This forum is not purely dedicated to legal discourse. While I may attempt to 'raise the bar' with some pieces relating to law and being a criminal defense lawyer in Toronto, I also plan to use this blog as a medium to express my often critical thoughts on the daily grind that is life. Throw in some random videos and internet fodder, and the bar is sure to be lowered.

Friday, 22 July 2011

Police Discretion - the Good, the Bad and the Ugly Part 1

I recently read about a man who was stopped twice by two separate RCMP officers and given speeding tickets involving fines of hundreds of dollars and 10 demerit points.  Nothing special there I guess.  Oh, except in his passenger seat was his wife....who was eight months pregnant and bleeding.

That's right.  Imagine the conversation.

"I stopped you because you were speeding."
"Officer, my wife is bleeding and she's 8 months pregnant.  I have to get her to a hospital right away!"
"License, ownership and insurance please."

It sure seems absurd.  But imagine what's worse:  the officer taking the man's documentation, going back to his car, running his name, and writing him a ticket or two while the lives of both his wife and future child linger in grave jeopardy.


I used to work with a lot of great police officers.  I also worked with a few that wouldn't know how to use the discretion available to them if their lives depended on it.

Discretionary decisions made by police officers are indicative of the enormous power they possess.  It's always been a subject of great interest to me - so much so that I wrote a paper on the subject while I was at Osgoode Hall Law School.

So it was after reading the aforementioned story that I have decided to post that paper on my blog.  It's a long one so I will be posting it in suitably sized segments for your reading pleasure.  I will start with my introduction...

Police Discretion – The Good, the Bad and the Ugly

            It could be argued that even today, basic notions of justice and fairness have not evolved much beyond the basic principles that governed society in the American Old West.  However, it is more likely that a comparison between eras is not especially informative to any sophisticated discussion of the contemporary legal landscape.  The West was “regulated” by violent, uncomplicated men that would find themselves simply overwhelmed by the complexities of the modern criminal justice system.  Nonetheless, there may be some room for an artificially created relationship to exist.  It is with this in mind that I propose to set a critical evaluation of the suitability of discretionary powers available to the police, vis-à-vis their civil liberty suspension authorities, against the backdrop of Sergio Leone’s 1966 classic spaghetti western, The Good, the Bad and the Ugly.  This paper will focus on outlining the legitimacy and desirability of police discretion in this context (The Good), the difficulties inherently connected to its application (the Bad), and the amplified complications associated with the discretionary freedom-seizing authority of the police when viewed through the lens of investigative detention (the Ugly).  It is my contention that in this context, while the discretionary latitude afforded to the police imports positive concepts of humanity, flexibility and efficiency, it also cultivates the opportunity for the police to engage in unprincipled and inequitable practices which should be denounced in a free and democratic society.  These hazards are further exacerbated by the introduction of investigative detention.  The combination of a relaxed legal standard authorizing the suspension of civil liberties and its ambiguous judicial formulation facilitates the spectre of arbitrary evaluation that fosters not only an unequal application of law, but also unscrupulous practice, which serves to undermine the legitimacy of the policing institution and the rule of law itself.  Nevertheless, as far from idealistic as these perils are, the potential for fallibility in the criminal justice system is something that we, in a liberal democracy, espouse to limit, yet implicitly accept as a regrettable byproduct created by the preservation of legal equilibrium which is sustained by The Good, the Bad and the Ugly.

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