LECTURE 3 + 4 NOTES

LECTURE 3- POLICE AND POLICY GOVERNANCE

Police and Political Science

• Symbol of the state

• Monopoly of legitimate force on citizens

• Role in criminal justice policy

• Police organization, budgeting and relationship with other government and

non-government agencies are important questions for public administration

• Funded through public money

Key Issues to Consider

• Government direction

• Autonomy from government

• Why is it desirable to keep police accountable?

• How are these competing demands reconciled?

Costs of Policing

• Largest budget item for municipal governments

  • Average of 15% spent on policing

  • $342.28 per capita spending on average

• Net increase in gross spending

  • Half of municipalities increased budget yearly

• Relationship between crime and police budgets

Is Police Trust in Jeopardy?

• Operate on public dollars BUT IMPORTANTLY public trust

2020 Angus Reid Poll

• Confidence in RCMP down 8% from 2018

  • 17% of racialized people have ‘no-confidence at all’ in RCMP

  • RCMP has less support compared to local detachments

• In Ontario:

  • 59% have confidence in OPP

  • 52% have confidence in RCMP

• 2020, lots of political issues influencing the statistics

  • RCMP involved in the killing of two Indigenous people

Legal Framework for Policing

• Charter of Rights and Freedoms

  • Section 8 → unreasonable search and seizure

  • Section 9 → against arbitrary detention

  • Section 10 → rights once you’ve been arrested

  • limited by Section 24(2) → exclusion of evidence clause (charter remedy)

• Who has the power to arrest?

  • EVERYONE!

• s.494(1) of CCC: Any one may arrest without warrant

  1. a person whom he finds committing an indictable offence; or

  2. a person who, on reasonable grounds, he believes

     1. has committed a criminal offence, and

     2. is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

Power to Arrest

• S.494(2): Anyone who is the owner or a person in lawful possession of property may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property

• BUT:

  • S.494(3) Anyone other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer

    • you need to immediately give the person you arrested to a peace officer

• Citizens Arrest and Self Defence Act (2012)

  • Power to make a citizen’s arrest within a ‘reasonable’ amount of time after a crime has occurred – instead of catching perpetrator ‘red handed’

  • Lucky Moose Food Market arrest

    • the “reasonable” amount of time came from this case

    • someone shop lifting in a store early in the day, they came back and tried to steal again

      • worker in the store chased and arrested a serial shop lifter and holds him until the police arrive

        • because the og offence was committed earlier, the store owner get charged with criminal offences

• s.495 of the CCC (do not have to memorize):

  • (1) A peace officer may arrest without warrant

  • (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

  • (b) a person whom he finds committing a criminal offence; or

  • (c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal is in force.

• Peace Officers

  • persons employed for the preservation and maintenance of the public peace or for the service or execution of civil process

    • examples of peace officers under the CCC → customs officers, pilots, correctional officer, mayor, conservation officer, justice of the peace (hear most of the bail hearings)

Police

• Three types of government police organizations in Canada

• Federal: Royal Canadian Mounted Police (RCMP)

• Provincial

  • Sûreté du Québec

  • Ontario Provincial Police

  • Royal Newfoundland Constabulary (selected areas)

  • RCMP on contract

• Municipal

  • Guelph Police Service

  • Toronto Police Service

• All enforce Criminal Code of Canada, provincial laws and municipal by-laws

Police Independent and Accountability

• “The relationship between the police and the government is a matter of fundamental constitutional significance in any state. It is particularly challenging in a country such as Canada which is free and democratic and committed to the rule of law.”(Roach 2004)

  • fundamental concern, in every country, especially Canada with democracy and the rule of law

• “...the idea that the police are directed by the government of the day raises concerns about improper partisan concerns influencing or appearing to influence the machinery of justice.” (Roach 2004)

  • don't want the democratically elected officials telling the police what to do

• “...the idea that the police are a law on to themselves is unacceptable in a democracy that prides itself on restraint in the use of coercive state- sponsored force and on accountability for the use of such powers.”(Roach 2004)

  • cannot have the authority to kill people without accountability

Abuse of Power

• APEC Scandal

  • 1997 at UBC campus

  • meeting of world leaders happening in Canada

  • concerns about security, especially with leaders that attract more protest

    • could be dictators

    • meeting is on a university campus

  • try to make a fence, student housing is right near the planned sight of security

    • students are told to have no signs and should not be seen or will be arrested

      • not right due to right of lawful protest in Canada

    • some students are found before the meeting even started and arrested

      • unlawful again

  • students do not listen, they protest

    • one individual is arrested, held for 14 hours without a charge

    • student in his late 30s , law student, former army vet

  • students were pepper sprayed

• Too much political interference?

• APEC Inquiry

  • RCMP mishandled demonstrations

    • did not meet an acceptable standard of professionalism…

  • Government interfered with police operations

    • belief that the PM was directing the police to do these things

    • PM got off, but government does not look good

• G20 Protests in Toronto

• Too much police independence?

  • not a lot of officers received repercussions

  • very minor consequences

  • class action lawsuit settled ten years later

HOW CAN WE SORT OUT THE TENSIONS IN POLICE- GOVERNMENT RELATIONS?

• models are theoretical

Model #1: Full Police Independence

• “But in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and the law alone.” (ex parte Blackburn 1968) ← decision from the UK

  • if the police decide they do not want to enforce the law they don’t have to

  • No master and servant relationship

  • Law enforcement decisions → are entirely up to the police themselves

• Section 31(4) Police Services Act (Ontario): municipal boards “shall not direct the chief of police with respect to specific operational decisions.”

  • Professionalism and expertise of the police

    • not relying on other authority but still limited as to what they can do

  • Limited by the law

    • Hill v. Hamilton-Wentworth Regional Police Services Board [2007] 3 SCR 129

      • Indigenous man with the robberies

      • Line up problems, no one else in the photo line up is Indigenous

      • investigated, tried, and acquitted after 20 months in jail

        • once he is arrested the bank robberies continue

Model #2: Core Police Independence

• Direction of the responsible minister

• Immune from direction on core law enforcement functions

• Confidence in the professionalism and expertise of the police

• Check:

  • Prosecutors

  • Courts

Model #3: Democratic Policing

• Ministerial responsibility

  • if the police were to have a major scandal, they would take a lot of the accountability

• Distinction between seeking information and seeking to influence

• Those responsible to the people should determine policy

• Relies on respect for the integrity of politicians

  • they have to know when to stop, when they cannot have influence

• Democratic oversight

Model #4: Governmental Policing

• “The Governor in Council may appoint an officer, to be known as the Commissioner of the Royal Canadian Mounted Police to hold office during pleasure, who, under the direction of the Minister, has the control and management of the Force and all matters connected with the Force.” RCMP Act (1985), 5.(1)

• Independence is not protected

• Refuse blatantly illegal orders

• No different from any other civil servant

• Limited faith in the expertise and professionalism of the police

• ideally using different models in diff situations

Reform

• Codify in legislation police independence for core functions of policing

• Any ministerial direction to the police much be written and made public

  • Subject to the discussion and scrutiny of cabinet and/or Parliament

• Create police boards for the OPP and RCMP

Structures of Canadian Policing

• Predecessor: North West Mounted Police (1873)

RCMP Jurisdiction

• Contract policing:

• National force

  • Federal laws

  • National and border security

  • Safety of state officials, dignitaries and foreign missions

  • Forensic laboratories and criminal intelligence, Canadian Police Information Centre (CPIC)

• Tension between roles

  • National Security and Intelligence Committee of Parliamentarians Report

RCMP Current Issues and Challenges

• “culture encourages or at least tolerates misogynistic, racist and homophobic attitudes ... the problem is systemic in nature and cannot be corrected solely by punishing a few bad apples” (Bastarache Report)

• Sexual harassment

• Merlo-Davidson Settlement

• Bastarache report “Broken Dreams Broken Lives”

• RCMP union

  • Right to collective bargaining

  • Mounted Police Association of Ontario v. Canada (2015 SCC 1)

• Recruitment challenges

• Systemic discrimination and racism

• History with Indigenous peoples (ARTIST: KENT MONKMAN)

Ontario Policing

• Comprehensive Ontario Police Services Act (2019)

• Municipal police services (approximately 50) and the Ontario Provincial Police

  • Report to the Minister of Community Safety and Corrections

  • Total cost: approximately $3 billion

• First nations police

Ontario Police Services Act

• Now: Community Safety and Policing Act, 2019

• Duties

• Code of conduct

• Governance framework

• Police boards:

  • Hire the chief of police

  • Provide policy priorities and objectives

  • Cannot direct the chief with specific operational decisions

Police Service Boards

• Early boards political and ineffective

• Political connections remain

• Key governance forum for policing

  • Legitimacy

Police Boards Across Canada

• Adequacy and effectiveness of policing:

  • Crime prevention

  • Victim assistance

  • Public order maintenance

  • Emergency response

  • Administration and infrastructure

• Lack of consistency and uniformity

• Differences in ratio between elected and appointed members

Ontario Police Boards

• Combination of elected and appointed members

• No term limits

• Training required

• Problems:

  • Diversity

  • Perceived lack of power, e.g. Freedom Convoy

• Current issues in Policing Policy: Use of Force

Current Issues in Canadian Policing

• Defund or Divert Resources

• Strengthen and Improve Oversight

• Increase Diversity

LECTURE 4- POLICE OVERSIGHT AND ACCOUNTABILITY

Why is Police Accountability Important?

• Policing is based on consent

  • ”the police are the public and the public are the police”

    • police are part of our community, not separate

    • working in service of community goals

  • we agree to some limits on our liberty on exchange for the protection provided by law enforcement

• Important for the rule of law

  • constitutional limits → important for the rule of law

    • no one is above the law

• Legitimacy for the police

  • must be public trust

• Public confidence in the police and the wider justice system

  • accountability is important for ^

Why is it Challenging to Provide Accountability?

• Policing is a low visibility activity

  • out of public view

  • out of view from their supervisors

• Evidence is difficult to obtain

  • challenging investigations

  • officers can tamper with the body cam footage or dash cam footage

    • some investigations don’t require cams

• Police officers are viewed as credible

  • Complainants may have to earn credibility

  • compared to the person who is being arrested, they have much more credibility

• Resources

  • the oversight units do not have the same level of funding as regular police forces

• Police as criminal justice insiders

  • experts on the justice system

• Complainants may be reluctant to report

  • may be especially hard in small towns, knowing everyone

  • think that they have to complain directly to the people who they are complaining about

How Can We Hold Police Accountable?

• internal

  • within the organization itself

  • within the police departments

  • the chain of command is a simple form of oversight

  • professional standards units

  • a lot of challenges

    • the public does not trust it

    • police officers cannot be trusted to investigate other police officers

• external

  • work and evidence is subject to review, civil liability issues

  • reporting on what the police do, uncovers a lot of what the police are up to

  • civilian oversight

    • oversight conducted by non police officers

    • goals → investigate police misconduct, ….., put more trust in the police

Serious Incident Response Teams (SIRT)

• Almost every province has created a SIRT

  • every province has SIRT accept for PEI, the Nova Scotia SIRT comes to investigate

  • Territories

    • do not have their own SIRT

    • rely on the support from other juris

    • Alberta SIRT works for Yukon

  • RCMP

• Investigate serious injuries and deaths involving police

  • criminal conduct

• Some agencies have jurisdiction over sexual assault, intimate partner violence, firearms

  • most agencies can only investigate criminal conduct

  • in Ont they can also investigate SA and anything to do with firearms or tasar’s

Creation of the SIU (in ONT it is SIU, same as SIRT)

• created in response to high profile killing that leads to protest

• 1988: Killings of Lester Donaldson and Michael Wade Lawson

  • Lester Donaldson

    • killed by Toronto police

    • someone said he was holding hostages

      • he had none

      • he was having a mental health episode

    • police say he lunged at them with a knife

    • police officer charged with manslaughter

      • not convicted, acquitted by a jury

  • Michael Wade Lawson

    • shot by two officers, while driving a stolen car

  • these cases started the protests

  • The Lewis Report → in response to this report they make the SIU

• 1989: Task Force on Race Relations

• 1990: Creation of Special Investigations Unit (SIU)

Creation of Serious Incident Response Teams

• BC Independent Investigations Office (IIO)

  • Created following the Braidwood Inquiry (2010) into the killing of Robert Dziekanski

    • lead by a judge

    • investigating the killing of a polish immigrant in the airport

    • in customs he becomes irritated, language barrier

      • resists arrest

      • officers taser him 5 times, killed him

    • two officers were not convicted for pergery, not the killing

• Manitoba Independent Investigations Unit

  • Created after the Taman Inquiry (2008)

    • investigate a flawed investigation

    • allegedly driving drunk, struck and killed a woman

    • a lot of police testifying

• Lack of public confidence in officers investigating themselves

• Alberta SIRT

  • created by the government to go against lobbying by police officers

Serious Incident Response Teams: Independence

• Independence from police

• Led by a lawyer

  • all are lead by ^

• Some allow active police officers to conduct investigations or to assist investigations

• Only three – MB, BC, and ON, have a fully civilian team

  • But! This includes retired officers

  • Advantages and disadvantages of using retired officers

• Can the agency charge the police?

  • some require prosecutors

  • ON the director of the SIU can lay the charges

Serious Incident Response Teams: Limitations

• Reactive

  • cannot do much to prevent

  • investigating after the fact, after harm has been caused

• No prevention or deterrence

• After-the-fact accountability

• Focus is individual officers → cannot address policies or culture within the system

• Lack of cooperation from officers

  • Blue wall of silence

    • not willing to give a lot of info

    • policing in a brotherhood, putting your life on the line for the person with you

    • not being concerned about getting ratted out

      • discourages officers from reporting on other officers

Police Cooperation: Wood v. Schaeffer 2013 SCC 71

• SIU had to sue police officers all the way to the SCC to get access to their notes

• Problems of police cooperation with criminal investigations into their conduct

• SIU conducts two investigations into use of lethal force by OPP

  • do not charge the officers

  • difficulties with the witness officers

    • advised to not take note until talking to the union lawyer, instead of right away like usual

• Problems with investigation

  • Notes not independent or reliable

• Family of deceased seeks declaration from the court

• Supreme Court of Canada:

  • Witness and subject officers must not consult with lawyers until they have completed their notes

The Criminal Law Standard

• Standard of criminal fault

  • Section 25(1) plus guidance from the Supreme Court

• Section 25(1) of the Criminal Code, officers to only use as much force as necessary

• R v. Nasogaluak (2010):

  • “Police actions should not be judged against a standard of perfection ... police engage in dangerous and demanding work and often have to react quickly ... their actions should be judged in light of these exigent (←legal word for emergency) circumstances”

    • giving them the benefit of the doubt

• Creates a high standard to charge and prosecute a police officer

• Should we have higher expectations for police officers?

Police Oversight in Ontario

• Law Enforcement Complaints Agency (LECA)

• Special Investigations Unit (SIU)

• Inspectorate of Policing → created last year

LECA

• Formerly – The Office of the Independent Police Review Director (OIPRD)

• Police misconduct, not criminal charges

  • cannot lay criminal charges

  • offences under the police act

• Jurisdiction → over the entire province

• Public interest

  • can make investigations on their own, without complaints

• Systemic reviews

  • e.g., G20, strip searches, Thunder Bay Police, DNA gathering, people in crisis

• Conduct of an officer

• Policies of police departments

• Services of police departments

• over 6000 complaints

  • conduct

  • entire services

• con of LECA

  • can decide to investigate or send it back to the force itself, once again police investigating police

• most common investigations

  • discreditable conduct

  • neglect of duty

  • unlawful exercise of authority

SIU

• Independent civilian law enforcement agency

• Conducts criminal investigations

  • serious injury, death, allegations of sexual assault or involve the firing of a firearm

• Jurisdiction is entire province of Ontario

• Agency of the Ministry of the Attorney General

• Investigators civilian and police backgrounds

• custody injuries

  • someone is injured in police custody, very broad

• SA complaints

  • a lot of the cases are when officers are asked to help someone

Inspectorate of Policing

• Operational independence from Solicitor General

• Came into force April 2024

• Compliance with Community Safety and Policing Act

  • lead by inspector general of policing

• Oversight for entire policing system

  • mainly for police service board

  • for the governance of police in ONT

• Functions

  • Public complaint investigation

  • Inspections of police services and service boards

    • they can launch invest if the service is not acting with adequate and effective policing

  • Data sharing

  • Advisor and liaison

Inspectorate of Policing: Investigation Example

• Thunder Bay Police Service and the Thunder Bay Police Service Board

  • basis of public complaints

  • have been subject to several investigations

• Evaluate how missing persons and death investigations are conducted

• Criticized for how it handles deaths of First Nations people

  • not investigating in a full manner

  • Systemic racism and stereotyping

• Possible consequences?

  • suspend the chief or members, or the entire police service board

  • outside police service

  • dissolve the entire service

Police Oversight and Accountability in Practice

• What happens when police commit crimes?

• The RCMP’s Mr. Big undercover technique

SIU Study: What Happens When Police Break The Law

• study examining→ SIU investigations over a 15 year period

  • Over 97% of charged officers are male

  • Almost 13 years of service on avg

    • 85% of officers held the rank of constable or detective

    • most took place on duty 86%

      • SIU can investigate off duty conduct

    • 44.5% of SAs occur off duty

  • Complainant (victim) conduct

    • 63% are male, usually young 64% are under the age of 40

    • over 40% the complainant was involved in criminal activity

    • black people are 28.8% of use of force cases, 65% of deadly encounters, 75% in shooting

      • disproportionate numbers based on race

  • Sexual assault cases are different

    • 30% of officers are ranked as sergeant or higher

      • 15 years of service

      • higher rank than regular issues

    • 94% are female, 74% are under the age of 30

    • KNOW THESE TRENDS, NOT SPECIFIC % FOR MIDTERM

  • Data on race

    • the oversight bodies came about in reaction to race protests

    • recently started to collect data on race

What Are The Charges?

• substantiation rate = 5.72%

  • all of the investigations they do, only laying charges in about 6% of cases**

    • low rate

• SA by police

  • lay charges 7% of the time

  • 1.6% of SA cases result in a sentence → VERY low

  • general public lay charges in about 44.3% of SA charges

Death Investigation

• General mental health disability: 10.7%

• Suicidal mental health disability: 25.2%

• Threaten or assault police/others: 34%

• Possess weapon: 49.5%

SIU Investigations Are Challenging

• Criminal justice insiders

  • more effective defense council

• Circumstances and credibility

  • built in credibility, others do not have the same credibility

• Blue wall of silence

The RCMP’s Mr. Big Technique

• How do these multiple and overlapping accountability mechanisms function in practice?

• Why Mr. Big?

  • Criminal investigation is a core/routine police function

  • High profile cases

    • almost always homicide or missing person

    • always high profile

  • Pressure to produce results

  • Unique challenges of oversight in undercover investigations

Mr. Big Issues

• False confessions

  • confessions in crim law are very powerful

  • usually put under a lot of pressure

• Wrongful convictions → from false confessions

• Lower self preservation skills

• Right to remain silent does not apply → police officers do not have to let them know what their rights are

• Undercover officers can threaten suspect

• Great deal of discretion and little oversight

• Extremely hard to defend

  • defendant willingly engaging in criminal activities

Judicial Oversight Pre-Hart (2014)

• provided very little framework for what officers can do in mr. big investigations

• Right to remain silent

  • only applies after detention

• Persons in Authority

  • if the person that is being confessed to is a person of authority, must have rights for the person confessing

• Abuse of Process/Dirty Tricks

• “Absent dirty tricks, the courts should not set themselves up as the arbiters of good taste or the preferred methods of investigation...the courts should not be so indulgent as to preserve the accused from himself and his own untrammeled tongue.” (R v. Roberts [1997] B.C.J. No. 1544)

R v. Hart [2014] 2 S.C.R. 544

• Nelson Hart was suspected of murdering his twin daughters

  • one of the girls falls into the lake at the park, runs home to get his wife (leaving the other daughter), when they come back both girls had drowned

• Not enough evidence to charge Hart

• Two years after the murder, RCMP initiate a Mr. Big sting

  • socially isolated, only leaves home with his wife

  • medical conditions, low education

• Hart is recruited into a ‘criminal organization’

• Hart participates in various simulated crime scenarios

  • Enjoys the financial rewards that come with working for the organization

• Operation continues for two more months

• Hart can only participate if he gains Mr. Big’s approval

  • Background check reveals murder investigation

• Hart confesses again and describes murders

  • reason was that he thought social services were going to take his children

• Investigation took four months

  • Hart was paid $15,720

  • 63 scenarios that police put him through

• does the mr big tech produce false confessions?

• prejudice form the court that could not be seen past

Hart Test for Mr. Big Confessions

1. Any confession made by the accused during the Mr. Big scenario should be treated as presumptively inadmissible.

• Unless Crown can establish on the balance of probabilities that the probative value of the confession out weights the prejudicial effect

  • how long was the op? were threats made? offers made? how many encounters with the accused and the police?

2. Misconduct by the police that offends the community’s sense of fair play and decency will amount to an abuse of process and warrant the exclusion of the confession

• Police cannot capitalize on the vulnerabilities of the accused

  • Hart was vulnerable because he needed he money

Impact of R v. Hart

• Test applied to Hart:

  • All of the defendant’s confessions must be excluded from evidence

• Mr. Big post-Hart

  • Still a legal tactic**

  • Requires officers keep more detailed records

  • Limits the conduct of police in future investigations

Impact of R v. Hart: Iftene and Kinnear (2020)

• 61 cases where Hart precedent was applied

• In 56% of cases where confession was admitted, the accused had a noted vulnerability

• RCMP did not collect enough information to provide proper accountability

  • What about the cases not prosecuted?

• Hold back and confirmatory evidence

  • giving specific details that only the person who committed the crime would know

  • 21% = no additional evidence

Impact of R v. Hart

• Hart created a great deal of discretion and flexibility

  • Inconsistent application

• Negligible impact of Hart

  • Confession admitted in 51 cases

  • HART TEST IS NOT HAVING AN IMPACT

• “What makes Mr. Big efficient ... is also what makes it legally and ethically problematic: the exploitation of individual vulnerability” (Iftene and Kinnear, 2020