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The Law Enforcement Review Act
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This version is current as of June 22, 2017.
It has been in effect since June 1, 2012.

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C.C.S.M. c. L75

The Law Enforcement Review Act

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

Definitions

1(1)        In this Act

"Chief of Police" means

(a) the person appointed as the chief of a police service, and includes an acting chief of a police service, and

(b) the civilian director of the independent investigation unit appointed under The Police Services Act; (« chef de police »)

"Commissioner" means the Commissioner appointed under this Act; (« commissaire »)

"complainant" means a person who has filed a complaint under this Act; (« plaignant »)

"disciplinary default" means any act or omission referred to in section 29; (« faute disciplinaire »)

"extra-provincial police officer" means a police officer appointed or employed under the law of another province or territory who has been appointed as a police officer in Manitoba under The Cross-Border Policing Act; (« agent de police extraprovincial »)

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

"member" or "member of a police service" means a person appointed as a police officer in a police service, and includes an investigator with the independent investigation unit established under The Police Services Act; (« membre » ou « membre d'un service de police »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"police board" means the police board responsible for a police service; (« conseil de police »)

"police service" means a police service established or continued under The Police Services Act, and includes the independent investigation unit established under The Police Services Act; (« service de police »)

"respondent" means a member against whom a complaint has been made under this Act; (« défendeur »)

"service record" means a service record established under section 32. (« dossier »)

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.

S.M. 1992, c. 45, s. 2; S.M. 2004, c. 4, s. 40; S.M. 2009, c. 32, s. 98.

Application to members

1.1(1)      This Act applies to the conduct of a member

(a) in Manitoba; or

(b) in another province or territory, while the member was appointed as a police officer or peace officer in that jurisdiction.

Limited application to extra-provincial officers

1.1(2)      No investigation, review or other action involving an extra-provincial police officer may take place under this Act, except in accordance with sections 6 to 7.4.

S.M. 2004, c. 4, s. 41.

Appointment of Commissioner

2(1)        The Lieutenant Governor in Council shall appoint a Commissioner.

Powers, duties and functions

2(2)        The Commissioner has such powers and shall carry out such duties and functions as conferred or imposed under this Act or as may be required for purposes of this Act by the Lieutenant Governor in Council.

Full-time appointment

2(3)        The Commissioner shall devote his full time to his responsibilities under this Act, and shall not concurrently hold any full-time or part-time position of any kind.

3 and 4     [Repealed]

S.M. 1992, c. 45, s. 3.

Assistance of experts

5           The minister may authorize the Commissioner at the expense of the government to retain the services of counsel and other experts as the Commissioner deems fit.

Complaint concerning police conduct

6(1)        Every person who feels aggrieved by a disciplinary default allegedly committed by any member of a police service or by an extra-provincial police officer may file a complaint under this Act.

Third party complaint

6(2)        The complaint may be filed notwithstanding that the alleged disciplinary default has affected some person other than the complainant, but has not affected the complainant.

Procedure for filing complaint

6(3)        Every complaint shall be in writing signed by the complainant setting out the particulars of the complaint, and shall be submitted to

(a) the Commissioner; or

(b) the Chief of Police of the police service involved in the complaint; or

(c) any member of the police service involved in the complaint;

not later than 30 days after the date of the alleged disciplinary default.

Verbal complaint

6(4)        Every member who receives a verbal complaint concerning conduct which may constitute a disciplinary default shall forthwith inform the person making the verbal complaint that a complaint under this Act must be made in writing and shall forthwith inform the person of the relevant time limits set out in this section.

Where complainant unable to write

6(5)        Where the complainant is unable to reduce the complaint into writing, the person to whom the complaint is made shall

(a) take down the complaint in writing;

(b) read the complaint back to the complainant; and

(c) have the complainant sign the complaint.

Commissioner may extend time

6(6)        Where the complainant has no reasonable opportunity to file a complaint within the time period set out in subsection (3), the Commissioner may extend the time for filing the complaint to a date not later than six months after the date of the alleged disciplinary default.

Where complainant faces criminal charges

6(7)        Where an alleged disciplinary default occurs in the course of an investigation, arrest or other action by a member or extra-provincial police officer which results in a criminal charge against the complainant, the Commissioner may extend the time for filing the complaint to a date not later than one year after the date of the alleged disciplinary default or 30 days after the final disposition of the criminal charge, whichever is the sooner.

S.M. 2004, c. 4, s. 42; S.M. 2009, c. 32, s. 98.

Notification of complaint

7(1)        Where a complaint is made

(a) to the Commissioner, the Commissioner shall forthwith forward a copy of the complaint to the Chief of Police of the police service involved in the complaint;

(b) to a member of the police service involved in the complaint, the member shall forthwith forward a copy of the complaint to the Chief of Police of that police service who shall forward a copy to the Commissioner;

(c) to the Chief of Police of the police service involved in the complaint, the Chief of Police shall forthwith forward a copy of the complaint to the Commissioner;

together with any other statements or documents submitted by the complainant.

Copy of complaint

7(2)        Upon receiving a complaint, the Commissioner shall, as soon as it is practicable, provide the member or extra-provincial police officer who is the subject of the complaint with a copy of the complaint.

S.M. 2004, c. 4, s. 43; S.M. 2009, c. 32, s. 98.

Notification re extra-provincial police officer

7.1(1)      If the Commissioner receives a complaint against an extra-provincial police officer, the Commissioner must provide a copy of the complaint, together with any other statements or documents submitted by the complainant, to

(a) the officer's commanding officer in his or her home jurisdiction; and

(b) the person or agency in the officer's home jurisdiction that is responsible for complaints concerning police conduct.

Information to complainant

7.1(2)      If the Commissioner receives a complaint against an extra-provincial police officer, the Commissioner must

(a) inform the complainant that no penalty can be imposed on an extra-provincial police officer under this Act; and

(b) provide the complainant with the address and phone number of the person or agency in the officer's home jurisdiction that is responsible for complaints concerning police conduct.

S.M. 2004, c. 4, s. 44.

Investigation by Commissioner

7.2(1)      The Commissioner may conduct an investigation into the conduct of an extra-provincial police officer in Manitoba if he or she considers it appropriate. Section 12 applies to such an investigation, with necessary changes.

Commissioner may disclose information

7.2(2)      The Commissioner may, if he or she considers it appropriate, disclose such information and documents in his or her possession regarding an extra-provincial police officer's conduct in Manitoba to the person or agency responsible for complaints concerning police conduct in the officer's home jurisdiction.

S.M. 2004, c. 4, s. 44.

Informal resolution of complaint

7.3         If requested to do so by the complainant, the Commissioner must consult with the complainant and the extra-provincial police officer who is the subject of the complaint to attempt to reach an informal resolution of the complaint.

S.M. 2004, c. 4, s. 44.

Referral for review

7.4(1)      The Commissioner may refer a complaint against an extra-provincial police officer for review by a provincial judge, if the Commissioner believes that the complaint involves a matter of significant public interest.

Applicable provisions

7.4(2)      Subsection 17(2) and sections 18 to 25 and 27 and 29 apply, with necessary changes, when a complaint against an extra-provincial police officer is referred to a provincial judge for review.

Scope of review

7.4(3)      At the review, the provincial judge must examine the material circumstances that led to the complaint and may make any recommendations that he or she considers appropriate regarding police practices or policies.

No finding or penalty

7.4(4)      The provincial judge may not make a finding or express an opinion as to whether the extra-provincial police officer committed a disciplinary default and may not order or recommend any penalty against the extra-provincial police officer.

S.M. 2004, c. 4, s. 44.

No complaint by member

8           Notwithstanding section 6, no member shall file a complaint under this Act in respect of any act or omission which affects the member while he is executing his duties.

Commissioner to notify affected person

9(1)        Where a complaint has been filed in the circumstances referred to in subsection 6(2), the Commissioner, forthwith after receiving the complaint, shall in writing notify the person affected by the alleged disciplinary default that a complaint has been filed under this Act.

Affected person must consent

9(2)        Where the person affected by the alleged disciplinary default does not, within 14 days of receiving the notification referred to in subsection (1) or within such further time as the Commissioner may allow, file with the Commissioner a written consent to the processing of the complaint under this Act, the Commissioner shall take no further action on the complaint.

Where no consent required

9(3)        Subsection (2) does not apply where the person affected by the alleged disciplinary default is an infant or is not competent to give consent.

Further particulars

10          On his own behalf or at the request of the respondent, the Commissioner may require the complainant to provide further particulars of the conduct complained of and the Commissioner shall forward a copy of the further particulars to the respondent and to the respondent's Chief of Police.

Complaint against Chief of Police

11(1)       Any person wishing to make a complaint against a Chief of Police shall file the complaint with the Commissioner and this Act, except subsection 12(8), applies with necessary modifications thereto.

No complaint in disciplinary matter

11(2)       Notwithstanding subsection (1), no member shall file a complaint under this Act in respect of the exercise by the Chief of Police of his power to discipline any member.

Investigation by Commissioner

12(1)       Upon receiving a complaint, the Commissioner shall forthwith cause the complaint to be investigated and for this purpose, the Commissioner has all the powers of Commissioners under Part V of The Manitoba Evidence Act.

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.

Relevant materials forwarded to Commissioner

12(2)       At the request of the Commissioner, a Chief of Police involved in the complaint shall forthwith forward to the Commissioner copies of all documents, statements, and other materials relevant to the complaint which are in the possession, or under the control, of the police service, including any notes or reports prepared or compiled by members of the police service.

Materials required for criminal investigation

12(3)       Where any of the materials referred to in subsection (2) are required for the purpose of a criminal investigation, the Chief of Police may request, and the Commissioner may grant, an extension of time for forwarding copies of such materials.

Questions of privilege

12(4)       Where the Chief of Police declines to forward copies of any of the materials referred to in subsection (2) on the ground that the materials are privileged, the Commissioner may make summary application to a judge of the Court of Queen's Bench for a ruling on the question of privilege.

Order to search and seize

12(5)       Where a justice is satisfied by information upon oath of the Commissioner, or a person employed by the Commissioner, that there is reasonable ground to believe that there is in a building, receptacle or place

(a) anything upon or in respect of which a disciplinary default under this Act has been or is suspected to have been committed; or

(b) anything which there is reasonable ground to believe will afford evidence of the commission of a disciplinary default under this Act;

the justice may issue a warrant authorizing a person named therein or the Commissioner to search the building, receptacle or place for any such thing, and to seize the thing and bring it before the Commissioner for use by the Commissioner in investigating a complaint under this Act.

Utilizing necessary resources and persons

12(6)       Subject to subsection (7), the Commissioner may utilize any resources and employ any persons the Commissioner deems necessary for the prompt and thorough investigation of a complaint.

No investigation by police service involved in complaint

12(7)       Except as otherwise provided in this section, the Commissioner shall not employ for purposes of investigation any person who is, or at the time of the occurrence complained of was, a member of the police service involved in the complaint.

Internal investigation

12(8)       At the written request of the complainant, the Commissioner may refer the complaint to the respondent's Chief of Police for internal investigation.

Criminal investigation

12(9)       Where the respondent's Chief of Police informs the Commissioner that the respondent's conduct is being or will be investigated by the internal investigation unit of the police service for the possible laying of criminal charges against the respondent, the Commissioner may request the Chief of Police to forward the results of the investigation to the Commissioner for purposes of this Act.

Report by Chief of Police

12(10)      When the internal investigation referred to in subsection (8) or (9) has been completed, the Chief of Police shall report the results of the investigation to the Commissioner, and the Commissioner shall thereafter deal with the complaint as provided in this Act.

S.M. 1992, c. 45, s. 4; S.M. 2009, c. 32, s. 98.

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.

Burden of proof on complainant

13(4)       Where an application is brought under subsection (2), the burden of proof is on the complainant to show that the Commissioner erred in declining to take further action on the complaint.

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.

Decision of provincial judge final

13(5)       The decision of the provincial judge on an application under subsection (2) is final and shall not be subject to appeal or review of any kind.

S.M. 1992, c. 45, s. 5.

Evidence of internal disciplinary matter

14          Where under subsection 9(2) or section 13 the Commissioner takes no further action on a complaint, but the investigation has revealed evidence of matters which may be subject to internal police discipline, the Commissioner may forward all relevant material to the appropriate disciplinary authority in the police service for the possible commencement of internal disciplinary procedures.

S.M. 2009, c. 32, s. 98.

Informal resolution of complaint

15(1)       Where the investigation has been completed, the Commissioner shall consult with the complainant, the respondent and the respondent's Chief of Police for the purpose of resolving the complaint informally.

Agreement between complainant and respondent

15(2)       Where the complainant and the respondent concur, but the respondent's Chief of Police does not concur, with a proposal to resolve the complaint informally, the Commissioner may nevertheless resolve the complaint informally in accordance with the proposal.

No record of informal resolution

15(3)       Where the complaint is resolved informally, no penalty shall be imposed against the respondent and no record of either the complaint or the informal resolution thereof shall be entered on the service record of the respondent.

Admission of disciplinary default

16(1)       Where the respondent admits having committed a disciplinary default, the Commissioner shall recommend one or more of the penalties set out in section 30.

Appropriate penalty determined

16(2)       Before recommending one or more of the penalties set out in section 30, the Commissioner shall consult with the respondent's Chief of Police and shall examine the service record of the respondent.

Matters relevant to appropriate penalty

16(3)       The purpose of the Commissioner's consultation with the respondent's Chief of Police shall be to determine the opinion of the Chief of Police with respect to

(a) the severity of the alleged disciplinary default; and

(b) the contents of the respondent's service record;

and the Commissioner's recommendation concerning an appropriate penalty shall be based solely upon these two factors.

Imposition of penalty

16(4)       If the respondent concurs with the recommendation of the Commissioner, the respondent's Chief of Police shall impose the penalty; but where the respondent is a Chief of Police, the employer of the Chief of Police shall impose the penalty.

Referral to provincial judge

16(5)       If the respondent does not concur with the recommendation of the Commissioner, the Commissioner shall refer the complaint to a provincial judge for a hearing on the question of the penalty to be imposed against the respondent.

Statement of facts and recommended penalty

16(6)       Where the Commissioner refers a complaint to a provincial judge under subsection (5), the Commissioner shall prepare and forward to the provincial judge a written statement of

(a) the facts which constitute the subject matter of the complaint; and

(b) the penalty or penalties recommended by the Commissioner under subsection (1);

and the Commissioner shall provide the respondent with a copy of the statement.

S.M. 1992, c. 45, s. 6.

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.

Notice of alleged disciplinary default

17(2)       Where the Commissioner refers a complaint to a provincial judge under subsection (1), the Commissioner shall serve the respondent with notice of each alleged disciplinary default in the form prescribed by the regulations, and the Commissioner shall forward a copy of the notice of each alleged disciplinary default to the provincial judge.

17(3) to (6)  [Repealed] S.M. 1992, c. 45, s. 7.

S.M. 1992, c. 45, s. 7.

Access to documents and statements

18(1)       Subject to subsection (2), all parties to a hearing and their counsel, but no other persons, are entitled to examine any relevant documents or statements in the possession, or under the control, of the Commissioner.

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 be contrary to the public interest, the Commissioner may deny access to such materials to any of the parties.

Review by Court of Queen'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.

S.M. 1992, c. 45, s. 8; S.M. 1993, c. 48, s. 22.

Respondent entitled to remain silent

19          The respondent is not bound to make any statement to the Commissioner, or to answer any question asked by the Commissioner or anyone employed by the Commissioner.

Respondent's statements inadmissible

20(1)       No statement made by the respondent to the Commissioner or to anyone employed by the Commissioner, except a statement made for purposes of section 16, is admissible at any hearing without the consent of the respondent.

Statement for purposes of resolution privileged

20(2)       Any statement made by either the complainant or the respondent for purposes of resolving the complaint under section 15 is privileged for all purposes, including an action arising out of the same facts as the complaint.

S.M. 1992, c. 45, s. 9.

Right to counsel

21          Both the complainant and the respondent have a right to counsel at any stage of any proceedings under this Act, including review by the Commissioner.

Contributing causes

22          Where the Commissioner identifies any organizational or administrative practices of a police service which may have caused or contributed to an alleged disciplinary default, the Commissioner may recommend appropriate changes to the Chief of Police and to the police board for the police service.

S.M. 2009, c. 32, s. 98.

Fixing and notification of date of hearing

23(1)       Where the Commissioner has referred a complaint to a provincial judge under this Act, the provincial judge shall fix a date, time, and place for a hearing and shall notify

(a) the complainant;

(b) the respondent;

(c) the respondent's Chief of Police; and

(d) the Commissioner;

of the date, time, and place at least 14 days prior to the hearing.

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.

S.M. 1992, c. 45, s. 10.

24(1) and (2) [Repealed] S.M. 1992, c. 45, s. 11.

Powers of provincial judge under Evidence Act

24(3)       For the purpose of holding a hearing under this Act, a provincial judge has all the powers and protections of Commissioners under Part V of The Manitoba Evidence Act.

Summary conviction procedures to apply

24(4)       Except as otherwise provided in this Act or by regulation, the rules of procedure in summary conviction proceedings apply to all hearings.

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.

Right to participate

24(6)       At every hearing, the parties may be present, may call witnesses, may cross-examine witnesses in respect of viva voce or affidavit evidence, and may be represented by counsel.

Presentation of case in support of complaint

24(7)       The case in support of the complaint may be presented by

(a) the complainant; or

(b) counsel retained by the complainant; or

(c) where the complainant applies and is financially eligible for legal aid, counsel appointed by Legal Aid Manitoba.

Where complainant ineligible for legal aid

24(8)       Where the complainant applies but is financially ineligible for legal aid, the Commissioner shall review the complainant's finances, and where the Commissioner believes that the complainant cannot afford to retain counsel, the Commissioner may recommend that the minister appoint counsel to present the case in support of the complaint; and the minister may appoint counsel for that purpose.

Hearing in absence of respondent

24(9)       Where the respondent absconds or refuses or neglects without good and sufficient cause to attend the hearing, the provincial judge may hold the hearing in the respondent's absence.

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 service 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.

Public hearing

24(11)      Every hearing shall be public, unless the maintenance of order or the proper administration of justice requires that all or part of a hearing be held in-camera; and the provincial judge hearing the matter may order that all or part of a hearing be held in-camera.

Justifying in-camera hearing

24(12)      Where any party applies to have all or part of a hearing held in-camera, the onus shall be on that party to satisfy the provincial judge hearing the matter that the maintenance of order or the proper administration of justice requires an in-camera hearing.

S.M. 1992, c. 45, s. 11; S.M. 2001, c. 43, s. 15; S.M. 2004, c. 50, s. 18; S.M. 2009, c. 32, s. 98.

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.

S.M. 1992, c. 45, s. 12.

Admission of disciplinary default

26          At the commencement or during the course of a hearing, the respondent may admit having committed a disciplinary default; and if the respondent admits the default, the provisions of section 28 apply.

S.M. 1992, c. 45, s. 13.

Decision by provincial judge

27(1)       As soon as practicable after the conclusion of the hearing, the provincial judge hearing the matter shall decide whether the respondent has committed a disciplinary default and shall deliver his or her decision in writing

(a) to the parties; and

(b) where the respondent's Chief of Police and the Commissioner are not parties, to the respondent's Chief of Police and the Commissioner.

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.

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.

S.M. 1992, c. 45, s. 14.

Ordering of penalty

28(1)       Where the respondent admits having committed or is found to have committed a disciplinary default, the provincial judge hearing the matter shall hear the submissions of the parties and details of the service record of the respondent; and he or she shall order one or more of the penalties set out in section 30 for each disciplinary default which the respondent has committed.

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.

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.

Compliance with order of provincial judge

28(4)       Where the provincial judge has ordered a penalty against the respondent, the respondent's Chief of Police shall impose the penalty; but where the respondent is a Chief of Police, the employer of the Chief of Police shall impose the penalty.

S.M. 1992, c. 45, s. 15.

Discipline Code

29          A member commits a disciplinary default where he affects the complainant or any other person by means of any of the following acts or omissions arising out of or in the execution of his duties:

(a) abuse of authority, including

(i) making an arrest without reasonable or probable grounds,

(ii) using unnecessary violence or excessive force,

(iii) using oppressive or abusive conduct or language,

(iv) being discourteous or uncivil,

(v) seeking improper pecuniary or personal advantage,

(vi) without authorization, serving or executing documents in a civil process, and

(vii) differential treatment without reasonable cause on the basis of any characteristic set out in subsection 9(2) of The Human Rights Code;

(b) making a false statement, or destroying, concealing, or altering any official document or record;

(c) improperly disclosing any information acquired as a member of the police service;

(d) failing to exercise discretion or restraint in the use and care of firearms;

(e) damaging property or failing to report the damage;

(f) being present and failing to assist any person in circumstances where there is a clear danger to the safety of that person or the security of that person's property;

(g) violating the privacy of any person within the meaning of The Privacy Act;

(h) contravening this Act or any regulation under this Act, except where the Act or regulation provides a separate penalty for the contravention;

(i) assisting any person in committing a disciplinary default, or counselling or procuring another person to commit a disciplinary default.

S.M. 2002, c. 24, s. 34; S.M. 2009, c. 32, s. 98.

Penalties

30(1)       A member who admits having committed or is found to have committed a disciplinary default is liable to one or more of the following penalties set out in diminishing order of seriousness:

(a) dismissal;

(b) permission to resign, and in default of resignation within seven days, summary dismissal;

(c) reduction in rank;

(d) suspension without pay up to a maximum of 30 days;

(e) forfeiture of pay up to a maximum of 10 days' pay;

(f) forfeiture of leave or days off not to exceed 10 days;

(g) a written reprimand;

(h) a verbal reprimand;

(i) an admonition.

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.

S.M. 1992, c. 45, s. 16.

Appeal

31(1)       An appeal from a decision of a provincial judge lies to the Court of Queen's Bench upon any question involving the jurisdiction of the provincial judge or upon any question of law alone.

Time for filing

31(2)       The appellant shall file a notice of appeal in writing within 30 days after the decision of the provincial judge, unless the court in the exercise of its discretion grants an extension of time for the appeal.

Parties to appeal

31(3)       An appeal may be launched by the complainant or the respondent; and the complainant and the respondent are parties to the appeal.

Commissioner as party

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

Counsel for appeal

31(5)       At the written request of the Commissioner, the minister may appoint counsel to represent the complainant on the appeal.

S.M. 1992, c. 45, s. 17.

Notice to other jurisdictions

31.1        If a complaint under this Act is made with respect to a member's conduct in another province or territory, the Commissioner must inform the person or agency that is responsible for complaints concerning police conduct in that jurisdiction as to how the complaint was dealt with under this Act.

S.M. 2004, c. 4, s. 45.

Service record

32(1)       The Chief of Police of every police service in Manitoba shall keep a service record in respect of each member of the police service.

Contents of service record

32(2)       The Chief of Police shall record on the service record all matters relevant to the professional conduct of the member, including

(a) all disciplinary defaults under this Act and the penalties imposed therefor;

(b) all internal disciplinary offences and the penalties imposed therefor; and

(c) all official commendations given to the member;

but not including any personal matters which are not relevant to the professional conduct of the member.

Commencement of service record

32(3)        For purposes of this Act, each member shall be deemed to have a blank service record as of the coming into force of this Act; and each member's service record shall relate only to the professional conduct of the member subsequent to the coming into force of this Act.

No record of admonition

32(4)       Notwithstanding anything in this Act, where no penalty other than an admonition is imposed against a member for a disciplinary default under this Act, the member's Chief of Police shall not record the disciplinary default or the admonition on the member's service record.

Expunging service record

32(5)       Upon application by a member whose service record contains an entry for a disciplinary default under this Act, the member's Chief of Police shall expunge the entry

(a) where a reprimand was imposed, after two years have expired from the date of disciplining;

(b) where a forfeiture of pay, leave, or days off was imposed, after three years have expired from the date of disciplining; or

(c) where reduction in rank or suspension without pay was imposed, after five years have expired from the date of disciplining;

but only if in each case the member has committed no further disciplinary defaults under this Act since the date of disciplining.

Right to inspect service record

32(6)       Every member has the right to inspect his service record.

S.M. 2009, c. 32, s. 98.

Organizational and administrative practices

33          Where a provincial judge identifies any organizational or administrative practices of a police service which may have caused or contributed to an alleged disciplinary default, the provincial judge may recommend appropriate changes to the Chief of Police and to the police board for the police service.

S.M. 1992, c. 45, s. 18; S.M. 2009, c. 32, s. 98.

Effect of criminal charge

34          Where a member or an extra-provincial police officer has been charged with a criminal offence, there shall be no investigation, review, hearing or disciplinary action under this Act in respect of the conduct which constitutes the alleged criminal offence unless a stay of proceedings is entered on the charge or the charge is otherwise not disposed of on its merits.

S.M. 2004, c. 4, s. 46.

Disclosure of possible criminal offence

35(1)       Where a matter before the Commissioner or a provincial judge discloses evidence that a member or an extra-provincial police officer may have committed a criminal offence, the Commissioner or the provincial judge shall report the possible criminal offence to the Attorney-General and shall forward all relevant material, except privileged material, to the Attorney-General for the possible laying of charges.

Effect of decision to lay charges

35(2)       If the Attorney-General charges the member or extra-provincial police officer with a criminal offence, there shall be no further investigation, review, hearing or disciplinary action under this Act in respect of the conduct which constitutes the alleged criminal offence unless a stay of proceedings is entered on the charge or the charge is otherwise not disposed of on its merits.

Objection conclusively deemed

35(3)       Where a member or extra-provincial police officer who testifies before a provincial judge is subsequently charged with a criminal offence, the member or extra-provincial police officer shall be conclusively deemed to have objected to answering every question put to him before the provincial judge on the ground that his statement or his answer may tend to criminate him or to establish his liability to a legal proceeding at the instance of the Crown or of any person.

S.M. 1992, c. 45, s. 19; S.M. 2004, c. 4, s. 47.

Prosecution for offences

36          No investigation, review, hearing, or disciplinary action under this Act precludes the subsequent prosecution of any member or extra-provincial police officer for an offence.

S.M. 2004, c. 4, s. 48.

Effect of complaint on internal discipline

37(1)       Where a complaint has been filed under this Act, a respondent who is a member is not subject to any internal police discipline in respect of the conduct which constitutes the subject matter of the complaint.

Suspension of internal disciplinary proceedings

37(2)       Where internal police disciplinary proceedings have been commenced against a member in respect of conduct which constitutes the subject matter of a complaint under this Act, the internal disciplinary proceedings shall terminate upon the filing of the complaint and the matter shall be resolved solely in accordance with this Act.

Effect of completion of internal proceedings

37(3)       No resolution or termination of internal police disciplinary proceedings against a member or extra-provincial police officer precludes the subsequent filing of a complaint under this Act in respect of the conduct which constitutes the subject matter of the internal disciplinary proceedings.

Internal disciplinary proceedings unaffected

37(4)       Notwithstanding anything in this section

(a) where no complaint under this Act has been filed within the time period set out in subsection 6(3); or

(b) where the Commissioner takes no further action on a complaint in accordance with subsection 9(2) or clause 13(1)(b);

this Act does not affect any internal police disciplinary proceedings, including appeals therefrom, brought against a member or extra-provincial police officer in respect of his or her conduct toward any person.

S.M. 2004, c. 4, s. 49.

Where members of public not involved

38          This Act does not apply to matters of internal police discipline which do not involve members of the public.

Civil remedies

39          This Act does not affect any civil remedies available to any person.

Act to prevail over collective agreement

40          Where there is conflict between this Act or the regulations hereunder and any collective agreement in force in the province, this Act prevails.

Act to prevail over other Acts

41(1)       Where there is conflict between this Act and any other Act of the Legislature, this Act prevails.

Jurisdiction of police boards

41(2)       Without restricting the generality of subsection (1), where the conduct of a member of a police service is the subject matter of a complaint under this Act, there shall be no inquiry, investigation or hearing by the police board for the police service respecting that conduct, except in accordance with this Act.

41(3)       [Repealed] S.M. 2009, c. 32, s. 98.

S.M. 1992, c. 45, s. 20; S.M. 2009, c. 32, s. 98.

Failure to comply

42          Every person who, without lawful excuse,

(a) fails to comply with an order or decision of the Commissioner or a provincial judge; or

(b) contravenes section 25;

is guilty of an offence and is liable on summary conviction to a fine of not more than $2,000. and in default thereof to imprisonment for a term not exceeding three months or to both such fine and such imprisonment.

S.M. 1992, c. 45, s. 21.

Witness fees

43          The fees payable to witnesses at hearings are the same as the fees payable to witnesses in the Court of Queen's Bench.

S.M. 1992, c. 45, s. 22.

Regulations

44          For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations and orders as are ancillary thereto and are not inconsistent therewith; and every regulation or order made under, and in accordance with the authority granted by, this section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations and orders

(a) prescribing the forms in which complaints, notices of alleged disciplinary defaults, and appeals may be made;

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

(c) [repealed] S.M. 2009, c. 32, s. 98;

(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.

S.M. 1992, c. 45, s. 23; S.M. 2009, c. 32, s. 98.

Annual report

45          The Commissioner shall submit an annual report concerning the performance of his duties and functions to the minister and to every police board in the province; and the minister shall table the report in the Legislature.

S.M. 2009, c. 32, s. 98.

Transitional provision

46          Where, before the coming into force of this Act, any complaint was made against a member, that complaint may be disposed of in accordance with the law in force at the time the complaint was made.