The Canadian Review of Policing Research (2005)
ISSN: 1710 6915
THE IPPERWASH INQUIRY: RESEARCH ON POLICE GOVERNANCE, INDEPENDENCE AND ACCOUNTABILITY
In June 2004 six papers on police governance, independence and accountability were presented in an academic symposium at Osgoode Hall Law School. The symposium was commissioned by the Ipperwash Inquiry, which was established to inquire into the 1995 events surrounding the death of Dudley George, a First Nations teenager who was killed by a police officer during a protest at Ipperwash Provincial Park, Ontario.2 There was a belief that the strong police reaction to the protest, leading to the death of Mr. George, had been the result of political interference in a police operational matter. Enduring suspicion led to the Inquiry being set up ten years later. The symposium was held under Part Two of the Inquiry mandate to make recommendations on avoiding violence in similar circumstances in the future.
Questions of police governance, accountability and independence have been subjected to thorough research before, most notably in the McDonald Commission of Inquiry into Certain Activities of the Royal Canadian Mounted Police. That the issue still draws critical attention more than twenty years later suggests that understanding and a resolution to the issue still eludes us. Despite the modifications to police practice that the Charter of Rights and Freedoms has brought, there is still concern over the degree of independence the police exercise, and debate over where the line between legitimate government direction of the police and illegitimate political interference should be drawn. Perhaps there is no ideal relationship between governments and the police, and perhaps leaving the situation fluid is the only solution in the circumstances. Nevertheless periodic reconsideration to shed fresh light on how the arrangements are working is sine qua non for a democratic state. That is what the following papers written by eminent academics and synopsised here have done in relation to police governance and independence. A manuscript is being prepared for publication during 2006. In addition to the symposium papers, highlights from the Ipperwash Inquiry relating to police and government relations will be included.
1. Four Models of Police-Government Relationships
Kent Roach, Professor of Law at the University of Toronto, with cross-appointments in criminology and political science, Fellow of the Royal Society of Canada
This paper provides an introduction to police-governmental relations in Canada by outlining the law and history of police-government relations in Canada, constructing four different models of police-governmental relations and identifying critical issues that distinguish different approaches to police independence.
The paper first examines the contested legal basis for claims of police independence from government with a focus on the pronouncements of the Supreme Court of Canada on this issue in R. v. Campbell and Shirose. The second part examines highlights of the history of police-government relationships. Controversies such as the Nicholson affair, the Airbus, Doug Small and Sponsorship Scandal cases are examined, as well as the contributions of the McDonald, Marshall and APEC inquiries to thinking about the proper relation between the police and the government.
Next, the paper constructs four ideal models of police-government relations in order to highlight the range of value choice and policy options. The models are full police independence in which the police are immune from governmental intervention on a wide variety of matters including the policing of demonstrations. The second model is core or quasi-judicial police independence in which police independence is restricted to the process of criminal investigation. The third model of democratic policing similarly restricts police independence but places greater emphasis on the appropriate Minister’s responsibility and control over policy matters in policing. The fourth model of governmental policing both minimizes the ambit of police independence and accepts the greater role of central agencies in coordinating governmental services including policing.
Finally, the paper outlines some critical issues that differentiate the four models of police-governmental relations. They include the precise ambit of police independence from government, the respective roles of responsible ministers and central agencies in interacting with the police, the distinction between governmental requests for information from the police and attempts to influence the police, and whether governmental interventions in policing should be formally reduced to writing or remain informal.
2. The Oversight of Executive Police Relations in Canada: The Constitution, the Courts, Administrative Processes and Democratic Governance
Lorne Sossin, Associate Dean and Associate Professor of Law, University of Toronto
This paper critically examines two central questions: 1) What are the mechanisms which constrain and define executive accountability and police oversight in Canada and 2) Can the need for the police to remain above partisan politics and beyond manipulation by the government of the day be reconciled with these mechanisms of governance and accountability? This paper puts forward the argument that an apolitical and autonomous model is best suited to the dynamics of policing in a constitutional democracy such as Canada, and has the potential to balance the need for political input into policing while countering inappropriate political interference in policing.
The executive-police relationship is shaped by multiple and overlapping forms of oversight, from internal review and disciplinary investigations to judicial and public inquiries. These multiple and overlapping forms of executive oversight are often criticized as unwieldy, incoherent and ineffective. The problem with the present system of executive-police oversight is its lack of overarching vision and coherence. Police commentators tend too easily to fall into pro-police and anti-police camps and these polarized groups tend to talk at each other rather than to each other. Governance and institutional structures reflect this bipolar situation.
The bipolar political backdrop is complicated by the policy and operational distinctions on which the involvement of the executive in policing often turns. The author of this paper argues that the policy-operation dichotomy is maintained not because it accords with a readily identifiable boundary but rather because we have yet to discover any other way of distinguishing legitimate government interests from illegitimate ones. The “apolitical and autonomous” model of policing represents an alternative framework for discerning the boundary between legitimate and illegitimate executive involvement in policing. The goal of this ideal type is to create a legal, administrative and political framework in which neither the police nor the executive can unilaterally impose its will on the other, and in which, as a result, avenues for deliberation and dialogue must be pursued.
3. The Idea of the Political "Independence" of the Police: International Interpretations and Experiences
Philip Stenning, Professor and Director, Institute of Criminology, Victoria University of Wellington, New Zealand
Professor Stenning lays the foundation for his paper on the relationship between police and government, by clarifying some key concepts. He illustrates graphically the relationship between degrees of “control” and degrees of “accountability”, to argue that the two concepts of independence and accountability are not incompatible. He then analyzes the notion of “police independence” itself. He points out that what he calls the “doctrine” of police independence is the creation of judicial pronouncements rather than a result of constitutional or statutory action. Moreover, it is unique to common law jurisdictions, although not all of them. Yet, in jurisdictions where the doctrine has no force, there is “no less concern to avoid undesirable partisan or special interest influences over police decision-making”, and government officials defer to professional police expertise in routine and non-controversial police decisions.
Despite this seeming balance, relationships between the police and governments have proven to be a source of persistent difficulty and controversy in many countries of the world. The paper goes on to review and discuss the experiences of, and debates over, this relationship in Britain, Australia and New Zealand over the last three decades. The analysis discloses that despite similar legal and constitutional traditions, the relationships between the police and governments have played out quite differently in the three countries. There is, however, a common trend towards greater and more detailed political accountability of the police in all three countries.
Somewhat ironically, in Britain, the birthplace of the now common notion of "police independence", recent developments have most threatened this doctrine of police autonomy from political influence and direction. In all three countries, however, it has been the impact of more generalized public service reforms (the so-called "new public management") that has made more inroads into the practical political independence of the police than any explicit retreat from established legal doctrine on this subject.
A growing disparity between the practices of governments and the conservatism of judicial pronouncements on police independence is apparent in all three jurisdictions. This is most clearly manifest in movements towards legislative specification of the parameters of the police-government relationship, in preference to reliance on judicial rulings on the subject. In all three countries, however, governments have been reluctant to concede to police any right to complete immunity from political influence or direction with respect to the handling of major public order challenges, such as political demonstrations.
4. The History and the Future of the Politics of Policing
Margaret Beare, Associate Professor, Department of Sociology, and Osgoode Hall Law School, York University
Professor Beare’s paper examines the operational realities of the relationship between the police and the executive beyond the law, policy, and the desired position expressed in ideological discourses on police independence. The paper is based on a thirty-year analysis of policing in Metropolitan Toronto, and draws primarily on historical and criminological literature, research, and the information collected by public inquiries. It demonstrates with specific examples an on-going, intensive political involvement in police decision-making.
The central argument of the paper is that, despite an apparently clear-cut division in both law and rhetoric between policy and operational control of the police by the state, in practice the reality is quite different. The relationship between the state and the police is a dynamic relationship that changes to reflect the nature of policing being carried out, the political interests of the party in power and, to some extent, the personalities of the key police and political players at a specific period in time. The paper then analyses in greater detail the actual working relationship between the police and political bodies at various levels of government and shows how it is frequently based on shared interests and priorities. G overning bodies and the police are not always in tension, but can collude in negative ways and, when this happens, the rights of minority groups can be violated. The research finally shows that looking for the ”smoking gun”, namely a written memo or document containing a direction from the executive to the police, is futile and only diverts attention from the reality of the continuing partnership between politics and policing.
5. Legal Sites of Executive-Police Relations: Core Principles in a Canadian Context
Dianne Martin, Late Professor of Law, Osgoode Hall Law School
This paper is an overview, with examples and solutions drawn from policy documents, public inquiries, legislation, and case law, of the multiple “sites” where the governance of police in a democratic society is negotiated. Multiple factors, including political, institutional and legal influences, decide the way this intricately structured legal relationship is worked out in day-to-day situations. Bearing in mind the political and institutional contexts, the paper examines the legal instruments and institutions that both structure the relationship and are part of resolving the inevitable conflicts that arise between what are, after all, two very general concepts.
The central argument is that the relationship has evolved in various ways into a partnership, negotiated daily at various sites within the legal and constitutional systems. Many of the negotiations take place informally and out of public view, and others, particularly individual cases, are managed by the courts. Issues only occasionally emerge as a matter of public concern and are usually perceived as an aberration or “crisis”. The crises, often precipitated by controversial media coverage, can occur in individual contexts such as Charter motions in criminal cases, in civil law suits against the police, or in institutional settings. Thus, what often starts as a minority challenge and attracts community and media pressure, succeeds in generating sufficient challenge to legitimacy that special responses such as legislative change, new modes of civilian review; and public inquiries have to be instituted or evolve.
It is argued that in all cases, better outcomes would be achieved if both police officials and judicial or political decision makers were better informed about the history of the relationship and the reasons for the doctrines. The arguments in the paper use examples from police services across the country, including the Royal Canadian Mounted Police, and a case study of the governance of the Toronto Police Service, to demonstrate how police are actually regulated, and the way that the theory of accountability to the rule of law operates at different sites.
6. Police-Government Relations in the Context of State-Aboriginal Relations
Gordon Christie, Associate Professor of Law, University of British Columbia
Debates over government-police relations have a common pattern. Contention arises from views on how to resolve the tension between concern that the police act without political interference and the concern that, in a liberal democracy, they be held accountable for their actions. This paper examines the tension in the context of state-Aboriginal relations, a process of contextualization that leads to questions about the efficacy of the typical analyses employed in such debates.
The first stage of analysis treats police-government relations in the Aboriginal context as if it presented no particular or unique problems. At this first stage Aboriginal peoples in Canada are conceptualized as minority populations within a liberal democracy, possessed of the rights enjoyed by other disadvantaged minority groups. The next two stages of analysis progressively criticize this position, introducing factors related to the unique legal and constitutional status of Aboriginal people in Canada, and then factors relating to their distinctive historical (and therefore necessarily political) status in the Canadian state, for no scenario played out in the arena of Canadian-Aboriginal relations can be adequately understood apart from its place within the larger legal, constitutional, historical and political landscape.
Professor Christie’s thesis is that Aboriginal peoples are not merely protected against arbitrary government or police action as a minority group under the Charter of Rights and Freedoms, but that they have a status altogether different and legally problematic, which should influence police-government relations with respect to Aboriginal peoples. He points out that Aboriginal peoples “also enjoy the recognition and affirmation of existing Aboriginal and Treaty rights under section 35 of the Constitution Act of 1982”, which gives them explicit constitutional protection. He explains that government is engaged in reconciliation with Aboriginal peoples, based on their existence prior to the existence of the Crown in Canada, and that the government is in a fiduciary relationship to Aboriginal peoples, which means the government has a duty to work on their behalf. In its fiduciary role, the government therefore has a duty to give direction to the police to direct them away from actions that potentially interfere with Aboriginal and treaty rights and towards actions that promote reconciliation. And this, he implies, could extend into the operational realm of the police.
End Notes
1. The Symposium at which the papers were presented was organized by Margaret Beare, Dianne Martin and Robert Wei of Osgoode Hall Law School. Apart from organizing the symposium, Dr. Beare and Dianne Martin both presented papers at the symposium and planned to publish the proceedings in book form. Unfortunately, shortly after the symposium, Dianne Martin died. Her place as editor of the papers has been taken by Tonita Murray.
2. The Ipperwash Inquiry was e stablished by the Government of Ontario on November 12, 2003. The Honourable Sidney B. Linden is as the Commissioner to the Inquiry.