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.

Saturday, 23 July 2011

Police Discretion - the Good, the Bad and the Ugly Part 2

Narrowing the Scope of Police Discretion
            Prior to any meaningful critique of the exercise of police discretion, it is desirable to narrow the scope and define the nature of the discretion that is being considered.  That discretionary decisions are made at every level of the criminal justice system is not contentious.  Although somewhat confined by the doctrine of stare decisis and appellate review, judicial discretion is a well-established phenomenon in Canadian law supported explicitly by the constitutional separation of powers.[1]  For example, judges are given the discretion to exclude unconstitutionally obtained evidence under s. 24(2) of the Charter of Rights and Freedoms.[2]  Similarly, the exercise of discretion is available to prosecutors so long as the decisions are made subject to the rules of the presiding law society, Crown policy manuals, and the Criminal Code.[3]  An illustration of this is the express statutory authority granting prosecutorial discretion to stay a charge, thereby vacating proceedings.[4]

While of considerable importance, the aforementioned discretionary realities are of seemingly limited significance when measured against the implications of the discretionary powers of the police.  As the state’s primary introduction mechanism of the justice system, the police hold profound influence during the initial stages of criminal procedure and unquestionably play a central role in the administration of justice.

The police are among the most important policymakers of our entire society. And they make far more discretionary determinations in individual cases than any other class of administrators; I know of no close second.[5]

            While Kenneth Culp Davis recognized the significance of the discretionary power enjoyed by the police, he also quantified this influence, estimating that about one-half of the discretionary decisions made by criminal justice agencies were made by the police.[6]  It is with this in mind, that the importance of the subject matter becomes palpable.
              The police, as a fundamental social institution, enjoy discretion at many layers of their organizational hierarchy.  Effective police operations require sound decision making at every level, starting with the ranks of operational supervision, departmental administration, and senior management responsible for the creation of service policy.  In this context, discretion is exercised in relation to the allocation of resources, structuring and staffing, and the creation of policies and procedures which guide the daily functions of the organization.  But seemingly, police officers at the bottom of the organizational chain of command hold a broader range of discretionary influence than the managers at the top.[7]  This is of great significance to the current assessment because of both the profound impact these decisions have and the frequency with which they are made.  These discretionary decisions are routinely exercised by the beat officer, beginning with his first probationary tour of duty and continuing throughout his uniformed tenure.

            The front line officer’s discretionary judgments are made with respect to his routine patrol habits, choice of wording/emphasis used to prepare event synopses, and recommending conditions for release.  Of significant importance to this paper, however, is the discretionary power that street level officers exercise in determining who to detain or arrest.  This discretion is realized when the choice is made to either take enforcement action or to refrain from doing so where, technically, enforcement is justified.  This point cannot be understated, for the exercise of police discretion must involve choices that are legally permissible, not merely possible.  Hence, when an examination of police discretion is undertaken, the analysis must be in relation to exercises of discretionary authority.[8]

A public officer has discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action or inaction[9]

           Any judgments that are made superfluous to legal authorization, and which go beyond the effective limits of discretion, are patently unreasonable and violate the principle of legality and the rule of law.

[1] The Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3. ss. 96-100. 
[2] The Constitution Act, 1982, s. 24(2). 
[3] Criminal Code, R.S.C. 1985, c. C-46. 
[4] Ibid., s 579(1). 
[5] Davis, Kenneth C., Discretionary Justice: A Preliminary Inquiry (Baton Rouge, LA: Louisiana State University Press, 1969) at 166. 
[6] Ibid.
[7] Manning, Peter, Police Work: The Social Organization of Policing (Cambridge, MA: MIT, 1977) at 117. 
[8] Kleining, John, Handled with Discretion: Ethical Issues in Police Decision Making (Lanham, MD: Rowman and Littlefield, 1996) at 8 
[9] Davis, supra at 4 (emphasis added).

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