Notes on Police Independence and Political Responsibility: Roach (2018)
Overview and Purpose
Balancing two aims: respect police independence in making law enforcement decisions while allowing legitimate political direction of the police in a democracy.
Roach argues for legislative reform to codify a minimal, narrow definition of police independence modeled on the Supreme Court of Canada’s Campbell (1999) decision.
Goal: create clearer standards than broad, often vague common law or policy guidance (e.g., the UK’s approach) and promote transparent political direction when appropriate.
Ontario’s Police Services Act (2018) is highlighted as a model for transparent political direction through publication of directions; however, it does not fully implement a limited independence framework recommended by 2007 Ipperwash Inquiry.
Victoria (Australia) and Ontario are used as case studies to illustrate partial successes and remaining gaps.
Central question: how to ensure democratic policing (transparency, accountability) without undermining essential police independence in enforcement discretion.
Key Concepts and Definitions
Police independence (minimal/limited): protection against political interference in the exercise of law enforcement discretion.
Core police independence (Campbell framework): independence specifically in the exercise of law enforcement discretion during investigations; councils or ministers may guide policy but should not direct case-specific enforcement actions.
Democratic policing: ministerial responsibility, transparency, accountability, and public, written directions that govern policing policy and operations.
Political direction: guidance from elected officials or ministers about policing policy and operations; should be transparent and, ideally, in writing and public.
Operational independence vs. policy direction: a distinction where police retain discretion over operational decisions while policy directions may guide broader policing goals and approaches.
Two dominant extreme models (rejected in Ipperwash):
Governmental policing (full governmental direction in all policing functions).
Full police independence (police largely free from government direction in most matters).
Ipperwash Inquiry (Linden, 2007): endorses a blended model combining core police independence with democratic policing.
Models of Police–Government Relations
Governmental policing (extreme): government orders all functions of the police, including investigations and prosecutions.
Full police independence (extreme): police are free from governmental direction in most policy and operational areas.
Ipperwash Inquiry conclusions (Ontario): rejected both extremes; recommended a composite model that preserves core independence while ensuring ministerial policy responsibility and written, public directions for transparency and accountability.
Campbell (1999) doctrine: limits the Crown’s claim to immunity for police actions during investigations; police officers are not government agents when engaged in law enforcement; they are answerable to the law and their conscience, not to political direction in the midst of a criminal investigation.
Core Police Independence and Campbell (1999)
Campbell v. RCMP (1999): the RCMP Commissioner is not a government servant when engaged in criminal investigation; not subject to political direction; answerable to law and conscience (paras 27, 33).
This case narrows independence to the law-enforcement function, not to all police activities; allows some degree of ministerial input in non-enforcement areas but protects the core enforcement discretion.
Campbell provides a constitutional basis for reading down statutory provisions that suggest ministerial direction in criminal investigations, notably to interpret the RCMP Act’s direction clause in light of the rule of law.
Limitations of Campbell: does not define the outer bounds of independence; a flexible zone exists for legitimate ministerial policy direction, but not for directing specific investigations.
Democratic Policing and the Ipperwash Inquiry
Ipperwash Inquiry (Linden, 2007): champions democratic policing—transparency, ministerial accountability, and public debate about policing policies.
Key recommendation: Ontario’s Police Services Act should prohibit directions by the minister to specific law enforcement decisions in individual cases and require written, public ministerial directives (Recommendation 71) and prohibition on governmental-wide policing outside minister’s directives (Recommendation 72).
Democratic policing framework: encourages ministerial policy responsibility and public, written directives to promote accountability and democratic participation in policing policy.
Ipperwash’s dynamic view: policing responsibilities (operational) may expand if ministers fail to exercise policy responsibilities; policy and operational responsibilities co-evolve.
Sancton (2012) and Morden (2012) provide empirical concerns about political shirking and reluctance to assume responsibility for policing policy, underscoring the need for codified, transparent governance.
Comparative Canadian Context: Acts and Provisions
RCMP Act (Canada): §5 provides the Commissioner exercises duties under the direction of the Minister, which conflicts with core independence in enforcement decisions.
Quebec Police Act: §50 states the Sûreté du Québec acts under the authority of the Minister of Public Security; historical read as displacing common-law independence (Bisaillon, 1980).
Ontario Police Services Act (pre-2018): §17(2) allowed broad ministerial direction; later amended for improvements but still a point of debate.
Other Acts with barebones supervision: British Columbia, Alberta, Saskatchewan, Manitoba, Prince Edward Island, etc. commonly refer to “under the direction” or “general direction,” which undercuts precise independence and leaves room for political interference in practice.
Quebec’s approach (s.87): administrative authority not over police investigations; closest to core independence, though other sections still contemplate broader control.
Ontario and other provinces historically allowed ministerial input for general policy rather than specific investigative directions; the lack of formalized, precise independence invites covert or informal interference.
Victoria, Australia: Victoria Police Service Act 2013
Section 10(3) defines police independence: prohibits political direction on matters including:
(a) preservation of the peace and protection of life/property;
(b) enforcement of the law in relation to persons or groups;
(c) investigation or prosecution of offences;
(d) decisions about individual personnel, including discipline;
(e) organizational structure;
(f) deployment of officers;
(g) training and professional development;
(h) internal grievance procedures.
This list exceeds core independence and potentially limits democratic policing and ministerial responsibility for policing policies, particularly in demonstrations or public order policing.
However, s.10(2) allows ministerial direction in certain circumstances on topics (e)-(h)
This creates a potential for ministerial guidance in non-typical areas, but safeguards exist via broader independence in core enforcement decisions.
Section 11: information restrictions. The Commissioner should generally provide information to the minister, with exceptions for matters that might prejudice investigations, prosecutions, or endanger safety. This aims to curb inappropriate requests for information and preserve public trust.
Comparisons: Victoria aims for more precise, written, and public directions than the UK’s Protocol; concerns remain about broad scopes of independence and ministerial power.
The United Kingdom: Common Law, Protocol, and Democratic Direction
UK approach combines some democratic governance with a legacy of broader independence concepts.
Policing Protocol Order 2011: seeks to articulate a balance but has been criticized for vagueness and variability in practice.
Key points in Protocol:
The office of constable maintains independence from improper political interference (para 11).
Paragraph 17 outlines the roles of Police and Crime Commissioners (PCCs) in strategic direction, budgeting, and accountability; concerns over whether this extends into core law enforcement functions.
Paragraph 18 and 30 emphasize that operational independence should be preserved, but the language is broad and potentially subject to dynamic interpretation.
Paragraph 19 addresses PCC access to information from the police; the language is ambiguous and has been criticized for being too permissive or unclear about limits.
Interactions with Ipperwash: UK protocol is more deferential to common law and political processes, but Roach argues that a codified core independence with transparent directions (as in Ontario’s 2018 Act and Victoria’s approach) would improve accountability and democratic governance.
Overall: UK model shows democratic oversight but lacks precise, transparent governance mechanisms for directions in specific operations or investigations.
South Australia: A Simple, Transparent Model
Police Act 1998 (South Australia) offers a concise model:
§6: Commissioner is responsible for control and management of police, subject to written directions of the Minister.
§8: Ministerial directions must be published in the Gazette within 8 days and laid before Parliament within 6 sitting days.
§7: No ministerial direction may relate to appointment, transfer, remuneration, discipline, or termination of a specific person.
Strengths: simple, transparent, provides publication requirements and precludes micro-management of personnel decisions.
Limitations: does not fully codify core independence for law-enforcement decisions in specific investigations, but it demonstrates how a lean framework can increase transparency and accountability with minimal intrusion into enforcement discretion.
Ontario’s Police Service Act, 2018: A Hybrid Yet Expanded Framework
Background: Responded to Ipperwash and the G20-era policing criticisms; facilitated governance reforms and oversight improvements.
Key changes:
§62: The Minister may give directions to the OPP Commissioner but not in relation to:
(a) specific investigations,
(b) conduct of specific operations,
(c) discipline of specific officers,
(d) routine administration of the OPP, or other prescribed matters.
This partially aligns with Campbell’s core independence but extends the minister’s reach into certain operations and administrative matters, raising potential concerns about controversy over the scope of ministerial influence.
§38(5): Similar restrictions apply to municipal police boards.
§60: Minister must establish policing policies on prescribed matters (e.g., adequate policing) but cannot make policies on specific investigations, conduct of specific operations, or discipline, among others.
§60(7): Regulations will prescribe the publication method for policies.
§60(1), (5), (6): Ministers must publish policies; cannot create policies that conflict with statutory duties of OPP members.
§38: Municipal police services boards must publish directives and policies affecting local policing.
Publications: §62(8) and §40(9) require publication of ministerial directions and board directions to promote transparency and accountability.
Overall stance: Ontario 2018 Act advances democratic policing by mandating written, public directions and broader policy-making powers for the minister, but it also broadens the concept of police independence beyond Campbell’s core, creating potential ambiguity about the boundaries of ministerial direction.
Remaining questions:
How to reconcile broader directives with core independence in practice, particularly for unique or high-impact operations (e.g., mass demonstrations or crises).
The potential for political shirking if ministers avoid taking responsibility by citing “conduct of operations” or “routine administration” exemptions.
Information Sharing, Transparency, and Accountability
Victorian model (s.11): explicit grounds for police to withhold information to the minister when disclosure would prejudice investigations, prosecutions, or endanger safety.
UK Protocol critique: information-sharing provisions are vague, enabling potential opaque interactions between police and political authorities.
South Australia’s model: publication requirements for ministerial directions promote transparency and accountability; similar publication expectations could mitigate concerns about political interference.
Ontario’s publication requirements ( ss.62(8), 40(9) ): aim to similarly increase transparency; the effectiveness depends on political will to publish and adhere to these directives.
Democratic Policing: Potential Benefits and Pitfalls
Benefits:
Greater transparency and accountability for policing policy and directives.
Clearer rules on ministerial responsibilities, reducing informal or ad hoc interference.
Public debate and democratic legitimacy for policing decisions, especially in contentious matters (e.g., public order policing).
Pitfalls:
Over-broad definitions of independence could insulate controversial decisions from political accountability (as feared by some critics).
The risk that “conduct of specific operations” or “routine administration” categories become loopholes to avoid responsibility.
The dynamic tension between evolving policing needs and static statutory provisions may create ambiguity in practice.
The central tension remains: preserve the core of police independence for enforcement discretion while enabling transparent, accountable political oversight and policy direction.
The Dangers of Political Shirking and Accountability Mechanisms
Ipperwash and Sancton findings show that ministers and authorities may shirk responsibility for policing policy, particularly during controversial protests or public order events.
Transparent, written, and publicly disclosed directions help ensure accountability and public trust, reducing the likelihood of shirking.
The presence of robust publication requirements (as in Victoria and Ontario) helps create a culture of accountability, though actual political will is crucial for effectiveness.
The Future of Democratic Policing
Roach suggests that codifying a core police independence along with transparent, written, and public ministerial directions constitutes a more robust and defensible model of democratic policing.
The balance between independence and political oversight will continue to evolve with:
Technological and legal changes enlarging police powers.
Greater public scrutiny and demand for transparency.
Varying political cultures across jurisdictions.
A cautious, well-defined approach that limits ministerial direction to policy concerns while protecting law-enforcement discretion in specific investigations appears to offer the most durable protection for democratic policing.
Practical Implications and Applications
For policymakers:
Consider codifying a core definition of police independence akin to Campbell, focusing on law-enforcement discretion in investigations.
Require written, publicly available ministerial directions on policing policy to promote transparency and accountability.
Limit directions to broad policy matters rather than case-specific enforcement decisions; clearly delineate exceptions and boundaries.
For investigators and police leadership:
Provide clarity about what constitutes core independence versus policy directives.
Ensure information-sharing practices comply with published directives to avoid perceptions of improper interference.
For scholars and practitioners:
Continue comparative analysis across common-law jurisdictions to identify best practices for balancing independence and democratic direction.
Monitor the implementation of new legislation (e.g., Ontario 2018 Act) to assess effectiveness in reducing political interference and enhancing democratic policing.
Key Legal References and Concepts (LaTeX-formatted)
Core independence (Campbell framework): independence over law-enforcement discretion in criminal investigations; not a blanket shield from government interference.
RCMP Act, §5: Commissioner serves under the direction of the Minister; contrast with core independence in enforcement decisions.
Quebec Police Act, §50 and §87: ministerial authority; municipal autonomy; historical reading of displacing common-law independence.
Ontario Police Services Act (pre-2018): (broad ministerial direction); post-2018 reforms shift toward clearer democratic policing but extend ministerial policy role.
Ontario Police Services Act, 2018: directions limited to non-specific matters; publication obligations; ministerial policy duties; local board directions.
Victoria Police Service Act 2013: core independence (s.10(3)); ministerial directions on enumerated topics (s.10(2)); information restrictions (s.11).
South Australia Police Act 1998: ministerial directions to be published; limitations on directing specific personnel.
UK Policing Protocol Order 2011: reaffirms common-law independence, outlines PCC roles and operational independence language; criticized for vagueness.
Ipperwash Inquiry (Linden, 2007): recommends a dynamic, hybrid model; promotes written, public ministerial directions and policies; cautions against governmental policing and full independence; framework for democratic policing.
Notes on Structure and Sources
The material synthesizes debates around police independence, political responsibility, and democratic policing across Australia (Victoria), Canada (Ontario, RCMP, Quebec, Manitoba, etc.), and the UK.
Core arguments center on defining a minimal, enforceable independence standard while enabling transparent, accountable political direction to guide policing policy and practice.
The discussion integrates key cases, inquiries, and statutory developments to illustrate how theory translates into law and practice.
References (selected)
Campbell, [1999] 1 S.C.R. 565. (Core independent framework in the Supreme Court of Canada)
Blackburn, Metropolitan Police Ex Parte Blackburn (1968) QB 116. (Historically influential Denning-era view)
Linden, S. (2007). Ipperwash Inquiry, Volume 2: Policy Analysis. (Democratic policing and policy-direction framework)
Roach, K. (2007, 2017). Four Models of Police-Government Relations; Ontario policing reforms; Overviews of policy direction and transparency. (Key auteur analysis)
Stenning, P. (2007, 2018). Work on political independence, and Ontario policing governance. (Contextual comparisons)
Victoria Police Service Act 2013 (Vic.). (Section 10 and 11)
Police Service Act 2018 (Ontario). (Sections 38, 60, 62, 62(8), 40(9))
Police Act (Quebec) and RCMP Act (Canada). (Statutory references on ministerial direction and independence)
Beare, M., Rosiers, N., Deshman, A. (2015). Putting the State on Trial: The Policing of Protest during the G20 Summit. (Context for reforms)
Lister, S. (2013). The New Politics of the Police: Operational Independence and PCCs. (UK context)
McDonald Commission (1981). (Civilian oversight and ministerial accountability)
Sancton, A. (2012). Democratic Policing: Ipperwash and Caledonia. (Empirical analysis of ministerial responsibility)
Roach, K., Sossin, L. (2017). Renovating Independent Police Review. (Oversight reforms)
Stenning, P. (2018). Police Chiefs and Their Political Bosses: Ontario. (Policy dynamics)