Submission on extending authorities to transit special constables

March 1, 2026

Introduction

Proposed New Regulation under the Restricting Public Consumption of Illegal Substances Act, 2025 (RPCISA) to Extend Authorities to Transit Special Constables | regulatoryregistry.gov.on.ca

The Ontario Human Rights Commission (OHRC) welcomes the opportunity to provide this submission on the Proposed New Regulation under the Restricting Public Consumption of Illegal Substances Act, 2025 (RPCISA) to Extend Authorities to Transit Special Constables.

The Ontario Government is proposing new regulations under RPCISA, which would give Special Constables employed by authorized public transit Special Constable employers the same powers as police officers^[1] to enforce RPCISA.^[2]

The OHRC welcomes the ministry’s decision to explore the use of civilian employees to address public safety issues.  This approach is consistent with guidance provided in the OHRC’s Framework for Change, which recommends the civilianization of non-emergency services. 

To realize the benefits of this approach and to mitigate the ongoing presence of systemic discrimination in law enforcement, civilian-led services^[3] should rely on a trauma informed approach, instead of an enforcement-based model to promote sustainable change. 

Using a punitive enforcement-based model to address concerns regarding the consumption of drugs in public spaces will not address the root causes of addiction disabilities, mental health concerns or homelessness.  The OHRC is also concerned that increasing transit constables’ enforcement powers will have a disproportionate impact on racialized communities due to the ongoing presence of systemic racial bias in law enforcement.

To address these concerns Ontario must continue to leverage the benefits of employing a human rights-based approach which centres on harm reduction to address substance use in transit environments.   

In response to these issues, the OHRC makes the five following recommendations:

1. Ontario should use strategies that are trauma informed and non-punitive when responding to mental health and substance use issues.
2. The delegation of additional powers to Special Constables must be accompanied by a robust and transparent oversight system.
3. The Regulation should explicitly limit Special Constables’ use of force when responding to incidents.
4. Ontario should ensure that Special Constables undergo continuous substantive training which corresponds to their new powers, including mental health crisis intervention training. 
5. The Regulation should mandate and standardize the collection, analysis, and reporting of identity-based data

Policing and Human Rights

The OHRC is an independent human rights body established under the Ontario Human Rights Code (the Code). The OHRC is responsible for promoting and advancing human rights and addressing systemic discrimination in Ontario. As part of that mandate, the OHRC can provide human rights advice on the government’s policies and programs. 

Addressing discrimination in policing has been an important part of the OHRC’s work for over 20 years. The OHRC has created resources to help police services identify, monitor and reduce discrimination.  For example, the OHRC released key reports, including two interim inquiry reports: A Collective Impact in 2018 and A Disparate Impact in 2020, and the final report, From Impact to Action: Final report into anti-Black racism by the Toronto Police Service in 2023. The OHRC also released the Framework for change to address systemic racism in policing which identified 10 essential steps for eliminating discriminatory practices from policing across the province_^[4]. In addition, the OHRC has made many submissions to Ontario and independent reviewers about how to address systemic discrimination in policing.^[5]

Background on the Restricting Public Consumption of Illegal Substances Act, 2025 (RPCISA) and Special Constables

On June 5, 2025, the Government of Ontario passed the Safer Municipalities Act, 2025, S.O. 2025, c.5 (Bill 6) which included the Restricting Public Consumption of Illegal Substances Act, 2025 (RPCISA). Under RPCISA, the consumption of illegal substances in public places is prohibited.^[6]. Pursuant to RPCISA, if an officer reasonably believes a person is consuming an illegal substance in public, the officer may direct them to stop or leave the area. ^[7] Officers may also require identification for the purpose of commencing proceedings. ^[8] Failing to provide identification or follow an officer’s direction is an offence. ^[9] A person convicted under RPCISA  is liable to a fine of up to $10,000, imprisonment for up to six months, or both.^[10]

Under the Community Safety and Policing Act, 2019 (CSPA), a police service board or a Commissioner may appoint a person as a Special Constable.^[11] Special Constables are sworn Peace Officers who may only exercise powers, carry weapons, or perform duties as outlined in the certificate of appointment.^[12] Certificates may be amended, and appointments can be suspended or terminated with notice.^[13]

Several major transit agencies^[14] across Ontario employ Special Constables to address safety issues, and to enforce federal, provincial and municipal laws including the Criminal Code, Controlled Drugs and Substances Act, Youth Criminal Justice Act, Trespass to Property Act, Liquor License Act, sections 17, 28, 33 of the Mental Health Act, and the Safe Streets Act. Transit Special Constables are authorized to investigate incidents, arrest persons and lay charges. They are required to complete de-escalation training and training on human rights and systemic discrimination.^[15]  The Toronto Transit Commission (TTC) has established a Use of Force Policy for its Special Constables that emphasizes transparency, accountability, and public trust.^[16]

Potential issues arising from the regulatory proposal

The OHRC is concerned about the effects of giving special constables the same powers as police officers, related to the enforcement of the RPCISA. 

Accordingly, the OHRC reminds Ontario of its obligations under the Code and some of its obligations under the Charter of Rights and Freedoms. 

The Code has primacy over all other laws in Ontario. This means that regulations made under the RPCISA must be designed, implemented, and interpreted in a manner consistent with the Code and its remedial objectives. 

A. The Regulations may have a disproportionate impact on individuals identifying with Code-protected grounds

(i) Disability

Mental health issues and addiction disabilities are protected by the Code under the ground of “disability”.^[17] People with substance use disorders and mental health disabilities often identify with other intersecting grounds also protected under the Code. 

The OHRC is concerned that the proposed regulation will disproportionately impact people with substance use disorders and mental health addiction disabilities by placing them at risk of criminalization when they are using public transit. 

Authorizing special constables to enforce the RPCISA to the same extent as police officers could lead to intensified surveillance, and/or displacement of people with addictions and mental health disabilities. An enforcement approach risks further marginalization of individuals while failing to address the root causes of addictions and disabilities. 

Any measures enacted by Ontario must account for the systemic barriers facing individuals with mental health and addiction disabilities. 

There are often significant barriers to accessing mental health and addiction support services. These barriers include stigma surrounding these types of disabilities, the fact that available resources are geographically inaccessible, and the cost of treatment programs. Racism, transphobia, homophobia, sexism, and other forms of discrimination further limit the accessibility of many services, including harm reduction programs. For example, mental health services tend to have the lowest utilization rates among racialized individuals.^[18]

Introducing increased enforcement action against persons with mental health disabilities and substance use disorders, without increasing the level of available support for these individuals, may result in increased rates of criminalization of this vulnerable population. 

(ii) Race 

The OHRC is also concerned that increasing enforcement powers will have a negative impact on Indigenous, Black and racialized communities due to the ongoing presence of systemic racism in the criminal justice system. Racial discrimination can be the result of individual behaviour or the unintended and often unconscious consequences of a discriminatory system. Duty holders, including special transit employers should be required to monitor and review numerical data, policies, practices, decision-taking processes, and organizational culture to help ensure that they are not engaging in systemic discrimination.

Racialized individuals with mental health and addiction concerns are already significantly overrepresented within the criminal justice system. Research shows, for example, that Black Canadian men with mental health issues are more likely to become involved with the criminal justice system than to receive care through community‑based mental health services.^[19] There is a strong potential that the regulation will perpetuate these negative outcomes if it does not incorporate harm reduction strategies and community-led programs that address substance use.^[20] 

B. The Regulations may infringe individuals’ Charter right to be free from arbitrary detention and the right to equality.

The OHRC is concerned that Special Constables may engage in racial profiling when determining which individuals to stop and engage regarding the suspected consumption of an illegal substance.  Black and Indigenous people are disproportionately racially profiled and criminalized by Canadian drug laws.^[21]  Racial profiling infringes the right to be free from arbitrary detention under section 9 of the Charter.  In addition, laws which serve as a vector for racial profiling infringe the right to equality protected by section 15 of the Charter.^[22] 

Racial profiling can occur at any stage of decision-making by law enforcement, including the decision to surveil, stop, question, search, use force upon or arrest an individual.^[23] In Under Suspicion: Research and consultation report on racial profiling in Ontario, the OHRC reported that racial profiling remains widespread and deeply entrenched within law enforcement and our justice systems.

C. Special Constables are not accountable to an independent oversight system

The absence of a clear and robust accountability system erodes public trust in law enforcement.   

Oversight for special constables is complex as it involves an employer (e.g. transit agency or municipality) that oversees employment related matters and police service boards that are responsible for overseeing the exercise of enforcement powers set out in the legislation and the proposed regulation. 

In Ontario, the oversight of police services is generally provided by four entities: police service boards that are responsible for the provision of adequate and effective policing,  The Law Enforcement Complaints Agency (LECA), which handles public complaints regarding police conduct,  and the Special Investigations Unit (SIU), which investigates incidents involving officials where there is a serious injury, death, allegation of sexual assault or discharge of a firearm by an official at a person.   While the Inspector General of Policing (IG) can conduct inspections of police service boards and special constable employers, the IG has no authority to investigate the conduct of individual officers. 

Special constables are not subject to the same level of oversight.  LECA does not investigate complaints regarding special constables employed by transit agencies and the SIU’s jurisdiction includes all municipal regional and provincial police officers but does not include transit special constables. 

Where issues arise regarding a special constable’s conduct, members of the public have fewer independent options to address their concerns, which include filing a complaint with the agency that employs the special constable. This may trigger an internal investigation or a report to the police services board. Internal investigations of police misconduct have drawn criticism from groups representing individuals who are protected under the Code for lacking transparency and independence.   

OHRC Recommendations

Considering these concerns, the OHRC makes the five recommendations below: 

1. Ontario should use strategies that are trauma informed and non-punitive^[24] when responding to mental health and substance use issues

The OHRC recommends that Ontario consider other approaches to addressing public health and safety which do not rely on increasing levels of enforcement that results in criminal sanctions. These alternatives should be trauma-informed, culturally appropriate, grounded in a human rights-based approach, and rely on civilians that have expertise addressing mental health and addiction issues.^[25] 

In the context of this proposed regulation, the OHRC recommends that police services and municipalities establish and/or expand mobile crisis teams to work independently or with transit officers when responding to calls related to mental health, substance abuse or homelessness.

The OHRC previously recommended that section 17 of the Mental Health Act be amended to facilitate non-police responses to issues related to mental health and substance abuse.^[26] The OHRC has also recommended a review of civilianizing non-emergency police functions province-wide.^[27] The OHRC encourages Ontario to adopt these recommendations. 

2. The delegation of additional powers to Special Constables must be accompanied by a robust and transparent oversight system

Where police powers are conferred upon individuals who are not employees of the local police service, a robust and transparent oversight system must be in place.  This is particularly important as special constables exercise significant powers typically reserved for police officers, including the power to arrests individuals or seize and/or destroy illegal substances.  In short, special constables should not be subject to a less stringent oversight system. Allegations of misconduct and systemic trends should be identified in a transparent manner, and clear accountability measures must be in place to maintain public confidence. 

3. The Regulation should explicitly limit Special Constables’ use of force when responding to incidents

By giving Special Constables police-like enforcement powers and the authority to possess some use of force equipment, the OHRC is concerned that the use of force against individuals with addictions or mental health disabilities on transit systems will increase. 

This is coupled with concerns that special transit employers are not required to implement use of force policies that address the disproportionate amount of force used against racialized communities, which has been identified in the policing context. ^[28] The OHRC recommends that Ontario take concrete steps to ensure that municipalities and employers of Special Constables create use of force policies that are consistent with the OHRC’s guidance,^[29] and ensure that newly-appointed Special Constables are appropriately trained in these policies. 

In its previous work, the OHRC has recommended that policies mandate that force be used only as a last resort, and that organizations monitor and publicly report disparities in use of force data and take immediate steps to develop action plans to reduce the disparities they identify.^[30] The OHRC submits that this recommendation applies to the proposed regulation under the RPCISA. 

4. Ontario should ensure that Special Constables undergo continuous substantive training which corresponds to their new powers, including mental health crisis intervention training. 

Under the current CSPA legislation, Special Constables have narrower training requirements than standard police officers. Section 10 of O. Reg. 87/24 of the CSPA sets out the training requirements required of special constables.^[31] Assuming that the newly appointed transit special constables will be included in item 5 of the Table in this section^[32], means that they are not required to undergo, for example, mental health crisis intervention training. This education will be crucial in efforts to minimize the impacts of increased enforcement for people with addictions and mental health disabilities. 

Additionally, if the Province proceeds to expand the powers of Special Constables to correspond with police powers, the Province must also take an active approach to ensure that newly-appointed Special Constables receive appropriate training. This may include making training resources available to municipalities and special constable employers. 

The OHRC notes that in its regulatory proposal, the Province has specified that its estimated cost is limited to a “one-time training on the new powers for transit special constables.” Given the breadth of the proposed additional powers for transit special constables, the OHRC is concerned that a “one-time training” will be insufficient. 

The proposed regulations will empower all transit officers across the province. The difference in municipalities’ resources across Ontario suggests that some municipalities and special constable employers may have difficulties giving their transit special constables training which is comparable to the training received by police officers. 

5. The Regulation should mandate and standardize the collection, analysis, and reporting of identity-based data 

Without standardized and mandatory collection, analysis, and public reporting of race-and identity-based data including Code and non-Code based data, the risks of systemic discrimination cannot be effectively monitored or addressed. 

The OHRC recommends that identity-based data regarding persons in crisis and addiction should be collected to determine whether the proposed enforcement scheme negatively impacts Code-protected groups. 

Regarding race-based data, the OHRC is concerned that there is no clear race and identity-based data collection standard for special constable services in Ontario. The decision to collect race and identity-based data is left to the discretion of police boards or the agencies employing the transit officers.

Discretionary data collection undermines efforts to address systemic discrimination. As noted in the OHRC guide on the collection of human rights-based data, Count Me In^[33], data collection can help proactively address issues, measure progress and support the implementation of remedial strategies. 

Endnotes