Controversy erupted this week when allegations surfaced that the Liberal government might have tried to interfere with the Royal Canadian Mounted Police (RCMP) investigation into the 2020 Nova Scotia massacre in which 17 people were killed.
According to the RCMP alternate. Notes from Darren Campbell, RCMP Commissioner Brenda Lucki said in a phone call she had promised in the office of Prime Minister and then Public Security Minister Bill Blair that the RCMP would publish information on the weapons that used the gunman. Lucki got angry when the RCMP didn’t.
The Liberal government is supposed to want the information made public to further its arms control agenda. Opposition critics and politicians have accused the government of trying to use the tragedy for political gain. Lucki, Blair and Prime Minister Justin Trudeau have denied any involvement in the investigation.
But how and when, if ever, should lawmakers be able to dominate those who enforce them? When did the police interference occur and what were the consequences?
CBC News spoke with some experts to try to explain the strained, legally diffuse and often controversial relationship between police and policymakers in Canada.
Why is the police supposed to be separate from politics?
The Supreme Court of Canada cites the rule of law as the founding principle of democracy in Canada. It is considered important to our constitutional order that no one, not even the most powerful politicians in the country, can be considered above the law.
But there is another reason for the independence of the police: in our democracy, the government is supposed to be accountable to the people, which means that the people do not have to fear that the police will persecute them by orders of the government.
“I think what we want to do is avoid a ‘police state,'” said Kent Roach, a professor at the University of Toronto Law School. “And by that I mean we want to prevent politicians from telling the police who has to investigate and who not “.
In states where the government can tell police what to do, experts say a pattern of government critics and opponents quickly ending up in jail.
For these reasons, police autonomy to enforce the law and protect the public is a key ingredient in most well-functioning liberal democracies.
“Political leaders are not supposed to micromanage police services, this is antithetical to the very idea of democracy,” said Temitope Oriola, a professor of criminology and sociology at the University of Alberta.
What does the law say?
While these principles seem part of a basic lesson in civility, Roach says many people, including police officers and politicians, often misunderstand.
But there may be a reasonable excuse: the law itself is not clear.
“I think part of the problem here is that the government’s legitimate lines of direction to the police and the government’s illegitimate direction are very vague.” He said.
While police independence from government is important to our democracy, Roach says it is a principle that is not always reflected in our laws.
“For example, the police cannot file hate propaganda charges without the prior approval of the Attorney General,” he said.
“So there’s no such thing as absolutes.”
Kent Roach, a law professor at the University of Toronto, said Canadian law is very vague when it comes to inadequate government direction of law enforcement. (Oliver Salathiel)
In Lucki’s case, the RCMP Act states that the commissioner “has control and management of the force and all matters relating to the force,” but “under the direction of the minister.”
Roach said the law is confusing because it does not go into detail about what direction it means, including what kind of guidance is appropriate for a minister to give to an RCMP commissioner. Nor does it say whether an indication should be made in writing or whether it can be given orally.
“It’s completely vague, isn’t it?” said Roach.
Roach would like the RCMP Act to be amended to clarify what types of orders the government can legally give the RCMP leadership.
He said there is a clear division between instructions that set rules for the police in general, which are acceptable in a democracy, and instructions for the police to act in a particular way in a specific case, or to take action against a particular person, who are not. .
He says a legitimate government directive to the police could be guidelines on what information is allowed to be made public by the police or order the police to stop using a particular technique or practice.
But a directive that would not be acceptable would be to order the 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 Mountties protected then-Indonesian President Suharto. In a public investigation report on the summit, Judge Ted Hughes concluded that the government twice tried to interfere with police operations by trying to keep police away from Suharto protesters.
Hughes recommended to the government that it amend the RCMP Act to legally clarify the independence of the police from the government. So far, no government has accepted the recommendation.
Roach says there may be a reason for the lack of action and clarity.
“I suspect that somehow both the police and the politicians like to maintain the status quo, which is quite vague and murky,” he said. “I think it’s unfortunate.”
What happens when politicians try to be cops?
Politicians are not supposed to tell the police what to do, but sometimes they can’t resist. While some politicians come from a police background, most do not, and it can be seen when they try to interfere in police work.
“They don’t have the skill, the knowledge, the experience, the lived experience to make operational decisions,” said Laura Huey, a professor of sociology at Western University.
He cited the 1997 APEC Suharto controversy as an example, but there are also more recent ones.
Huey says Ottawa Mayor Jim Watson’s attempt to negotiate with the convoy’s protesters for freedom earlier this year comes to mind: a move that critical incident command experts told him say it made a bad situation worse.
Ottawa Mayor Jim Watson tried to negotiate with Freedom Convoy protesters during the Ottawa occupation earlier this year. Western University professor Laura Suey says the incident is a good example of why it is a bad idea for politicians to take on law enforcement responsibilities. (Giacomo Panico / CBC)
“Most police law enforcement services have highly experienced people, highly trained professionals who specialize in negotiating in situations like this,” he said.
“So we want the mayor to come down and sink with something he knows absolutely nothing about and has had no effect anyway?”
Roach says his favorite example is former RCMP commissioner Leonard Nicholson, the most decorated Mountie in history whose name is the headquarters of the RCMP.
In 1959, the John Diefenbaker government told Nicholson to send more agents to monitor a labor dispute in Newfoundland. Nicholson chose to resign instead of obeying the order.
“This shows that this idea that the RCMP doesn’t like political leadership … is embedded in the DNA of the RCMP,” Roach said.
Is there a better way?
If too much political interference in the police is a problem, there are also too few dangers.
Voters do not elect police officers, but politicians, so they have a police control role.
“Society also cannot afford to have a police service that is not accountable to anyone,” Oriola said.
A section of the Liberal’s 2021 campaign platform is dedicated to changes to the RCMP, in particular, to making the mountains more responsible.
Orihuela describes as “delicate” the government-police relationship that requires “a good balance” and where intentions must be raised.
“Are you giving instructions to the police service to punish political opponents, or are you giving instructions … so that we have a better society and an improved society based on the political priorities you campaigned for?” He said.
Huey says more training for police service councils, which hire police chiefs, can allow them to make better hiring decisions, which in turn could inspire more confidence in police leadership and lead to less political interference.
“I think if we hire highly competent people, we have to give them the space to make decisions,” he said.
Roach says a potential solution, in addition to more legal clarity about interference, is a law that requires government ministers who lead the police to do so in writing, including the requirement that the address be public.
He believes the RCMP Act could be amended with this requirement and allowed only outside of individual cases.
“It seems to me that in a democracy, citizens have a right to know what the minister is doing,” Roach said. “I think this management system could not only promote transparency, but it could avoid all these controversies.”