Tuesday, December 11, 2018

In a commentary in the Globe and Mail, Prof. Kent Roach writes about the importance of police independence in the context of the Ipperwash inquiry and of Ontario's new government ("Is police independence at risk in Ontario?", December 10, 2018).

"Police independence is a poorly understood and sometimes abused concept. But that does not mean that is not fundamental to democracy and the rule of law."

Read the full story on the Globe and Mail website, or below.

Is police independence at risk in Ontario?

By Kent Roach

December 10, 2018

A premier’s chief of staff makes it known that he expects to see people who run unlicensed cannabis stores in handcuffs by the evening news.

A premier makes it known that he wants protesters out of the park.

A president asks the police to lay off the investigation of an adviser or charge someone for leaking information.

They all claim, with some justification, that they represent the people. The police work for the people and by implication for them.

Police independence is a poorly understood and sometimes abused concept. But that does not mean that is not fundamental to democracy and the rule of law.

The appointment of Ron Taverner as Ontario Provincial Police Commissioner has been met with controversy because of his friendship with Ontario Premier Doug Ford and his family. While there are concerns over whether there was interference in the hiring process of Ontario’s top cop, the fundamental concern should centre around the threat of populism on police independence and the rule of law.

What is police independence? It started as a common-law concept that recognized that each police constable should be able to exercise their own discretion in deciding who to investigate and who to charge.

In 1999, the Supreme Court of Canada elevated it to a constitutional principle related to the rule of law. It concluded that the police were not “the servant or agent” or subject to “political direction” by the government of the day. It also indicated that police independence was not absolute.

A premier who directs how the OPP enforces the law will create a police state. An OPP that can do whatever it wants, however, equally will be a police state.

Populism makes the rule of law vulnerable to claims that justice experts – whether they be the police, prosecutors, judges or professors – who are highly paid and have pensions are “out of touch.” They are not responsive to the demands of elected leaders, who despite their own wealth and power, claim that they represent “the people.”

Populist anger needs and feeds on scapegoats.

Take what happened in 1995 at Ipperwash, a former Ontario provincial park. Protesters occupied the park saying they were protecting ancient Indigenous burial grounds. Protester Dudley George was killed by an OPP officer in the dispute. The officer was convicted of manslaughter.

Critics allege then-premier Mike Harris’s words and actions during the occupation put pressure on police to end the conflict quickly.

The Ipperwash inquiry was appointed to determine if there had been improper political direction.

It found that the lines between the politicians and the police had been dangerously blurred. It concluded that s.17(2) of Ontario’s current Police Services Act inadequately protects and could “obliterate” police independence by simply making the OPP commissioner subject to ministerial direction.

It recommended spelling out the precise parameters of the law enforcement independence of the police and ensuring that legitimate ministerial direction to the OPP be published in order to promote transparency. In other words, democratic but transparent ministerial direction of Canada’s second largest police service responsible for much First Nations policing and major crime investigation.

Kathleen Wynne’s government implemented the Ipperwash recommendations with section 62 of Ontario’s Police Service Act, 2018, providing that the minister can only make directions to the OPP commissioner. Moreover, the minister may not do so “with regards to specific investigations, the conduct of specific operations, the discipline of specific police officers, [or] the routine administration of the OPP.” The minister must publish directions. The commissioner may refuse illegal regulations or to provide personal information.

The problem is that this new provision will not come into effect until Jan. 1, 2020. Even that date is uncertain because the Ford government has threatened to gut the whole act because of its emphasis on police oversight.

It might be too late in 2020 to avoid another Ipperwash. Even if section 62 survives and eventually becomes law, it depends on the integrity and independence of the OPP commissioner and the responsible minister. The Ford government, like many others, governs from the centre. It has already switched the minister responsible for the OPP. It has dismissed others who have raised objections. In practice, ministerial directions could be dictated by the Premier or his political aides.

Ipperwash or worse could happen again. The Premier’s enemies could be targeted and his friends sheltered if there is not better protection of police independence. This is the way that a democracy committed to the rule of law dies.