Bill 88, Private Investigators and Security Guards Amendment Act, 2004

Versions

Bill 88 2004

An Act to amend
the Private Investigators
and Security Guards Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

1. The Private Investigators and Security Guards Act is amended by adding the following heading immediately before section 1:

Definitions, Application and Administration of Act

2. Section 1 of the Act, as amended by the Statutes of Ontario, 1997, chapter 39, section 13, is amended by adding the following definitions:

"Commission" means the Private Investigators and Security Guards Complaints Commission established under section 31.2; ("Commission")

"inspector" means an inspector appointed under section 31.4; ("inspecteur")

3. Clauses 2 (1) (c) and (g) of the Act are repealed.

4. The Act is amended by adding the following heading immediately before section 4:

Licences

5. Section 4 of the Act is amended by adding the following subsection:

Form of application

(3) An application for a licence shall be accompanied by payment of the required fees and shall state the class of licence, if applicable, for which the applicant is applying.

6. The Act is amended by adding the following section:

Eligibility for licence

5.1 (1) A person is not eligible for a licence unless,

(a) the person has attained the age of 18 years, if the person is an individual;

(b) the person, within the prescribed time period, has passed the prescribed examinations or has attained the prescribed standards with respect to acting as a private investigator or security guard, if the person is an individual; and

(c) a director or officer of the person, within the prescribed time period, has passed the examinations or has attained the standards mentioned in clause (b), if the person is a corporation.

Same, persons with disabilities

(2) A person with a disability as defined in subsection 2 (1) of the Ontarians with Disabilities Act, 2001 is not ineligible for a licence unless the Registrar is satisfied that the disability prevents the person from adequately performing the functions for which the person requires the licence.

Training

(3) The examinations and standards mentioned in clauses (1) (b) and (c) shall be appropriate for the class of licence, if applicable, for which the applicant is applying and may be different for different classes of licences.

Same

(4) The examinations and standards mentioned in clauses (1) (b) and (c) shall include examinations and standards with respect to,

(a) the force that a licensee may lawfully use when acting as a private investigator or security guard;

(b) the safe use of firearms, if the licensee is required to use firearms when acting as a private investigator or security guard; and

7. Subsection 7 (1) of the Act is repealed and the following substituted:

Investigation of applicant

(1) The Registrar or any person authorized by the Registrar may make whatever inquiry and investigation is considered sufficient regarding the character, financial position, competence and eligibility for a licence of an applicant or a licensee.

8. (1) Subsection 8 (1) of the Act is repealed and the following substituted:

Issuance of licence

(1) The Registrar shall issue a licence or renewal of a licence if of the opinion that the proposed licensing is not against the public interest and the applicant is eligible for the licence or the renewal.

(2) Section 8 of the Act is amended by adding the following subsections:

Terms of licence

(3) A licence is subject to those terms to give effect to the purposes of this Act that the Registrar imposes or that the regulations prescribe and the terms may be different for different classes of licences.

Use of equipment

(4) The terms of a licence may include restrictions on the equipment that the licensee is authorized to use or prohibited from using in performing the functions for which the person requires the class of licence.

Form of licence

(5) A licence shall state the class of licence, if applicable, for which it is issued or renewed and the terms to which it is subject.

9. Section 11 of the Act, as re-enacted by the Statutes of Ontario, 1997, chapter 39, section 17, is amended by adding the following subsection:

Annual expiry

(2) The expiry date shall not be later than the first anniversary of the day on which the licence is issued or renewed, if the licence was issued or renewed on or after the day on which the Private Investigators and Security Guards Amendment Act, 2004 comes into force.

10. Subsections 13 (1) and (2) of the Act are repealed.

11. Section 14 of the Act is amended by adding the following clause:

(a.1) the licensee is no longer eligible for the licence, if the licence was issued or renewed on or after the day on which the Private Investigators and Security Guards Amendment Act, 2004 comes into force;

12. The Act is amended by adding the following heading immediately before section 23:

Conduct of Licensees

13. Section 27 of the Act is amended by adding the following subsection:

Restriction

(2) The uniform shall not be in a form that reasonably resembles or creates confusion with the uniform that a police officer is required to wear while on duty under the Police Services Act.

14. The Act is amended by adding the following sections:

Motor vehicles of security guards

28.1 (1) Subject to subsection (2), no security guard while on duty shall use a motor vehicle except if the motor vehicle has the markings and colours that the Minister responsible for the administration of this Act specifies.

Restriction

(2) The markings and colours of the motor vehicle shall not reasonably resemble or create confusion with a marked police vehicle.

Requirements for arrests

28.2 A person who employs or hires a security guard to make arrests when acting as a security guard shall provide the guard with a written statement annually setting out the requirements that the employer or hirer requires of the guard in that respect, including the manner in which the guard is to make arrests.

15. Section 30 of the Act is amended by adding the following subsection:

Badges

(2) No licensee while acting as a private investigator or security guard shall wear or use badges, shields or insignia that reasonably resemble or create confusion with the badges, shields or insignia worn or used by a police officer while on duty under the Police Services Act.

16. The Act is amended by adding the following sections:

Equipment

31.1 No licensee while acting as a private investigator or security guard shall use any prescribed equipment in circumstances that are prescribed.

Complaints Commission

Private Investigators and Security Guards Complaints Commission

31.2 (1) There is hereby established a commission to be known in English as the Private Investigators and Security Guards Complaints Commission and in French as Commission des plaintes contre les enquêteurs privés et les gardiens.

Members

(2) The Commission shall consist of the members that the Lieutenant Governor in Council appoints, but shall not include as members persons who are or have been private investigators or security guards or members of bodies that represent them.

Term of office

(3) The members of the Commission shall hold office for the term specified in their appointment.

Chair, vice-chairs

(4) The Lieutenant Governor in Council may designate one of the members of the Commission as the chair and one or more members of the Commission as vice-chairs.

Employees

(5) The employees that the Commission considers necessary to carry out its duties may be appointed under the Public Service Act.

Delegation

(6) The chair may authorize a member or employee of the Commission to exercise the Commission's powers and perform its duties with respect to a particular matter, except for its duties under subsections (7) and (8).

Duties

(7) At the direction of the Minister responsible for the administration of this Act, the Commission shall,

(a) advise the Minister on the enforcement of this Act and the regulations and on programs of public information related to this Act;

(b) examine and review this Act and the regulations and make recommendations to the Minister for amending them; and

Reports

(8) The Commission shall give the Minister an annual report on its activities within 60 days of the end of each year and whatever other reports that the Minister requests.

Complaints

31.3 (1) A person who has reasonable grounds to believe that an applicant for a licence or a licensee has contravened or is about to contravene this Act, the regulations or, in the case of a licensee, a term of the licence of the licensee may make a complaint to the Commission.

Form of complaint

(2) A complaint that a person makes under subsection (1) shall be in writing and identify the person about whom the complaint is made.

Request for information

(3) If the Commission receives a complaint about a person under subsection (1), the Commission may request information in relation to the complaint from the person or any licensee.

Form of request

(4) The request for information shall be in writing and indicate the nature of the complaint.

Duty to comply

(5) The person who receives the request for information shall provide the information as soon as practicable.

Power to mediate

(6) In handling complaints, the Commission may attempt to mediate or resolve the complaint.

Inspectors

31.4 (1) The Commission may appoint any person to be an inspector for the purpose of determining whether an applicant for a licence or a licensee has contravened or is about to contravene this Act, the regulations or, in the case of a licensee, a term of the licence of the licensee.

Certificate of appointment

(2) The chair of the Commission shall issue to every inspector a certificate of appointment, bearing the chair's signature or a facsimile of it.

Proof of appointment

(3) Every inspector who exercises powers under this Act shall, upon request, produce the certificate of appointment as an inspector.

Inspection without warrant

31.5 (1) If the Commission receives a complaint about a person under subsection 31.3 (1), an inspector may, without warrant or court order, conduct an inspection in accordance with this section if the inspector does so for the purpose of determining whether the person has contravened or is about to contravene this Act, the regulations or a term of a licence.

Powers of inspector

(2) In an inspection under this section, an inspector may,

(a) stop, detain, enter and inspect a vehicle if the inspector has reasonable grounds to believe that it contains evidence that the person about whom the complaint is made is contravening or is about to contravene this Act, the regulations or a term of a licence;

(b) enter and inspect any premises in accordance with this section if the inspector has reasonable grounds to believe that it contains evidence that the person about whom the complaint is made is contravening or is about to contravene this Act, the regulations or a term of a licence;

(d) demand the production for inspection of any thing relevant to the inspection from the persons being inspected;

(e) use any data storage, processing or retrieval device or system belonging to the persons being inspected in order to produce a record in readable form of the records and other matters produced in response to a demand mentioned in clause (d); or

(f) in accordance with the regulations, seize or detain any thing relevant to the inspection if the thing is capable of being seized or detained.

Entry to dwellings

(3) An inspector shall not, without the consent of the occupier, exercise a power to enter a place that is being used as a dwelling, except under the authority of a search warrant issued under section 158 of the Provincial Offences Act.

Time for entry

(4) An inspector shall exercise the power to enter a premises or vehicle under this section only during reasonable hours for the premises or vehicle.

Written demand

(5) A demand for things or copies or extracts from them under subsection (2) shall be in writing and shall include a statement of the nature of the things that are required to be produced.

No obstruction

(6) No person shall obstruct an inspector who is exercising powers under this section or provide an inspector with false or misleading information.

Assistance

(7) An inspector who exercises powers under this section may,

(a) call on any person for whatever assistance the inspector considers necessary to accomplish what the inspector is empowered to do;

(b) call for the assistance of any member of the Ontario Provincial Police or the municipal police force in the area where the assistance is required to preserve the peace.

Person assisting

(8) A person assisting an inspector in exercising powers under this section has the powers of an inspector while acting under the direction of the inspector.

Obligation to assist

(9) If an inspector makes a demand for any thing under subsection (2), the person having custody of the thing shall produce it to the inspector and, at the request of the inspector, shall provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce a record in readable form, if the demand is for a document.

Removal of things

(10) If a person produces things to an inspector, the inspector may, on issuing a written receipt, remove them and may,

(a) review or copy any of them or part of them; or

(b) bring them before a justice, in which case section 159 of the Provincial Offences Act applies.

Return of things seized

(11) The inspector shall carry out any reviewing or copying of things with reasonable dispatch, and shall forthwith after the reviewing or copying return the things to the person who produced them.

Admissibility of copies

(12) A copy certified by an inspector as a copy made under clause (10) (a) is admissible in evidence to the same extent, and has the same evidentiary value, as the thing copied.

Disclosure of information

31.6 (1) The Commission shall disclose information that it receives under section 31.3 or 31.5,

(a) to the Registrar if the information relates to the eligibility of an applicant for a licence or a licensee to hold a licence; and

(b) to the Minister who is responsible for the administration of this Act if the information reasonably indicates that a person may be guilty of an offence under this Act.

Confidentiality

(2) Subject to subsections (1) and 31.2 (8), the Commission shall preserve secrecy with respect to the information that it receives under this section and shall not disclose the information to any person except,

(a) to the Minister who is responsible for the administration of this Act for the purpose of the administration or enforcement of this Act or the regulations;

(b) to a law enforcement agency;

(d) with the consent of the person to whom the information relates.

Testimony

(3) Except in a proceeding under this Act, no member of the Commission shall be required to give testimony in a civil proceeding with regard to information that the Commission receives under section 31.3 or 31.5.

General

Crown liability

31.7 (1) In this section,

"Crown appointee" means a person who is appointed under this Act but who is not a Crown employee within the meaning of the Public Service Act; ("représentant de la Couronne")

"Minister" means the Minister responsible for the administration of this Act; ("ministre")

"Ministry" means the Ministry of the Minister. ("ministère")

No liability

(2) No action or other proceeding shall be instituted against the Crown, the Minister or any employee of the Ministry,

(a) for any act done or neglect or default in the execution or intended execution of a power or duty under this Act by,

(i) a person who is not a Crown employee within the meaning of the Public Service Act and not a Crown appointee, or

(ii) a person who is assisting an inspector in exercising powers under section 31.5, if the inspector is not a Crown employee within the meaning of the Public Service Act or not a Crown appointee; or

(b) for any tort committed by a person described in clause (a) or an employee or agent of the person in relation to a power or duty described in that clause.

No personal liability

(3) Except in the case of an application for judicial review or an action or proceeding that any Act or regulation under this or any other Act specifically provides with respect to a person mentioned in this subsection, no action or other proceeding for damages or otherwise shall be instituted against any of the following persons for any act done in good faith in the execution or intended execution of any duty or authority under this Act or for any alleged neglect or default in the execution in good faith of that duty or authority:

1. An employee of the Ministry.

2. A Crown employee within the meaning of the Public Service Act.

3. A member of the Commission.

4. A Crown appointee.

5. A person who is assisting an inspector in exercising powers under section 31.5, if the inspector is a Crown employee within the meaning of the Public Service Act or a Crown appointee.

Crown liability

(4) Subsection (3) does not, by reason of subsections 5 (2) and (4) of the Proceedings Against the Crown Act, relieve the Crown of liability in respect of a tort committed by an agent or servant of the Crown to which it would otherwise be subject.

17. Subsection 32 (2) of the Act is repealed and the following substituted:

Corporation

(2) Despite the penalty specified in subsection (1), a corporation that is convicted of an offence under that subsection is liable to a fine of not less than $50,000 and not more than $100,000.

18. (1) Subsection 34 (1) of the Act, as amended by the Statutes of Ontario, 1997, chapter 39, section 26, is amended by adding the following clauses:

(b) prescribing anything that is mentioned in this Act as being prescribed by the regulations;

. . . . .

(f) specifying what bodies can set the examinations mentioned in clause 5.1 (1) (b) or (c) and what the examinations must contain;

(f.1) specifying classes of licences and restrictions that apply to a particular class of licence;

(f.2) setting out a code of conduct that licensees shall comply with when acting as a private investigator or security guard;

(2) Section 34 of the Act, as amended by the Statutes of Ontario, 1997, chapter 39, section 26, is amended by adding the following subsections:

Record of use of force

(1.1) A regulation made under clause (1) (g) shall require a licensee to keep a record of all incidents in which the licensee used force while acting as a private investigator or security guard, containing all particulars that the regulation specifies, and to furnish a copy of the record annually to the Minister responsible for the administration of this Act at the times that the regulation specifies.

Public access to record

(1.2) On receiving the copy of the record, the Minister shall make it available for inspection by the public in the manner that the Minister considers appropriate.

(3) Clause 34 (2) (a) of the Act, as enacted by the Statutes of Ontario, 1997, chapter 39, section 26, is amended by adding "subject to subsections 27 (2) and 30 (2)" at the beginning.

(4) Subsection 34 (2) of the Act, as enacted by the Statutes of Ontario, 1997, chapter 39, section 26, is amended by adding the following clause:

(b.1) subject to subsection 28.1 (2), specify the markings and colours that a motor vehicle is required to have when a security guard uses it while on duty;

Commencement

19. This Act comes into force on the day it receives Royal Assent.

Short title

20. The short title of this Act is the Private Investigators and Security Guards Amendment Act, 2004.

EXPLANATORY NOTE

The Bill amends the Private Investigators and Security Guards Act.

It removes the present exemption from the Act for members of the Corps of Commissionaires and for private investigators and security guards whose work is confined to acting for only one employer.

An individual is not eligible for a licence under the Act unless the individual has passed the examinations or attained the standards prescribed by the regulations made under the Act. A corporation is not eligible for a licence under the Act unless a director or officer of the corporation has passed those examinations or attained those standards. The examination and standards must be appropriate for the class of licence for which a person applies and must cover the following areas: the force that a licensee can lawfully use when acting as a private investigator or security guard and the safe use of firearms and the lawful means of making arrests, if the licensee is required to use firearms or make arrests, as the case may be, when acting as a private investigator or security guard.

A licence issued under the Act must state the class, if applicable, for which it is issued. The regulations can prescribe terms of a licence, in addition to the terms that the Registrar can impose at present. The terms may be different for different classes of licences and may include restrictions on the equipment that the licensee is authorized to use or prohibited from using in performing the functions for which person requires the class of licence.

A licence issued or renewed on or after the Bill comes into force has a term of no more than one year. The Registrar can suspend or cancel the licence under section 14 of the Act if the licensee is no longer eligible for the licence. A licence no longer expires when the licensee's employment in respect of which it was issued terminates.

The Bill adds several restrictions for licensees. The uniform that a security guard is required to wear while on duty must not reasonably resemble the uniform of a police officer. The Minister responsible for the administration of the Act can restrict the markings and colours of a motor vehicle that a security guard uses while on duty, which must not in any event reasonably resemble a marked police vehicle. No licensee while on duty is allowed to wear or use badges or other insignia that reasonably resemble those of a police officer. The regulations can specify restrictions on equipment that a licensee is allowed to use while on duty.

If the regulations require a licensee to keep books and records, they must include a record of all incidents in which the licensee used force while acting as a private investigator or security guard. The licensee is required to furnish a copy of the record annually to the Minister responsible for the administration of the Act. The Minister is required to make the record available for inspection by the public. The regulations can also set out a code of conduct that licensees are required to comply with when acting as a private investigator or security guard.

The Bill establishes the Private Investigators and Security Guards Complaints Commission composed of members appointed by the Lieutenant Governor in Council who are not and have not been private investigators or security guards. At the direction of the Minister responsible for the administration of the Act, the Commission is required to advise the Minister on the enforcement of the Act and the regulations. The Commission must also submit an annual report to the Minister on its activities.

A person can make a written complaint to the Commission if the person reasonably believes that an applicant for a licence or a licensee has contravened or is about to contravene the Act, the regulations or, in the case of a licensee, a term of the licence of the licensee. Upon receiving a complaint, the Commission can require the person about whom the complaint is made or any licensee to provide information about the complaint. The Commission can also appoint inspectors to enter a premises or vehicle in order to investigate the complaint. The Commission is required to disclose information that it receives to the Registrar if the information relates to the eligibility of an applicant for a licence or a licensee to hold a licence and to the Minister responsible for the administration of the Act if the information reasonably indicates that a person may be guilty of an offence under the Act.

The penalty for a corporation that is convicted of an offence under the Act is increased to a fine of not less than $50,000 and not more than $100,000.