How much influence should politicians have over police?

Controversy erupted this week when allegations came to light that the Liberal government may have tried to interfere in the Royal Canadian Mounted Police (RCMP) investigation into the 2020 Nova Scotia mass shooting where 17 people were killed.

According to RCMP Supt. Darren Campbell’s notes, RCMP Commissioner Brenda Lucki said in a phone call that she had promised the Prime Minister’s Office and then-Minister of Public Safety Bill Blair that the RCMP would publicly release information about the weapons the gunman used. Lucki was reportedly angry when the RCMP did not do so.

The Liberal government is alleged to have wanted the information made public to further their gun control agenda. Critics and opposition politicians have accused the government of attempting to use the tragedy for political gain. Lucki, Blair and Prime Minister Justin Trudeau have denied that there was interference in the investigation.

But how and when — if ever — should those who make laws be able to boss around those who enforce them? When has police interference taken place, and to what consequences did it lead?

CBC News spoke to some experts in an attempt to explain the tense, legally fuzzy and often controversial relationship between police and policymakers in Canada.

Why is policing supposed to be separate from politics?

The Supreme Court of Canada cites the Rule of Law as the founding principle of Canada’s democracy. It’s considered important to our constitutional order that no one, even the most powerful politicians in the country, can think of themselves as above the law.

But there’s another reason for police independence — in our democracy the government is supposed to be accountable to the people, which means people aren’t supposed to fear police going after them on the orders of the government.

“I think what we want to do is avoid a ‘police state,'” Kent Roach, a professor in the University of Toronto’s faculty of law, said. “And by that, I mean we want to avoid politicians telling the police who to investigate and who not to investigate.”

In states where the government can tell police what to do, experts say a pattern quickly emerges of government critics and opponents ending up in jail.

For those reasons, police autonomy in enforcing the law and protecting the public is a key ingredient in most well-functioning liberal democracies.

“Political leaders are not supposed to micromanage police services, that is antithetical to the very idea of democracy,” Temitope Oriola, a professor of criminology and sociology at the University of Alberta, said.

What does the law say?

While those principles seem like part of a basic civics lesson they’re ones Roach says many people, including police officers and politicians, often don’t understand well.

But there may be a reasonable excuse — the law itself isn’t clear.

“I think part of the problem here is that the lines of legitimate government direction to the police and illegitimate government direction are very vague,” he said.

While police independence from government is important in our democracy, Roach says it’s a principle that’s not always reflected in our laws.

“For example, the police cannot lay hate propaganda charges without prior approval of the attorney general,” he said.

“So there’s kind of no absolutes.”

Kent Roach, law professor at the University of Toronto, said Canadian law is very vague when it comes to inappropriate government direction of law enforcement. (Oliver Salathiel)

In Lucki’s case, the RCMP Act states the Commissioner “has the control and management of the force and all matters connected with the force” but “under the direction of the minister.”

Roach said the law is confusing because it doesn’t go into details about what direction means, including what type of direction is appropriate for a minister to give to an RCMP Commissioner. It also doesn’t say whether a direction has to be in writing or can be given orally.

“It’s utterly vague, right?” Roach said.

Roach would like to see the RCMP Act amended to clarify what types of orders the government can legally give RCMP leadership.

He said there is a clear divide between directions that set rules for police generally, which are acceptable in a democracy, and directions for police to act in a particular way in a specific case, or to take action against a particular person, which are not.

He says a legitimate government directive to police might be guidelines on what information the police are allowed make public, or ordering the police to stop using a particular technique or practice.

But a directive that would not be acceptable would be directing police to charge someone with a crime.

During the 1997 APEC Summit in Vancouver, the government was found to have interfered with RCMP operations by directing how the Mounties protected then Indonesian president Suharto. In a public inquiry report on the summit, Justice Ted Hughes concluded that the government twice tried to interfere with police operations by attempting to get the police to keep protestors away from Suharto.

Hughes recommended the government amend the RCMP Act to legally clarify police independence from the government. To date, no government has taken up the recommendation.

Roach says there may be a reason for the lack of action and clarity.

“I suspect that in some ways both the police and the politicians like to kind of keep the status quo, which is quite vague and murky,” he said. “I think that is unfortunate.”

What happens when politicians try to be police?

Politicians aren’t supposed to tell police what to do, but sometimes they can’t resist. While some politicians do come from a law enforcement background, most don’t — and it can show when they try to interfere with police work.

“They don’t have the skill, the knowledge, the expertise, the lived experience, to make operational decisions,” Laura Huey, a professor of sociology at Western University, said.

She cited the 1997 APEC Suharto controversy as an example, but there are more recent ones too.

Huey says Ottawa Mayor Jim Watson’s attempt to negotiate with the freedom convoy protestors earlier this year comes to mind — a move critical incident command experts told her made a bad situation worse.

Ottawa mayor Jim Watson attempted to negotiate with Freedom Convoy protestors during the occupation of Ottawa earlier this year. Western University professor Laura Suey says the incident is a good example of why it’s a bad idea for politicians to take over law enforcement’s responsibilities. (Giacomo Panico/CBC)

“Most police services that deal with public order have people that are highly experienced, highly trained professionals that specialize in negotiating in situations like that,” she said.

“So do we want the mayor going down and mucking around on something of which he knows absolutely nothing and had zero effect anyway?”

Roach says his favorite example involves former RCMP Commissioner Leonard Nicholson, the most decorated Mountie in history whose name the RCMP headquarters bears.

In 1959, the John Diefenbaker government told Nicholson to send more officers to police a labor dispute in Newfoundland. Nicholson chose to resign instead of complying with the order.

“So that kind of shows that this idea that the RCMP doesn’t like political direction … is built into the RCMP’s DNA,” Roach said.

Is there a better way?

If too much political interference in policing is an issue, there are also perils in too little.

Voters don’t elect police officers but do elect politicians, so they have a role in acting as a check on police.

“Society also cannot afford to have a police service that is not accountable to anybody,” Oriola said.

A section of the Liberal’s 2021 campaign platform is dedicated to changes to the RCMP, in particular making the Mounties more accountable.

Oriola calls the government-police relationship a “delicate” one that requires “a fine balance” and one where intentions should be considered.

“Are you giving directions to the police service to punish political opponents, or are you giving direction … in order that we might have a better society, and improved society based on the policy priorities that you campaigned on?” he said.

Huey says more training for police services boards, that hire police chiefs, may allow them to make better hiring decisions, which in turn could inspire more confidence in police leadership and result in less political interference.

“I think that if we hire highly competent people, we need to give them the space to make the decisions,” she said.

Roach says a potential solution, on top of more legal clarity on interference, is a law requiring any government ministers who direct police to do so in writing — including a requirement that the direction is public.

He thinks the RCMP Act could be amended with this requirement, and to permit it only outside of individual cases.

“It seems to me, in a democracy, citizens have a right to know what the minister is doing,” Roach said. “I think that that directive system could not only promote transparency but could avoid all of these controversies.”

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