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The Law Enforcement Review Amendment Act

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If you need an official copy, contact Statutory Publications.

S.M. 1992, c. 45

The Law Enforcement Review Amendment Act

(Assented to June 24, 1992)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. L75 amended

1           The Law Enforcement Review Act is amended by this Act.

2           Section 1 is amended

(a) by renumbering it as subsection 1(1);

(b) by repealing the definition "board";

(c) by adding the following definition in alphabetical order:

"hearing" means a hearing conducted by a provincial judge under this Act; («audience»)

(d) in the definition "member", by adding ", and includes any person employed as a peace officer by a law enforcement body that is designated by regulation" after "Manitoba".

(e) by adding the following as subsection 1(2):

Provincial judge not acting as a court

1(2)        A provincial judge acts as persona designata and not as a court when performing a duty or exercising a power under this Act.

3           Sections 3 and 4 are repealed.

4(1)        The following is added after subsection 12(1):

Delay of investigation

12(1.1)     Notwithstanding subsection (1), if the Commissioner is satisfied that immediate investigation of a complaint would unreasonably interfere with an ongoing criminal investigation, the Commissioner may delay the investigation of the complaint for such period as the Commissioner considers reasonable in the circumstances.

4(2)        Subsection 12(2) is amended by adding ", including any notes or reports prepared or compiled by members of the police department" at the end of the subsection.

5(1)        Subsections 13(1), (2) and (3) are repealed and the following is substituted:

Commissioner not to act on certain complaints

13(1)       Where the Commissioner is satisfied

(a) that the subject matter of a complaint is frivolous or vexatious or does not fall within the scope of section 29;

(b) that a complaint has been abandoned; or

(c) that there is insufficient evidence supporting the complaint to justify a public hearing;

the Commissioner shall decline to take further action on the complaint and shall in writing inform the complainant, the respondent, and the respondent's Chief of Police of his or her reasons for declining to take further action.

Notice to complainant

13(1.1)     A complainant may be informed of a decision not to take further action under subsection (1) by the Commissioner's sending a notice, by registered mail, to the complainant at the complainant's last address contained in the Commissioner's records.

Application to provincial judge

13(2)       Where the Commissioner has declined to take further action on a complaint under subsection (1), the complainant may, within 30 days after the sending of the notice to the complainant under subsection (1.1), apply to the Commissioner to have the decision reviewed by a provincial judge.

Procedure on application

13(3)       On receiving an application under subsection (2), the Commissioner shall refer the complaint to a provincial judge who, after hearing any submissions from the parties in support of or in opposition to the application, and if satisfied that the Commissioner erred in declining to take further action on the complaint, shall order the Commissioner

(a) to refer the complaint for a hearing; or

(b) to take such other action under this Act respecting the complaint as the provincial judge directs.

5(2)        Subsection 13(5) is amended by striking out "Manitoba Police Commission" in the section heading and in the subsection and substituting "provincial judge".

5(3)        The following is added after subsection 13(4):

Ban on publication

13(4.1)     Notwithstanding that all or part of a hearing under this section is public, the provincial judge hearing the matter shall, unless satisfied that such an order would be ineffectual,

(a) order that no person shall cause the respondent's name to be published in a newspaper or other periodical publication, or broadcast on radio or television, until the judge has determined the merits of the application;

(b) if the application is dismissed, order that the ban on publication of the respondent's name continue; and

(c) if the application is successful, order that the ban on publication of the respondent's name continue until the complaint has been disposed of in accordance with this Act.

6(1)        Subsection 16(5) is amended

(a) by striking out "board" in the section heading and substituting "provincial judge"; and

(b) by striking out "the board" and substituting "a provincial judge".

6(2)        Subsection 16(6) is amended

(a) by striking out "the board under subsection (5)" and substituting "a provincial judge under subsection (5)"; and

(b) by striking out "forward to the board" and substituting "forward to the provincial judge".

7(1)        Subsection 17(1) is repealed and the following is substituted:

Referral for hearing

17(1)       The Commissioner shall refer a complaint to a provincial judge for a hearing on the merits of the complaint when

(a) a provincial judge has under section 13 ordered the Commissioner to refer the complaint for a hearing; or

(b) disposition of the complaint within the terms of section 15 or 16 is not possible.

7(2)        Subsection 17(2) is amended

(a) by striking out "complaint to the board" and substituting "complaint to a provincial judge"; and

(b) by striking out "disciplinary default to the board" and substituting "disciplinary default to the provincial judge".

7(3)        Subsections 17(3) to (6) are repealed.

8(1)        Subsection 18(1) is amended by striking out "board".

8(2)        Subsection 18(2) is repealed and the following is substituted:

Question of privilege

18(2)       Where the Commissioner believes that a question of privilege arises in respect of any documents or statements in his or her possession, or that release of the information will unduly harm the interests of a third party, or would otherwise harm the interests of a third party, or would otherwise be contrary to the public interest, the Commissioner may deny access to such materials to any of the parties.

Review by Court of Queens's Bench

18(3)       A decision of the Commissioner to grant or refuse access to material referred to in subsection (2) is reviewable on application to the Court of Queen's Bench.

9           Subsection 20(1) is amended by striking out "of the board".

10(1)       Subsection 23(1) is amended by striking out "to the board under this Act, the board" and substituting "to a provincial judge under this Act, the provincial judge".

10(2)       Subsection 23(2) is repealed and the following is substituted:

Parties to a hearing

23(2)       The complainant and the respondent are parties to a hearing, but the provincial judge hearing the matter may add such other parties, and may receive submissions from such other persons, as he or she considers appropriate.

11(1)       Subsections 24(1) and (2) are repealed.

11(2)       Subsection 24(3) is amended

(a) by striking out "board" in the section heading and substituting "provincial judge"; and

(b) by striking out "the board" and substituting "a provincial judge".

11(3)       Subsection 24(4) is amended by striking out "board".

11(4)       Subsection 24(5) is repealed and the following is substituted:

Evidence

24(5)       A provincial judge may receive and accept such evidence and information on oath, affirmation, affidavit, or otherwise as the provincial judge in his or her discretion considers appropriate, whether admissible in evidence in a court of law or not; and the evidence and information shall be recorded.

11(5)       Subsection 24(6) is amended by striking out "board".

11(6)       The French version of subsection 24(8) is amended by adding "la" after "qu'on".

11(7)       Subsection 24(9) is amended by striking out "board" and substituting "provincial judge".

11(8)       Subsection 24(10) is repealed and the following is substituted:

Respondent not compellable

24(10)      The respondent is not compellable as a witness at a hearing before a provincial judge.

Use of evidence

24(10.1)    Where a person who is a respondent or a member of a police department gives evidence during

(a) a hearing; or

(b) an appeal under this Act arising out of a hearing referred to in clause (a);

that evidence, if it tends to incriminate the person, subject the person to punishment or establish his or her liability, shall not be used or received against the person in any civil proceeding or in any proceeding under any other Act, except in a prosecution for or proceedings in respect of perjury or the giving of contradictory evidence.

11(9)       Subsection 24(11) is amended

(a) by striking out "board hearing" and substituting "hearing"; and

(b) by striking out "board may" and substituting "provincial judge hearing the matter may".

11(10)      Subsection 24(12) is amended by striking out "board" and substituting "provincial judge hearing the matter".

12          Section 25 is repealed and the following is substituted:

Ban on publication

25          Notwithstanding that all or part of a hearing is public, the provincial judge hearing the matter shall, unless satisfied that such an order would be ineffectual,

(a) order that no person shall cause the respondent's name to be published in a newspaper or other periodical publication, or broadcast on radio or television, until the judge has determined the merits of the complaint or the respondent admits having committed a disciplinary default; and

(b) if the complaint is dismissed, order that the ban on publication of the respondent's name continue.

13          Section 26 is amended by striking out "board".

14(1)       Subsection 27(1) is amended

(a) by striking out "board" in the section heading and substituting "provincial judge"; and

(b) by striking out "board shall decide whether the respondent has committed a disciplinary default and the board shall deliver its decision" and substituting "provincial judge hearing the matter shall decide whether the respondent has committed a disciplinary default and shall deliver his or her decision".

14(2)       Subsection 27(2) is repealed and the following is substituted:

Standard of proof

27(2)       The provincial judge hearing the matter shall dismiss a complaint in respect of an alleged disciplinary default unless he or she is satisfied on clear and convincing evidence that the respondent has committed the disciplinary default.

14(3)       Subsection 27(3) is repealed and the following is substituted:

Reasons for decision

27(3)       At the request of a party or the minister, the provincial judge hearing the matter shall provide to the parties and to the minister written reasons for

(a) the decision on the merits of the complaint; and

(b) any penalty ordered under section 28.

15(1)       Subsection 28(1) is amended

(a) by striking out "the board shall hear" and substituting "the provincial judge hearing the matter shall hear"; and

(b) by striking out "the board shall order" and substituting "he or she shall order".

15(2)       Subsection 28(2) is repealed and the following is substituted:

Review of recommendation re penalty

28(2)       In the case of a complaint referred to a provincial judge under subsection 16(5), the provincial judge shall examine the written statement forwarded by the Commissioner under subsection 16(6) before ordering a penalty against the respondent.

15(3)       Subsection 28(3) is repealed and the following is substituted:

Penalty

28(3)       For each disciplinary default committed by the respondent, the provincial judge may order the penalty recommended by the Commissioner or such other penalty as the provincial judge considers appropriate in the circumstances.

15(4)       Subsection 28(4) is amended by striking out "board" where it appears in the section heading and in the subsection and substituting "provincial judge".

16          Section 30 is amended by renumbering it as subsection 30(1) and by adding the following as subsections 30(2), (3) and (4):

Restitution

30(2)       When a provincial judge orders a penalty set out in subsection (1), he or she may also order the member to make restitution for any loss of property or damage to property sustained by the complainant as a result of the disciplinary default, if

(a) the amount of the loss or damage is readily ascertainable; and

(b) the provincial judge is satisfied that recovery would not be more appropriately dealt with by a civil action.

Right to indemnification not affected

30(3)       Nothing in subsection (2) precludes the respondent from securing indemnification for the amount of any restitution ordered from his or her employer pursuant to a collective agreement or other legal obligation.

Enforcement of restitution order

30(4)       An order to make restitution may be filed with the Court of Queen's Bench and enforced as if it were an order of the Court.

17(1)       Subsection 31(1) is amended

(a) by striking out "decision of the board" and substituting "decision of a provincial judge"; and

(b) by striking out "jurisdiction of the board" and substituting "jurisdiction of the provincial judge".

17(2)       Subsection 31(2) is amended by striking out "board" and substituting "provincial judge".

17(3)       Subsection 31(4) is repealed and the following is substituted:

Commissioner as party

31(4)       Upon application, the Commissioner may be joined as a party to the appeal.

18          Section 33 is amended

(a) by striking out "Where the board identifies" and substituting "Where a provincial judge identifies"; and

(b) by striking out "board may recommend" and substituting "provincial judge may recommend".

19(1)       Subsection 35(1) is amended

(a) by striking out "Commissioner or the board" and substituting "Commissioner or a provincial judge"; and

(b) by striking out "board shall report" and substituting "the provincial judge shall report".

19(2)       Subsection 35(3) is amended

(a) by striking out "testifies before the board" and substituting "testifies before a provincial judge"; and

(b) by striking out "before the board on the ground that" and substituting "before the provincial judge on the ground that".

20          Subsection 41(2) is amended by striking out "or the Manitoba Police Commission".

21          Clause 42(a) is amended by striking out "the board" and substituting "a provincial judge".

22          Section 43 is amended by striking out "board".

23          Clauses 44(b) and (c) are repealed and the following is substituted:

(b) prescribing rules of procedure to be following by a provincial judge in conducting a hearing;

(c) designating law enforcement bodies for the purpose of the definition of "member" in section 1;

(d) respecting any other matter necessary to enable the Commissioner or a provincial judge hearing a matter under this Act to carry out his or her powers and duties under this Act.

Transitional

24(1)       Any hearing for which a date was fixed by the board under the former Act shall be concluded under the former Act as if this Act had not come into force.

Definition of "former Act"

24(2)       In subsection (1), "former Act" means The Law Enforcement Review Act as it read immediately before the coming into force of this Act.

Coming into force

25          This Act comes into force on the day it receives royal assent.