One of the fundamental premises of a liberal democracy operating according to a particular view of the rule of law is that the police apparatus, while part of the executive branch, must be free of inappropriate political interference, although they may be subject to political direction within acknowledged bounds. Canada is neither a police or military dictatorship; we have civilian governments at all levels. Police have a certain discretion to act; the executive can determine how police resources are used, as long as it is not done in an arbitrary way; and there is judicial oversight of both police and executive conduct. Another way of thinking about this, is that the police are meant to be apolitical, not used as a tool by the elected executive. In a paper prepared for the Ipperwash Inquiry, then Professor Lorne Sossin (now Mr. Justice Sossin) considered the complicated nature of this relationship, requiring the reconciliation of “need for the police to remain apolitical and autonomous…with [executive] mechanisms of governance and accountability” (p.2)
Like much in a constitutional democracy, the relations between the police and politicians have been determined and are governed by norms and values found beyond that relationship, including constitutional and common law prohibitions against the arbitrary curtailment of the rights of citizens and the appropriate balance between individual freedoms and security and safety measures. Although it would be naive to believe that these norms and values are always upheld, that there are not examples of inappropriate political involvement in police action, the recent furor over Premier Doug Ford’s involvement over the now on hold appointment of Ron Taverner as commissioner of the OPP has reminded us of how fragile the relationship between police and the political branch can be in its most basic and primitive sense.
I’m not concerned here to rehearse the entire situation surrounding the Taverner appointment. A Globe and Mail editorial this morning summed it up well enough. It is not irrelevant to mention, however, that apparently riding roughshod over basic constitutional principles and acting in self-interest (or self-vindication) has been a common theme since this government was elected. But why does it matter if Premier Ford thinks his friend would make a good police commissioner? Perhaps he would. Perhaps it would be fine if it were all a happy coincidence. On the other hand, there is a bright red flag flying over changes in the post setting out qualifications for the position, the composition of the selection committee and Superintendent Taverner’s history with the Toronto Police Force, among other factors.
Two major functions of the OPP — and police forces generally — require us to be wary of the coziness of the relationship between the police and elected politicians. One is that while the government may establish policies and directions governing police action, this must be done in a manner that conforms with accepted norms and principles, that is, not arbitrarily. The second is that the police may be required to investigate individual politicians or governments for alleged improper conduct. The public must be confident that both of these, whether they actually agree with them or not, have been determined and carried out in good faith and guided by constitutional standards. Too often, there is suspicion, not always verified, that this is not the case. This undermines confidence in our basic institutions, including the police and the political executive,a s well as in whether we are governed by the rule of law.
In reality, it is not always easy to determine when it is appropriate for political actors to be involved in some way with the police. Political oversight is important (as is judicial oversight) if the polity is not to become more a police state than a civilian state. The boundaries may be ambiguous, with the sources of authority being complex and multiple: the constitution, legislation, judicial decisions, consequences and lessons of inquiries, for example. We have plenty of examples where the boundaries have been or have been thought to have been crossed. In his Ipperwash Inquiry Report, Commissioner Linden noted that it had been inappropriate for Premier Mike Harris to set a time limit for the police to remove those occupying Ipperwash Park (p.44); more generally, he was concerned that political staff believed, wrongly, that the government could tell the police what actions to take (p.43). More recently, Premier Ford’s chief of staff told staff to direct police to shut down “pot shops” on October 17th, the day marijuana became legal; however, they refused, recognizing that “We’re not a police state. We don’t have the right or the ability to direct police to do anything….”.
The chances that boundaries will be crossed are even more likely when the appointment of the head of the police force is tainted with a failure to follow a properly designed hiring process that can itself be defended as non-partisan. That failure could result in ongoing doubts about whether the police are acting in any given case in a non-partisan way and whether the political actors understand and are acting within the scope of their role in the relationship with police. And that in turn would be an unhealthy state of affairs in a constitutional democracy premised on an apolitical police force.