STAFF REPORT

February 1, 2000

To: Policy and Finance Committee

From: City Solicitor

Subject: Amendments to the Police Services Act to Restrain Civil Litigation against Council Members and a Survey of Harassment Provisions Contained in the Criminal Code

Purpose:

The purpose of this report is to respond to a request made by City Council for a report to the Policy and Finance Committee on the subjects identified above.

Financial Implications and Impact Statement:

There are no financial implications from receipt of this report.

Recommendations:

It is recommended that this report be received for information.

Background:

At its meeting held on January 27, 2000, City Council requested that the City Solicitor submit a report to the Policy and Finance Committee on two issues arising from the activities of the Toronto Police Association. First, it requested a report on how the Police Services Act (the "Act") could be amended to respond to concerns raised by several City Councillors regarding civil litigation being initiated against City Councillors. Second, a report was requested regarding any provisions of the Criminal Code (the "Code") that address harassment of federal and municipal elected officials.

Comments:

On January 27, 2000, City Council considered a variety of issues in relation to the "True Blue" campaign initiated by the Toronto Police Association and the initiation of a lawsuit by the Toronto Police Association against a former member of City Council for actions taken by that Councillor in her role as a member of the Toronto Police Services Board.

In light of the Association's actions, City Council requested that the City Solicitor report to the Policy and Finance Committee on the two issues identified above. My response is as follows:

1. Amendments to the Police Services Act

Any amendment to the Act would require action to be taken by the provincial government. Therefore, if City Council wished to pursue an amendment to that statute that would restrict the Toronto Police Association or its members from initiating lawsuits against members of City Council for actions undertaken in their official capacity, a request for that amendment would have to be made to the provincial government.

Although such a request could be made to the provincial government, there are a number of issues that might arise in respect to such a request. First, legislatively restricting a person's exercise of a legal right, including that of police association, may not be viewed as a desirable goal. This type of legislation might also raise issues under the Canadian Charter of Rights and Freedoms given the potential restriction on a person's legal rights and the differential treatment that would result for some persons with respect to the exercise of such rights.

It should also be noted that the mere initiation of a lawsuit does not ensure the success of the lawsuit. It is entirely possible that any lawsuit initiated against a member of Council would fail and the unsuccessful plaintiff would bear the legal costs of the successful defendant. Therefore, there are potential sanctions and costs for the initiation of unsuccessful lawsuits that may, in themselves, inhibit lawsuits of questionable validity

2. Provisions of the Criminal Code

There are a number of provisions contained in the Code that attempt to address acts of harassment and intimidation. Most of these provisions are generic in nature and do not specifically address harassment and intimidation of public officials and, in particular, municipal officials. Briefly, the relevant provisions are as follows:

· Section 51 of the Code creates an offence for committing an act of violence to intimidate Parliament or the provincial legislature.

· Section 264 of the Code establishes prohibitions against criminal harassment. Essentially it prohibits a person, without lawful authority, who knows that another person is being harassed or is reckless as to whether the other person is being harassed, from engaging in various forms of conduct that cause the other person to reasonably fear for his or her safety or the safety of anyone known to them. This conduct consists of repeatedly following the person or anyone known to them from place to place, repeatedly communicating with the person or anyone known to them either directly or indirectly, besetting or watching the home or work place of the person or anyone known to them and engaging in threatening conduct directed at the person or any member of the persons family.

· Section 346 of the Code creates the offence of extortion. The offence occurs when anyone, without reasonable justification or excuse, with intent to obtain anything by threats, accusations, menace or violence, induces or attempts to induce a person to do anything or cause anything to be done. Subsection 346(2) specifically exempts a threat to institute civil proceedings from the ambit of the offence.

· Section 423 of the Code prohibits specified types of intimidation, when done wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that that person has a lawful right to do or refrain from doing. The actions that are prohibited include using violence or threats of violence to the person, intimidating the person or his or her family by threat of violence or injury to the person, his or her family or property, persistently following the person, besetting or watching the home or work place of that person.

Thus, there are a number of provisions contained in the Code which attempt to address harassment and intimidation. In order to convict a person for engaging in the prohibited conduct, proof beyond a reasonable doubt would have to be established in court.

Conclusions:

An amendment to the Act to restrict the right of members of the Police Service or the Police Association to initiate civil litigation against City Councillors could be requested from the provincial government. There may be various public policy considerations that would effect the desirability of enacting that type of legislation.

There are various provisions in the Code that deal with harassment and intimidation. Most of these provisions are general in scope and, in order to obtain a conviction for these forms of criminal activity, proof beyond a reasonable doubt would have to be established in court.

Contact:

Albert H. Cohen

Director, Litigation

Legal Division

Telephone 392-8041

Fax: 397-5624

e-mail: ACohen0@toronto.ca

H.W.O. Doyle

City Solicitor