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2009 Legislative Session: 1st Session, 39th Parliament

FOR REPORT

The following electronic version is for informational purposes only.

The printed version remains the official version.

Certified correct as amended in Committee of the Whole on the 27th day of October, 2009

Ian D. Izard, Q.C., Law Clerk

HONOURABLE KASH HEED

MINISTER OF PUBLIC SAFETY

AND SOLICITOR GENERAL

BILL 7 – 2009

POLICE (MISCONDUCT, COMPLAINTS,

INVESTIGATIONS, DISCIPLINE AND

PROCEEDINGS) AMENDMENT ACT, 2009

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

Section 1 of the Police Act, R.S.B.C. 1996, c. 367, is amended in the definition of "police complaint commissioner" by striking out " or 49 (1); " and substituting " or 49 (1) or (2); ".

2 The heading to

Part 9 is repealed and the following substituted:

Part 9 – Office of the Police Complaint Commissioner .

Section 46 is repealed and the following substituted:

Definitions and

interpretation

(1) The

definitions in Divisions 1 and 2 of

Part 11 [Misconduct, Complaints, Investigations, Discipline and Proceedings] apply for the purposes of this Part.

(2) In sections 47 to 49, "committee" means the special committee of the Legislative Assembly that the Legislative Assembly specifies for the purposes of those sections.

Section 50 is repealed.

Section 51 is repealed and the following substituted:

Staff and other designated individuals

(1) The police complaint commissioner may appoint, in accordance with the Public Service Act and regulations, if any, made under

section 184 (2) (b) [regulations under Parts 9 and 11] of this Act, one or more deputy police complaint commissioners and other employees necessary for exercising the powers and performing the duties of the police complaint commissioner under this Act.

(2) For the purposes of the application of the Public Service Act to subsection (1) of this section, the police complaint commissioner is a deputy minister.

(3) The police complaint commissioner may retain consultants, mediators, experts, specialists and other persons that the police complaint commissioner considers necessary to enable or assist the police complaint commissioner in exercising powers or performing duties of the police complaint commissioner under this Act.

(5) The police complaint commissioner may designate

(

a) an individual for the purposes of receiving, recording and registering complaints, forwarding them to the police complaint commissioner and assisting complainants under sections 78 (2) [how complaints are made] and 80 [if complaint made to member or designated individual under

section 78 (2) (b)] , or

(

b) an individual for the purposes of receiving and recording service or policy complaints, forwarding them to the police complaint commissioner and assisting persons under sections 168 (2) (b) [making a service or policy complaint] and 169 [if complaint made to member, designated individual or chair under

section 168 (2) (b)] .

(7) The Public Service Act does not apply in respect of the following:

(

a) a person retained under subsection (3);

(

b) an individual designated under subsection (5) (

a) or (b), except to the extent that the Public Service Act may already apply to any such individual before the designation.

Confidentiality

51.01

(1) Before beginning to exercise powers and perform duties under this Act, a deputy police complaint commissioner and an employee appointed under

section 51 (1) must take an oath before the police complaint commissioner

(

a) to faithfully and impartially exercise the powers and perform the duties delegated by the police complaint commissioner to the deputy police complaint commissioner or the other employee, and

(

b) not to divulge any information received in the exercise of those powers or performance of those duties, except as permitted under this Act.

(2) A person retained under

section 51 (3) must take an oath before the police complaint commissioner not to divulge any information received in assisting the police complaint commissioner in the exercise of her or his powers or performance of her or his duties under this Act.

(3) Before beginning to perform duties under

section 80 [if complaint made to member or designated individual under

section 78 (2) (b)] or 169 [if complaint made to member, designated individual or chair under

section 168 (2) (b)] , an individual designated under

section 51 (5) (

a) or (

b) must take an oath before the police complaint commissioner

(

a) to faithfully and impartially perform those duties, and

(

b) not to divulge any information received in the performance of those duties, except as permitted under this Act.

(4) For the purposes of subsections (1) to (3), the police complaint commissioner is a commissioner for taking affidavits in British Columbia.

(5) The police complaint commissioner, any person employed, retained or designated by the police complaint commissioner, and every investigating officer must, except as specifically authorized under this Act, maintain confidentiality in respect of all matters that come to her or his knowledge in the exercise of powers or performance of duties under this Act.

Non-delegable powers and duties of police complaint commissioner

51.02 The police complaint commissioner may not delegate to any person employed, retained or designated by the police complaint commissioner any of the following powers and duties:

(

a) the duty of the police complaint commissioner to report to the Speaker of the Legislative Assembly under

section 51.1 [annual report] ;

(

b) the powers of the police complaint commissioner under

section 84 (2) or (4) [discontinuance and consolidation of complaints made by third-party complainants] ;

(

c) the power of the police complaint commissioner under

section 92 (1) or (3) [external investigations when in public interest] ;

(

d) the power of the police complaint commissioner under

section 93 [independent power to order investigation, whether or not complaint made] ;

(

e) the power of the police complaint commissioner under

section 97 (1) (d) [police complaint commissioner's powers relating to investigation] ;

(

f) the power of the police complaint commissioner to appoint a retired judge under

section 117 (1) [appointment of new discipline authority if conclusion of no misconduct is incorrect] ;

(

g) the duty of the police complaint commissioner to appoint a retired judge as a discipline authority under

section 135 (2) (b) [power to designate another discipline authority if in public interest] ;

(

h) the duties of the police complaint commissioner under

section 138 [determining whether to arrange public hearing or review on the record] ;

(

i) the duties of the police complaint commissioner under

section 142 (1) and (2) [appointment of adjudicator for public hearing or review on the record] ;

(

j) the duties of the police complaint commissioner under

section 177 (2) (

a) and (b) [guidelines] , (c) [forms] and (f) [reports] ;

(

k) the powers of the police complaint commissioner under

section 177 (4).

Personal liability protection and non-compellability

in civil proceedings

51.03

(1) In this section, "protected individual" means an individual who is or was any of the following:

(

a) the police complaint commissioner;

(

b) a deputy police complaint commissioner or an employee appointed under

section 51 (1);

(

c) a person retained by the police complaint commissioner under

section 51 (3);

(

d) an individual designated by the police complaint commissioner under

section 51 (5).

(2) Subject to subsection (3), no legal proceeding for damages lies or may be commenced or maintained against a protected individual because of anything done or omitted

(

a) in the exercise or intended exercise of a power under this Act, or

(

b) in the performance or intended performance of a duty under this Act.

(3) Subsection (2) does not apply to a protected individual in relation to anything done or omitted in bad faith.

(4) A protected individual and anyone acting for or under the direction of the protected individual must not give, or be compelled to give, evidence in court or in any other proceedings in respect of any records or information obtained in the exercise of powers or performance of duties under this Act.

(5) Despite subsection (4), a protected individual or anyone acting for or under the direction of the protected individual may give, or be compelled to give, evidence in any of the following:

(

a) a prosecution for perjury in respect of sworn testimony;

(

b) a prosecution for an offence under this Act;

(

c) an application for judicial review of a decision made under this Act.

(6) Subsections (4) and (5) apply also in respect of evidence of the existence of an investigation under

Part 11, a mediation or other means of informal resolution under

Part 11 or any proceeding conducted under

Part

Section 51.2 is repealed and the following substituted:

Audit of complaints and investigations under

Part 11

51.2

(1) In this section, "special committee" means a special committee of the Legislative Assembly that the Legislative Assembly appoints for the purposes of this section.

(2) Before January 1, 2013, the special committee must conduct an audit respecting the outcome or resolution of randomly selected complaints and investigations under

Part 11, and must submit a report respecting the results of the audit to the Legislative Assembly within one year after the date of the appointment of the special committee.

(3) As part of the audit process contemplated by subsection (2), the special committee may

(

a) request the police complaint commissioner to provide copies of any records, information or reports referred to in

section 177 (2) (

d) to (f) [general responsibility and functions of police complaint commissioner] ,

(

b) review and consider the copies of records, information and reports referred to in paragraph (

a) that the police complaint commissioner provides, and

(

c) solicit and consider written and oral submissions from any interested person or organization.

(4) Subject to subsection (5), the police complaint commissioner must comply with a request of the special committee under subsection (3) (a).

(5) Before providing copies of the records, information and reports referred to in subsection (3) (a), the police complaint commissioner may sever any portions that must or may be excepted from disclosure by the head of a public body under Division 2 of

Part 2 of the Freedom of Information and Protection of Privacy Act .

(6) At least once every 6 years after the report under subsection (2) is submitted to the Legislative Assembly, the special committee must act as described in subsections (2) and (3).

(7) A report submitted under subsection (2) or (6) may include any recommendations that the special committee considers necessary or appropriate.

7 Divisions 3 to 7 of

Part 9 are repealed.

Section 67 is amended by striking out " a discipline authority, as defined in

section 46, " and substituting " a discipline authority, as defined in

section 76, ".

Section 74 is amended

(

a) by repealing subsection (2) (

k) and substituting the following:

(

k) providing for the payment of fees and expenses to witnesses at hearings or appeals under this Act, other than witnesses referred to in

section 122 or witnesses called under

section 141 (4) or 143 (5); ,

(

b) by repealing subsection (2) (

o) to (q),

(

c) in subsection (3) by striking out " under subsections (2) and (5), " and substituting " under subsections (2) and (5) and

section 184 [regulations under Parts 9 and 11] , ", and

(

d) by repealing subsection (4) and substituting the following:

(4) The Lieutenant Governor in Council may make different regulations under subsection (2) (b), (

t) or (

u) or (5) for different classes of officers.

10 The following

Part is added:

Part 11 – Misconduct, Complaints, Investigations,

Discipline and Proceedings

Division 1 –

Interpretation

Definitions and

interpretation

(1) In this Part:

"adjudicator" means a person appointed under

section 142 to preside over a public hearing or review on the record;

"business day" means a day other than a Saturday or a holiday;

"commission counsel" means legal counsel representing the police complaint commissioner;

"complainant" , subject to subsection (3), means

(

a) a person who makes and registers a complaint under

section 78 [how complaints are made] ,

(

b) a person on whose behalf a complaint is made under

section 78, and

(

c) if a complaint is made on behalf of another by an individual authorized to do so under

section 78, the authorized individual,

but does not include a person whose complaint is discontinued under

section 84 [discontinuance and consolidation of complaints made by third-party complainants] , 94 (2) [withdrawal of complaint by complainant] or 164 (1) (b) [consequences if participant fails to attend mediation proceeding] ;

"conduct" includes any act or omission, and a reference to the occurrence of any conduct includes the doing of

an act or the making of an omission;

"disciplinary or corrective measures" means any one or more of the measures described in

section 126 (1) [imposition of disciplinary or corrective measures] ;

"discipline authority" means the following:

(

a) in relation to a complaint or an investigation under Division 3 [Process Respecting Alleged Misconduct] concerning the conduct of a member who is not a chief constable or deputy chief constable,

(

i) a chief constable of the municipal police department with which the member is employed, unless

section 117 (9), 134 or 135 (1) applies,

(ii) if

section 117 (9) [appointment of new discipline authority if conclusion of no misconduct is incorrect] applies, the retired judge appointed under that section,

(iii) if

section 134 [chief constable may delegate discipline authority functions] applies, a person referred to in subsection (1) (

a) or (

b) of that section, or

(iv) if

section 135 (1) [power to designate another discipline authority if in public interest] applies, a senior officer designated under that

section as discipline authority by the police complaint commissioner;

(

b) in relation to a complaint or an investigation under Division 3 concerning the conduct of a member who is a chief constable or deputy chief constable,

(

i) the chair of the board by which the member is employed, unless

section 117 (9) or 135 (2) applies,

(ii) if

section 117 (9) [appointment of new discipline authority if conclusion of no misconduct is incorrect] applies, the retired judge appointed under that section, or

(iii) if

section 135 (2) [power to designate another discipline authority if in public interest] applies, a retired judge appointed under that

section as discipline authority by the police complaint commissioner;

(

c) in relation to a complaint or an investigation under Division 3 concerning the conduct of a former member who, at the time of the conduct of concern, was not a chief constable or deputy chief constable,

(

i) a chief constable of the municipal police department with which the former member was employed at the time of the conduct of concern, unless

section 117 (9), 134 or 135 (1) applies,

(ii) if

section 117 (9) [appointment of new discipline authority if conclusion of no misconduct is incorrect] applies, the retired judge appointed under that section,

(iii) if

section 134 [chief constable may delegate discipline authority functions] applies, a person referred to in subsection (1) (

a) or (

b) of that section, or

(iv) if

section 135 (1) [power to designate another discipline authority if in public interest] applies, a senior officer designated under that

section as discipline authority by the police complaint commissioner;

(

d) in relation to a complaint or an investigation under Division 3 concerning the conduct of a former member who, at the time of the conduct of concern, was a chief constable or deputy chief constable,

(

i) the chair of the board by which the former member was employed at the time of the conduct of concern, unless

section 117 (9) or 135 (2) applies,

(ii) if

section 117 (9) [appointment of new discipline authority if conclusion of no misconduct is incorrect] applies, the retired judge appointed under that section, or

(iii) if

section 135 (2) [power to designate another discipline authority if in public interest] applies, a retired judge appointed under that

section as discipline authority by the police complaint commissioner;

"discipline representative" means a person appointed by the discipline authority under

section 121 (1) (a) [if member's or former member's request to question witnesses is accepted] ;

"external police force" , in relation to a municipal police department to which

section 89 (1) [reporting of death, serious harm and reportable injury, and mandatory external investigation in cases of death and serious harm] , 91 (1) [external investigation of chief constables] , 92 (1), (2) or (3) [external investigations when in public interest] or 93 (1) (b) (ii) [independent power to order investigation] applies, means

(

a) another municipal police department,

(

b) the provincial police force, or

(

c) a designated policing unit;

"final investigation report" means the report provided by an investigating officer under

section 98 (4) or (10) (b) [investigating officer's duty to file reports] , but does not include a report that is rejected under

section 98 (9);

"firearm" means a gun that uses, as a propellant, compressed air, explosives or gas;

"former member" , in relation to a complaint or an investigation under Division 3 concerning the conduct of a person who, at the time of the conduct of concern, was a member of a municipal police department but who after that time has retired or resigned and is no longer a member of any municipal police department, means that person;

"internal discipline matter" means a matter concerning the conduct or deportment of a member that

(

a) is not the subject of an admissible complaint or an investigation under Division 3 [Process Respecting Alleged Misconduct] , and

(

b) does not directly involve or affect the public;

"investigating officer" means a constable appointed to investigate

(

a) a matter under

section 89 (2) [reporting of death, serious harm and reportable injury, and mandatory external investigation in cases of death and serious harm] ,

(

b) an admissible complaint under

section 90 (1) (b) [if complaint not resolved informally, investigation must be initiated] ,

(

c) an admissible complaint under

section 91 [external investigation of chief constables] ,

(

d) an admissible complaint under

section 92 (1), (2) or (3) [external investigations when in public interest] , or

(

e) conduct of a member under

section 93 [independent power to order investigation] ;

"member" means a municipal constable, deputy chief constable or chief constable of a municipal police department;

"misconduct" has the same meaning as in Division 2 [Misconduct] ;

"public hearing" means a public hearing referred to in

section 143 [public hearing] ;

"public hearing counsel" means, in relation to a public hearing, legal counsel appointed by the police complaint commissioner under

section 138 (7) [determining whether to arrange public hearing or review on the record] for the purposes of that public hearing;

"reportable injury" means any of the following:

(

a) an injury caused by discharge of a firearm;

(

b) an injury requiring emergency care by a medical practitioner or nurse practitioner and transfer to a hospital;

(

c) an injury described by regulation under

section 184 (2) (c) [regulations under Parts 9 and 11] ;

"review on the record" means a review on the record referred to in

section 141 [review on the record] ;

"senior officer" means a member of inspector rank or higher;

"serious harm" means injury that

(

a) may result in death,

(

b) may cause serious disfigurement, or

(

c) may cause substantial loss or impairment of mobility of the body as a whole or of the function of any limb or organ;

"supervisor" means, in relation to a member,

(

a) a chief constable of the municipal police department with which the member is employed, or

(

b) any other member designated by that chief constable to supervise members of the municipal police department;

"supplementary report" means the supplementary investigation report provided by an investigating officer under

section 115 (2) [if member's or former member's request for further investigation is accepted] ;

"third-party complainant" means a person who makes and registers a complaint under

section 78 (1) [how complaints are made] who is not a person or an individual described in

section 78 (1) (

a) or (b).

(2) In Division 3 [Process Respecting Alleged Misconduct] , "agent" , with reference to a member or former member, means the member's or former member's trade union representative or some other individual of the member's or former member's choice, other than her or his legal counsel.

(3) In Division 3, "complainant" includes a representative appointed under

section 87 [appointment of representative for complainants] .

Division 2 – Misconduct

Defining misconduct

(1) In this Part, "misconduct" means

(

a) conduct that constitutes a public trust offence described in subsection (2), or

(

b) conduct that constitutes

(

i) an offence under

section 86 [offence to harass, coerce or intimidate anyone questioning or reporting police conduct or making complaint] or 106 [offence to hinder, delay, obstruct or interfere with investigating officer] , or

(ii) a disciplinary breach of public trust described in subsection (3) of this section.

(2) A public trust offence is an offence under an enactment of Canada, or of any province or territory in Canada, a conviction in respect of which does or would likely

(

a) render a member unfit to perform her or his duties as a member, or

(

b) discredit the reputation of the municipal police department with which the member is employed.

(3) Subject to subsection (4), any of the conduct described in the following paragraphs constitutes a disciplinary breach of public trust, when committed by a member:

(a) "abuse of authority", which is oppressive conduct towards a member of the public, including, without limitation,

(

i) intentionally or recklessly making an arrest without good and sufficient cause,

(ii) in the performance, or purported performance, of duties, intentionally or recklessly

(

A) using unnecessary force on any person, or

(

B) detaining or searching any person without good and sufficient cause, or

(iii) when on duty, or off duty but in uniform, using profane, abusive or insulting language to any person including, without limitation, language that tends to demean or show disrespect to the person on the basis of that person's race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, age or economic and social status;

(b) "accessory to misconduct", which is knowingly being an accessory to any conduct set out in this subsection, including, without limitation, aiding, abetting, counselling or being an accessory after the fact;

(c) "corrupt practice", which is

(

i) without lawful excuse, failing to make a prompt and true return of, or misappropriating, any money or property received in the performance of duties as a member,

(ii) agreeing or allowing to be under a pecuniary or other obligation to any person in a manner that would likely be seen to affect the member's ability to properly perform the duties of a member,

(iii) using or attempting to use one's position as a member for personal gain or other purposes unrelated to the proper performance of duties as a member, or

(iv) using or attempting to use any equipment or facilities of a municipal police department, or any other police force or law enforcement agency, for purposes unrelated to the performance of duties as a member;

(d) "damage to police property", which is

(

i) intentionally or recklessly misusing, losing or damaging

(

A) any police property, or

(

B) any property that is in police custody or the care of which has been entrusted to the member in the performance of duties as a member, or

(ii) without lawful excuse, failing to report any loss or destruction of, or any damage to, any property referred to in subparagraph (i), however caused;

(e) "damage to property of others", which is

(

i) when on duty, or off duty but in uniform, intentionally or recklessly damaging any property belonging to a member of the public, or

(ii) without lawful excuse, failing to report any such damage, however caused;

(f) "deceit", which is any of the following:

(

i) in the capacity of a member, making or procuring the making of

(

A) any oral or written statement, or

(

B) any entry in an official document or record,

that, to the member's knowledge, is false or misleading;

(ii) doing any of the following with an intent to deceive any person:

(

A) destroying, mutilating or concealing all or any part of an official record;

(

B) altering or erasing, or adding to, any entry in an official record;

(iii) attempting to do any of the things described in subparagraph (

i) or (ii);

(g) "discourtesy", which is failing to behave with courtesy due in the circumstances towards a member of the public in the performance of duties as a member;

(h) "discreditable conduct", which is, when on or off duty, conducting oneself in a manner that the member knows, or ought to know, would be likely to bring discredit on the municipal police department, including, without limitation, doing any of the following:

(

i) acting in a disorderly manner that is prejudicial to the maintenance of discipline in the municipal police department;

(ii) contravening a provision of this Act or a regulation, rule or guideline made under this Act;

(iii) without lawful excuse, failing to report to a peace officer whose duty it is to receive the report, or to a Crown counsel, any information or evidence, either for or against any prisoner or defendant, that is material to an alleged offence under an enactment of British Columbia or Canada;

(i) "improper disclosure of information", which is intentionally or recklessly

(

i) disclosing, or attempting to disclose, information that is acquired by the member in the performance of duties as a member, or

(ii) removing or copying, or attempting to remove or copy, a record of a municipal police department or any other police force or law enforcement agency;

(j) "improper off-duty conduct", which is, when off duty, asserting or purporting to assert authority as a member, an officer or a member of the Royal Canadian Mounted Police and conducting oneself in a manner that would constitute a disciplinary breach of trust if the member were on duty as a member;

(k) "improper use or care of firearms", which is failing to use or care for a firearm in accordance with standards or requirements established by law;

(l) "misuse of intoxicants", which is

(

i) owing to the effects of intoxicating liquor or any drug, or any combination of them, being unfit for duty when on duty or reporting for duty, or

(ii) without proper authority, making use of or accepting from any other person intoxicating liquor when on duty or when off duty but in uniform in a public place;

(m) "neglect of duty", which is neglecting, without good or sufficient cause, to do any of the following:

(

i) properly account for money or property received in one's capacity as a member;

(ii) promptly and diligently do anything that it is one's duty as a member to do;

(iii) promptly and diligently obey a lawful order of a supervisor.

(4) It is not a disciplinary breach of public trust for a member to engage in conduct that is necessary in the proper performance of authorized police work.

Division 3 – Process Respecting Alleged Misconduct

How complaints are made to and registered

with police complaint commissioner

(1) Subject to

section 79, a complaint concerning any conduct of a member that is alleged to constitute misconduct may be made to and registered with the police complaint commissioner

(

a) by a person who is directly affected by, or who directly witnesses, the conduct,

(

b) by an individual known to and acting on behalf of a person described in paragraph (a), if the person on whose behalf the complaint is being made consents to its being made or is, because of age or a mental or physical condition, incapable of giving consent, or

(

c) by a third-party complainant.

(2) The complaint may be made and registered by stating or delivering it

(

a) directly to the police complaint commissioner, or

(

b) to one of the following for forwarding under

section 80 to the police complaint commissioner:

(

i) a member on duty at a station of any municipal police department who is assigned to receive and register complaints under this Division;

(ii) an individual designated by the police complaint commissioner under

section 51 (5) (a) [staff and other designated individuals] .

Time limit for making complaints

(1) A complaint must be made within the 12-month period beginning on the date of the conduct giving rise to the complaint or within any extension of that period allowed under subsection (2).

(2) The police complaint commissioner may extend the time limit for making a complaint if the police complaint commissioner considers that there are good reasons for doing so and it is not contrary to the public interest.

(3) A complaint is considered to be made as soon as it is received by

(

a) the police complaint commissioner, if made directly to the police complaint commissioner, or

(

b) a member or designated individual referred to in

section 78 (2) (b), if the complaint is made by stating or delivering it as described in

section 78 (2) (b).

If complaint made to member or designated individual

under

section 78 (2) (b)

(1) When a member or designated individual referred to in

section 78 (2) (

b) receives a complaint under that provision, she or he must immediately

(

a) record the complaint and the date and time of its receipt,

(

b) provide the complainant with a written acknowledgment of its receipt, and

(

c) forward to the police complaint commissioner a copy of the complaint or, if the complaint was not made in writing, a copy of the record of the complaint.

(2) The member or designated individual receiving the complaint must

(

a) provide the complainant with any assistance that complainant requires in making the complaint,

(

b) provide any information or advice to the complainant that may be required under the guidelines prepared under

section 177 (2) (

a) by the police complaint commissioner,

(

c) request from the complainant any information that may be required under the guidelines,

(

d) provide the complainant with a copy of the police complaint commissioner's list, established under

section 177 (2) (k), of support groups and neutral dispute resolution service providers and agencies, and

(

e) complete and forward to the police complaint commissioner the record of complaint in the form and manner required by the police complaint commissioner.

If complaint made directly to police complaint commissioner

81 When the police complaint commissioner receives a complaint directly from a person under

section 78 (2) (a), the police complaint commissioner must immediately

(

a) record the complaint and the date and time of its receipt,

(

b) provide the complainant with

(

i) a written acknowledgment of its receipt, and

(ii) a copy of the police complaint commissioner's list, established under

section 177 (2) (k), of support groups and neutral dispute resolution service providers and agencies, and

(

c) notify the following, as applicable:

(

i) a chief constable of the municipal police department with which the member whose conduct is the subject of the complaint is employed, unless the complaint concerns the conduct of a member who is a chief constable or deputy chief constable;

(ii) if the complaint concerns the conduct of a chief constable or deputy chief constable, the board by which that constable is employed;

(iii) if the complaint concerns the conduct of a member who has since the time of that conduct retired or resigned and is no longer a member of any municipal police department, a chief constable of the municipal police department with which the former member was employed at the time of the conduct of concern.

Determination of whether complaint is admissible

(1) On receiving a complaint directly from a complainant or receiving a copy or record of a complaint from a member or designated individual referred to in

section 78 (2) (b), the police complaint commissioner must determine whether the complaint is admissible or inadmissible under this Division.

(2) A complaint or a part of a complaint is admissible under this Division if

(

a) the conduct alleged would, if substantiated, constitute misconduct by the member,

(

b) the complaint is made within the time allowed under

section 79 (1) or (2) [time limit for making complaints] , and

(

c) the complaint is not frivolous or vexatious.

(3) A complaint or a part of a complaint is inadmissible under this Division insofar as it relates to any of the following:

(

a) the general direction and management or operation of a municipal police department;

(

b) the inadequacy or inappropriateness of any of the following in respect of a municipal police department:

(

i) its staffing or resource allocation;

(ii) its training programs or resources;

(iii) its standing orders or policies;

(iv) its ability to respond to requests for assistance;

(

v) its internal procedures.

(4) A complaint concerning a person who, at the time of the conduct alleged, was a member is not inadmissible by reason only that the person

(

a) is, at the time the complaint is made, no longer a member, or

(

b) retires or resigns from the municipal police department at any time after the complaint is made.

(5) Nothing in this

section limits the application of

section 109 [power to discontinue investigation] .

(6) Any complaint or part of a complaint that is determined inadmissible under subsection (3) must be processed by the board of the municipal police department concerned under Division 5 [Process Respecting Department Service and Policy Complaints] .

Notification following determination of admissibility

(1) On determining under

section 82 that a complaint is inadmissible, the police complaint commissioner must

(

a) give written notification of that determination to

(

i) the complainant,

(ii) a chief constable of the municipal police department with which the member in respect of whom the complaint is made is employed or, if the complaint concerns the conduct of a former member, a chief constable of the municipal police department with which the former member was employed at the time of the conduct of concern, and

(iii) in the case of a complaint determined inadmissible under

section 82 (3), the board of the municipal police department concerned,

(

b) include in the notification the reason for the determination,

(

c) if the determination results from the application of

section 82 (3), include in the notification the requirement under

section 82 (6) to process the complaint under Division 5 [Process Respecting Department Service and Policy Complaints] , and

(

d) take no further action under this Division in relation to the complaint.

(2) On determining under

section 82 that a complaint is admissible, the police complaint commissioner must as soon as practicable give written notification of that determination to

(

a) the complainant,

(

b) unless paragraph (

c) applies, a chief constable of the municipal police department with which the member in respect of whom the complaint is made is employed or, if the complaint concerns the conduct of a former member, a chief constable of the municipal police department with which the former member was employed at the time of the conduct of concern, and

(

c) if the complaint concerns the conduct of a chief constable or former chief constable of a municipal police department, the chair of the board of that municipal police department.

(3) On being notified of an admissible complaint concerning a member or former member of a municipal police department, a chief constable of the municipal police department must, subject to

section 88 (1) (b) [duty to preserve evidence relating to complaint or report] , notify the member or former member that a complaint has been made and specify the nature of the complaint and the name of the complainant.

(4) On being notified of an admissible complaint concerning a chief constable or a former chief constable of a municipal police department, the chair of the board of that municipal police department must, subject to subsection (5), notify that chief constable or former chief constable that a complaint has been made and specify the nature of the complaint and the name of the complainant.

(5) The police complaint commissioner may direct the chair referred to in subsection (4) to postpone notifying the chief constable or former chief constable concerned until such time as the police complaint commissioner may direct.

(6) The chair must comply with the police complaint commissioner's direction under subsection (5).

Discontinuance and consolidation of complaints

made by third-party complainants

(1) The police complaint commissioner must discontinue a complaint registered by a third-party complainant under

section 78 (1) (

c) concerning the conduct of a member or former member if a person described in

section 78 (1) (

a) or (

b) makes and registers an admissible complaint concerning the same conduct.

(2) Unless subsection (1) applies, the police complaint commissioner may do any of the following if more than one third-party complainant registers a complaint under

section 78 concerning the same conduct of a member or former member and the police complaint commissioner considers it to be in the public interest:

(

a) consolidate the complaints for the purposes of an investigation or a proceeding under this Part;

(

b) discontinue one or more of the complaints for the purposes of an investigation or a proceeding under this Part;

(

c) discontinue one or more of the complaints and consolidate the remainder of them for the purposes of an investigation or a proceeding under this Part.

(3) If a complaint registered by a third-party complainant is discontinued under this section, the police complaint commissioner must

(

a) give written notification of the discontinuance, together with reasons, to

(

i) the third-party complainant, and

(ii) the discipline authority, and

(

b) take no further action under this Division in relation to the complaint.

(4) Despite subsection (3) (b), on request of the third-party complainant referred to in that subsection, the police complaint commissioner may provide that person with one or more of the following records, if the police complaint commissioner considers it in the public interest to do so:

(

a) a copy of the final investigation report received by the complainant under

section 112 (1) (b) (i) [discipline authority to review final investigation report and give early notice of next steps] ;

(

b) a copy of the notification under

section 112 (1) (c);

(

c) a copy of the supplementary report received by the complainant under

section 116 (1) (b) (i) [discipline authority to review supplementary report and give notice of next steps] ;

(

d) a copy of the notification under

section 116 (1) (c);

(

e) a copy of the report referred to in

section 133 (1) (a) [review of discipline proceedings] .

(5) Before providing copies of any record referred to in subsection (4), the police complaint commissioner may sever any portions that must or may be excepted from disclosure by the head of a public body under Division 2 of

Part 2 of the Freedom of Information and Protection of Privacy Act .

(6) On being notified that a complaint concerning the conduct of a member or former member is discontinued under this section, the discipline authority must, subject to a postponement under

section 88 (1) (b) [duty to preserve evidence relating to complaint or report] and subsection (7) of this section, notify the member or former member of that discontinuance.

(7) The police complaint commissioner may direct the discipline authority referred to in subsection (6) to postpone notifying the member or former member concerned until such time as the police complaint commissioner may direct.

(8) The discipline authority must comply with the police complaint commissioner's direction under subsection (7).

Departments to make record of reports not

resulting in registered complaints

(1) The police complaint commissioner may, at any time,

(

a) direct a chief constable or the board of a municipal police department to ensure that a record is made, in the form and manner required by the police complaint commissioner, of any oral or written report to the department by a member of the public or any other person that raises a question or concern about the conduct of a member of the municipal police department but that does not result in the making and registration of a complaint under

section 78 [how complaints are made] ,

(

b) direct a chief constable or the board of a municipal police department to ensure

(

i) that every person who reports a question or concern described in paragraph (

a) is provided the information or advice that may be required under the guidelines prepared by the police complaint commissioner under

section 177 (2) (b) [general responsibility and functions of police complaint commissioner] , and

(ii) that procedures under the guidelines referred to in subparagraph (

i) are followed by all members of the municipal police department, and

(

c) inspect a record made under paragraph (

a) or require a senior officer of the municipal police department to produce the record to the police complaint commissioner for audit.

(2) Despite any other enactment and any claim of confidentiality or privilege, other than a claim based on solicitor-client privilege,

(

a) the chief constable of a municipal police department referred to in subsection (1) must ensure that the directions and requirements of the police complaint commissioner under that subsection are complied with, and

(

b) all members of the municipal police department must cooperate fully with the police complaint commissioner in an inspection or audit under subsection (1) (c).

(3) Subject to sections 79 [time limit for making complaints] and 82 [determination of whether complaint is admissible] , nothing in this

section prevents any person who raises a question or concern about the conduct of a member or former member from making a complaint about the same matter under

section 78 [how complaints are made] .

Offence to harass, coerce or intimidate anyone questioning

or reporting police conduct or making a complaint

(1) A person must not harass, coerce or intimidate any other person in relation to any complaint or report concerning the conduct of a member or former member under this Part.

(2) A person who contravenes subsection (1) commits an offence.

Appointment of representative for complainants

(1) Subject to subsection (3), the police complaint commissioner may appoint a representative for a complainant as follows:

(

a) if the complainant is under 19 years of age, a parent or legal guardian or, if no parent or legal guardian is available or willing to act, a responsible adult;

(

b) if the police complaint commissioner considers that the complainant is unable to assert her or his rights under this Part because of age or a mental or physical condition, an adult of the complainant's choice or, if no such adult is identifiable, available or willing to act, a responsible adult;

(

c) if the complainant dies after making a complaint, the executor of the complainant or the administrator of the complainant's estate or, if no executor or administrator is available or willing to act, a responsible adult.

(2) A representative appointed under subsection (1) has all of the rights and responsibilities available under this Part to a complainant who is a competent adult.

(3) In deciding whether to appoint a representative under this section, the police complaint commissioner must consider

(

a) whether the complainant is capable of exercising the rights available under this Part to a complainant without the assistance of a representative, and

(

b) the wishes of the complainant.

Duty to preserve evidence relating to complaint or report

(1) A chief constable

(

a) must take every reasonable step to ensure that members of her or his municipal police department, on becoming aware of

(

i) a death or the suffering of serious harm or a reportable injury described in

section 89 (1) [reporting of death, serious harm and reportable injury, and mandatory external investigation in cases of death and serious harm] , or

(ii) a complaint or report concerning the conduct of a member or former member,

take any lawful measures that appear to them to be necessary or expedient for the purposes of obtaining and preserving evidence relating to the matter, and

(

b) may postpone notifying the member or former member whose conduct is the subject of the complaint or report until those measures are taken.

(2) Subsection (1) applies whether or not a determination has been made under

section 82 about the admissibility of the complaint under this Division.

Reporting of death, serious harm and reportable injury, and mandatory

external investigation in cases of death and serious harm

(1) A chief constable of a municipal police department must immediately report to the police complaint commissioner, in the form and manner required by the police complaint commissioner, if

(

a) a person dies or suffers serious harm or a reportable injury

(

i) while in the custody or care of a member of the municipal police department, or

(ii) as a result of the operations of that municipal police department, or

(

b) a person dies or suffers serious harm or a reportable injury and the death, serious harm or reportable injury could be seen to be the result of

(

i) the conduct of any member of the municipal police department, or

(ii) the operations of that municipal police department.

(2) Despite any other provision of this Part, if a person dies or suffers serious harm in circumstances described in subsection (1) (

a) or (b), the police complaint commissioner must direct that an investigation into the matter be conducted by either of the following as investigating officer:

(

a) a constable of an external police force who is appointed for the purpose of this

section by a chief constable, a chief officer or the commissioner, as the case may be, of the external police force;

(

b) a special provincial constable appointed for the purpose of this

section by the minister.

(3) In making an appointment under subsection (2) (b), the minister must consider the recommendations, if any, of the police complaint commissioner.

(4) The chief constable, chief officer or commissioner under subsection (2) (a)

(

a) may appoint only a constable who meets both of the following criteria:

(

i) the constable has no connection with the matter;

(ii) if the matter concerns the conduct of a member or former member, the constable's rank is equivalent to or higher than the rank of the member or former member,

(

b) must notify the police complaint commissioner of the appointment, and

(

c) must notify the police complaint commissioner of the reasons for any delay in initiating the investigation.

(5) The police complaint commissioner may establish guidelines respecting the criteria to be applied by a chief constable in determining whether an injury constitutes serious harm for the purposes of subsection (1), which guidelines may provide for a determination to be made by the police complaint commissioner on the matter.

If complaint not resolved informally, investigation must be initiated

(1) Subject to sections 89 [reporting of death, serious harm and reportable injury, and mandatory external investigation in cases of death and serious harm] , 91 [external investigation of chief constables] and 92 [external investigations when in public interest] , if an admissible complaint against a member or former member of a municipal police department is not resolved under Division 4 [Resolution of Complaints by Mediation or Other Informal Means] , a chief constable of that municipal police department must promptly

(

a) initiate an investigation into the matter or notify the police complaint commissioner of the reasons for any delay in initiating an investigation,

(

b) appoint a constable of the municipal police department as investigating officer in the investigation, and

(

c) notify the police complaint commissioner of the appointment under paragraph (b).

(2) The chief constable may appoint under subsection (1) (

b) only a constable who meets both of the following criteria:

(

a) the constable has no connection with the complaint;

(

b) the constable's rank is equivalent to or higher than the rank of the member or former member whose conduct is the subject of the complaint.

If complaint against chief constable not resolved informally,

external investigation must be initiated

(1) Despite

section 90 (1) [if complaint not resolved informally, investigation must be initiated] , if an admissible complaint against a chief constable or former chief constable of a municipal police department is not resolved under Division 4 [Resolution of Complaints by Mediation or Other Informal Means] , then the police complaint commissioner must direct that an investigation into the matter be conducted by either of the following as investigating officer:

(

a) a constable of an external police force who is appointed for the purpose of this

section by a chief constable, a chief officer or the commissioner, as the case may be, of the external police force;

(

b) a special provincial constable appointed for the purpose of this

section by the minister.

(2) In making an appointment under subsection (1) (b), the minister must consider the recommendations, if any, of the police complaint commissioner.

(3) A chief constable, a chief officer or the commissioner referred to in subsection (1) (a)

(

a) may appoint only a constable who meets both of the following criteria:

(

i) the constable has no connection with the complaint;

(ii) the constable's rank is equivalent to or higher than the rank of the chief constable or former chief constable whose conduct is the subject of the complaint,

(

b) must notify the police complaint commissioner of the appointment, and

(

c) must notify the police complaint commissioner of the reasons for any delay in initiating the investigation.

External investigations when in public interest

(1) Despite

section 90 (1), if at any time the police complaint commissioner considers that an external investigation of an admissible complaint against a member or former member of a municipal police department is necessary in the public interest, the police complaint commissioner may direct that the investigation be conducted by either of the following as investigating officer:

(

a) a constable of an external police force who is appointed for the purpose of this

section by a chief constable, a chief officer or the commissioner, as the case may be, of the external police force;

(

b) a special provincial constable appointed for the purpose of this

section by the minister.

(2) Despite

section 90 (1), but subject to the approval of the police complaint commissioner, if at any time a chief constable of a municipal police department considers that an external investigation of an admissible complaint against a member or former member of the municipal police department is necessary in the public interest, the chief constable may direct that the investigation be conducted by a constable of an external police force who is appointed for the purpose of this

section by a chief constable, a chief officer or the commissioner, as the case may be, of the external police force.

(3) The police complaint commissioner may, if the police complaint commissioner considers it necessary and appropriate, redirect an external investigation under subsection (2) to

(

a) a constable of another external police force who is appointed for the purpose of this

section by a chief constable, a chief officer or the commissioner, as the case may be, of the external police force, or

(

b) a special provincial constable appointed for the purpose of this

section by the minister.

(4) A chief constable, a chief officer or the commissioner referred to in subsection (1) (a), (2) or (3) (a)

(

a) may appoint only a constable who meets both of the following criteria:

(

i) the constable has no connection with the complaint;

(ii) the constable's rank is equivalent to or higher than the rank of the member or former member whose conduct is the subject of the complaint,

(

b) must notify the police complaint commissioner of the appointment, and

(

c) must notify the police complaint commissioner of the reasons for any delay in initiating the investigation.

(5) If, after an investigation by an investigating officer has been initiated,

(

a) the police complaint commissioner issues a direction under subsection (1) or a redirection under subsection (3), or

(

b) the chief constable referred to in subsection (2) issues a direction under subsection (2),

the investigating officer must promptly provide all records related to the investigation to the constable or special provincial constable appointed under subsection (1), (2) or (3), as the case may be.

(6) In making an appointment under subsection (1) (

b) or subsection (3) (b), the minister must consider the recommendations, if any, of the police complaint commissioner.

Independent power to order investigation,

whether or not complaint made

(1) Regardless of whether a complaint is made or registered under

section 78, if at any time information comes to the attention of the police complaint commissioner concerning the conduct of a person who, at the time of the conduct, was a member of a municipal police department and that conduct would, if substantiated, constitute misconduct, the police complaint commissioner may

(

a) order an investigation into the conduct of the member or former member, and

(

b) direct that the investigation into the matter be conducted under this Division by any of the following as investigating officer:

(

i) a constable of the municipal police department who has no connection with the matter and whose rank is equivalent to or higher than the rank of the member or former member whose conduct is the subject of the investigation;

(ii) a constable of an external police force who is appointed for the purpose of this

section by a chief constable, a chief officer or the commissioner, as the case may be, of the external police force;

(iii) a special provincial constable appointed for the purpose of this

section by the minister.

(2) In making an appointment under subsection (1) (b) (iii), the minister must consider the recommendations, if any, of the police complaint commissioner.

(3) The police complaint commissioner must notify the following persons, as applicable, of any direction made under subsection (1) (b) (ii) or (iii):

(

a) a chief constable of the member whose conduct is the subject of the investigation;

(

b) a chief constable of the municipal police department with which the former member was employed at the time of the conduct that is the subject of the investigation;

(

c) if the member whose conduct is the subject of the investigation is a chief constable or deputy chief constable of a municipal police department, the chair of the board of the municipal police department;

(

d) if the member whose conduct is the subject of the investigation was, at the time of the conduct, a chief constable or deputy chief constable of a municipal police department, the chair of the board of that municipal police department.

(4) A chief constable, a chief officer or the commissioner referred to in subsection (1) (b) (ii)

(

a) may appoint only a constable who meets both of the following criteria:

(

i) the constable has no connection with the matter being investigated under subsection (1) (b);

(ii) the constable's rank is equivalent to or higher than the rank of the member or former member whose conduct is the subject of the investigation,

(

b) must notify the police complaint commissioner of the appointment, and

(

c) must notify the police complaint commissioner of the reasons for any delay in initiating the investigation.

(5) On being notified under subsection (3) (

a) or (b), the chief constable must, subject to

section 88 (1) (b) [duty to preserve evidence relating to complaint or report] , notify the member or former member concerned that the police complaint commissioner has ordered an investigation under this section.

(6) On being notified under subsection (3) (

c) or (d), the chair of the board must, subject to subsection (7), notify the member or former member concerned that the police complaint commissioner has ordered an investigation under this section.

(7) The police complaint commissioner may direct the chair referred to in subsection (6) to postpone notifying the member or former member concerned until such time as the police complaint commissioner may direct.

(8) The chair must comply with the police complaint commissioner's direction under subsection (7).

(9) The police complaint commissioner may provide information respecting an investigation under this

section to any persons who, in the police complaint commissioner's opinion, have a direct interest in the matter.

(10) In providing information under subsection (9), the police complaint commissioner may sever any information that must or may be excepted from disclosure by the head of a public body under Division 2 of

Part 2 of the Freedom of Information and Protection of Privacy Act .

Withdrawal of complaint by complainant

(1) If a complainant chooses to withdraw a complaint made or registered under

section 78, the complainant must give notification to the police complaint commissioner in the form and manner required by the police complaint commissioner.

(2) If notification is received in accordance with subsection (1), the police complaint commissioner must accept that withdrawal, but the police complaint commissioner may order an investigation under

section 93 [independent power to order investigation] or continue to proceed with an ongoing investigation into the matter as if the investigation had been initiated under that section.

(3) The police complaint commissioner must notify the following of the withdrawal of a complaint under this

section and whether an investigation will be ordered or continued under subsection (2):

(

a) a chief constable of the member whose conduct was the subject of the complaint;

(

b) a chief constable of the municipal police department with which the former member was employed at the time of the conduct that was the subject of the complaint;

(

c) if the member whose conduct was the subject of the complaint is a chief constable or deputy chief constable of a municipal police department, the chair of the board of the municipal police department;

(

d) if the member whose conduct was the subject of the complaint was, at the time of the conduct, a chief constable or deputy chief constable of a municipal police department, the chair of the board of that municipal police department;

(

e) the investigating officer, if one had already been appointed to investigate the complaint.

(4) On being notified under subsection (3) (

a) or (b), the chief constable must, subject to

section 88 (1) (b) [duty to preserve evidence relating to complaint or report] , notify the member or former member concerned of the withdrawal of the complaint and, if applicable, that the police complaint commissioner has ordered or continued an investigation under this section.

(5) On being notified under subsection (3) (

c) or (d), the chair of the board must, subject to subsection (6), notify the member or former member concerned of the withdrawal of the complaint and, if applicable, that the police complaint commissioner has ordered or continued an investigation under this section.

(6) The police complaint commissioner may direct the chair referred to in subsection (5) to postpone notifying the member or former member concerned until such time as the police complaint commissioner may direct.

(7) The chair must comply with the police complaint commissioner's direction under subsection (6).

Confidentiality of investigations

(1) Except as otherwise provided under this Part, the police complaint commissioner may not disclose

(

a) that an investigation has been or may be initiated under this Part, or

(

b) any information relating to an investigation under this Part.

(2) Despite subsection (1), the police complaint commissioner may make a disclosure described in subsection (1) if she or he considers it in the public interest.

Police complaint commissioner entitled

to observe investigations

(1) At any time before an investigation is initiated under this Part or during the investigation, if the police complaint commissioner considers it in the public interest to do so, the police complaint commissioner may decide to

(

a) observe the investigation, or

(

b) designate an employee to observe and report on the investigation to the police complaint commissioner.

(2) The police complaint commissioner must notify the investigating officer of a decision under subsection (1).

Police complaint commissioner's powers

relating to investigation

(1) For the purposes of monitoring an investigation under this Part, the police complaint commissioner may

(

a) require the investigating officer to keep the police complaint commissioner or a designated observer informed of the progress of the investigation at times in addition to those required under

section 98 [investigating officer's duty to file reports] or more frequently than required under that section,

(

b) require the investigating officer to provide or copy to the police complaint commissioner or a designated observer any information or record related to the investigation, in the manner and form specified by the police complaint commissioner,

(

c) provide advice to the investigating officer or the discipline authority in respect of further investigative steps, and

(

d) subject to subsection (2), direct that further investigative steps be taken.

(2) A direction under subsection (1) (

d) may be made only after consulting with the investigating officer and the discipline authority concerned.

(3) An investigating officer must comply with every requirement of the police complaint commissioner under subsection (1) (

a) and (b).

(4) The discipline authority concerned must ensure that every direction of the police complaint commissioner under subsection (1) (

d) is carried out.

Investigating officer's duty to file reports

(1) Within 30 business days after the initiation of an investigation, the investigating officer must file a report with the discipline authority and the police complaint commissioner on the progress of the investigation.

(2) At least once every 20 business days after the date of the initial report under subsection (1) and for as long as the investigation continues, the investigating officer must file a follow-up report with the discipline authority and the police complaint commissioner on the progress of the investigation.

(3) The police complaint commissioner must provide a copy of each report filed under subsections (1) and (2) to the complainant, if any, and member or former member concerned, unless the police complaint commissioner considers that doing so would hinder the investigation.

(4) Within 10 business days after the conclusion of an investigation, the investigating officer must file a final investigation report with the discipline authority and the police complaint commissioner.

(5) The investigating officer must include the following in the final investigation report:

(

a) a brief account of the investigative steps taken;

(

b) a complete

summary of the relevant evidence;

(

c) a list of all witnesses interviewed by the investigating officer;

(

d) a list of all records related to the investigation;

(

e) the investigating officer's assessment of the evidence and analysis of the facts.

(6) The investigating officer must make available to the discipline authority and the police complaint commissioner all of the evidence and the records referenced in the final investigation report.

(7) The discipline authority or the police complaint commissioner, or both, may require the investigating officer to provide or copy to them any record in the list under subsection (5) (d), or any information that may be in such a record, and to do so within the time and in the manner and form that the discipline authority or police complaint commissioner may direct.

(8) An investigating officer must comply with every requirement and direction of the discipline authority or police complaint commissioner under subsection (7).

(9) Within 10 business days after receiving an investigating officer's final investigation report, the discipline authority, or the police complaint commissioner in consultation with the discipline authority, may reject that report and direct that further investigative steps be taken.

(10) An investigating officer must

(

a) promptly comply with a direction under subsection (9), and

(

b) resubmit a final investigation report to the discipline authority and the police complaint commissioner

(

i) within 5 business days after carrying out those steps, and

(ii) in accordance with subsection (5).

(11) The discipline authority must ensure that every direction under subsection (9) is carried out.

Investigations to be completed in 6 months

(1) An investigation into the conduct of a member or former member must be completed within 6 months after the date the investigation is initiated, unless

(

a) the police complaint commissioner grants one or more extensions under this section, or

(

b) the discipline authority directs further investigation under

section 115 [if member's or former member's request for further investigation is accepted] or 132 (2) [adjournment of discipline proceeding for further investigation] .

(2) The police complaint commissioner may grant an extension under this

section only if the police complaint commissioner is satisfied that one or more of the following applies:

(

a) new investigative leads are discovered that could not have been revealed with reasonable care;

(

b) the case or investigation is unusually complex;

(

c) an extension is in the public interest.

Investigation powers in relation to municipal police departments

(1) For the purposes of an investigation under this Part, the investigating officer is entitled to access at any reasonable time, without a warrant or any order,

(

a) the premises of a municipal police department,

(

b) any thing on or in the premises of a municipal police department, including, without limitation, any vehicle, equipment, device or other thing used or operated by a member or former member, and

(

c) any record in the custody or under the control of a municipal police department.

(2) The investigating officer may do one or more of the following for the purposes of the investigation:

(

a) bring along and use any equipment or materials required for the investigation;

(

b) inspect the premises and any thing at the premises;

(

c) take samples and conduct tests of any thing referred to in paragraph (b);

(

d) require that any place within the premises under paragraph (

b) not be disturbed for a reasonable period of time;

(

e) search for, or require a person employed by the municipal police board concerned to produce within a reasonable time, any record or thing in the person's possession or control that the investigating officer has reason to believe is relevant to the investigation, except a record that is subject to solicitor-client privilege or the disclosure of which

(

i) would be an offence under

an Act of Parliament, or

(ii) could reasonably be expected to do any of the things described in

section 15 (1) of the Freedom of Information and Protection of Privacy Act ;

(

f) inspect, copy or remove records or things described in paragraph (e);

(

g) use any data storage, processing or retrieval device or system used at or available to the premises under paragraph (

b) to produce, in readable form, any record, data or information that, subject to the exceptions set out in paragraph (e), the investigating officer has reason to believe is relevant to the investigation;

(

h) take photographs or recordings of any part of the premises under paragraph (b);

(

i) exercise other powers that may be necessary or incidental to conducting an investigation under this Part.

(3) On request by an investigating officer, a peace officer or any other person who has special, expert or professional knowledge may accompany and assist the investigating officer in the exercise of powers or performance of duties under this Part.

(4) Despite any other enactment and any claim of confidentiality or privilege, other than a claim based on solicitor-client privilege or any other exception described in subsection (2) (e), a person must promptly comply with a request or requirement that an investigating officer makes under this section.

(5) On application by the investigating officer and on notification to a chief constable of the municipal police department concerned or, if the investigation concerns the conduct of the chief constable, to the chair of the board of that municipal police department, a justice may issue an order authorizing the investigating officer to enter premises referred to in subsection (1) (a), search those premises or any thing referred to in subsection (1) (b), including a record, and exercise any of the powers set out in subsection (2) or (3) if the justice is satisfied by information under oath that there are reasonable grounds to suspect that

(

a) the investigating officer has been prevented from exercising a right of access under subsection (1) or a power under subsection (2) or (3), or

(

b) the investigating officer is likely to be prevented from exercising a right of access under subsection (1) or a power under subsection (2) or (3).

(7) An order under subsection (5) is valid for 20 business days or for a shorter period as may be specified in the order.

(8) In this section, "vehicle" includes a boat, a ship, a vessel, an aircraft, a train, a railway car or equipment, a motor vehicle, an all-terrain vehicle, a trailer or another movable structure.

Members' duty to cooperate with investigating officer,

answer questions and provide written statements

(1) A member must cooperate fully with an investigating officer conducting an investigation under this Part.

(2) Without limiting subsection (1), at any time during an investigation under this Part and as often as the investigating officer considers necessary, the investigating officer may request a member to do one or more of the following, and the member must fully comply with the request:

(

a) answer questions in respect of matters relevant to the investigation and attend at a place specified by the investigating officer to answer those questions;

(

b) provide the investigating officer with a written statement in respect of matters relevant to the investigation;

(

c) maintain confidentiality with respect to any aspect of an investigation, including the fact of being questioned under paragraph (

a) or being asked to provide a written statement under paragraph (b).

(3) A member requested to attend before an investigating officer must, if so requested by the investigating officer, confirm in writing that all answers and written statements provided by the member under subsection (2) are true and complete.

(4) Unless the discipline authority grants an extension under subsection (5), the member must comply with any request under subsection (2) within 5 business days after it is made.

(5) If satisfied that special circumstances exist, the discipline authority may extend the period within which the member must comply with a request under subsection (2).

Use of statements made to investigating officer

by members and former members

(1) A statement provided or an answer given during an investigation under this Part by a member or former member is inadmissible in evidence in court or in any other proceeding, except

(

a) in a discipline proceeding, public hearing or review on the record concerning the conduct under investigation,

(

b) in a prosecution for perjury in respect of sworn testimony,

(

c) in a prosecution for an offence under this Act, or

(

d) in an application for judicial review or an appeal from a decision with respect to that application.

(2) Subsection (1) applies also in respect of evidence of the existence of a request to make a statement under

section 101.

Investigation powers in relation to other premises

(1) A justice may, on application by the investigating officer without notice to any other person, issue an order in relation to any place, other than premises to which

section 100 (5) [investigation powers in relation to municipal police departments] applies, authorizing the investigating officer to enter the place for which the order is issued and to exercise any of the powers set out in the order if the justice is satisfied by information under oath that

(

a) the investigation relates to the conduct of a member or former member,

(

b) there are reasonable grounds to believe that the conduct would, if substantiated, constitute misconduct,

(

c) there are reasonable grounds to believe that there is in the place a record or thing that relates to the investigation, and

(

d) it is in the interests of the administration of justice to issue the order having regard to all relevant matters, including the nature of the place sought to be entered.

(2) An order under subsection (1) does not apply to a place used wholly or partly as a private dwelling unless

(

a) the investigating officer informs the justice that the order is being sought to authorize entry into a place used wholly or partly as a private dwelling, and

(

b) the justice issues the order specifically authorizing entry into the private dwelling.

(3) An order under subsection (1) may

(

a) authorize peace officers or other persons who have special, expert or professional knowledge to accompany and assist the investigating officer in the execution of the order, and

(4) An order under subsection (1) must be executed between 6 a.m. and 9 p.m., unless the order specifies otherwise.

(5) A justice may issue further orders under subsection (1).

(6) In this section, "private dwelling" means a structure that is used as a private residence, or a residential accommodation within any other structure.

Records or things removed

(1) In removing a record or other thing while acting under

section 100 (2) [investigation powers in relation to municipal police departments] or under an order issued under

section 100 (5) or 103 [investigation powers in relation to other premises] , an investigating officer must give a receipt to the person from whom the record or thing is removed.

(2) The investigating officer

(

a) may detain a record or thing referred to in subsection (1), and

(

b) must return within a reasonable time the record or thing detained under paragraph (

a) if satisfied that it is no longer required for the purposes of the investigation or a proceeding under this Part arising from the investigation.

(3) If the investigating officer has removed a record or thing under an order issued under

section 103 [investigation powers in relation to other premises] , the investigating officer, or a person designated by the investigating officer, must as soon as reasonably possible

(

a) bring the record or thing before a justice, or

(

b) make a report of the removal of the record or thing to a justice.

(4) The justice under subsection (3) (

a) or (

b) must do the following, as applicable:

(

a) if the justice is satisfied that the record or thing should be detained for the purposes of the investigation, or a proceeding under this Part arising from the investigation, order that the record or thing be detained in the care of one of the following until the conclusion of the investigation or proceeding, if any:

(

i) the investigating officer;

(ii) a person designated by the discipline authority;

(

b) in any other case, order that the record or thing be returned to the person from whom it was removed.

(5) On application by a person having an interest in a record or thing detained under subsection (2) (

a) or (4) (

a) and on reasonable notice to

(

a) the person from whom the record or thing was removed,

(

b) the investigating officer, and

(

c) any other person who has an apparent interest in the record or thing detained,

a justice may make an order for the examination, testing, inspection or copying of the record or thing.

(7) On application by a person having an interest in a record or thing detained under subsection (2) (

a) or (4) (

a) and on reasonable notice to

(

a) the person from whom the record or thing was removed,

(

b) the investigating officer, and

(

c) any other person who has an apparent interest in the record or thing detained,

a justice may make an order for the release of the record or thing to the person from whom it was removed, if it appears that the record or thing is no longer necessary for the purposes of the investigation or a proceeding under this Part arising from the investigation.

Copies admissible in evidence

105 A copy of a record or other thing that purports to be certified by the investigating officer, the discipline authority or the police complaint commissioner as being a true copy of the original is admissible in evidence and, in the absence of evidence to the contrary, has the same evidentiary value as the original would have if it were proved in the ordinary way.

Offence to hinder, delay, obstruct or interfere

with investigating officer

(1) A person must not knowingly hinder, delay, obstruct or interfere with an investigating officer acting under this Part.

(2) A person must not, in relation to a complaint or an investigation under this Part, provide to the police complaint commissioner or an investigating officer information that the person knows to be false or misleading.

(3) A person who contravenes subsection (1) or (2) commits an offence.

Duty of investigating officer to keep records and produce them

107 During an investigation of a member or former member under this Division, the discipline authority must ensure that the investigating officer

(

a) keep and maintain all records relevant to the investigation, and

(

b) produce them for the police complaint commissioner at the times and in the form and manner required by the police complaint commissioner.

Ongoing duty of investigating officer to report information

(1) If, during the course of an investigation,

(

a) information comes to the attention of an investigating officer concerning the conduct of a member or former member of a municipal police department,

(

b) the conduct is not the subject of the investigating officer's investigation, and

(

c) the conduct would constitute misconduct, if the information were substantiated,

the investigating officer must immediately report the information to a chief constable of that municipal police department, unless subsection (2) applies, and to the police complaint commissioner.

(2) If the conduct referred to in subsection (1) is that of the chief constable or former chief constable of the municipal police department, the investigating officer must immediately report the information to the chair of the board of that municipal police department.

Power to discontinue investigation

(1) Despite any other provision of this Act, the police complaint commissioner may direct that an investigation under this Division be discontinued if,

(

a) having regard to all the circumstances, the police complaint commissioner considers that further investigation is neither necessary nor reasonably practicable, or

(

b) in the case of an investigation initiated under an admissible complaint,

(

i) the police complaint commissioner is satisfied, as a result of information obtained after the complaint was determined to be admissible, that the complaint is frivolous or vexatious, or

(ii) the police complaint commissioner considers that the complaint was made with the knowledge that it was false or misleading.

(2) If a direction is made under subsection (1) in relation to a complaint, the police complaint commissioner must notify the following persons of the direction and the reasons for it:

(

a) the complainant;

(

b) the member or former member whose conduct was the subject of the complaint;

(

c) a chief constable of the municipal police department with which that member is employed or, in the case of a former member, a chief constable of the municipal police department with which the former member was employed at the time of the conduct of concern;

(

d) if the complaint concerned a chief constable or former chief constable of a municipal police department, the board of that municipal police department.

Member's reassignment or suspension

pending investigation and hearing

(1) If a member is being investigated under this Division or as a result of an allegation that the member committed an offence under a federal or provincial enactment, the discipline authority for that member may, until the completion of the investigation, reassign, transfer or suspend the member, if both of the following apply:

(

a) the discipline authority considers that

(

i) reassignment, transfer or suspension of the member is needed to protect other members or other persons from the risk of harm,

(ii) failure to reassign, transfer or suspend the member is likely to discredit the reputation of the municipal police department, or

(iii) there are reasonable grounds to believe that the member is incapable of carrying out her or his regular duties as a constable;

(

b) the discipline authority considers that there is no reasonable alternative available to reassignment, transfer or suspension.

(2) During a period of suspension from duty, the member must not exercise powers as a municipal constable, chief constable or deputy chief constable and must not wear the uniform or use the equipment of the municipal police department.

(3) At the earliest opportunity, and in any event within 10 business days after the suspension, the discipline authority must decide whether the suspension is to continue in effect or is to be rescinded with or without conditions.

(4) Unless subsection (5) applies, a member under suspension for a period within which that member, if not suspended, would have worked one or more days must receive her or his pay and allowances for the number of days that she or he could have worked during the period of suspension had the suspension not been imposed.

(5) If at any time the board decides that it is in the public interest, the board may require that a suspension under subsection (1) be without pay or may discontinue the pay and allowances of the member under suspension.

(6) Before the board makes a decision under subsection (5), the board must give the member an opportunity to be heard by

(

a) notifying the member in writing of the member's right to request, within 5 business days after receiving the notification, an opportunity to be heard, and

(

b) giving the member the opportunity to be heard within 20 business days of receiving the request under paragraph (a).

(7) If the board makes a decision under subsection (5), the board must give the member concerned written reasons for the decision.

(8) The board may reconsider a decision under subsection (5) at any time.

(9) A member must receive her or his full pay and allowances for any unpaid period of suspension if all of the following apply:

(

a) the suspension related to an investigation resulting from an allegation that she or he committed an offence under a federal or provincial enactment;

(

b) the member is either acquitted of all charges in proceedings before a criminal court or the charges are withdrawn, stayed or otherwise not proceeded with;

(

c) no disciplinary or corrective measures are taken in relation to the member for the acts or omissions that constituted the alleged offence.

If police complaint commissioner considers that member

or former member has committed offence

111 If the police complaint commissioner considers that the conduct of the member or former member under investigation may constitute an offence created under any enactment, including an enactment of Canada or another province, the police complaint commissioner may report the matter to Crown counsel.

Discipline authority to review final investigation report

and give early notice of next steps

(1) Within 10 business days after receiving an investigating officer's final investigation report in respect of the conduct of a member or former member, the discipline authority must

(

a) review the report and the evidence and records referenced in it,

(

b) subject to subsection (6), provide

(

i) the complainant, if any, with a copy of the final investigation report, and

(ii) the member or former member with a copy of the final investigation report and the evidence and records referenced in it, and

(

c) notify the complainant, if any, the member or former member, the police complaint commissioner and the investigating officer of the next applicable steps to be taken in accordance with this section.

(2) Notification under subsection (1) (

c) must be in writing and include the following, as applicable:

(

a) a description of the complaint, if any, and any conduct of concern;

(

b) a statement of a complainant's right to make submissions under

section 113 [complainant's right to make submissions] ;

(

c) a list or description of each allegation of misconduct considered by the discipline authority;

(

d) if subsection (3) applies, the discipline authority's determination as to the following:

(

i) whether or not, in relation to each allegation of misconduct considered by the discipline authority, the evidence referenced in the report appears to substantiate the allegation and require the taking of disciplinary or corrective measures;

(ii) whether or not a prehearing conference will be offered to the member or former member under

section 120 [prehearing conference] ;

(iii) the range of disciplinary or corrective measures being considered by the discipline authority in the case;

(

e) if subsection (4) applies, a statement that

(

i) the complainant, if any, may file with the police complaint commissioner a written request for an appointment under

section 117 [appointment of new discipline authority if conclusion of no misconduct is incorrect] , and

(ii) includes the effect of subsection (5) of this section.

(3) If, on review of the report and the evidence and records referenced in it, the discipline authority considers that the conduct of the member or former member appears to constitute misconduct, the discipline authority must convene a discipline proceeding in respect of the matter, unless

section 120 (16) [prehearing conference] applies.

(4) If, on review of the report and the evidence and records referenced in it, the discipline authority decides that the conduct of the member or former member does not constitute misconduct, the discipline authority must include that decision, with reasons, in the notification under subsection (1) (c).

(5) The discipline authority's decision under subsection (4)

(

a) is not open to question or review by a court on any ground, and

(

b) is final and conclusive, unless the police complaint commissioner appoints a retired judge under

section 117 (1) [appointment of new discipline authority if conclusion of no misconduct is incorrect] .

(6) The discipline authority may sever from the copy of the final investigation report to be provided under subsection (1) (

b) any portions of that report that must or may be excepted from disclosure by the head of a public body under Division 2 of

Part 2 of the Freedom of Information and Protection of Privacy Act .

(7) Within 10 business days after receiving the copy of the final investigation report referred to in subsection (1) (b), the complainant or member or former member concerned may apply to the police complaint commissioner for disclosure of all or part of the information that was severed from the report.

(8) The police complaint commissioner may disclose information requested under subsection (7) only if the police complaint commissioner considers that

(

a) disclosure is necessary for the applicant to pursue rights granted by this Act, and

(

b) disclosure is appropriate having regard to

Part 2 of the Freedom of Information and Protection of Privacy Act .

Complainant's right to make submissions

(1) At any time after receiving a copy of the investigating officer's final investigation report under

section 112 (1) (b) (i) [discipline authority to review final investigation report and give early notice of next steps] or a supplementary report under

section 116 (1) (b) (i) [discipline authority to review supplementary report and give notice of next steps] , but at least 10 business days before the date of the discipline proceeding specified in the notice under

section 123 (1) (b) [matters related to discipline proceeding] , the complainant may make written or oral submissions, or both, to the discipline authority in relation to one or more of the following matters:

(

a) the complaint;

(

b) the adequacy of the investigation;

(

c) the disciplinary or corrective measures that would be appropriate.

(2) Subsection (1) does not apply if

(

a) a discipline authority decides under

section 112 (4) [discipline authority to review final investigation report and give early notice of next steps] or 116 (4) [discipline authority to review supplementary report and give notice of next steps] that the conduct of the member or former member concerned does not constitute misconduct, and

(

b) the decision is final and conclusive under

section 112 (5) [discipline authority to review final investigation report and give early notice of next steps] or 116 (5) [discipline authority to review supplementary report and give notice of next steps] .

(3) If oral submissions are made under subsection (1), the discipline authority must have a transcript of those submissions made.

(4) On receiving written submissions or having a transcript made under this section, the discipline authority must provide each of the following with a copy of those written submissions and any transcripts:

(

a) the complainant;

(

b) the member or former member whose conduct is the subject of the complaint;

(

c) the investigating officer;

(

d) the police complaint commissioner.

(5) Written submissions and transcripts made under this

section form part of the record of proceedings under this Part that may be held in relation to the conduct that is the subject of the complainant's complaint.

Member or former member may request further investigation

(1) Within 10 business days after receiving a copy of the final investigation report referred to in

section 112 (1) [discipline authority to review final investigation report and give early notice of next steps] , the member or former member whose conduct is the subject of the investigation may file with the discipline authority a request for further investigation in accordance with this section.

(2) A request filed under subsection (1) must

(

a) be in writing, and

(

b) include

(

i) reasons for the request,

(ii) a description of further investigative steps that should be taken,

(iii) if the member or former member considers that relevant witnesses, other than those listed in the final investigation report, should be interviewed by the investigating officer, the names of those witnesses and their contact information, if known, and

(iv) if the member or former member considers that relevant records or other evidence, other than any referred to in the final investigation report, should be reviewed by the investigating officer, a list of those records and that evidence and where they are located, if known.

(3) On receipt of a request under subsection (1), the discipline authority must immediately provide a copy of the request to the police complaint commissioner.

(4) Within 10 business days after receiving the member's or former member's request, the discipline authority must

(

a) decide whether to accept or reject the request, and

(

b) give notice of that decision, with written reasons, to the member or former member, the police complaint commissioner, the investigating officer and, subject to subsection (6), the complainant, if any.

(5) The discipline authority may accept the member's or former member's request only if the discipline authority is satisfied that

(

a) taking any of the further investigative steps described in the request may assist in ensuring that the investigation is complete, or

(

b) one or more of the witnesses named in the request, or the records or evidence listed in the request, may be material in determining whether any conduct of concern constitutes misconduct.

(6) The discipline authority may sever from the notice of decision to be provided to a complainant under subsection (4) (

b) any portions of that notice that must or may be excepted from disclosure by the head of a public body under Division 2 of

Part 2 of the Freedom of Information and Protection of Privacy Act .

(7) Within 10 business days after receiving the notice of decision referred to in subsection (4) (b), the complainant may apply to the police complaint commissioner for disclosure of all or part of the information that was severed.

(8) The police complaint commissioner may disclose information requested under subsection (7) only if the police complaint commissioner considers that

(

a) disclosure is necessary for the applicant to pursue rights granted by this Act, and

(

b) disclosure is appropriate having regard to

Part 2 of the Freedom of Information and Protection of Privacy Act .

If member's or former member's request for

further investigation is accepted

(1) If a discipline authority decides to accept a member's or former member's request under

section 114 [member or former member may request further investigation] , the discipline authority may direct the investigating officer to further investigate in respect of the matter.

(2) The investigating officer must

(

a) comply with a discipline authority's direction under subsection (1) within 15 business days after the direction is issued,

(

b) prepare a supplementary investigation report on the matter, including all of the following in relation to the investigation conducted under this section:

(

i) a brief account of the investigative steps taken;

(ii) a complete

summary of the relevant evidence;

(iii) a list of all witnesses interviewed by the investigating officer;

(iv) a list of all records related to the investigation;

(

v) the investigating officer's assessment of the evidence and analysis of the facts, and

(

c) file the supplementary investigation report with the discipline authority and the police complaint commissioner within 20 business days after the direction is issued.

(3) The investigating officer must make available to the discipline authority and the police complaint commissioner all of the evidence and the records referenced in the supplementary report.

Discipline authority to review supplementary report

and give notice of next steps

(1) Within 10 business days after receiving an investigating officer's supplementary report in respect of the conduct of a member or former member, the discipline authority must

(

a) review the supplementary report and the evidence and records referenced in it,

(

b) subject to subsection (6), provide

(

i) the complainant, if any, with a copy of the supplementary report, and

(ii) the member or former member with a copy of the supplementary report and the evidence and records referenced in it, and

(

c) notify the complainant, if any, the member or former member, the police complaint commissioner and the investigating officer of the next applicable steps to be taken in accordance with this section.

(2) Notification under subsection (1) (

c) must be in writing and include the following, as applicable:

(

a) a description of the complaint, if any, and any conduct of concern;

(

b) a statement of a complainant's right to make submissions under

section 113 [complainant's right to make submissions] ;

(

c) a list or description of each allegation of misconduct considered by the discipline authority;

(

d) if subsection (3) applies, the discipline authority's determination as to the following:

(

i) whether or not, in relation to each allegation of misconduct considered by the discipline authority, the evidence referenced in the report appears to substantiate the allegation and require the taking of disciplinary or corrective measures;

(ii) whether or not a prehearing conference will be offered to the member or former member under

section 120 [prehearing conference] ;

(iii) the range of disciplinary or corrective measures being considered by the discipline authority in the case;

(

e) if subsection (4) applies, a statement that

(

i) the complainant, if any, may file with the police complaint commissioner a written request for an appointment under

section 117 (1) [appointment of new discipline authority if conclusion of no misconduct is incorrect] , and

(ii) includes the effect of subsection (5) of this section.

(3) If, on review of the supplementary report and the evidence and records referenced in it, the discipline authority continues to consider that the conduct of the member or former member appears to constitute misconduct, the discipline authority must convene a discipline proceeding in respect of the matter, unless

section 120 (16) [prehearing conference] applies.

(4) If, on review of the report and the evidence and records referenced in it, the discipline authority decides that the conduct of the member or former member does not constitute misconduct, the discipline authority must

(

a) include that decision, with reasons, in the notification under subsection (1) (c), and

(

b) cancel the discipline proceeding.

(5) The discipline authority's decision under subsection (4)

(

a) is not open to question or review by a court on any ground, and

(

b) is final and conclusive, unless the police complaint commissioner appoints a retired judge under

section 117 (1) [appointment of new discipline authority if conclusion of no misconduct is incorrect] .

(6) The discipline authority may sever from the copy of the supplementary report to be provided under subsection (1) (

b) any portions of that report that must or may be excepted from disclosure by the head of a public body under Division 2 of

Part 2 of the Freedom of Information and Protection of Privacy Act .

(7) Within 10 business days after receiving the copy of the supplementary report referred to in subsection (1) (b), the complainant or member or former member concerned may apply to the police complaint commissioner for disclosure of all or part of the information that was severed from the report.

(8) The police complaint commissioner may disclose information requested under subsection (7) only if the police complaint commissioner considers that

(

a) disclosure is necessary for the applicant to pursue rights granted by this Act, and

(

b) disclosure is appropriate having regard to

Part 2 of the Freedom of Information and Protection of Privacy Act .

Appointment of new discipline authority if conclusion

of no misconduct is incorrect

(1) If, on review of a discipline authority's decision under

section 112 (4) [discipline authority to review final investigation report and give early notice of next steps] or 116 (4) [discipline authority to review supplementary report and give notice of next steps] that conduct of a member or former member does not constitute misconduct, the police complaint commissioner considers that there is a reasonable basis to believe that the decision is incorrect, the police complaint commissioner may appoint a retired judge recommended under subsection (4) of this

section to do the following:

(

a) review the investigating officer's report referred to in

section 112 or 116, as the case may be, and the evidence and records referenced in that report;

(

b) make her or his own decision on the matter;

(

c) if subsection (9) of this

section applies, exercise the powers and perform the duties of discipline authority in respect of the matter for the purposes of this Division.

(2) A complainant seeking an appointment under subsection (1) must file a written request with the police complaint commissioner within 10 business days after receiving the notification under

section 112 (1) (c) [discipline authority to review final investigation report and give early notice of next steps] or 116 (1) (c) [discipline authority to review supplementary report and give notice of next steps] .

(3) An appointment under subsection (1) must be made within 20 business days after receiving the notification under

section 112 (1) (c) [discipline authority to review final investigation report and give early notice of next steps] or 116 (1) (c) [discipline authority to review supplementary report and give notice of next steps] .

(4) The police complaint commissioner must request the Associate Chief Justice of the Supreme Court to

(

a) consult with retired judges of the Provincial Court, the Supreme Court and the Court of Appeal, and

(

b) recommend one or more retired judges for the purposes of this section.

(5) The police complaint commissioner must notify all of the following, as applicable, of an appointment under this section:

(

a) the complainant, if any;

(

b) the member or former member whose conduct is to be the subject of the review;

(

c) a chief constable of the municipal police department with which the member is employed or former member was employed at the time of the conduct of concern;

(

d) the board of the municipal police department referred to in paragraph (c);

(

e) the investigating officer;

(

f) the retired judge appointed.

(6) The police complaint commissioner must provide the retired judge appointed with copies of all reports under sections 98 [investigating officer's duty to file reports] , 115 [if member's or former member's request for further investigation is accepted] and 132 [adjournment of discipline proceeding for further investigation] that may have been filed with the police complaint commissioner before the appointment.

(7) Within 10 business days after receiving the reports under subsection (6), the retired judge appointed must conduct the review described in subsection (1) (

a) and notify the complainant, if any, the member or former member, the police complaint commissioner and the investigating officer of the next applicable steps to be taken in accordance with this section.

(8) Notification under subsection (7) must include

(

a) a description of the complaint, if any, and any conduct of concern,

(

b) a statement of a complainant's right to make submissions under

section 113 [complainant's right to make submissions] ,

(

c) a list or description of each allegation of misconduct considered by the retired judge,

(

d) if subsection (9) applies, the retired judge's determination as to the following:

(

i) whether or not, in relation to each allegation of misconduct considered by the retired judge, the evidence referenced in the report appears sufficient to substantiate the allegation and require the taking of disciplinary or corrective measures;

(ii) whether or not a prehearing conference will be offered to the member or former member under

section 120 [prehearing conference] ;

(iii) the range of disciplinary or corrective measures being considered by the retired judge in the case, and

(

e) if subsection (10) applies, a statement that includes the effect of subsection (11).

(9) If, on review of the investigating officer's reports and the evidence and records referenced in them, the retired judge appointed considers that the conduct of the member or former member appears to constitute misconduct, the retired judge becomes the discipline authority in respect of the matter and must convene a discipline proceeding, unless

section 120 (16) [prehearing conference] applies.

(10) If, on review of the report and the evidence and records referenced in it, the retired judge decides that the conduct of the member or former member does not constitute misconduct, the retired judge must include that decision, with reasons, in the notification under subsection (7).

(11) The retired judge's decision under subsection (10)

(

a) is not open to question or review by a court on any ground, and

(

b) is final and conclusive.

Discipline proceeding to be convened within 40 business days after receiving investigation report or police complaint commissioner's notification

(1) A discipline authority required to convene a discipline proceeding under

section 112 (3) [discipline authority to review final investigation report and give early notice of next steps] , 116 (3) [discipline authority to review supplementary report and give notice of next steps] or 117 (9) [appointment of new discipline authority if conclusion of no misconduct is incorrect] must convene the discipline proceeding within 40 business days after receiving the investigating officer's final investigation report or supplementary report, or a notification of misconduct under

section 117 (8) (d), as the case may be, unless the police complaint commissioner grants one or more extensions under this section.

(2) The police complaint commissioner may grant an extension under this

section only if the police complaint commissioner is satisfied

(

a) that the circumstances are exceptional, and

(

b) that

(

i) an extension is necessary to ensure a just determination of the matter, or

(ii) an extension is in the public interest.

Member or former member may request permission

to question witnesses at discipline proceeding

(1) Within 10 business days after receiving

(

a) a copy of the final investigation report referred to in

section 112 (1) [discipline authority to review final investigation report and give early notice of next steps] ,

(

b) a copy of the supplementary report referred to in

section 116 (1) [discipline authority to review supplementary report and give notice of next steps] , or

(

c) a notification of misconduct under

section 117 (8) (d) [appointment of new discipline authority if conclusion of no misconduct is incorrect] ,

a member or former member whose conduct is the subject of a discipline proceeding may file with the discipline authority a request to call and examine or cross-examine at the discipline proceeding one or more witnesses listed in that final investigation report or supplementary report.

(2) A request under subsection (1) must

(

a) be in writing, and

(

b) include the names of witnesses requested and reasons for the request.

(3) Within 5 business days after receiving the member's or former member's request under subsection (1), the discipline authority must

(

a) decide whether to accept or reject the request, in whole or in part, and

(

b) give notice of that decision, with written reasons, to the member or former member, the police complaint commissioner and the investigating officer.

(4) The discipline authority may accept the member's or former member's request only if either or both of the following apply:

(

a) the discipline authority considers that

(

i) the evidence against the member appears sufficient to warrant dismissal or a reduction in rank, or

(ii) in the case of a former member, the evidence against the former member would have been sufficient to warrant dismissal or a reduction in rank;

(

b) the discipline authority is satisfied that

(

i) there is an apparent conflict between the evidence of 2 or more witnesses,

(ii) the evidence referred to in subparagraph (

i) is material in determining whether any conduct of concern constitutes misconduct, and

(iii) examination or cross-examination of the witnesses referred to in subparagraph (

i) would assist in resolving the conflict.

Prehearing conference

(1) In this section, "prehearing conference authority" , in relation to a member or former member of a municipal police department, means

(

a) a chief constable, a deputy chief constable or a senior officer of the municipal police department, or

(

b) a chief constable, a deputy chief constable or a senior officer of another municipal police department.

(2) Subject to the exceptions set out in subsection (3), if the discipline authority

(

a) considers that the evidence referenced in the final investigation report or any supplementary report appears to substantiate an allegation of misconduct and require the taking of disciplinary or corrective measures, and

(

b) has complied with

section 112 [discipline authority to review final investigation report and give early notice of next steps] and, if applicable,

section 116 [discipline authority to review supplementary report and give notice of next steps] ,

the discipline authority may offer the member or former member a confidential, without prejudice, prehearing conference with a prehearing conference authority to determine whether the member or former member is prepared to admit misconduct and, if so, what disciplinary or corrective measures the member or former member is prepared to accept.

(3) Subject to subsection (4), a discipline authority must not offer a prehearing conference to a member or former member under this

section if

(

a) the discipline authority decides to accept the member's or former member's request under

section 119 [member or former member may request permission to question witnesses at discipline proceeding] , or

(

b) the discipline authority concludes that

(

i) the evidence against the member is sufficiently serious to warrant dismissal or reduction in rank or, in the case of a former member, is sufficiently serious to have warranted dismissal or reduction in rank, or

(ii) a prehearing conference would be contrary to the public interest.

(4) Despite subsection (3) (b) (ii) (i) , the discipline authority may offer a prehearing conference to a member or former member if, in the police complaint commissioner's opinion, it would not be contrary to the public interest.

(5) A member or former member who accepts an offer for a prehearing conference under this

section may be accompanied at the prehearing conference by one or both of the following:

(

a) the member's or former member's agent;

(

b) the member's or former member's legal counsel.

(6) If

(

a) a member or former member accepts an offer for a prehearing conference under this section, and

(

b) a complainant has been notified under

section 112 (1) (c) [discipline authority to review final investigation report and give early notice of next steps] or 116 (1) (c) [discipline authority to review supplementary report and give notice of next steps] but the complainant has not yet exercised her or his right to make submissions to the discipline authority under

section 113 [complainant's right to make submissions] ,

the discipline authority must notify the complainant in writing of the complainant's right to make written or oral submissions, or both, respecting the matters referred to in

section 113 (1) (

a) to (c) [complainant's right to make submissions] .

(7) Despite

section 113 (1) [complainant's right to make submissions] , submissions referred to in subsection (6) of this

section must be made

(

a) to the prehearing conference authority, and

(

b) within 10 business days after the complainant receives notification under subsection (6) of this section.

(8) Section 113 (2) and (4) [complainant's right to make submissions] applies in relation to submissions made under this

section except that the references to "discipline authority" in

section 113 (2) and (4) must be read as references to "prehearing conference authority".

(9) On receiving written submissions or having a transcript of oral submissions made, the prehearing conference authority must provide each of the following with a copy of those written submissions and any transcripts:

(

a) the complainant;

(

b) the member or former member whose conduct is the subject of the complaint;

(

c) the police complaint commissioner;

(

d) the investigating officer;

(

e) the discipline authority.

(10) If subsection (6) applies, the prehearing conference may not be held before the expiry of the period described in subsection (7) (b).

(11) A prehearing conference authority must apply

section 126 [imposition of disciplinary or corrective measures] in proposing, determining and approving any disciplinary or corrective measures under this section.

(12) If disciplinary or corrective measures are accepted by a member or former member and approved by the prehearing conference authority at a prehearing conference, the prehearing conference authority must, within 10 business days after the prehearing conference, provide the complainant, if any, the member or former member, the police complaint commissioner and the discipline authority with a report that includes all of the following, subject to subsection (13):

(

a) the disciplinary or corrective measures accepted and approved for each allegation of misconduct and the reasons for approving those measures;

(

b) any recommendations in respect of changes in policy or practices of the member's or former member's municipal police department and the reasons for those recommendations;

(

c) any noted aggravating and mitigating factors in the case;

(

d) a statement of the effect of subsection (16).

(13) The prehearing conference authority may sever from the report to be provided to a complainant under subsection (12) any portions of that report that must or may be excepted from disclosure by the head of a public body under Division 2 of

Part 2 of the Freedom of Information and Protection of Privacy Act .

(14) Within 10 business days after receiving the report referred to in subsection (12), the complainant may apply to the police complaint commissioner for disclosure of all or part of the information that was severed from the report.

(15) The police complaint commissioner may disclose information requested under subsection (14) only if the police complaint commissioner considers that

(

a) disclosure is necessary for the applicant to pursue rights granted by this Act, and

(

b) disclosure is appropriate having regard to

Part 2 of the Freedom of Information and Protection of Privacy Act .

(16) On approval by the police complaint commissioner, disciplinary or corrective measures accepted by a member or former member and approved by a prehearing conference authority at a prehearing conference constitute a resolution of the matter, which resolution is final and conclusive and not open to question or review by a court on any ground.

(17) If the resolution is approved by the police complaint commissioner under subsection (16),

(

a) the police complaint commissioner must notify the following of that approval:

(

i) the complainant, if any;

(ii) the member or former member concerned;

(iii) the discipline authority;

(iv) the prehearing conference authority, and

(

b) the discipline authority must record, on the member's or former member's service record of discipline, the member's or former member's admission, any disciplinary or corrective measures approved and the fact that the measures were voluntarily accepted by the member or former member.

If member's or former member's request

to question witnesses is accepted

(1) If the discipline authority decides to accept the member's or former member's request under

section 119 [member or former member may request permission to question witnesses at discipline proceeding] , the discipline authority must do the following:

(

a) appoint a member or legal counsel to present to the discipline authority at the discipline proceeding the case relative to the alleged misconduct of the member or former member;

(

b) in accordance with the regulations, if any, under

section 184 (2) (d) [regulations under Parts 9 and 11] , serve the witnesses named in the request with a notice to appear, in the prescribed form, requiring the witness to appear at the discipline proceeding to

(

i) give evidence on oath, and

(ii) bring to the discipline proceeding

(

A) any record specified in the notice to appear, and

(

B) any record that may be relevant and is in the witness's possession or control;

(

c) withdraw any offer of a prehearing conference that may have been made to the member or former member concerned and cancel that prehearing conference.

(2) On request of the discipline representative, the discipline authority may serve a notice to appear described in subsection (1) (

b) on any other witness listed in the final investigation report.

(3) The discipline authority must forward copies of the notices to appear served under subsection (1) (

b) or (2) to

(

a) the member or former member concerned or her or his agent or legal counsel,

(

b) the discipline representative, and

(

c) the police complaint commissioner.

(4) A discipline authority may apply to the Supreme Court for an order directing a witness to comply with a notice to appear served on the witness under this section.

Fees and expenses of witnesses

(1) Subject to subsection (4) and the regulations, if any, made under

section 184 (2) (e) [regulations under Parts 9 and 11] , a discipline authority

(

a) must pay, as part of the expenses of a discipline proceeding, appearance fees and expenses reasonably and necessarily incurred by a witness required to give evidence at the discipline proceeding, and

(

b) may require the member or former member whose conduct is the subject of the discipline proceeding to pay all or part of the fees and expenses referred to in paragraph (

a) if the witness is named in the request of the member under

section 119 (2) (b) [member or former member may request permission to question witnesses at discipline proceeding] .

(2) A discipline authority may apportion fees and expenses under subsection (1) between the member or former member concerned and the expenses of the discipline proceeding.

(3) Subject to the regulations, a discipline authority may give directions to the member or former member concerned respecting appearance fees and expenses reasonably and necessarily incurred by a witness.

(4) A witness is responsible for paying fees and expenses the witness incurs for legal representation or advice in relation to the discipline proceeding.

Matters related to discipline proceeding

(1) Subject to subsections (3) and (4), if a prehearing conference is not offered or held under

section 120 or, if held, does not result in a resolution of each allegation of misconduct against the member or former member concerned, the discipline authority must