Fourth Session,

45th General Assembly

56 Elizabeth II,

BILL 19

AN ACT TO AMEND THE ROYAL NEWFOUNDLAND

CONSTABULARY ACT, 1992

Received and Read the First Time ............................................................................ May

16, 2007

Second Reading .......................................................................................................... May 28, 2007

Committee ..............................................................................................

Amendment

May

29, 2007

Third Reading .............................................................................................................. May 29, 2007

Royal Assent ......................................................................................................................................

HONOURABLE TOM

OSBORNE

Minister of Justice

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

Clause 1 of this Bill would amend

section

22 of the Royal Newfoundland Constabulary

Act, 1992 to permit public complaints to be made under the Act regarding

the operational policies or procedures of the constabulary governing the manner

in which a police officer discharges his or her duties. Further, the amendment would clarify who may

file a public complaint and it would extend the limitation period for filing a

public complaint from 3 months to 6 months.

In clause 2 of the Bill, a provision

would be added to the Act to permit the commissioner to decline to investigate

or to act further on a complaint if the subject matter of the complaint is

outside the scope of

section 22 of the Act.

Clause 3 of the Bill would amend the

Act to allow the chief or the deputy chief, where it is in the public interest,

to transmit a complaint directly to the commissioner without initial

investigation and other procedures under sections 24 and 25 of the Act.

The amendment contained in clause 4

of the Bill would amend the Act to clarify the actions which may be taken by

the chief following the consideration of a public complaint regarding the policies

or procedures of the constabulary.

Clause 5 of the Bill is an amendment to

the Act relating to when a commissioner may, following an investigation of a

complaint, decline to act further on that complaint. Those circumstances

include frivolous or vexatious complaints, abandoned or withdrawn complaints or

complaints where there is insufficient evidence for a hearing.

Clause 6 of the Bill would amend the

Act to ensure consistency of language regarding costs that may be ordered by an

adjudicator.

In clause 7 of the Bill the Act would

be amended to provide that minor technical or procedural errors may not be

appealed to the Trial Division unless the error has prejudiced a fair

determination of the issues at a public hearing.

Clauses 8 and 9 of the Bill would

remove the requirement in the Act that forms be prescribed by regulation and

would instead allow the minister to prescribe forms for the purpose and

administration of the Act.

A BILL

AN ACT TO AMEND THE ROYAL NEWFOUNDLAND

CONSTABULARY ACT, 1992

Analysis

S.22 R&S

Public complaints

S.22.1 Added

Commissioner not acting on certain complaints

3. S.24 Amdt.

Initial investigation

4. S.25 Amdt.

Discipline and appeal

S.28 Amdt.

Dismissal or reference to an adjudicator

S.33 Amdt.

Orders of an adjudicator

S.36 Amdt.

Appeal to Trial Division

S.57 Amdt.

Regulations

9. S.57.1 Added

Forms

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

SNL1992 cR-17

as amended

Section 22 of the Royal Newfoundland Constabulary Act, 1992 is repealed and the following

substituted:

Public complaints

(1) A

person, other than a police officer and a person employed in the constabulary,

may file a complaint concerning

(

a) the conduct of a police officer; or

(

b) the operational policies or procedures of the

constabulary which govern the manner in which a police officer discharges his

or her duties

where the person making the complaint has

been directly affected by that conduct or those policies or procedures.

(2) Notwithstanding subsection (1), a police

officer or a person employed in the constabulary may file a complaint under

that subsection where the matter giving rise to the complaint occurs outside

the scope of the police officer's or the person's employment.

(3) A complaint made under subsection (1) shall be

in writing and may be filed at a constabulary office or with the commissioner.

(4) A complaint made under subsection (1) shall be

a complaint which, if substantiated, would lead to

(

a) review and discipline under this Act; or

(

b) a recommendation by the commissioner to the

chief and the minister.

(5) The complainant shall be given a statement, in

the prescribed form, which sets out the procedures to be followed in dealing

with a complaint and describes the rights of the complainant.

(6) A complaint made under subsection (1) shall be

made within 6 months after

(

a) the alleged misconduct occurs; or

(

b) the date the policy or procedure complained of

affected the complainant.

(7) Notwithstanding subsection (6), where a

complaint made under subsection (1)

(

a) concerns a case of continuing misconduct by an

officer, a complaint shall be made within 6 months after the last incidence of

the alleged misconduct; or

(

b) concerns a case where the policies or procedures

of the constabulary are directly affecting the complainant in a continuous manner,

a complaint shall be made within 6 months after the last date the policy or procedure

complained of affected the complainant.

(8) Notwithstanding subsections (6) and (7), the 6

month time limit referred to in those subsections shall not begin to run

against a complainant until he or she knows or, considering all circumstance of

the matter, ought to know that he or she has a right of complaint concerning

the conduct of a police officer or the policies or procedures of the

constabulary and the burden of proving a postponement of the running of time

under this subsection is upon the complainant claiming the benefit of that postponement.

(9) Where the postponement of filing a complaint

is claimed under subsection (8), the matter of that postponement shall be

referred to the commissioner who shall determine whether or not the complaint

may be filed.

(10) Where a complaint is made by a person other

than the person who is alleged to have been subjected to the misconduct, the

commissioner may refuse to act on the complaint unless the person alleged to

have been subjected to the misconduct consents.

(11) Where a police officer against whom a

complaint has been made resigns or retires from the constabulary before the

completion of an investigation or hearing under this Part, the complaint may be

dealt with under this Part as if that police officer had not resigned or retired.

2. The Act is amended by adding immediately after

section 22 the following:

Commissioner not

acting on certain complaints

22.1 Where

the commissioner is satisfied that the subject matter of a public complaint is

frivolous or vexatious, occurred more than 6 months after facts on which it is

based occurred, that the complainant was not directly affected by the policy or

procedure that is the subject of the complaint or the complaint does not fall

within the scope of

section 22, the commissioner

(

a) shall decline to take further action on the

complaint and shall, in writing, inform the complainant, the police officer

against whom the complaint has been made where the complaint was made under

paragraph 22(1)(a), and the chief of his or her reasons for declining to take

further action; or

(

b) may consult with the complainant, the police

officer against whom the complaint has been made where the complaint was made

under paragraph 22(1)(a), and the chief for the purpose of resolving the

complaint informally.

Section 24 of the Act is amended by adding

immediately after subsection (4) the following:

(5) Notwithstanding subsection (3), the chief or

deputy chief may, where he or she believes it to be in the public interest to

do so, transmit the complaint to the commissioner and that complaint shall be

considered by the commissioner under

section 26 as if it were an appeal under

section 25.

4. Subsection 25(1) of the Act is amended by

deleting the word "or" at the end of paragraph (

b) and by adding immediately

after that paragraph the following:

(b.1) where the complaint is a complaint as to the

policies or procedures of the constabulary, the chief or the deputy chief as

directed by the chief, may take whatever action is considered appropriate, if

any; or

(1) Section 28 of the Act is amended by

adding immediately after subsection (1) the following:

(1.1) Following an investigation of a complaint,

where the commissioner does not confirm the decision of the chief or the deputy

chief under subsection (1) and is satisfied

(

a) that the subject matter of a complaint is

frivolous or vexatious;

(

b) that the complaint has been abandoned or

withdrawn; 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.

(1.2) Where the commissioner declines to take

further action on a complaint under subsection (1.1), the commissioner

(

a) shall, in writing, inform the complainant, the

police officer against whom the complaint has been made and the chief or deputy

chief of his or her reasons for declining to take further action; and

(

b) may consult with the complainant, a police

officer against whom a complaint has been made and the chief or the deputy chief

for the purpose of resolving the complaint informally.

(1.3) Where a complainant who is not satisfied with

a decision of the chief or deputy chief appeals that decision under subsection

25(4) to the commissioner, the commissioner may determine whether or not the

complaint concerns the misconduct of a police officer or the policies or procedures

of the constabulary and may consider the appeal accordingly.

(2) Subsection 28(3) of the Act is amended by

adding immediately after the reference "subsections (1)" a comma and the

references and comma "(1.1), (1.2)".

6. (1) Paragraph 33(1)(

c) of the Act is

repealed and the following substituted:

(

c) that, where the police officer who was the

subject of the complaint conducted himself or herself in a proper manner, he or

she be compensated for the reasonable costs incurred by him or her as a result

of an investigation, a hearing or both;

(2) Paragraph 33(1)(

e) of the Act is repealed and

the following substituted:

(

e) that the police officer who was the subject of

the complaint pay the reasonable costs incurred by the commission in conducting

an investigation, a hearing or both.

(3) Paragraph 33(3)(

g) of the Act is repealed and

the following substituted:

(

g) where found to have conducted himself or

herself in a proper manner respecting the matter of complaint, be compensated

for reasonable costs incurred by him or her as a result of an investigation, a

hearing, or both; and

(4) Paragraph 33(3)(

h) of the Act is repealed and

the following substituted:

(

h) except in the circumstances referred to in

paragraph (g), pay the reasonable costs incurred by the commission in conducting

an investigation, a hearing or both.

7. (1) Subsection 36(1) of the Act is

repealed and the following substituted:

Appeal to Trial

Division

(1) The

complainant or the police officer who is the subject of the complaint may

appeal an order or decision of the commissioner under paragraph 22.1(a),

subsection 22(9), 28(1), 28(1.1) or of the adjudicator under

section 33 by way

of application to the Trial Division.

(2) Section 36 of the Act is amended by adding

immediately after subsection (8) the following:

(9) Technical errors as to form, failure to file

or to give notice on time and other procedural errors of a minor nature do not

go to the jurisdiction of an adjudicator, and may not be appealed to the Trial

Division on any ground, unless the error prejudiced a fair determination of the

issues at the public hearing.

8. Paragraph 57(

d) of the Act is amended by

deleting the comma immediately before the phrase and the phrase "including

the prescribing of forms".

9. The Act is amended by adding immediately after

section 57 the following:

Forms

57.1 The

minister may prescribe forms for the purpose and administration of this Act.

Earl G. Tucker, Queen's Printer