -- look, I mean, when you have multiple police forces that are under different sort of jurisdiction, and each of them has sort of either been given some different directions or has sort of different -- been given different priorities, I think the integrated command structure here is critical, and how do you generate appropriate oversight and governance of an integrated command structure, especially when you have some forces that have boards, and some forces that don’t. The other issue that I would raise is that the question here is a function also of, do you have sort of just straightforward criminality, or are you facing a political protest? And police are the first to know that there is no law enforcement solution to a political protest. You will not arrest your way out of a political protest, and officers know that. And I think there would have been a rebellion of -- initially, at least, when there weren’t enough resources of officers in Ottawa had they just been told, “You go and just arrest people.” And so I think there needs to be -- police will look for top cover in terms of, “What approach do you want us to take?” Because if they take an aggressive approach, they know that there’s going to be repercussions. So when in doubt, I think, police will err on, “We’re here to keep the -- to maintain public safety, so that’s what we’re going to do, and we’re going to find a gradual strategy out of the situation that we find our ways in.” If the political authority is unhappy with that approach, then it needs to set a clear signal that federally, provincially, and municipally they will have the back of the police forces that are in place. The governance asymmetries that we have make that difficult in Canada, and especially in Ottawa.

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Jim Ramer, Chief (Toronto Police Service)

If I can just jump in?

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Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you, yeah, Chief Ramer.

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Jim Ramer, Chief (Toronto Police Service)

You know, when you’re having these events, I just want to say, first off, the police position is always to do this safely and peacefully. No one wants to be rolling around on the sidewalk because everybody is getting hurt. And it’s not just the public. It’s the police officers as well. And so that’s always the goal. And when we look on the events in Toronto on the one day, I believe the 5th of February, we had a number of very large trucks come down Avenue Road and try to breach Bloor Street and they were unable to get through. But they ended up staying there during the course of the day. And as we briefed our executive body, which is the different city leaders, the Mayor, and the executive director to keep the Board informed, they were asking questions, “Well, what are you going to do?” And we just said, “Well, the vehicles have stopped. People are demonstrating. And we’re going to facilitate peaceful demonstration, but consistent with our mission of all day, no vehicles are staying overnight.” And so we discussed with the leaders, and by the end of the night, most of them moved on. There was a couple of people in large vehicles didn’t want to move, so we brought the heavy tows into place and then they went home. And so -- because they saw that we meant business. And so that was the plan. But the whole goal was to do it peacefully. The Board asked questions, and we just told them, “No, we’re just going to allow them to demonstrate peacefully. They’re not hurting anything. We’re there for the day, but we’ll encourage them by the end of the night, we will help them move off.” And that’s exactly the way it did. What my point was is that the Board had questions, maybe coming from politicians as well to the Board about what’s going on, community members are calling and complaining about the noise and the trucks. We said, “This is the way we’re going to do it. this is the safe way to do it.” They were satisfied. And that’s the way it happened that day.

Volume 35 (December 1, 2022), page 85 35-085-11

Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you. Professor Thorburn?

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Malcolm Thorburn, Prof. (Law – University of Toronto)

Just a quick intervention. It’s just important, I think, that we distinguish areas where the reason why we want to leave police independence is because of their kind of quasi-judicial function in making arrests and so on from this area where mostly what we’re talking about is expertise. And so in that area, we may want to insist we should defer to those who have expertise on the ground, making these decisions. But there, the kind of dialogue that Chief Ramer was just describing, asking hard questions, saying, “Why aren’t you doing this and so?” is entirely appropriate, in a way that it would not be when we’re talking about specific investigations.

Volume 35 (December 1, 2022), page 86 35-086-21

Dennis Baker, Prof. (Political Science – University of Guelph)

Any -- Mr. Teschner?

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Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

Sorry, just wanted to -- off something that Christian said about integrated command structure, and I know Commission Counsel have asked questions about the deployment of resources to different areas depending on what might be emerging. I think it’s important to be mindful of the governance structure that exists. In law, the police services board of, in this case, Toronto, is legally responsible for the adequate and effective policing in Toronto. If assistance needs to come from other police services, it is vital, as Judge Morden laid out in the G20 report, for the Board to understand what the command structure is so that, yes, you can have an integrated command structure, but who ultimately has command and control and control of that event? And so through the MOU process that I suggested happen, these kinds of things should be worked out and should be clear so there’s never any doubt operationally and never any doubt from a governance perspective as to who has command and control, even though he might have multiple units involved at the same time.

Volume 35 (December 1, 2022), page 87 35-087-07

Dennis Baker, Prof. (Political Science – University of Guelph)

There were some questions actually related to the request for other forces to assist, and section 9 of the Police Services Act being invoked, and there seemed to be some, perhaps, reluctance to do so in certain cases. And this got back to a comment you made, Chief Ramer, about all or nothing. Right? The Police Services Act, sometimes interpreted as all or nothing. Is section 9 a kind of all or nothing -- this is for the panel as well -- an all or nothing request? So once you invoke section 9, suddenly the OPP is in charge of the operation and there’s a kind of take over of the operation? Is that the best way of looking at that section?

Volume 35 (December 1, 2022), page 87 35-087-28

Jim Ramer, Chief (Toronto Police Service)

I think perhaps that’s, you know, the way it was written at one time, and maybe that’s the perception. I think operationally, that’s not what happens. I know, you know, when you’re working with any of the organizations and the OPP in the particular, they come in and they provide assistance, and they work collaboratively together. And quite frankly, that’s the way that all of policing does work. And I just think it’s -- you know, when you look at section 9, it’s in that -- it’s going to be in that rare incident that you have something that is beyond the capabilities or capacity of a particular jurisdiction, and then maybe for that particular event, there needs to be some more clarity about what the roles are. But in the meantime, as Ryan had said, when we do this type of collaboration, there are -- consistent with Morden, there are clear parameters that we have to address in terms of command and control and how things are going to operate. So it is happening already.

Volume 35 (December 1, 2022), page 88 35-088-12

Dennis Baker, Prof. (Political Science – University of Guelph)

Okay. Professor Leuprecht?

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Christian Leuprecht, Prof. (Political Science – Royal Military College)

So there are other models in this country. So this is one approach. The other approach is in Quebec, where Quebec has a tiered policing structure, and my understanding is if, for instance, the equivalent protest had happened in Gatineau across the river, under the tiered policing structure, it would not have been the Gatineau Police, because the tiered policing structure sets out competencies for police in light of the size of the police service. And so by default, the Sûreté du Québec would have had the operational command and control of a national protest. And so we either need to have a tiered structure or, as the Chief and as Mr. Teschner have pointed out, need to have a clear governance set up for a multi -- for joint force operation. And I think that was certainly one of the challenges that we saw.

Volume 35 (December 1, 2022), page 89 35-089-05

Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you. Any additional comments? So we have about 15 minutes remaining. Let’s shift a little focus to the role of -- to being a little more concrete about the role of the chiefs and the board in situations where there’s a combined effort with multiple police forces and a whole bunch of other actions. So we talked a lot about some of the informal discussions and the trust and mature relationships, which is great. But what happens when that breaks down? Not just within a single police service, chief, and the board, but also when there can be competing boards, politicians of different levels, all those sorts of things. How do we deal with that? And in particular, how would we describe the role of the chief and the board with respect to the declaration of emergency, whether that was done at the provincial level or the federal level? Should the -- either of those parties communicate with the decision makers? Should they go -- or should it only be through the Board? Should the Chief be talking to the decision makers when it comes to the declarations of emergency? That was a bit of a rambling question. Putting it together. Professor Kempa?

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Michael Kempa, Prof. (Criminology – University of Ottawa)

Well I could just start the conversation by saying I think the -- it’s always open to the chief of a municipal police service to have direct conversations with the provincial police service, whether that’s an independent or contracted RCMP, if they require more resources. The Board would be the first point of communication through, later, the Inspector General, but currently the OCPC to the Solicitor General communicating that they were in some kind of difficulty. But it is -- it is not likely the role of the Board to make a specific request for the enactment of either the provincial emergencies legislation or definitely the federal emergencies legislation, simply to indicate that they are having trouble providing adequate and effective policing, and then when asked whether that’s limited to resources, or also if there’s some authorities that are missing.

Volume 35 (December 1, 2022), page 90 35-090-16

Dennis Baker, Prof. (Political Science – University of Guelph)

Comments on that?

Volume 35 (December 1, 2022), page 91 35-091-04

Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

I would ---

Volume 35 (December 1, 2022), page 91 35-091-05

Dennis Baker, Prof. (Political Science – University of Guelph)

Mr. Teschner?

Volume 35 (December 1, 2022), page 91 35-091-06

Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

Yeah, I would just agree that we have to come back to the statutory function and role of the board. The board is responsible to ensure adequate and effective policing. If through the information exchange with the Chief of Police it becomes clear that the police service of jurisdiction can no longer provide adequate and effective policing, then that information should be transmitted to decision makers who are considering other options that don’t exist within the world of the board or the chief of police, and that would be an informational input that hopefully they would consider in arriving at their decision. But that information should be, again, because it’s a political decision made by elected officials as to whether or not to declare the emergency, that transmittal of information should come through the Board. But importantly, the operational understanding would be conveyed to the Board by the chief.

Volume 35 (December 1, 2022), page 91 35-091-07

Michael Kempa, Prof. (Criminology – University of Ottawa)

Sorry, that was also exactly my meaning. I may not have put it as clearly.

Volume 35 (December 1, 2022), page 91 35-091-24

Dennis Baker, Prof. (Political Science – University of Guelph)

Okay. Is the board then the exclusive conduit in that situation? Or if an elected -- the person responsible, the parties responsible for declaring the emergency want to phone up the chief of the police and have a conversation with him, is that appropriate?

Volume 35 (December 1, 2022), page 91 35-091-26

Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

I would suggest that it would be far better for both the chief of police of the day, and for the elected official of the day not to do that, but rather, to use the infrastructure and the framework that is set out. The board has that responsibility. The board is the chief’s employer. The board should be informed by the chief about what’s happening operationally, and then the board can engage with elected officials to have those conversations; and bring things back. That’s not to say that, with respect to matters that are unfolding in a particular ward or a particular riding, there won’t be conversations with the police officer who runs a division and the local elected official about what’s happening within that particular pocket of the city, but when it comes to the overarching board duty to ensure adequate and effective policing, and when elected officials are getting interested and engaged because they’re considering other options, there is a conduit here, and so we should use it.

Volume 35 (December 1, 2022), page 92 35-092-03

Dennis Baker, Prof. (Political Science – University of Guelph)

Any other -- oh, Professor Leuprecht.

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Christian Leuprecht, Prof. (Political Science – Royal Military College)

I think from a board’s perspective there's also a question about is there a plan? So you have to be able to develop a Plan B and alternatives. You have to present those alternatives; you have to present the trade-offs of those alternatives to the board. So that needs to be conferenced by the board that the plan can actually work, or for the chief and the board to come together and say that this is simply beyond our capacity and so we’re going to need someone else to take command and control of the situation. So I think we can’t just, based on the event, suggest, “Oh, we’d better call for an emergency.” We need to see what an effective plan actually looks like, and the plan that both the chief and the board can either have confidence in or say, “We don’t have the capacity to develop a plan so we’re going to need to scale this up” -- classic sort of economies of scale -- “to a force that actually has the command and control capacity and the planning logistics, intelligence capacity to run this type of operation.”

Volume 35 (December 1, 2022), page 92 35-092-23

Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you. So one of the places we’ve seen consensus today is on the idea of an intermediary, right? Having a police board seems to serve important purposes and helps us reconcile some competing demands. So the RCMP doesn’t, but -- and Professor Leuprecht noted that only four -- he described it as kind of an aberration that there were these four that don’t have the intermediaries, right? But another way of saying that is that the provincial forces and the RCMP don’t have it, right? So are there other things, like ministerial responsibility and the RCMP being at Cabinet, right? They’re not -- they play a role there. Does that change the relationship such that you might not need that intermediary, or does it suggest that those types of forces that are perhaps closer to ministerial control don’t warrant that intermediary? That’s a wide open question. Professor Puddister, you’re smiling, though, which I mean ---

Volume 35 (December 1, 2022), page 93 35-093-13

Kate Puddister, Prof. (Political Science – University of Guelph)

Sure.

Volume 35 (December 1, 2022), page 94 35-094-02

Dennis Baker, Prof. (Political Science – University of Guelph)

--- you have an answer?

Volume 35 (December 1, 2022), page 94 35-094-03

Kate Puddister, Prof. (Political Science – University of Guelph)

Well, perhaps I’m just reiterating what I said before, that I think a civilian board is essential here. I do think in the current configuration the relationship between the Public Safety Minister and Cabinet could be altered; this could be a halfway step. We could think about the Public Safety Minister and its relationship to Cabinet similar to the Attorney General and its relationship with Cabinet, which would not be too far out of bounds because the Solicitor General used to be part of the Attorney General. And so when I’m speaking of the Attorney General, I’m thinking of the role in such that they represent the views of the Attorney General at Cabinet, solicit views from other members around the Cabinet table, but still hold that ultimate independence to make decisions. A model like that could be implemented for a Solicitor General or the Minister of Public Safety, but I suggest perhaps one other change would be necessary. Currently we have a Minister of Public Safety that has a wide portfolio of responsibilities. Other jurisdictions, like New Zealand, for example, have a minister of just policing, so perhaps in the scenario I’m suggesting we have just a minister of policing that’s fulfilling that duty. But I’ll close in saying I still think the more compelling solution is a civilian oversight board.

Volume 35 (December 1, 2022), page 94 35-094-04

Dennis Baker, Prof. (Political Science – University of Guelph)

Okay. Professor Kempa, you’re nodding along. Anything to add?

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Michael Kempa, Prof. (Criminology – University of Ottawa)

No. Just that in fact that close relationship with the Commissioner being a Deputy Minister has been specifically identified as a source of the number of the problems facing the RCMP, in that whether there is real or perceived political pressure on the Deputy Minister/Commissioner, there has been a tendency to manage upwards to anticipate the needs of the Minister in ways that may not reflect the needs, the bottom -- the downward needs of the organization. That, of course, was the main conclusion of the Brown Report.

Volume 35 (December 1, 2022), page 95 35-095-04

Dennis Baker, Prof. (Political Science – University of Guelph)

Professor Leuprecht.

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Christian Leuprecht, Prof. (Political Science – Royal Military College)

There’s considerable asymmetry in Canada with regards to the expectations Attorney Generals have and lay out for the RCMP, so they are quite detailed, but the most detailed, to my understanding, in British Columbia; in other jurisdictions there is very little in terms of the overall expectations. And so I think there’s probably some of the expectations and the relationship also by the Ontario and Quebec Attorney Generals, and the relationship with the RCMP because, of course, in both provinces the RCMP normally only does federal and national policing duties. And so are there circumstances where the Attorney General will need to make those federal units essentially request that they become operational units because if you’re flying in people from British Columbia, it's going to take you a very long time to surge capacity in Ottawa. And so I think clarifying that relationship of the federal and national policing capabilities and when that federal, national police service provides, effectively, contract-quasi services, even in Ontario and Quebec, that relationship, with regards to the expectations from the Attorney Generals, needs some clarification.

Volume 35 (December 1, 2022), page 95 35-095-15

Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you. Just being mindful of the time. Would the panel have any comments with respect to the appropriateness of police involvement or participation, or even information and negotiation between government actors and the protesters? So in a public order context where the government is -- or actors in the government are seeking to have negotiations with the protesters, talking about mediating the problem, do the police play a role there, the police chief, or intermediaries lower in the police?

Volume 35 (December 1, 2022), page 96 35-096-09

Jim Ramer, Chief (Toronto Police Service)

I see you’re looking at me.

Volume 35 (December 1, 2022), page 96 35-096-19

Dennis Baker, Prof. (Political Science – University of Guelph)

Sure.

Volume 35 (December 1, 2022), page 96 35-096-20

Jim Ramer, Chief (Toronto Police Service)

I would ---

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Dennis Baker, Prof. (Political Science – University of Guelph)

Chief Ramer.

Volume 35 (December 1, 2022), page 96 35-096-22

Jim Ramer, Chief (Toronto Police Service)

Yeah. The only comment I would make is that that should never happen, unless it’s done in conjunction with the police operation and with the full knowledge and support of the police to help to come to some type of peaceful conclusion or -- I mean, it’s done every day. We have 17, 18 protests every weekend in Toronto, and the first thing we do is we meet with the protest leaders, and we talk to them, and we say, “No, you can’t shut down this, all the city, but maybe we’ll facilitate a march around these locations. We’ll help you do that.” And we come to that. And I think that, really, at the end of the day, that’s what -- by going to that level of government individual to help, it’s obviously going to be a more significant event, but you’re going to try to accomplish the same thing in conjunction with the police operations. So I think they need to be done in tandem if they are undertaken, and there’s agreement that they should be done.

Volume 35 (December 1, 2022), page 96 35-096-23

Dennis Baker, Prof. (Political Science – University of Guelph)

Okay, thank you. So we did have a specific question for professor Puddister. You spoke early on about the significant challenges faced by police oversight agencies, and there was a question about whether you could elaborate on those challenges.

Volume 35 (December 1, 2022), page 97 35-097-12

Kate Puddister, Prof. (Political Science – University of Guelph)

Sure. So my area of research on this is mostly on Ontario, but thinking about the jurisdiction of these oversight bodies, and the SIU in particular, is what I’m going to talk about. And it’s useful to focus on the SIU because that’s the model that’s been exported across Canada. And I think one of the biggest challenges in relying on an oversight body like that to provide accountability, is that they have actually a very limited jurisdiction in which they can investigate. The SIU, in particular, is involved in serious injury, death, allegation of sexual assault, or the discharge of a firearm. Beyond that, there are other accountability mechanisms that come into play, but their jurisdiction is actually very limited, and I think the public has a very poor understanding of what they can actually do. The other significant area of limitation for the SIU and for many oversight bodies, is that they don’t have the ability to engage in systemic review, such as like we’re having right now, to examine larger issues; to think about connections between particular events that they’ve investigated; or perhaps, you know, if there’s repeat issues with a force, the director can issue a letter to the chief, but they don’t have the same powers to compel a full review. So their role is very limited in that they are reactionary only. Very important mechanism of oversight but are very limited in the ability to provide any, you know, guidance going forward beyond criminal investigation.

Volume 35 (December 1, 2022), page 97 35-097-18

Dennis Baker, Prof. (Political Science – University of Guelph)

Any other comments?

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Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

Sorry ---

Volume 35 (December 1, 2022), page 98 35-098-19

Dennis Baker, Prof. (Political Science – University of Guelph)

Sure, yeah. Mr. Teschner.

Volume 35 (December 1, 2022), page 98 35-098-20

Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

If I could, I would just say certainly the SIU's jurisdiction is, as limited as the statute says that it is, it's a criminal law jurisdiction. There are other players on the landscape that we have to also take into consideration. Of course, boards, which we have been talking about, which have a unique ability, actually, almost an unlimited ability in some respects to review a number of issues, both with respect to complaints that are being brought forward because they have a statutory mandate to review the administration of the complaint system by the chief, and particular issues that relate to their policies or the implementation of their policies. A capacity, though, that requires, again back to my recommendation, professional resources to actually have some oxygen. These are all great things in theory, but as a practitioner, I can tell you that not all boards across this country are in a position, in fact, very few, very, very few would be in a position to actually carry these things out. And so if we're serious about them, then we need to appropriately invest in them.

Volume 35 (December 1, 2022), page 98 35-098-21

Dennis Baker, Prof. (Political Science – University of Guelph)

In our final minute, does the panel have any concerns about -- so we've been very -- suggesting that police services boards do provide an important function. Are there any problems with that where we might be -- have some reservations about having that kind of model at the federal or provincial level? Or is it all goodness and light?

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Michael Kempa, Prof. (Criminology – University of Ottawa)

Well, no. As Ryan Teschner is alluding to, without proper resources -- police services boards have not had a record of untrammelled success across Ontario or Canada for that matter. And in fact, for example, in the United Kingdom, they have moved away from the police authority model, which is the same, essentially, as the Police Services Board model, for an elected local body that through the theory of being elected has even greater legitimacy to intervene in operational type matters and so forth. So it's -- it is a question of whether -- to evaluate whether the Police Services Board model is a good one for Canada, it's a bit unfair to look at the track record on the basis they have never had the training, resources, or clear explanation of their authorities to actually carry out their functions.

Volume 35 (December 1, 2022), page 99 35-099-20

Dennis Baker, Prof. (Political Science – University of Guelph)

Any other comments? No. We're one minute over time. Oh, sorry, Professor Leuprecht. Briefly.

Volume 35 (December 1, 2022), page 100 35-100-07

Christian Leuprecht, Prof. (Political Science – Royal Military College)

Just to point out that ultimately it's up to the people to decide. We live in a democracy, and the people create the framework under which police boards, governance, and so forth transpires. And so we can blame police, we can blame boards or whatever, but ultimately the importance of the Commission and the Inquiry is that it's a question of are the frameworks appropriate and are they fit for purpose. And the nature of the discussion today suggests to me that they are not entirely fit for purpose for the 21st century.

Volume 35 (December 1, 2022), page 100 35-100-10

Dennis Baker, Prof. (Political Science – University of Guelph)

Thank you, that's a good point to end on.

Volume 35 (December 1, 2022), page 100 35-100-20

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Wonderful, thank you. Good afternoon, Commissioner. Good afternoon, everyone. I -- I’m very privileged to be here today. Thank you for having me and for that introduction, and we’re very luck to be joined by experts who are both online and in person. And so in person here with us today -- I want to just acknowledge that we’re meeting here today on unceded Anishinaabe Algonquin territory, and we’ve got two experts who are joining in person. So next to me is Mr. Jack Lindsey, Associate Professor in Applied Disaster and Emergency Studies at Brandon University. We also have Mr. Ryan Teschner, Executive Director and Chief of Staff of the Toronto Police Services Board. And we have three experts joining us online, so that you for joining us from a variety of locations around the world. We have Dr. Dwight Newman, KC, Professor and Canada Research Chair from the University of Saskatchewan College of Law; Dr. Judith Sayers, President of the Nuu-chah-nulth Tribal Council and member of the Hupacasath First Nation; and Mr. Cal Corley who is the Chief Executive Officer of Community Safety Knowledge Alliance and a former Assistant Commissioner of the RCMP. So thank you all for joining us this afternoon. As the Commissioner has said, this is a panel that focuses on interjurisdictional responses to protests and emergencies. The experts that we have with us today are going to discuss topics that fall roughly within sort of three themes, so the first being the roles and responsibilities of different orders of government in responding to protests and emergencies or public order events and emergencies. The second theme will be more focused on mechanisms for consultation, coordination and cooperation between different levels of government and between agencies. And then, finally, we’ll focus on the Emergencies Act itself and looking at the appropriate roles of multiple levels of government in the use of the Federal Emergencies Act. So I’m going to kick us off with some of the questions that we have discussed focusing on, and we’re going to start by laying a bit of ground work in terms of responsibilities of different orders of government. So, Professor Newman, I’m looking to you to help us lay a bit of the groundwork here by starting us off with the question of, what is the federal government’s constitutional role in addressing emergencies, and how did the convoy events engage matters of federal jurisdiction?

Volume 35 (December 1, 2022), page 102 35-102-03

Dwight Newman, Prof. (Law – University of Saskatchewan)

All right. Good afternoon, and I’m very pleased to be a part of this discussion. I’m fortunate to be joining from London England today and just glad that the Zoom connection could work to facilitate participating. I’ll start off just briefly by saying that I don’t want to speak too directly to convoy itself so much as to speak about the issues of jurisdiction on emergencies generally in the context of the forward-looking nature of this roundtable. The federal jurisdiction in relation to emergencies can come from different sources, and the term “emergencies” is potentially broad and potentially multi-faceted and used in different ways in different contexts. But thinking in general in terms of a federal jurisdictional role in the context of emergencies, that can come from sources of federal authority under Section 91 of the Constitution Act, 1867. Areas where the federal government has jurisdiction, such as on matters of international trade, the international borders of Canada, there’s federal jurisdiction, and to the extent an emergency engages those contexts, there could be a straightforward federal jurisdiction. The same could be said of something like the National Capital Region in terms of their being a recognized area of federal jurisdiction there. At the same time, the federal government can also take up jurisdiction that it would not normally have in the context of an emergency making use of the Emergency Power Branch of the Peace, Order, and Good Government power held by the federal government, and that’s been interpretated in some case law to allow the federal government, in the context of a temporary situation where it has made a formal declaration of an emergency -- and there’s controversy on just how to describe it, but where there’s a sufficiently strong basis for that determination of there being an emergency with that being defined differently in different cases, the federal government has constitutional jurisdiction in relation to something that normally would be within provincial jurisdiction. Of course, provinces have, normally, much jurisdiction, over matters of local concern, matters of property and civil rights, many things that would relate to emergencies in the broadest sense of the term, and so this POGG Emergency Branch power is significant. The Emergencies Act is a federal statute that doesn’t necessarily use all of the powers of the POGG Emergency Branch but that uses that POGG Emergency Branch in some circumstances. Some parts of the Federal Emergencies Act relate to matters more within federal jurisdiction, and international emergency or a war emergency would be within federal jurisdiction. Something that’s a public welfare emergency, or a public order emergency, might normally have been in federal jurisdiction, or provincial jurisdiction, or a bit of a mix of both, and the Emergencies Act says that in some circumstances, the federal government may take up jurisdiction there, presumably relying upon the POGG Emergency Branch if the matter would normally be within provincial jurisdiction. The Emergencies Act shifts power from the legislature to the executive at the federal level, and it shifts, sometimes, jurisdiction temporarily from province to the federal government based on a set of balancing mechanisms within the Act, including a number of a provisions on consultation with provinces, requirements of provincial consent in certain circumstances, in Sections 14 and 25 of the Emergencies Act, and various matters. I’ll just say, in the context of emergencies where federalism is at stake, federalism can be affected by responses to emergencies, whether it’s symbolically or in practical ways that resound over time. And certainly, the invocation of the War Measures Act in the context of the October Crisis -- obviously, predecessor legislation -- had some long- term effects of federalism and issues related to the federal- provincial tensions in the country. It remains to be seen what will happen out of the 2022 situation. The other thing I’ll say -- and this probably feeds into other topics, though, is simply that the Emergencies Act has not been updated in light of Section 35 rights or in light of the United Nations Declaration on the Rights of Indigenous Peoples Act, Section 5, which obviously requires measures at the federal level to ensure that the laws of Canada are consistent with the UN Declaration on the Rights of Indigenous Peoples. That’s a topic I imagine we’ll be getting more into. The federal government has ways of using some of its jurisdiction more than it has without using the Emergencies Act, necessarily. And to the extent that the convoy situation highlighted vulnerabilities of the National Capital Region, I would just say, the solution isn't necessarily solely in terms of modifications to the Emergencies Act, but might involve the federal government taking up more of its jurisdictional potential in the context of the National Capital Region through legislation just on how the National Capital Region is regulated and policed. And that could be something else to be considered apart from the Emergencies Act. So those would be a few comments in response to that question, and I might leave it there.

Volume 35 (December 1, 2022), page 103 35-103-20

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you very much, Professor Newman. I wonder if just to complement that nice sort of overview of federal jurisdiction we might get a bit of insight from other experts about sort of what those constitutional roles look like on the ground. And so Mr. Teschner, would you like to weigh on that maybe briefly? And maybe just -- I'll give a reminder to everyone to speak slowly if you can so that our interpreters can keep up.

Volume 35 (December 1, 2022), page 106 35-106-28

Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

Thank you, Professor Stacey. My perspective is going to be a bit more local in nature, because at the end of the day, in responding to an emergency, regardless of who makes the declaration, the policing that needs to be responsive to that emergency, generally speaking, happens locally. And so it doesn’t necessarily mean, of course, that other interests, whether they be provincial, federal, or both aren't engaged, but my message here today is that effective coordination in responding to an emergency, assessing whether or not to invoke the Act, or make a declaration requires us to really take the lessons that we should learn from cooperative federalism. And that also includes giving a zone for municipalities as appropriate through the provinces, but importantly, for police services boards municipally that have a statutory role to play when it comes to the adequacy and effectiveness of policing in that jurisdiction, which includes emergency response. And so making sure that there is a mechanism through which police boards that are most impacted can be part of that consultative process, I think is essential. I think the question that I was wrestling with in preparing for this is how can any entity determine when something engages a broader interest beyond its own, and if so, what does that mean for the different orders of government? And so I think one of the ways that this Commission, Mr. Commissioner, could be helpful is perhaps, in clarifying, you know, based on what was just said, clarifying those triggers or those thresholds and getting perhaps a little bit more granular. The approaches to escalation need to be better set out, and that doesn’t necessarily mean that they all have to be set out in legislation, but they have to be set out and they have to be understood so that we ultimately can move towards a modern, multi-agency, governance framework that defines roles, responsibilities, escalation methods, communication protocols as an emergency is unfolding and while it is unfolding, ultimately so that these responses don’t unfold in an ad hoc manner and everybody knows, to borrow an Abbott and Costello analogy, who's on first?

Volume 35 (December 1, 2022), page 107 35-107-11

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you. Okay. So we're quickly getting the picture of emergency management being a multi-jurisdictional endeavour. And so one area of jurisdiction that we want to bring into the conversation is the role of Indigenous jurisdiction in protests and emergencies. And President Sayers, can I turn it over to you to speak to that?

Volume 35 (December 1, 2022), page 108 35-108-22

Judith Sayers, President (Nuu-chah-nulth Tribal Council)

Yes, thank you. Judith Sayers, coming to you today from the Coast Salish territories, and I am pleased to be able to talk to you about Indigenous jurisdiction. And I'm going to talk about First Nations in particular. Indigenous people, as you know, includes Métis and Inuit. My expertise is First Nations, so I'm going to talk about First Nations. And First Nations have been here since, in our language, (Native word) or time immemorial, longer than any mind can know. Our governments have been in place that long as well, and were the first governments on these lands known as Canada. We had in place our own laws, protocols, communications, and looked after and protected our own lands and resources. All of the lands in Canada have First Nations title on them. They are within the territories of the over 633 First Nations across this land. Many different kinds of First Nations, there are number of treaties which are -- a lot of them are historic and shared their land to the depth of the plow. There are Aboriginal title lands in British Columbia which have never been subjected to treaties or session or discovery. Then there are modern treaties where the issue of lands and laws have been negotiated. Yet, as important as First Nations governments on these lands, the title and the role of First Nations in Canada, neither the Emergencies Act or the Emergency Management Act mentions First Nations as governments. Everyone else gets noticed, the provincial governments, municipal, but not First Nations, so there's no formal role to play when emergencies arise. Yet, when emergencies happen, it is First Nations' lives at stake, their lands, resources, and their ability to carry out their section 35 protected rights. The danger, of course, in not mentioning First Nations jurisdiction in the Emergencies Act is that other governments would assume authority over the lives and lands of First Nations without their consent and without the proper background and knowledge, and usurp the authority of First Nations. As a first recommendation, the federal government must amend the two Emergencies Act to include First Nation governments. This amendment process must be inclusive of all First Nations in Canada as to what role First Nations will play in emergencies, how they are involved in decision making, what information they are provided, ensure that their people, rights, lands, and resources are protected. Canada has now in place a law called the United Nations Declaration on the Rights of Indigenous People Act and it's now law and needs to take into consideration and make their laws consistent within their emergency law. And so this is something that has to take place because this is now legislated. And in particular, Article 30 of UNDRIP talks about: "Military activity shall not take place in the lands or territories of Indigenous people unless justified by relevant public interest or otherwise freely agreed with or requested by the Indigenous people concerned, and state shall undertake effective consultations with the Indigenous people concerned through appropriate procedures, and in particular, through their representative institutions prior to using their lands, territories, for military activities." So if by any chance in emergency the military is called in, we have to define what does that procedure look like? What say do First Nations have in that? While Oka was not considered an emergency, no one will forget the tanks rolling onto the Mohawk lands, called in to stop the First Nations people from defending their lands. UNDRIP and the changes that need to be made to federal law and policy to reflect these commitments must be done and it must be consistent with all the articles in UNDRIP. There is a duty on the federal government to report to and engage First Nations. First Nations need to be able to help define what an emergency is, and not just the decision of the federal government. We must be able to determine what is critical infrastructure and services. Often, remote or small communities are not considered critical infrastructure because it only affects a small number of people or a smaller community that’s critical to them. During the big fires in British Columbia a couple of years ago, I was meeting with a minister, and I got a call from one of our First Nations and the fire was just coming down the hills quickly to their community. I had to plead with the minister to send in helicopters and to consider that critical infrastructure, but that wasn’t what they had thought. But thankfully, they did send in the helicopters to stop the fire. These are the kind of critical situations that we need to talk about. Or during the flooding in British Columbia where gas wasn’t being brought into the province due to all of the transportation corridors being shut down. We were all limited to 30 litres per car. Had to negotiate with the government to increase that for our remote communities because you can't get very far in communities on 30 litres. You can't get in to get your food and necessary supplies on that. So it's very critical that there is an amendment to the Emergencies Act and Emergency Management Act so we can clearly lay out what is needed in First Nations communities. Thank you.

Volume 35 (December 1, 2022), page 109 35-109-03

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you, President Sayers. So I think maybe what we should do is move on now that we have this sense of the different jurisdictions that are involved in emergency management to talking about mechanisms for facilitating consultation, coordination, and cooperation, and see if we can get into some examples of what kinds of mechanisms have facilitated successful interagency and intergovernmental coordination in past emergencies. And so I’ll turn it over to Mr. Teschner to start us off with that, and then we’ll bring in some others as well.

Volume 35 (December 1, 2022), page 112 35-112-24

Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

Thank you. People that I work with will understand me when I say that I use a Pee Wee Soccer analogy to talk about how I view emergency management sometimes. And those who are intimately familiar with it may not quite see it that way, but I think there are many, including those in government, who perhaps don’t understand that there are different responsibilities at different levels and different methods of engagement. And so to some, I think it does seem a lot like Pee Wee Soccer, where the whole team is chasing the ball and no one is respecting the position that they’re supposed to play. I think in the context of emergency management, we have to avoid two things. We have to avoid the assessment and response depending on personalities as opposed to structure and good governance, and we have to avoid what would have been known as stove pipes or silos to information sharing. I believe that we need to update, to some extent, our multijurisdictional infrastructure and approach to better align with the principles of cooperative federalism I mentioned earlier. In the context of policing specifically, there are some examples where this is done well operationally. And if you think back to the G20 Summit and to the 2010 Winter Olympics, you did have the RCMP, the provincial police of jurisdiction, at least in the case of Ontario, and municipal police services in Toronto in an integrated security unit, where there was plans that were codeveloped, codesigned, where everybody understood, more or less, of course, the Morden Report spoke to some of the gaps, but where they went in, at least among themselves, understanding who was responsible for what, and everybody understood how the information was supposed to flow. It facilitated the coordination of both the interjurisdictional planning and response to those public order events and emergencies. Of course, lots of lessons to be learned from the Morden Report, that that was the same structure that was used in the 2010 Olympics. In the context of national security, there are integrated national security enforcement teams that operate, with the RCMP being given primacy because it’s matters of national security, where you have federally led investigative teams that are comprised of the RCMP, Canada Border Services, Citizenship and Immigration, CSIS, but also provincial and municipal police services. And so even though the RCMP have primacy, interwoven within the relationship is a joint forces integrated environment where police share the operation responsibilities that flow from the national security needs and the decision-making process is structured in a more shared way. My suggestion here is that emergency management could potentially benefit from an upgrading, if you will, to its governance structure when it comes to interjurisdictional responses. And I take some of my inspiration from the U.K. Emergency Response and Recovery, a 2013 document that provides non-statutory guidance that accompanies the U.K. Civil Contingencies Act. And I think that a modernized emergency governance structure would have five key components. The first would be -- well, the premise would be that you would have an interjurisdictional coordinating group, a superstructure of sorts, that would be designed and that would operate based on five elements. The first is an understood structure and hierarchy with a sufficient role for, yes, the local level, and to President Sayer’s point, the First Nations and Indigenous Communities that are impacted by that particular emergency. Clear roles, clear responsibilities, a clear mission statement, as part of that structure. Each organization or entity would be represented and would retain their own command authority but would exercise control over their own operations in a coordinated and facilitated fashion and could rely on discussion and consensus, for the most part, and it would allow for a common operational picture, and more efficient response in deployment when you have multiple levels or orders of government involved. It would promote a full information exchange between the partners, where no local entity that is impacted is placed at a disadvantage. And of course, it would help ensure interoperability. The second is to include, yes, the formal actors I mentioned, but also informal actors. A hybrid structure that would involve outside of government actors that may be impacted, or may be able to lend a hand in terms of the development and implementation of the response. And the 2014 Ebola outbreak in Sierra Leone was an example where that kind of structure was used to mobilize community groups, volunteers, religious groups, all involved in the response to that particular emergency. The third, and I’m sure Cal Corley will speak about this, is the importance of joint exercises and trust building through those exercises, that this interjurisdictional coordinating group should engage in long-term planning among the partners, but also modeling, table topping, and exercise in advance of any emergency so that they understand better how to operate within that context, and so that they know what to do when you’re in the grey zone of a plan that doesn’t necessarily speak to precisely the circumstances that you’re facing. The fourth would be a transference of duties as appropriate. Emergencies generally cause people to revert to institutional lines, but that can sometimes cause fragmentation and doesn’t necessarily result in the best resource being deployed to address that particular circumstance. So looking for opportunities within the structure to properly, and with consent, redistribute duties in a way that still respect jurisdiction, but is premised on a functional or capacity approach. And the fifth is communication and the importance of the structure allowing communication to work over all phases of an emergency to ensure that the multi-agency approach with respect to communication functions well, and that it satisfies the communication needs of all of the people around the table, because those needs may be different. I would even urge exploring some kind of national communication mechanism for law enforcement agencies that balance the intragroup, the intergroup, and public communications that law enforcement often have to engage in in the context of emergency so that we minimize confusion, optimize consistency, and make sure that everybody has the ability to get a message out to the public. Thank you.

Volume 35 (December 1, 2022), page 113 35-113-07

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you. Mr. Corley, you have some examples that you’d like to add around coordination, cooperation, consultation?

Volume 35 (December 1, 2022), page 117 35-117-14

Cal Corley, CEO (Community Safety Knowledge Alliance)

Yes, indeed. And thank you for that, Jocelyn. Thank you, Commissioner Rouleau and team, for inviting me to participate in today’s panel again. As mentioned, I’m a former Assistant Commissioner at the RCMP with experience some years ago in both protective operations and national security investigations here in the National Capital Region, as well as time spent on secondments at both Public Safety Canada and at the Privy Council Office within the Security Intelligence Secretariat. I’m calling in today. Unfortunately I’ve got a bit of a chest cold. Calling in from the National Capital Region, and I acknowledge being on the traditional homeland of the Algonquin Anishinaabe Nation. I’ve been asked to pick up on a couple of area of focus today, principally around -- picking up on my comments yesterday at the round table on public protest policing, with particular attention to three areas: how to institute stress testing and multi-day, multi-agency training exercises that support an effective eco system response to public order events and emergencies. Number two, to pick up on -- and it actually picks up nicely on Ryan’s comments a moment ago about how Major Case Management can work to ensure coordination while allowing to address local context. And finally, how the Security Offences Act and the Foreign Missions and International Organizations Act operate in practice insofar as police operations and cooperation are concerned. I'll turn first to joint agency exercises. I'll try not to be too repetitive to what I said yesterday, but in my view, it should have been clear yesterday, but I'll be explicit. This type of training, in my judgement, is a critical success factor going forward. And I'll, again, note, Ryan, in his proposed five-point plan. These exercises in the National Capital Region used to be commonplace during the 1990s. Similar ones, of course, were also instituted in advance of events such as the 1997 Apex Conference, G20, and other planned events, but that's a distinction with those in the NCR. These were a standard practice. They were not in preparation for any specific event. These exercises were often two days or so in duration, and they were coordinated at that time by the then Solicitor General Department, now Public Safety Canada. These are not alternatives to other local training or educational efforts, including tabletop exercises, as important as they are. And as we've heard today from Chief Ramer, that often much of that local training can be rather piecemeal in many cases. These exercises typically involve the full range of police agencies in the NCR on both sides of the river, CSIS, Public Safety Canada, PCO, and relevant departments and agencies from the City of Ottawa, City of Gatineau, and the Province of Ontario. In a contemporary context, of course, as I mentioned yesterday, they should also involve Indigenous government representation, as well as the private sector actors. Both of these issues, again, are a matter of record from yesterday. The principal focus on these exercises back when I was involved was largely around the full range of national security issues, and served to stress test all aspects of the enterprise from governance, policymaking, information-sharing, and other protocols, leadership, tactics, and operations. As I mentioned yesterday, assuming that we had national provincial standards in place, supported by appropriate agreements between governments, and as between governments and as between police agencies, it's crucial that these standards and elements of those agreements be stress tested and practiced. Because even the best laid plans typically survive first contact, so this is really around getting around that to ensure the effective application of previous intent. Not only did these improve individual and collective capacities and capabilities, but it really helped iron out kinks in the system, developed a good understanding of agreed-to procedures, improved information flows and responsiveness, nimbleness, and allowed leaders and practitioners from these different agencies to develop closer relationships. Something that's highly important where the rubber hits the ground. As mentioned yesterday, I've learned recently that such in-depth exercises have not been undertaken in the National Capital Region in the manner that I have spoken of for some years. I can't speak to what's happening in other centres across Canada, but it certainly speaks to the NCR. It would seem to me that looking forward, with the realities of start-up limitations, that a training regimen, if it was to be reignited or reinitiated, should first focus on the National Capital Region and then build outwards to other major centres across Canada based on ongoing risk scanning assessments. In the absence of such exercises, the risk that is the formal standards protocols and agreements will fall short when it comes to implementation. So what would be required to initiate such training exercises? I'd obviously defer to legal colleagues, but it strikes me, based on my experience, that initiating such an endeavour should not require legislative or regulatory change. Rather, it would require it in the form of policy decision, supported by a somewhat modest funding envelope to enable Public Safety Canada and/or Emergency Preparedness Canada to consult, develop, and implement appropriate and ongoing sustainable regimen of joint training, and joint learning. A commitment from the agencies and departments to participate in such exercises is also important. Today, certainly within policing with the challenges on finite police resources, it's important that this be seen as something that's important for the collective good and that resources be assigned to these types of exercises. The other area that I should touch on briefly that I didn't touch on yesterday has to do with police/military training, joint training as pertaining to aid the civil powers. This is another opportunity that today, from my understanding, today only a limited number of mid-level and senior police leaders have occasion to undertake jointly with their military counterparts. And the experience I had in that type of joint training with the military was invaluable, again, in understanding their capacities, their capabilities. And logistic superiority in many cases is of tremendous value and probably should be explored. Just closing off on this section. If it was fully implemented I am confident, based on my experience, that such a regimen of ongoing joint learning would serve the security and community safety ecosystem and/or communities well for years to come. I'll turn now to Major Case Management. I was asked to pick up on comments yesterday in terms of the MCM model as an exemplar, I suppose, for lack of a better term. And I think picking up on Ryan's comments a few moments ago, really what he described in his proposed five-point plan really is what Major Case Management model is about. Like public -- like major public order events and emergencies, major criminal investigations are typically complex and multi-faceted. Those investigations often cross multiple jurisdictions, and involve more than one investigative agency, in many cases, many investigative agencies. The stakes are high, the cost of failure of not following proper methods or standards and not respecting evolving jurisprudence can result in breaches of Charter rights, wrongful convictions, and other miscarriages of justice. Major Case Management provides a flexible, yet standardised framework and supporting tools, that enable skillful leadership and structured coordination required of these complex matters. Emphasising accountability in a multi- disciplinary approach, Major Case Management provides sound structures for the investigation, including, importantly, a centralised leadership and coordinating body, similar to Ryan's first point, at the national level as pertaining to the present matter; clear and unambiguous standards; standardised training; and common technologies. It establishes clear lines of responsibility and decision-making. It supports the idea of unified, inter and multi-agency leadership. Rigorous approaches in infrastructure in the case of Ontario, for example, even the technology that's used across police services in Ontario to support Major Case Management is one particular software. I could go on with other benefits or what Major Case Management intended to do, but suffice to say it's the centrepiece of effectively undertaking these types of complex endeavours. The Province of Ontario developed its regulation and corresponding Major Case Management manual, which is administered and maintained by the Solicitor General, in the wake of the Paul Bernardo investigation. British Columbia, in its case, its particular framework, it evolved from the Missing Women Commission of Inquiry. Note in both of those cases, this was an outside- in directive to policing. And the evidence over, you know, big changes to policing tend to come from the outside, the evidence to that is clear. MCM is a proven technology. National standards that are overseen by an advisory group of senior police experts, and the Canadian Police College's Major Case Management course is the standard for training in Canada. How might a comparable methodology support more effective responses to Public Order Emergencies? Well, I could walk through that -- an adapted list that's based on the Major Case Management mode that I just referred to, but I think it's pretty clear to anyone listening that that transference, and in the spirit of time, I won't go through it, but it's pretty clear to me that there's a really good example there of how this can be done much more effectively. Finally, I'll turn to the Security Offences Act and Foreign Missions and International Organizations Act that I was asked to speak to. The issues here are how relevant aspects of these pieces of legislation operate in practice, and what rules do other police agencies, that being non-RCMP agencies, what roles do they have when these Acts are invoked. Excuse me. The implication under each Act is quite similar, but for the purposes of brevity, I'll speak only to the Security Offences Act. Of course, this Act deals with the enforcement investigation of certain national security related offences as currently set out in section 2 of the CSIS Act. When the SOA is invoked by the Attorney General of Canada on the belief that an offence under the Act has been committed or likely to occur, section 6(1) stipulates that the RCMP will assume lead responsibility for an investigation. Importantly though, subsection 6(2) deals with the practical reality of the conduct of these investigations. In essence, that subsection states that to facilitate consultation and coordination in relation to the undertaking of related duties, the Minister of Public Safety and Emergency Preparedness can enter into agreements with the provincial governments affected. Experience has largely been, in practice, that the RCMP recognized that they cannot successfully undertake these types of investigations on their own. At a minimum, they often lack all forms of local knowledge. But local agencies also, beyond just specific local contextual knowledge, they also bring tremendous value in terms of complementary capabilities and know-how that can be beneficial to the investigation, hence, the greater good. Now in practice, this is part of why the regimental stress testing standards, protocols and such bilateral and multilateral agreements that we spoke about become highly important. The transitioning of leadership in such instances, and I'd suggest here and I think Ryan touched on it as well, whether we're speaking about the implication or the application of the Security Offences Act or the Emergencies Act, these tend to be investigations that evolve, and that transfer of leadership or transference of responsibility and accountability often occur at times when tensions are often already stressed, by virtue -- by the very nature of the incident that's at play, and the overall situ at hand. So these can be awkward at the best of times. Beyond that, personalities and egos, both institutional and individual cannot be discounted. So having arrangements formalized and in place that are tested, exercised earlier as a matter of course can pay huge dividends in terms of that seamless transition. The example -- one example yesterday was in relation to back in 1986, a hostage taking at the Bohemian High Commission in Ottawa. And, of course, this predates these types of exercises, but it really featured two senior police leaders from two of our organizations on the sidewalk engaged in a heated debate over who had jurisdiction. We don't need -- that doesn't endure trust or confidence in policing and something that can be avoided through mechanisms such as have been mentioned. And now finally just would like to come back on a comment yesterday as well. In Quebec, the province of Quebec, of course with its six-level model of policing, has largely overcome these issues. And by -- and it was referred to earlier today I think by Christian Leuprecht, but I recall a conversation with the former chief of the Gatineau police, Mario Harel, and in speaking in this example it was about murder investigations. So if his team is at a murder scene and they're the police of jurisdiction, but once they realize, perhaps because of the amount of drugs, money, weaponry that's there, that this involves organized crime, they no longer have jurisdiction on organized crime investigations. And they are now protecting a crime scene and the Sureté du Quebec become the police of jurisdiction on that investigation. The six-level model in Quebec has been in place for years. It took a bit of time early for this to become normalized within police culture. But today, if I listen to leaders in -- police leaders in Quebec, they like it. They don't have to prepare for events or investigations that are beyond their reasonable capacities based on the size of the police agency, and they can prepare and do very well within the scope of things that they can do. So clear, unambiguous models and protocols have become just part of the way business is done in that regard in Quebec. Thank you for the opportunity to share these views, and, Jocelyn, I look forward to the rest of today's conversation.

Volume 35 (December 1, 2022), page 117 35-117-18

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thanks, Mr. Corley. Those are -- it's great to have those examples. And, President Sayers, I wonder if you might like to join in on this part of the conversation. Any examples that come to mind for you of successful coordination, cooperation between First Nations and Crown governments?

Volume 35 (December 1, 2022), page 126 35-126-28

Judith Sayers, President (Nuu-chah-nulth Tribal Council)

Thank you. Yes, I would. Judith Sayers here. One of the government-to-government memorandums of understanding that we reached was during the COVID crisis. And as governments, we weren't able to make decisions because critical data was being kept from us. We didn't know how many COVID cases were in surrounding communities. We didn't know if it was okay to tell our members to go into those communities because we had no idea of how many COVID cases. So we went to the provincial government and we said, "Hey, we really need to know this." It took us seven months to negotiate that, which, you know, COVID was still relevant. So it's important that these kind of protocols be entered into prior to, but in order to make decisions during emergencies, First Nations need to have access to information. And I know that there's confidentiality and we did deal with confidentiality in our agreement, but it was important to do that. It's also important in this data to ensure that we have specific data for First Nations on reserve, off reserve if we possibly can have that information, and so any kind of information happening during an emergency makes it important to First Nations, so they know where the fire's coming from. Of course, flooding happens pretty quickly, but just knowing the information that is required, so we can manage emergencies, we can manage what is happening, our responses. Another example would be when Canada closed its borders to the U.S. No doubt, it needed to be done. I'm not questioning that. But by doing so, it also separated our communities that are on both the Canadian and American side. And had we been able to have conversations with Canada, we might have been able to put in some provisions to allow that kind of cross-border activity. Maybe not, I mean, but I think it should have been talked about. And then Canada opened its borders again and let people come in, and in the waterways in particular, some of our communities are remote, on islands and pleasure crafts were coming in and, of course, trying to enter the communities. And, you know, we're trying to exercise jurisdiction and asking people to stay out and on the waterways it was difficult. So you know -- and that's Transportation Canada, kind of people that we're working with. So I think if we can look forward into the future to see what it is that we need, what are the kind of conversations that we need to have in order for us all to respond to emergencies, what roles can we play. And I think the government-to-government coordination needs to be defined. It needs to be put into the Emergency Act. You know, how much time does First Nations have to respond to emergencies. Provinces get seven days. Should be the same for First Nations. I think that in order for us to be able to do things properly, we need to be coordinated with, for example, bring in the military to help with forest fires. It's become a common issue in British Columbia. And we should, and I think Ryan talked about this, we need to have that communication, that coordination. We're all working for a common cause, respecting each other's jurisdiction and abilities to do that. I think a financial aid is also something that can be negotiated, what happens after a national disaster, how do we rebuild and replace what was destroyed or damaged. One of our communities that was in a fire that was destroyed still hasn't been rebuilt. One of the other tools that we have is reconciliation and the calls to action. There is a Bill C29 before Parliament right now to put in place a body to deal with reconciliation. And having these kind of understandings, dialogues, agreements with federal government is all part of reconciliation. Reconciliation is about making things in the past right, and having been kept out of emergencies, not having a good role, needs to be set right. We need to have those conversations. It’s a lot of work. It’s a lot of work that’s ahead of us, yes. I definitely agree to that, but it’s something that has to be done. And I also think the federal government needs to encourage and support protocols between First Nations and the RCMP in time of emergency. How do we work better together? What is the understanding? And I realize this wasn’t an emergency but, you know, we all watched in British Columbia, Northern British Columbia, with the Wet’suwet’en, the RCMP just went in and took down all of the land defenders’ camps, and it wasn’t -- it wasn’t done properly. Can we not find better ways to work together so that we can avoid those kinds of situations? And, you know, that’s just one example of, you know, what people might call a protest, other people are calling them land defenders. But, you know, these are the hard, hard conversations we need to have. Yes, emergency are federal jurisdiction, but yes, First Nations have rights, and First Nations need to be able to manage to those emergencies in our lands, and we need to have capacity built. How do we fight fires? How do we fight things on the water if we don’t have the proper resources to do that. And so those are -- capacity building is a huge area that we need to enter into protocols with. So I thank you for your time.

Volume 35 (December 1, 2022), page 127 35-127-07

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you for that. A lot of -- I’m hearing a lot of sort of consistency in what the experts are saying so far, right, the importance of communication, entering into agreements and protocols, training, and resourcing, and so in some way it’s really no mystery, right? These things all have to happen outside of the actual emergency response. Professor Lindsay, we haven’t heard from you yet, and so I’m hoping to bring you into the conversation here to hear a little bit about what tools the federal government has and maybe where there are gaps in terms of what’s available outside of the Emergencies Act, maybe, to do some of these things that the other experts have set out for us already.

Volume 35 (December 1, 2022), page 130 35-130-15

Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)

Thank you for that, Stacey, and thank you very much, Commissioner, for having me here. I want to start, though, by saying it’s important to note that emergencies are not crimes. Hazards are not criminals, and our emergency management practices are far broader than policing. While this use of the Emergencies Act was focused on a security issue, we should not frame our future as a policing function. The Emergencies Act is only one tool in the national emergency response kit. It is a crucial component of the rule of law. The laws, at the provincial and federal level, allow citizens to know in advance the range of powers and the limits on those extraordinary that governments will exercise during emergencies. The Emergencies Act is also not the only outdated tool in what has become a somewhat rusty toolkit. Thank you. It was passed in 1988 alongside the Emergency Preparedness Act. That Act, for the first time in law, set out how the Government of Canada would organize and undertake its emergency management responsibilities. It created Emergency Preparedness Canada, answering to its own minister, and reporting annually to parliament, a requirement that was quietly dropped in 1995. Prior to this, the federal government’s emergency management function had been restructured or moved between government portfolios over a dozen times over the course of about 40 years, a trend that’s continued with several more arrangements before disappearing as a distinct government agency when it was subsumed in Public Safety Canada by the Department of Public Safety and the Emergency Preparedness Act. The Emergency Management Act that was passed in 2007 to replace the Emergency Preparedness Act again revised the approach to how responsibilities were distributed within government. It created a more balanced responsibility for emergency planning sitting with every government minister while the minister responsible for the Act is tasked with setting the standard, providing coordination, and ensuring an appropriate level of preparedness. This is approach determines how government agencies are, or at least should be, ready to meet the demands of all four types of emergencies. The Emergency Management Act requires all the ministers to have emergency plans for their portfolios that include any programs, arrangements, or other measures to assist provincial governments, and through the provincial government’s local authorities, and any federal/provincial/regional plans. It is unclear to me if any such plans existed within the federal departments that may have included programs or arrangements to assist provincial governments with kind of public order disruption, or if there were federal/provincial/regional plans for Ottawa, or for other sites. I accept that such plans may have been in place but not publicly available. The organizational structure that we have remained in place from 2007 to 2021, something of a record for emergency management in Canada, when the Prime Minister the Emergency Managements Act’s ministerial function and placed it with the new Minister for Emergency Preparedness. The implications of that change have not been fully resolved. Public Safety Canada has developed the policy documents that form a loose hierarchy under the mandate of the Emergency Management Act. Many of these policies tools were in response to the 2008 Report of the Standing Committee on National Security and Defence. That Senate report was titled “Emergency Preparedness in Canada: How the fine arts of bafflegab and procrastination hobble the people who will be trying to save you when things get really bad”. The report was not positive. The Senate Committee concluded they did not believe the Canadian Government have been doing their job in preparing for kinds of major national emergencies that are bound to confront Canadians in the coming years. Time is too short to explore each of the policy documents in depth, and I must also, again, say that, as a citizen, I can only see what Public Safety Canada puts forward on its websites. You’ve already heard of the emergency management framework for Canada, the federal/provincial/territorial agreement on its principles. There’s also the emergency management strategy for Canada and its associated interim action plan that sets fairly aspirational goals for the portfolio over the upcoming decades, but there are many other policies that are -- where the polish is fading. The federal policy for emergency management 2012 simply paraphrases the obligations created by the Emergency Management Act into a police statement. The National Emergency Response System, 2011, describes how the federal/provincial/territorial relationship in coordination systems should be in place while also placing the principles of emergency management into a federal policy. The Emergency Management Planning Guide from 2010 was intended to assist all federal government institutions to develop their all-hazard strategic emergency management plans, each of which should establish the federal government’s objectives, approach, and structure for protecting Canadians and Canada from threats and hazards in that minister’s area of responsibility and sets out how the institution will assess a coordinated federal emergency response. Also in 2010, they brought out the Federal Emergency Response Plan. Again, the website says it was last update in 2010. It’s designed to harmonize federal emergency response efforts with those of the provinces and territories, non-government organizations, and the private sector, and it includes in it the Federal Emergency Response Management System which provide governance structure and the operational facilities for the Government of Canada to respond to emergencies. It establishes emergency response functions and assigns tasks to different departments. I’m not aware of how any of this planning has progressed in the past decade or if any of those plans developed or implements were done so in regard to the 2022 public order emergency. However, Deputy Minister Stewart, the Deputy Minister from Public Safety Canada, testified to you on Monday, November 14th, and he said: “In general, we did not treat the protests as an emergency management issue and that the framework that we’ve designed and agreed with the provinces and territories to deploy does typically apply to issues of public security in defence of law enforcement. It deals with natural disasters and the like.” This is an interesting distinction that does not seem to reflect the laws and policies I have just discussed. For example, the Emergency Management Act requires each minister to include measures to support the Canadian Armed Forces in case of war. This should raise the question of which national emergency is the Emergency Management Act and all its downstream plans and policies were meant to address, if not all of them. Of course, each time of national emergency has associated policies and procedures that fall into many different portfolios, yet every federal government department is required by the Emergency Management Act to identify the risks to their area and the express policy of the government is to take an all- hazards approach, which includes addressing vulnerabilities, both natural and human-induced hazards and disasters, and all- hazards approach takes in human-induced disasters that concern emergency management including intentional events that encompass part of the spectrum of human conflict and the disruption of critical infrastructure. Again, this makes me question the relationship between the Emergency Management Act and the Emergencies Act if not all hazards and not all four types of emergencies are to be considered in planning. That flurry of policy writing around 2010 may have seemed out of date, but Public Safety Canada joined the National Emergency Management Team late in the game. Prior to 1988, Canada had no emergency management legislation, while all the provinces had passed their own laws, starting back in the 1950s. So there’s now a lack of consistency across Canada’s legal landscape with regards to emergency management. The provinces and territories each have their own statutes that combine features of both the Emergencies Act and the Emergency Management Act, but do not necessarily contain all the same requirements, nor are the provinces consistent in where their emergency management function is located. I also wanted to point out that there is another -- I’m just going to move ahead -- challenge that we have that the Public Safety Act of 2004 amended various federal acts after the September 11th attacks. It inserted emergency director powers to Ministers responsible for certain acts to allow for urgent action for the purpose of public safety. For example, the Aeronautics Act was amended to allow the Minister to make interim orders to deal with significant risk direct or indirect to aviation safety. The power for Ministers to exercise these emergency directives added to the federal toolbox 15 years after the Emergencies Act was passed could resolve many potential situations without recourse to a national emergency. This highlights that the Emergencies Act does not reflect the intervening decades of policy and legislative change within the Federal and Provincial Government. And so I’ll just make one recommendation type comment now. In line with the tiered approach that we have, the sections of the Emergencies Act on public welfare emergency and/or the public order emergency could incorporate a reference to the use of such federal director powers at the request of a province when it is a question of exceeding the Province’s jurisdiction. This can be done by incorporating a reference in the Emergencies Act to section 7(c) of the Emergency Management Act, where declaring a provincial emergency to be of concern to the Federal Government could then trigger use of those federal directives. Thank you.

Volume 35 (December 1, 2022), page 131 35-131-01

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you, Professor Lindsay. One of the things that came up in the roundtable yesterday was about the role of the private sector. And so Mr. Corley, you had a chance yesterday to talk about the important role that you saw for private security and policing responses, at least. And I’m wondering if there’s anything you’d like to add to the comments yesterday about the role that private security, you see private security playing in sort of interagency and interjurisdictional responses to emergencies?

Volume 35 (December 1, 2022), page 137 35-137-17

Cal Corley, CEO (Community Safety Knowledge Alliance)

Well I suppose, picking up on yesterday’s conversation, it seems to me that in a contemporary context, the private sector and private sector security are an essential and core part of the community safety eco-system, in terms of provision of services. If we think in terms of the spaces that we cover in the course of a day, whether in a mall, private business, property of private businesses, often the first line of security support comes from the private sector. This is well established. The 2014 Council of Canadian Academies Report on 21st century policing spent a lot of time speaking about the eco system of providers, of which they’re a central component. There’s lots written on that. In very practical terms, the private sector bring with them know-how knowledge and legislative tools that the public police typically don’t have. In terms of the legislation, of course, they often bring with them private property owner rights in terms of trespass and other things like that. Secondly, they’re a lower cost provider. So I think the example yesterday, and I won’t go through the math, but if you think of the non-central functions that the police perform, particularly in the Ottawa case, where we had over, at least based on other testimony yesterday, over 100 barricades around the external perimeter of the red zone in Ottawa, and you can imagine the number of police officers manning each of those. And if those were, at least in part, supported by private sector, it not only comes at a lower price point, but it also allows the fully trained, fully sworn, fully equipped police officers to be deployed to greater purpose. So the private sector can be a tremendous asset here. As we saw in the G20, in that case, of course we have three types of events, generally. Those types of events, which allow for months and months of preplanning, and in the case of G20, the private sector was intimately involved at all levels of governance, joint leadership, and in terms of tactics and operations, but that was on the basis of months and months of planning, and as I understand it, an agreement between those private sector groups and the Toronto Police Association. So in the second type, which is more along the lines of what we experienced here in Ottawa, in the events of -- in the absence of having pre-established protocols, et cetera, in place, that in this case, for these purposes, would involve the private sector, there may not, often, be time to establish those sort of protocols when one considers provincial police legislation, Police Services Act, where the adequacy standards often stipulate that what the sworn police will do and that others can do where there’s agreement. So in the type of protest we saw in Ottawa, the limited time, if these aren’t arranged and planned for in advance, they’re unlikely to happen in the course of the third type of incident is those that are unanticipated and don’t allow for planning. So they’re more spontaneous, at least as it pertains to police and other security apparatus. So it’s important, these are two potential barriers that need to be addressed and would form part of that overall approach we’ve spoken extensively about over the last two days around national standards, prearranged agreements, and such. And Judith Sayer’s addressed it nicely in her comments as well, in terms of the time it takes to get these things in place and when time’s short, these are often overlooked, and as we saw, I would propose, in the cases here in the National Capital Region, not engaging the private sector and not having these arrangements in place in advance and tested and exercised, we saw tremendous pressure on finite police resources. And of course, in Canada, my final comment is the private sector security outnumber police in Canada by a considerable factor.

Volume 35 (December 1, 2022), page 137 35-137-28

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you. Mr. Teschner, do you have any thoughts from your experience on the appropriate role for the private sector in interjurisdictional responses to emergencies?

Volume 35 (December 1, 2022), page 140 35-140-15

Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

Sure. I’ll start just by piggybacking off a bit of what Cal said on the private security piece, and then I want to talk about the private sector more broadly. Cal spoke about the G8/G20 in Toronto. There was also the PanAm Games, which depended heavily on private security. I haven’t done a jurisdictional scan to see whether or not the Ontario model, where you have, within the Ministry of the Solicitor General, a private security section that’s responsible for essentially the regulation of private security in the province to ensure that applicants meet a certain standard in order to be given a license to operate as a private security person, and that there’s additional standards in terms of training, has been emulated or not. But certainly I think that provides a little bit of confidence in the security apparatus. That said, if private security is going to be engaged, and if you have the benefit of either planning for a specific event or recognizing that you’re going to need to depend on private security resources for future events writ large, you need a structure. You need a structure that allows it to seamlessly, and in a coordinated way, plug in to the other security and policing resources that are going to be deployed. You need to ensure training standards. You need to ensure lines of accountability and clarity with respect to roles, responsibilities, and command and control. These are things that can be, to Cal’s point, be put in place in advance, can be tested, can be exercised, so that you know that it works when it needs to work. And so that’s the piece that I’ll say about private security. But outside of private security of the private sector, and I think when we talk about the way in which emergencies get responded to, there can be no doubt from the comments that are made today that a myriad of stakeholders, based on the geographic location and the nature of the emergency are impacted in relation to that particular emergency. And so looking for mechanisms and ways to engage maybe on a sector basis, these representatives, both in the planning and in the actual response to an emergency, I think, is vital. The stakeholders of interest can help monitor and help crystallize the issues, can help in relation to planning, can help with respect to public communication and awareness, and can help in the recovery period that follows. These are groups like local business improvement areas, chambers of commerce, community hubs that are hubs for a variety of community organizations that serve the public, residents' associations, municipal service providers. And from the Toronto convoy experience, it includes the healthcare sector and hospitals. Hospital role was a priority in order to ensure that whatever was going to happen in the city over the course of that weekend was not going to impede the access of patients, physicians, nurses, hospital staff, or families from getting in and out of hospitals. And so I think that’s a good example that illustrates the importance of looking at the sector-based response to emergencies, the sector- based impacts, and determining an appropriate structure to engage them so again, they can be part of the planning process and can mobilize in accordance with those plans if and when the time comes.

Volume 35 (December 1, 2022), page 140 35-140-19

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you. So as much as I'd like more discussion on the points that have been raised, I'm going to move us along to the Emergencies Act, and to pick up on some comments made earlier around the importance of thresholds and procedures for escalation. And in particular, I want us to look at the question of when can the federal government declare an emergency arising from a failure of another level of government to exercise their ordinary jurisdiction? And Professor Newman, I'm hoping you can start us off with how to think about the answer to that question.

Volume 35 (December 1, 2022), page 142 35-142-24

Dwight Newman, Prof. (Law – University of Saskatchewan)

Sure. Well, it's certainly a thorny question and it's actually important to think about how that question is asked because to suggest the federal government can grade the passing grade or failure of another government when it acts in its ordinary jurisdiction or chooses not to act in an outwardly visible way could actually risk going beyond the powers of the federal government. Another government not acting in an outwardly visible way may actually be the policy choice of that government acting within its area of jurisdiction. This could be very difficult to judge in some situations as to just what is happening. But we could think of a lot of different scenarios that might actually have different answers to this question. So certainly, if the federal government were acting within an area of its own unambiguous jurisdiction, then -- but it was somehow affected by a province not acting, well then, it's unproblematic for the federal government to act because it's acting within its jurisdiction. The more challenging situations are well, what if a provincial government seems unable to do something or if it's unwilling to do something that matches with what the federal government is hoping? Well then, where do we go? The situation with provincial government rendered unable to act in some way is actually a thorny one in relation to the Emergencies Act. If a provincial government's cabinet were, for some reason, unable to meet and unable to communicate in a worst-case scenario, in the section 25(2) in the context of a Public Order Emergency, there is a way in which the federal government can proceed, even without consulting with that province in advance of it acting. In section 14(2), in relation to a Public Welfare Emergency, there actually -- or section 14, I should say, not just 14(2) in relation to a Public Welfare Emergency, the consultation and consent requirements of a province in relation to the emergency just within that province actually would pose a problem for the federal government being able to act in that scenario under the Emergencies Act. So there may actually be situations that are really difficult to catch and to entrench perfectly within the Emergencies Act in a way that’s responsive to the needs. And I guess I'd say there is always the possibility of the federal government passing emergency legislation outside the Emergencies Act based on the POGG emergency power, but crucial for that would be that the federal government be able to convene Parliament and that Parliament be able to function. One of the disturbing incidents in what occurred in Ottawa this year, to my mind, was that Parliament's ability to carry out its review of the use of the Emergencies Act was on a particular day actually blocked by what was going on in Ottawa. And it's essential that there be ways sought of ensuring that government can continue to meet as required, particularly if it were in a situation where it might need to pass additional legislation on an emergency basis. So that would be a situation, depending on a lot of different things. If a provincial government were actually unable to act, well, that would justify the federal government acting, conceivably, but it might actually be blocked by current provisions of the Emergencies Act in some situations, so complicated scenarios. The really challenging situation here though is, if a provincial government took a clear policy view in an area of its own jurisdiction, in its ordinary jurisdiction, and there weren’t a clear federal stake in that, it might be that the federal government doesn’t have simply a chance to jump in on that. And so the question, when can they and when can't they really depends a lot on the context, and of course, some contexts will mix together these different considerations. So I think it's really important to think about the range of scenarios as between a provincial inability to act and a deliberate policy choice by a province not to act in an outwardly visible way, and to think about the degree of impact on other members of the federation as a factor that could come into things. And when I was thinking a bit about these types of issues in advance, I was thinking well, the solution might be in improving the consultation provisions within the Emergencies Act further. And I still think there are improvements that could be made there in terms of defining additional types of scenarios and the types of consultation that should occur. But I also think it may actually be very challenging to capture all of those scenarios in a way that keeps clear legislation that doesn’t make things worse. And I do think it's very important to ensure that steps are taken to ensure the ability of the federal Parliament to continue to meet in some way even in the context of more challenging emergencies, and that that actually is necessary, given the possible need to pass additional emergency legislation in some situation that might not be captured by the existing Act. The other thing I'll just throw in as one further wrinkle is that it's also important to think about the term "emergency" and the concept of emergency, both in terms of what's an emergency in -- versus what's a set of simultaneous emergencies, and whether they're linked or not bears on how some of these provisions on consultation and consent by the provinces actually play out. And it's important to think about what an emergency means in temporal terms. So if someone's just thinking about the emergency that needs to be responded to this afternoon because there's a pressing emergency, something genuinely urgent, well, that’s one scenario, but what if a government has weeks or even months to think about the situation that’s to be dealt with under emergencies legislation, or the cleanup efforts after a natural disaster extend well beyond the moment where there can't be any consultation or any discussion? This is something that actually has been written on the Indigenous context. A scholar named Courtney Kirk, who's published a -- or who's produced a thesis on emergency management in the context of First Nations, points to this issue where sometimes if you talk about creating all kinds of exceptions for emergencies, if one is thinking about the situation where there is no time to do anything other than just to react. Well, that's one thing, but if you're talking about using emergencies legislation to carry out reconstruction afterwards, which is what has happened at the provincial level, for example, in the context of certain kinds of natural disasters, well then it's actually much more feasible to carry out all kinds of consultation and discussions that might not be imagined in the context of something that needs to be done this afternoon. And so it's really important to break down these concepts a lot further, and I'd say to improve the -- my recommendation would be to try to improve the consultation provisions of the Emergencies Act, but also to recognise that it may not be possible to capture everything about that. And to ensure that there's an ongoing ability of the Federal Government to function, even conceivably to pass additional legislation in response to emergencies in some situations, and that means Parliament may need to be able to meet in some innovative ways. And there was that unfortunate incident during this year's events where there were actually concerns about that. So I'll stop there and say that those would be a few comments in response to that question.

Volume 35 (December 1, 2022), page 143 35-143-08

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you, Professor Newman. Professor Lindsay ---

Volume 35 (December 1, 2022), page 148 35-148-03

Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)

M'hm.

Volume 35 (December 1, 2022), page 148 35-148-05

Jocelyn Stacey, Prof. (Law – University of British Columbia)

--- do you have thoughts on this question?

Volume 35 (December 1, 2022), page 148 35-148-06

Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)

I do. I certainly agree with the point about why that failure has occurred, whether it was a choice or whether there was some uncertainty or if it's simply the inability of a provincial or local jurisdiction to exercise a power. But I think another issue should come up is when that failure occurs research shows that impacts of natural hazards like flooding may result from a failure of jurisdictions to act decades earlier, for example, in exercising local land use planning tools. So it's unclear to me if a declaration under the Emergencies Act to impose federal powers when a province or a local authority has chosen not to exercise a power that's within its jurisdiction would violate the aim of preventing a conflict between provincial and federal orders. I also want to mention that the consultation required by the Emergencies Act is not the only time, nor the appropriate time to have discussions about what to do, who should be doing it, or many of the other points raised. All of the planning and strategic tools that I mentioned earlier, and have been in place for over 15 years, should have addressed most of that consultation. There's also a challenge across the country in the provincial legislation that the provincial legislation is not consistent in the powers that it gives the lieutenant governors in council or mayors, but also between the legislation. So let me give one quick example from Ontario. The Ontario's Forest Fire Prevention Act says that: "For the purpose[s] of controlling and extinguishing a fire, an officer may use any privately-owned equipment and may employ or summon the assistance of every able[bodied] person over the age of eighteen, except persons providing essential services and persons physically unfit, and on private lands may take such action as he or she considers advisable to control and extinguish a fire." Whereas Ontario's Emergency Management and Civil Protection Act says: "...the...Governor in Council [can] make orders in respect of... Authorizing, but not requiring, any person, or...a class of persons, to render services of a type that that person...[can] reasonably [deliver]." And I know from my own research in Manitoba, we probably have seven or eight Acts that grant very similar powers to different civil servants in different circumstances other than the Emergency Measures Act. Like the Ministerial Directives, I feel that we should be doing a much better job of first coordinating and informing the public of the kinds of powers that a government may exercise in these sorts of emergency situations. Also, you know, the powers available to the Federal Government under the public welfare emergency, in particular, overlap with the powers of the provinces, mostly because the provinces all took their powers from the Defence of Canada Regulations in 1939, played with them for 50 years, amending and adapting them, and then in 1988, when the Federal Government wrote the Emergencies Act, perhaps naturally they gave themselves the same powers as the provinces had been giving themselves for the previous decades. So we need to be taking, I think, a threshold approach to defining disasters. We need to be able to make sure we have a clear escalation from routine local emergencies to a local state of emergency at a municipal level, to provincial declarations, and the provincial emergency measures legislation takes this into account. So therefore, that question of exceeds the capacity should -- we look for in the Act, should indicate one of two situations: the province and its local governments do not have sufficient resources to carry out its own emergency orders, or, as was suggested just a moment ago, the impact has rendered that province incapable of mounting an organised response under its own legislation, and therefore requires the Government of Canada to exercise those same powers as a replacement. That latter scenario is very unlikely, but it's a reasonable approach to the risk of catastrophic failure of a provincial and local emergency. That is what the United States went through with Hurricane Katrina. New Orleans and the State of Louisiana, their emergency management system collapsed as well. And so in the U.S., they have recognised that there could be times for catastrophic failures where the systems we put in place to deal with disasters fail as well. We don't have that in Canada. The other issue that I should just point out as well, if I may, contrasting us with the United States, is that in Canada, all of our resources can move between federal, provincial, and local governments without a declaration. We don't have to declare a state of emergency for Federal Government departments to help a provincial department, or for a provincial department to help out a municipality. That is why in the States, where they have to have the declaration, they declared in 2019, they declared 61 major disasters because they have to declare them in order to have the money flow. We don't have to have that, and so again our plans are more important because we could be doing a lot of this work without having to declare a state of emergency. So I guess it comes down to somewhat philosophical element in Canada's entire emergency management system that it presupposes that emergencies cannot be avoided, and therefore, our governments rely on these laws of last resort as their normal practice. This reinforces that misconception that our emergency management system is only working when it is responding, and this is, again, contrasted by other nations, and I heard New Zealand mentioned this morning, that see avoiding the need for extraordinary actions as the purpose of comprehensive emergency management. Thank you.

Volume 35 (December 1, 2022), page 148 35-148-08

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thanks for that, Professor Lindsay. This is an important question, and one where from the answers already I can see there's a lot of complexity. So I'm just wondering, we've got a little bit of time on this, if others want to contribute. Yeah, Mr. Teschner?

Volume 35 (December 1, 2022), page 152 35-152-07

Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

Sure, I'll add a few thoughts. First, to agree with my colleagues, and in particular, I want to pick up on Professor Lindsay's point that we live in a federation and we have to respect the spheres of jurisdiction and the constitutional divide, but some harmonisation across the provinces, to back up Professor Lindsay's point when it comes to the approach taken to provincial declarations of emergency and the provincial approaches, I think would serve us well. And essentially, the lens that should be applied is they should plug in well to the federal sphere to the extent that that's necessary. I think they need to be designed for purpose that way. I'll also say that in addition to local governments not having the capacity, or the second option, being rendered incapable by virtue of the emergency at hand, I would add a third piece for consideration. And that is where the Federal Government's stake or interest is engaged, because there are emergencies happening across the country, and some form of coordination that can only be brought to bear by the Federal Government is required, I think unpacking that a little bit more in light of what we've seen more recently in terms of events would potentially be helpful. Of course, in addition to the provinces and the territories, to President Sayers' point, we have to also think about First Nations in that context as well. And so those are some of the points I would make there. The other thing that I will say, though, is presumably when a province or a territory or a First Nation is consulted in the context of a discussion with the Federal Government on emergencies, they should be informed by what is happening locally on the ground at a municipal level. I think making sure that provinces and territories understand that, and putting some meat on those bones, would perhaps be helpful. But related to that, municipalities are not always going to necessarily know what the threat picture looks like, and so promoting information-sharing, threat risk assessments that might be conducted by provinces, might be conducted by the Federal Government, and ensuring that municipalities impacted or likely impacted have access to that information so that they can properly and in an informed way make a determination about what their capacity actually is or isn't, I think is vital.

Volume 35 (December 1, 2022), page 152 35-152-14

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you. Other thoughts on this question? So I wonder if we can just keep going with that response, Mr. Teschner, around sort of questions about optimal mechanisms for consultation when declaring a national emergency. And so what might that consultation look like, recognising the points that have already been made, that it's maybe not just about the consultation happening at that exact moment, that we need to take a broader temporal view of that. So what should those mechanisms for consultation look like when declaring a national emergency? And how should disagreement between levels of governments on the use of federal powers, emergency response powers, how should that kind of disagreement be reflected in federal decision-making? And so Professor Newman, can we go back to you on that question? You brought this up earlier.

Volume 35 (December 1, 2022), page 153 35-153-28

Dwight Newman, Prof. (Law – University of Saskatchewan)

Sure. And I'll just preface it saying I agree entirely with the notion that there ought to be discussions well in advance of any particular emergency arising, and that the opportunities for coordination between governments start well in advance of the need for emergencies legislation years in advance, as has been suggested. But in the context of an emergency-type situation arising where there's contemplated use of the Emergencies Act, currently there are a number of provisions in the Emergencies Act on consultation. One could mention section 14, section 25, section 35, and section 44. And of course, as has been highlighted a couple of times now, the Emergencies Act was drafted in a period prior to the Federal Government properly recognising Indigenous rights, not just of First Nations, but of Métis rights holders, and the Inuit as well. And I guess I would just say here that there needs to be an updating of the Act around Indigenous consultation, at minimum, simply to meet existing constitutional obligations on the duty to consult, for example, but also in relation to the further-reaching dimensions that consultation needs to have in that context in light of Indigenous jurisdiction, as has been highlighted by President Sayers. But this legislation is years and years behind the development of law in the fact that there hasn't been any kind of updating in relation to Indigenous governments. In terms of consultation with provincial governments, I would say there could be things actually learned from the duty to consult jurisprudence in the context of Indigenous governments, interestingly enough, because the word "consultation" appears in the Emergencies Act, but with relatively limited -- a relatively limited sense on what that might mean in the Act. And thinking about what makes for meaningful consultation, which is the standard in the context of the duty to consult Indigenous peoples, thinking about that sense of meaningful consultation, if consultation in the Emergencies Act is there to ensure in part that the Federal Government doesn't act in a way that's problematic vis-à-vis the provinces, and I think that's one of its central roles within the Act as it exists, then the idea that the consultation ought to be meaningful, ought to be providing an exchange of information and response, ought to be recorded in a meaningful way to show how the Federal Government considered acting differently in light of the information or perspectives received from provincial governments, that would be a preferrable means or a preferrable form of consultation. And it may be possible to add language to the Act to reflect that, or it may be possible to engage in more meaningful consultation, even without amendment of the language of the Act, but based on different practices. And I think that's an area where there could be some learning, even from this context that the Act itself has unjustly and illegally excluded over the past number of years and decades. So I guess I'll say that much. Another issue, of course, that arises is in relation to the role of municipalities. And this is complex in terms of whether the Federal Government ought to be consulting municipalities has some real delicacies to is because municipalities, of course in constitutional terms, are creatures of the provinces and it's within the constitutional jurisdiction of provinces to create municipalities and to shape municipalities. And were the Federal Government simply to be acting in a way that ignored that principle, there would be some problems in terms of jumping past levels of government. At the same time the Federal Government certainly wants to be informed by what's occurring in municipalities at a local level where that knowledge is held. And it might be appropriate to include language in the Act that at least permits the Federal Government to consult municipalities. That obviously has already occurred in the context of the recent use of the Emergencies Act in 2022. The consultation record reflects that the Federal Government actually was in contact with the mayors of some municipalities. Language that would specifically authorise that in the Act might be appropriate. Language that would actually encourage that might well be appropriate, subject to that delicacy, in relation to the federal/provincial interaction here and the provinces' fundamental constitutional role in relation to municipalities. But in terms of getting information from larger municipalities or directly affected municipalities, it certainly would be helpful to the Federal Government to have that. And so I think there is room to recommend a number of possible changes in the consultation provisions or practices simply to say it's essential that there be incorporation within the Act of appropriate consultation provisions in relation to Indigenous rights-bearing communities or a constitutional standard is not being met there. This goes further in relation to the UN Declaration on the Rights of Indigenous Peoples Act in terms of what provisions should be there in terms of consultation with Indigenous nations and Indigenous peoples. It would be appropriate to consider at least practices or possibly statutory language related to making consultation with the provinces more meaningful, or ensuring that it's meaningful, and it could be appropriate to offer some specific authorisation or even encouragement in relation to engagement of the Federal Government with municipalities in some situations subject to some complex delicacies on that vis-à-vis the provinces. Those would be some initial thoughts in terms of some possible changes in relation to consultation.

Volume 35 (December 1, 2022), page 154 35-154-16

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you, Professor Newman. President Sayers, do you want to come in on this point about consultation and optimal mechanisms for consultation when declaring a national emergency?

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Judith Sayers, President (Nuu-chah-nulth Tribal Council)

Yes, for sure. So you know, the consultation pre UNDRIP, you know, is a bit different than what it is under UNDRIP because, you know, in some cases, you need consultation and collaboration leading to the free, prior and informed consent of Indigenous peoples, and there are certain specific areas within UNDRIP which that is required, such as the legislation. So if the Emergency Act is being amended it should be with leading to the consent of Indigenous people. In British Columbia, the Emergency Act is now being amended, and should be, and is working with First Nations. I know the question is often asked, how do we consult with 633 plus First Nations across Canada? And that’s a good question. But oftentimes, if you work with Indigenous people, some may want to do it on their own, some may want to do it regionally or provincially. But I think what’s really important here to remember is that the rights holders are the ones that have the say and that the federal organizations can be talked to, but in the end, it should be the rights holders that make final decision about what that should be. There needs -- sit down and work out a process with First Nations on how consultation should take place under the Emergency Act. Another tool the Federal Government has, of course, is in their Universal Declaration on the Rights of Indigenous Peoples Act, they have to put together an action plan. So over five years, they can define what needs to be done in that action plan, and then go about and do it. And right now, they’re collecting from First Nations what it is that we need to do. So it really is important to sit down now and to start talking about what’s happening. But if an emergency is happening on specific First Nation’s lands, they should be the ones that are talked to. If it’s one, or 10, or whatever, they should be talked to first. If it’s a national emergency, of course everybody has to be included. So just remembering that the duty to consult goes beyond consultation. And just working out these protocols with First Nations is, I think, one of the best kinds of things that you can do. And in particular, what is important that I haven’t mentioned yet, is that First Nations know their lands, their resources, and they have the best knowledge of the land. So if we’re talking about fires, if we’re talking about flooding, they’re the ones that know their lands the best. And that sort of knowledge is invaluable in some of these emergencies that we talk to, and that also could be part of those protocols that could be used. So I think the opportunity, you know, in this new era of UNDRIP and reconciliation is it’s time to do dialogue, you know, and take advantage of First Nations willingness, as well, to sit down and do this and not to be excluded, because I think those kinds of days are over and it’s time to open up and to figure out how we can work together in all kinds of emergencies. Thank you.

Volume 35 (December 1, 2022), page 158 35-158-09

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you, President Sayers. So I wonder if others want to come in on this question of consultation, and particularly thinking about where we started, thinking about maybe the superstructure that’s there, and sort of having mechanisms in place for escalation. And so when we’re at that stage in which escalation is going to happen, what kind of consultation needs to be taking place? Professor Lindsay, please?

Volume 35 (December 1, 2022), page 160 35-160-08

Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)

If -- yeah, if I can. And I think this is very much speaking from my practitioner hat, and not my professor’s hat. The provincial emergency management systems are designed to coordinate the priorities during an emergency response. And it may be that the desires of a large city do not match the needs of the wider province, or the needs of one community don’t match the needs of a neighbouring community or First Nation. But I feel that that consultation piece, maybe if we replace the word “consultation” with the word “coordination” or “discussion”, because all of the who does what when piece should have been decided beforehand. And the Emergency Management Act obligates the Minister responsible to have those consultation processes in place beforehand. I feel that what we should be looking at is making sure that when the Federal Government does consult with the Lieutenant Governor in Council, that that provincial perspective has brought together all of the local perspectives. And I don’t want to wander any further into the question of the Indigenous consultation, but we should have that clear process within the response system to make sure that affected municipalities are integrated into the provincial perspective that’s going to the federal government. That is the emergency incident management system that we have in place, different municipalities will be trying to achieve different things, and they don’t always have all of the same goals. So I would add that though, as an alternative in terms of the local government, right now, the Federal Government has the ability, it’s under the Emergency Management Act, to recognize a provincial declaration of emergency as being a declaration of concern to the Federal Government. This really came out of the ice storm, where the ice storm wasn’t shutting down the Federal Government across the country, it was just shutting the government down here in Ottawa, and in parts of southern Ontario and Quebec. So the Federal Government wanted to know, when would a province likely be struck by a disaster that’s going to have an impact on our ability to do our job? Not our jurisdictional issue, but just our business continuity issue. And the Emergency Management Act covers all of that. The question about -- that was raised earlier about how the Parliamentarians get in during the convoy, the Emergency Management Act requires all of the provincial departments to have business continuity plans. So the fact that things didn’t go well doesn’t necessarily mean that the framework wasn’t there, just that it hadn’t been operationalized fully. So I think there’s alternatives. As I said, because the Federal Government can identify a provincial declaration of being concerned, perhaps in the preplanning stage, in consultation and discussion with the municipalities and the provinces, certain larger cities, I’m thinking of a city like Vancouver with a port, or Halifax with its port, could be identified, likely in regulation so that it can be changed, that says that a declaration of an emergency, say in Vancouver, or downtown Toronto, would also be a declaration of concern to the Federal Government, without necessarily bypassing the fact that Municipalities are under the Provinces. It’s just saying that if a big event happens in a big city, the Federal Government wants to be ahead of the game, not waiting to hear about it from the Province. That doesn’t have to mean that the Federal Government talks to every single Municipality, but that there’s a system for the Federal Government to talk to the Province, and for the Province to have coordinated that wider ask. So.

Volume 35 (December 1, 2022), page 160 35-160-16

Jocelyn Stacey, Prof. (Law – University of British Columbia)

M’hm.

Volume 35 (December 1, 2022), page 162 35-162-23

Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)

Thank you.

Volume 35 (December 1, 2022), page 162 35-162-24

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Yeah, good points. Others on this? Yeah, Mr. Corley, I see you online. Go ahead.

Volume 35 (December 1, 2022), page 162 35-162-25

Cal Corley, CEO (Community Safety Knowledge Alliance)

Yeah. And perhaps I’m coming at this from a bit different angle, and we seem to be talking, which is important, talking about consultations prior to invoking the Emergencies Act, any of the parts of it. As it pertains to part two specifically, I would like to encourage us to, you know, think about this more upstream from that. In essence, if at the federal -- at the FPT, Indigenous, and municipal levels, there’s intentional proactive measures that support the development of a highly functional and effective national framework that addresses public order protests and emergencies, that is properly executed and properly implemented, it should, in most cases and circumstances, establish conditions that negate the need for governments to even consider invoking the Federal Emergency Act part 2, as it is today. The same we see in Major Case Management, Major Case Management, applied with the kind of order that we see in Ontario and several other provinces, has had a huge impact on the quality of the investigations that are brought forward for prosecution, et cetera. And one needs only to reach out to different Crown prosecutors that are operating in those areas and talking about pre- and post-implementation of Major Case Management and how it’s matured. It’s a significant difference. So I think that proactivity and all of the issues we talked about earlier in terms of national framework could go a long way to preventing or even needing, in many circumstances, taking and considering this. Thank you.

Volume 35 (December 1, 2022), page 162 35-162-28

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you. So we have about 10 minutes before the break, and I think in your responses, you’ve covered the things that we’ve discussed in preparing for this, and so I think I’ll just open it up to all of you experts to see if there are points that you haven’t raised yet that you would like to raise, if there are things you’d like to elaborate on or clarify, maybe more specifics around changes that you might like to see to the Emergencies Act flowing from this conversation that we’ve had so far?

Volume 35 (December 1, 2022), page 164 35-164-01

Jocelyn Stacey, Prof. (Law – University of British Columbia)

President Sayers?

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Judith Sayers, President (Nuu-chah-nulth Tribal Council)

Yes. I just wanted to -- I don't know that timelines and legislation is the best thing. But the urgency of emergencies, especially in health, the pandemic's not over and we know that there’ll be more coming; the changing in the weather due to climate change; the flooding; the tsunamis; the -- there's just so much happening in this world, and I think that we need to act sooner than later in putting in place protocols and working together, roles, responsibilities. Let's be clear that so we're not fooling around at some time and trying to decide if it's a provincial jurisdiction or federal jurisdiction or a First Nation jurisdiction. We just need to -- I would just like to see us be really clear and doing things very quickly so that we can address things that are going to affect our people, our rights, our lands. And I just wanted to add that to the conversation. Thank you.

Volume 35 (December 1, 2022), page 164 35-164-12

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you. Okay. A possibility of timelines to keep things moving along. Other thoughts? Mr. Corley?

Volume 35 (December 1, 2022), page 165 35-165-01

Cal Corley, CEO (Community Safety Knowledge Alliance)

Thank you. Just picking up again on the conversation or the inputs that Ryan and I had with respect to the private sector, private security, principally. And Ontario's new comprehensive Police Services Act yet to come into force lays out in very nice fashion how when the private sector security are engaged, they fall under the umbrella of the Police Services Board, and that the requirements in terms of adequacy standards in that is well established. I don't know, Ryan, if you wanted to pick up on that, because I think there's an important element of local governance here that really applies.

Volume 35 (December 1, 2022), page 165 35-165-05

Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

Sure. It's Ryan Teschner jumping in. I'm a big proponent of all things governance, Mr. Commissioner, if you couldn't tell from the last session and from this one. And so I think where we're going to mobilize local resources, we need to ensure that there's a framework in place so that everybody knows their responsibilities, their obligations, and who's in charge, and who picks up the tab, and you know, other issues that are related. And so I think certainly, what is in the Ontario legislation is an important step, and I think it comes back to something that I said earlier. Where policing is being mobilized to respond to a particular emergency, the policing response, when it's in a municipality, comes under the legal statutory responsibility of a local police services board or a commission. And that legal reality cannot be a fiction. And so whether we're talking about how private security comes into the fold and how that needs to be part of the governance web that a police board provides locally or whether we're talking about consultation, as we just did in the previous conversation where those impacts need to be assessed at a local policing level, boards and commissions need to be part of this fabric as well. So I think that’s a point not to be lost.

Volume 35 (December 1, 2022), page 165 35-165-17

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you. Professor Lindsay?

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Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)

Well, I was just going to pick up on that opening analogy that you presented me with the idea of the Emergencies Act being a tool. And there is that saying that if all you have is a hammer, every problem looks like a nail. That’s what we've had in our system. We have legislation that has very strong powers to use in response, very few obligations to reduce risk or to prepare our communities or to have proper recovery. And with all due respect to all of my emergency management colleagues, we have filled our emergency management system to use the hammer with welders and stonemasons, but no carpenters. The Emergency Management Act is what lays out the tasks. The Emergencies Act is one tool. But what's really lacking in Canada is a strong professional emergency management cohort, a strong profession where the emergency managers are trained in emergency management and are practising that all the time throughout their careers. And again, I started my career in emergency management at 25 as an emergency manager. I've never worked in a fire department or I was never a police officer. I have been an emergency manager the whole time. And that, I feel, is making a big difference. And that’s what other countries are moving towards as well, really pushing higher education for emergency managers and seeing it as a separate profession, which is something that we need to do more of in Canada. Thank you for that.

Volume 35 (December 1, 2022), page 166 35-166-16

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you. Commissioner, we have about six minutes before the planned break. Do you have questions that you'd like to pose now or would you like us to break early?

Volume 35 (December 1, 2022), page 167 35-167-15

Dwight Newman, Prof. (Law – University of Saskatchewan)

Okay. Thank you for the question. I'll say, I wasn’t trying to refer specifically to the present situation because I understood the purpose of these roundtables as to reflect on matters in a more forward-looking way, but simply to say that parts of the Emergencies Act are grounded in federal jurisdiction without the use of the POGG emergency power, without the emergency branch of the Peace, Order, and Good Government power. And one could give other examples simply in relation to an international emergency or a war emergency being largely within federal jurisdiction to start with, although with pieces in provincial jurisdiction. That said, I mean, the response in relation to something with provincial elements could have elements where there would be a natural federal jurisdiction, but there would also be room for the federal government to deal with that legislatively in some way outside the Emergencies Act. And so I guess obviously, in referencing the National Capital Region, I was affected by seeing the vulnerability of Canada's National Capital this year, as I think probably many Canadians were in seeing that Canada's National Capital is humiliatingly vulnerable to all kinds of problems, in some ways. And I guess the response doesn’t necessarily need to be the use of the Emergencies Act in future. The response could readily be subject to all of the discussions that need to take place on this, and the disadvantages that there could be, but it could be in the form of federal legislation taking further steps in regulating the National Capital Region and assuming a larger federal role in the National Capital Region as occurs in some other capital regions of other countries elsewhere in the world. And so it's just a generic point about jurisdiction, in some ways, to say there can be bases for federal jurisdiction that don’t rely upon the POGG power in relation to some kinds of emergencies, and that also says that in relation to some kinds of vulnerabilities, there may be good legislative responses that are outside a future use of the Emergencies Act, or outside an amendment of the Emergencies Act to try to cope with something that the federal government hasn’t dealt with through other kind of legislation that it could use to deal with those same types of issues. So I hope that makes it clear. I wasn’t trying to comment on this particular situation, although, obviously, at a general level, as all Canadians, I saw some things about the situation, but obviously your Commission has engaged in extensive hearing of evidence and extensive fact -- will engage in extensive fact finding in relation to situation so I speak only relation to the most generic of understandings that the National Capital Region was a place whose vulnerability was revealed by the situation this year.

Volume 35 (December 1, 2022), page 168 35-168-12

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Would you like to take a break? Yeah.

Volume 35 (December 1, 2022), page 170 35-170-09

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Okay, so we have a few questions for the experts that we’ll try to get through in the next 30 minutes. All right, so, Mr. Teschner, I’m going to put you on the spot for the first question. So there’s some interest in the UK model of Emergency Preparedness Committees that you had brought up earlier, sort of this idea of having kind of -- or the need for multi-jurisdictional committees in order to sort of set -- for jurisdictions to set themselves up for a coordinated emergency response. I guess we’re interested in learning a little bit more about that and, in particular, whether and how that model accounts for challenges of personalities that a couple of you have referred to, and politics, and sort of, is there something built into that that if you’ve got the parties at the table and they come to an agreement about how to coordinate response, that it’s more than just a discussion, that they are -- sort of walk away and then they implement that agreement. So I wonder if you could elaborate on that UK model with that in mind.

Volume 35 (December 1, 2022), page 170 35-170-22

Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

Yeah, and as I understand that model, it brings together all of the relevant players around one table. It still operates with respect for each of those partners’ areas of jurisdiction, but it facilitates -- we talked earlier about consensus, and we talked about consultation. You can view this as an ongoing consultative body where, both in advance of and during an emergency and thereafter through the recovery phase, you ensure that you’re tapping into the expertise, the perspectives of all of the players, ultimately trying to build a consensus, certainly ensuring full visibility with respect to one another’s actions, and operations, and perspectives, and, as I mentioned earlier, also providing some visibility with respect to a threat assessment so that where all orders are engaged -- federal, provincial, territorial, Indigenous rights holders, and, you know, through the province’s municipalities, everybody is starting to appreciate what the national picture looks like and what role they play with respect to that national picture. And so that’s what I understand these bodies to help facilitates. Now, the role that, let’s say, the federal government could take around that body may differ depending on both the nature of the emergency, the scope and magnitude, and its reach. Sometimes it might be more of a monitoring role. Sometimes it might be more of a leadership role. And I think that goes back to what we were talking about earlier. What are the escalation points? How do we better articulate when that federal government interest is actually engaged such that it has more than a monitoring role and actually can play the role of coordinator, or even sometimes decision-maker?

Volume 35 (December 1, 2022), page 171 35-171-12

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you. I don’t know if other have thoughts on that question?

Volume 35 (December 1, 2022), page 172 35-172-14

Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)

I -- if I may interject.

Volume 35 (December 1, 2022), page 172 35-172-16

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Yeah, Professor Lindsay.

Volume 35 (December 1, 2022), page 172 35-172-17

Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)

I just wanted to point out, though, that emergencies happen in the context of the country, countries like the UK and New Zealand that are unitary governments that doesn’t have provinces that also have their own legislation have different systems than us. And so there’s emergency management principles that could be transferred but we have to tailor them to our situation and not just -- not just see one solution. This morning, there was a mention of New Zealand having a Minister of Police. The police is a national service, so of course they have a National Minister, not -- so again, we have to respect that different, too.

Volume 35 (December 1, 2022), page 172 35-172-18

Jocelyn Stacey, Prof. (Law – University of British Columbia)

M’hm. I think that’s a good point, though the more jurisdictions that are involved, that would sort of speak to the need of ---

Volume 35 (December 1, 2022), page 173 35-173-02

Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)

More coordination.

Volume 35 (December 1, 2022), page 173 35-173-05

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Yeah, more coordination, right, making that type of multi-jurisdictional consensus building even more important. Thank you. I think, actually, there’s another question that’s sort of related to this and I think we’ll bring a few more of you into the conversation. So one of the points that came up earlier was around the importance of sharing information across jurisdictions, and I wonder if some of the experts here might be able to elaborate on the challenges that might be involved in sharing information, particularly when there’s sensitivities involved in the type of information that could be shared, whether it’s national security, maybe, but maybe it’s -- you know, it could even be inventory-type things, or it could be personal health information like the example that President Sayers brought up earlier. So I think it would -- we’d just like to hear a little bit more about some of the challenges and barriers to information sharing that would be encountered in bringing about one -- this kind of structure where you’ve got everybody at the table.

Volume 35 (December 1, 2022), page 173 35-173-06

Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

Were you looking for anybody?

Volume 35 (December 1, 2022), page 173 35-173-26

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Anybody, so I’m looking for ---

Volume 35 (December 1, 2022), page 173 35-173-27

Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

Sure.

Volume 35 (December 1, 2022), page 174 35-174-01

Jocelyn Stacey, Prof. (Law – University of British Columbia)

--- non-verbal cues here of who might like to ---

Volume 35 (December 1, 2022), page 174 35-174-02

Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

Here’s one.

Volume 35 (December 1, 2022), page 174 35-174-04

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you, Mr. Teschner.

Volume 35 (December 1, 2022), page 174 35-174-05

Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

I’ll say that, while I respect that exchange of information can often raise concerns about legislative impediments, privacy impediments and the like, I think we sometimes get bogged down in that more than we perhaps need to. There are constructs and mechanisms that allow for sharing of information if the willingness is there and then you put the infrastructure in place. INSET, the example I talked about earlier, is one such example. The way in which police chiefs share information with police boards is another example. The Provincial and Federal Security Advisor regime is both an example and an opportunity. I don't know, again, I haven't canvassed every province and territory across the country, but certainly Ontario has a Provincial Security Advisor. We know the federal government has a federal -- or a National Security Advisor. That might be a mechanism through which a lot of this information can be shared easily with that infrastructure already embedded and put in place. And so I think we have to look for vehicles and avenues to do it as opposed to reasons not to do it.

Volume 35 (December 1, 2022), page 174 35-174-06

Jocelyn Stacey, Prof. (Law – University of British Columbia)

President Sayers?

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Judith Sayers, President (Nuu-chah-nulth Tribal Council)

Yeah, I would think that, you know, in the case of the COVID sharing information, the province pleaded the Freedom of Information Act. And, you know, we kept on asking, well, at what point does the national emergency or some -- you know, the collective rights of individuals, the collective people have rights over the individual person. And I just didn't see how saying that there were 10 COVID cases that we would actually say the 10 individuals. We wouldn't even know who they were. So I think sometimes there is far too much caution put into that, and maybe that needs to be defined in the Emergency Act when, you know, critical information needs to get to various jurisdictions, that that can be done as opposed to not being done. And I just feel that not only in health, but in some of the related issues that we've been having, and flooding, you know, incidents in the ocean, like, there are some things that just need to be known. I guess I'm not sure how we define that, but it's something that, you know, became a real -- and I think that's why it took us seven months to negotiate that was trying to get around those privacy -- and we actually brought a complaint to the Privacy Commissioner, and he just said he didn't any tools in the Freedom of Information. So we need to tools to be able to access the kind of information that we need during emergencies.

Volume 35 (December 1, 2022), page 174 35-174-26

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Yeah, thank you for that. And, Professor Newman, I'll turn to you, but do you have any thoughts on where President Sayers just left off, that would be helpful; right? I do think that when these challenges come up, they're often legislative barriers that public officials can point to, and so are there legislative changes or specific legislative changes that need to be made to allow for sharing of information in these -- in emergency contexts. Please go ahead, yeah.

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Dwight Newman, Prof. (Law – University of Saskatchewan)

I was going to build directly upon the comments just offered. I mean, the first comments I think suggest that there may be times where some government officials are too risk averse in relation to decisions on that kind of legislation. But the easy solution in one way is actually to put in amendments to the legislation. Those don't need to be in the emergencies legislation. They could be in the privacy legislation itself. I'm not an expert on that area. I can't speak to specific amendments to specific Acts, but I just wanted to highlight that it may be very appropriate for different pieces of privacy legislation to have better developed emergency exceptions.

Volume 35 (December 1, 2022), page 176 35-176-03

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you. Mr. Corley?

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Cal Corley, CEO (Community Safety Knowledge Alliance)

Yes, thank you. There's other examples within community safety realm that issues of information sharing have -- the barriers to information sharing have come up, and one that comes to mind is the risk driven community safety wellbeing interventions in Ontario. They'd be known as situation tables, that pull together, you know, 15 or 16 different agencies from across the public health, criminal justice, and social and human services sectors, to look at individuals at acute and elevated risk. When these first got off the ground in Saskatchewan in about 2010, it was fraught with issues of concerns around information sharing and privacy. But what we found was working with the provinces and with the federal Privacy Commissioner, largely -- these were largely overcomable and appropriate processes put in place in terms of the handling and the control over such exchanges. And I'd also just comment on the Security of Canada Information Sharing Act. It too evolved out of concerns with the sharing of information even within the federal realm. So I think a starting point moving forward is to recognize that there are potential inhibitors, but likeminded and thoughtful people, fully respecting privacy legislation, the rights of individuals can find appropriate solutions to break through some of this. Thank you.

Volume 35 (December 1, 2022), page 176 35-176-17

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you. Other thoughts? Yeah, Professor Lindsay.

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Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)

And it has been addressed in the opposite direction. The federal government is able to collect proprietary information from, say, private critical infrastructure providers, and that information is specifically not available under freedom of information. The government needs to know aspects of private business of telecoms and others, but they also appreciate that once they know it, it shouldn't go any further than them. So there have already been examples of how we've dealt with privacy in both directions that way.

Volume 35 (December 1, 2022), page 177 35-177-14

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thanks. Okay. Continuing on with this theme of sort of sharing, coordination and then specifically about consultation, and we had a good conversation earlier about meaningful consultation. And so I guess on that note, should the notion of meaningful consultation, if the Emergencies Act is reformed, should that notion of meaningful consultation be specifically about the question of whether to invoke the Emergencies Act, or does meaningful consultation mean consultation about the underlying circumstances, the issues and the possible solutions. So just looking for a little bit more discussion on this idea of meaningful consultation specifically in this context of invoking the Emergencies Act. So is there anyone that would like to start with this? Yeah, President Sayers.

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Judith Sayers, President (Nuu-chah-nulth Tribal Council)

Yeah, I think that if there's enough time before an emergency -- you know, when things are building up and it looks like you might have to invoke the Emergency Act, then, yeah, there should be consultations, meaning -- beyond meaningful -- we've had bad luck with the government on what meaningful consultation means. But if there's no time, like, you know, some war -- you know, I mean, war is different, but if there's something that hit automatically, then I think that we do need that timeline to talk to people afterwards, you know, whether it's seven days, or three days, or whatever is reasonable, because I think -- I just think sometimes that you just won't be able to do the consultation, but I think that should be limited.

Volume 35 (December 1, 2022), page 178 35-178-11

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you. Professor Newman?

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Dwight Newman, Prof. (Law – University of Saskatchewan)

I'd just say that I hope I didn't define this too narrowly in my remarks on meaningful consultation before. Certainly, thinking about the present statutory provisions about whether to invoke the Emergencies Act, yes, there should be meaningful consultation there. But to the extent that consultation can help in determining other possible solutions, that would be a very appropriate part to a better form of consultation, and I think more enriched consultation, which I acknowledge the point that this hasn't happened consistently with the federal government and Indigenous communities, but the case law is there to say there's meant to be meaningful consultation Well concepts of consultation guided by that could lead to a richer range of options than just a binary invoke, not invoke choice.

Volume 35 (December 1, 2022), page 178 35-178-26

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Yeah, thank you. Mr. Corley?

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Cal Corley, CEO (Community Safety Knowledge Alliance)

To your question in terms of whether meaningful consultation should involve a very limited and narrow interpretation or more fulsome, I'd reflect back on discussions yesterday afternoon as well as today, and I'd suggest that implementing a national framework such as a few of us have suggested would establish the foundation for trust and understanding across various levels as pertaining to this subject matter, and a common understanding of goals and objectives, et cetera. In other words, setting a foundation for meaningful consultation when events come, such as have been described by Judith, which may be much constrained time frames that allow themselves to allow for appropriate consultation. It strikes me that key stakeholder groups will expect, and should be consulted with, even in the shortest of time frames, but that by instituting and implementing a framework such has been described, and I think the particular five-point model that Ryan suggested is quite appropriate as a starting point, would really lay the foundation for trustful relationships as pertaining to emergencies and public order protests. So when we get to the time where there is a very short order, that sets the foundation for even in a very short order of time that’s available for consultation to be more meaningful.

Volume 35 (December 1, 2022), page 179 35-179-14

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Maybe I’ll put this question in a slightly different frame. Is it -- if a government is not direct about the question that -- about invoking the Emergencies Act, does that mean that it’s not meaningful consultation, even if the conversations that have happened have explored a range of -- the range of underlying causes and a range of solutions? I think that’s -- because, I mean, one of the things that we’re sort of -- we’ve canvassed in this conversation is the importance of bringing a number of different governments and stakeholders to the table, but also that might create a challenge in terms of how forthcoming, I guess, and the kinds of information that can be shared in those conversations. And so, yes, we want to have a lot of smart minds at the table so that you’re exploring solutions, but I guess if there’s going to be a decision made around invoking the Emergencies Act, does that need to be directly part of the conversation in order for that to be a meaningful conversation and meaningful consultation? Yeah, Mr. Teschner?

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Ryan Teschner, Executive Director and Chief of Staff (Toronto Police Services Board)

I would tip on the side of, yes, the ultimate issue or the ultimate decision needs to be put forward. Obviously, you know, the Government doesn’t have to reveal, necessarily, to the table, all of the considerations it’s going to take back in formulating its ultimate decision, but there needs to be some transparency as to what is being considered. And in part, that’s because the underlying facts and context, exploring that is obviously important in order to identify whether there are alternatives or other options. But importantly, if the government doesn’t put on the table what invoking means, what are the specific regulations that they may put in place as a result of invoking the Act? What are the impacts of those regulations on some of the actors who are going to be impacted? I don’t know how you can have meaningful consultation in the absence of exploring those dimensions. And so from the ultimate question of whether or not to invoke, there flow impact questions that have to be part of, I would say, not consultation at a point in time, but ongoing consultation, because there’s also a decision to be made about whether to continue having the declaration in place. And so there needs to be a constant feedback loop, if you will.

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Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you. Okay. So I have two questions here about other agencies that -- one that has been part of the conversation so far, and then a new one. So we’ve talked a bit about private security. And Mr. Corley, in particular, you gave the example of how private security could have been used with respect to the events in Ottawa, for example, to man checkpoints, right, on the roads. And so I guess the question is, should police have the power to hire private security for specific functions during emergencies? And if so, do we need legislation to enable that? And what kinds of duties would you see private security appropriately assuming during an emergency?

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Cal Corley, CEO (Community Safety Knowledge Alliance)

Great questions.

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Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you.

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Cal Corley, CEO (Community Safety Knowledge Alliance)

First and foremost, and I’d have to take a look at the legislation across jurisdictions across Canada, but just using Ontario’s legislation, it already allows for that. The challenge, as we’ve heard earlier, is -- has to do with time scales. So in the face of the PanAm games is one I mentioned, or the G20/G8, where there was months of planning enabled, the private sector security were engaged because it allowed time to develop and implement those agreements under the appropriate legislation and, as I understand it, together with an agreement with the Toronto Police Association, for example. So the legislation, at least in Ontario, is there. The inhibitors, in my mind, come into play on the two different -- the short order types, the spontaneous issue that arises, or those with very short time scales that allow for appropriate planning. And it’s just a matter of the time it takes to get these in place, or go -- and back to our suggestion in terms of national framework protocols and arrangements that are there in advance so these can be mobilized. In terms of the types of duties that private sector security agents could provide, I’d suggest that they’re - - they fall in a couple of different buckets, but typically they’d all be lower risk to harm endeavours or duties than the public police are prepared, trained, et cetera, to undertake. So manning of barricades, other back office, middle office roles that support front line policing. I mean, today the private sector security is so far advanced from what we typically, or many people often think of, you know, the security guard that’s sitting outside a store monitoring and providing a modicum of security there. They’re very advanced, very well trained, I won’t get into naming different companies, but they bring a lot of capacity at lower cost, and can be a very meaningful complement to the public police with its more finite and high-cost resources.

Volume 35 (December 1, 2022), page 182 35-182-10

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you. Do others have thoughts on this question? Okay. Mr. Lindsay, I have a question that I think you’re well positioned to answer here. So -- but others are free to jump in as well. So one of the agencies that we haven’t talked about is the Canadian Armed Forces. And so under our model of emergency management, provinces can make requests for assistance to the Federal Government and I think we have a bit of a pattern now of when those requests for assistance come in, it’s often the military that responds, whether it was during COVID and staffing long-term care homes, or during floods or wildfires. Are there other models that we should be exploring, rather than assuming that the military is going to be there to fill these requests and is well positioned to fill these requests when they come in? Are there alternate models that we should be thinking of?

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Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)

Yes. First of all, I think the question of whether the military is well suited to some of the jobs is debateable. The fact that when a community is facing an emergency, that their local resources and capabilities have been exceeded, we need to look to where we have extra capability. And within the Federal Government, the Armed Forces are a large, trained, human resource and they have some equipment that’s appropriate to get into rough terrain or other things, but we could be doing much of the same work if we were working with community groups or others without, as you’ve suggested, just assuming that when things get too bad, we’ll turn to the Armed Forces. I believe in the media recently there have been discussions about the fact that that’s not also what the Military would like to see its role as. Having said that, other countries do have other citizen preparedness models that engage more of the citizens into that task. The other challenge is that we now face, compare to, say, 1950, when the Army came into Winnipeg to help with the flood, or when Mel Lastmen asked for the Army. We now have to face the workplace health and safety issues. We can’t send a soldier to do a task like sandbagging if they haven’t been properly trained to do that, or if they don’t have the proper safety equipment. And we face the same thing with volunteers. So one of the underlying questions, I think, is that are the special powers that the Provinces and the Federal Government have claimed in times of emergency are they really the powers that we need? Or should we be able to in a state of emergency say we are suspending some aspect of the privacy legislation? Or are we suspending some aspect of workplace health and safety, recognising that volunteers are going to be working in a dangerous situation which is the entire community? So it's about having more tools than just that hammer that we're always looking to use those extraordinary powers. Extraordinary powers that we felt were inappropriate even in the Second World War when we used them, and they're still the same powers that we have on the books today. So I do feel there's a lot more that can be done within the emergency management community to offer more alternatives.

Volume 35 (December 1, 2022), page 184 35-184-08

Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you. Do others have thoughts on that question around the role of the military in responding to provincial requests for assistance? President Sayers?

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Judith Sayers, President (Nuu-chah-nulth Tribal Council)

Yes. You know, in some of the fires in 2017 in B.C., First Nations were asked to leave their communities and homes, and they refused. And you know, like the military, well, who is trained to be doing this? And so I guess that's my question, is how can we better prepare in our communities for these emergencies because, as was stated, the military is not always the best option. And you know, if we're going to using the military in some situations I think that's another area that there could be protocols between governments, First Nations on how that happens, and that the, you know, within the lands of the First Nations, of course, they should be the people managing the emergency. So you know, I think we really do need to be looking at better ways of preparing ourselves for emergencies, capacity building equipment, et cetera, as opposed to, you know, maybe the military would be something, but maybe it would d be further down the line if we can actually find local help.

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Jocelyn Stacey, Prof. (Law – University of British Columbia)

Thank you. Okay. Commissioner, do you have other questions or clarifications?

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Jocelyn Stacey, Prof. (Law – University of British Columbia)

Sorry, Cal. You get the last word.

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Cal Corley, CEO (Community Safety Knowledge Alliance)

Thank you. I apologise, Commissioner. I was just reflecting on the last question asked in terms of some of the specific duties that private security could attend to, and I thought it might be useful to whoever the questioner was to give a bit of a sense of some of those low risk to harm duties, what they might be. And I think they could range from onsite detention processing. So this is something that's common in some jurisdictions in the UK. It allows police officers to be at the frontline, and whether it's taking control and custody of people, either to be taken to hospitals or to detention facilities, that's the role where the private sector can play. Manning barricades has been discussed. Patrolling other parts of a city while the public police are busy with a public emergency. Traffic control, and there I'm speaking about the lower risk ends of traffic control. Crowd control in non-violent aspects of a protest. So we -- there has been discussion, certainly yesterday, in terms of alternative sites where, you know, the -- those with legitimate purposes may wish to go there's an opportunity there to engage the private sector in support of that. Crime scene protection is another very common role that they can take on, as well as supporting the forensic identification side, photography and those types of things onsite. That's not exhaustive, but it gives us a bit of a, you know, a bit of a range of the scope if that helps. Thank you.

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Jocelyn Stacey, Prof. (Law – University of British Columbia)

Yeah, thank you for those examples. All right.

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