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.

Tuesday, 26 July 2011

Police Discretion - the Good, the Bad and the Ugly Part 3

Defining Police Discretion
Now that the scope of the discretion being considered has been narrowed, it is important to understand its characteristics, especially in relation to the forum in which it is being evaluated.  Essentially, true discretion involves “making a decision on its merits, taking all relevant factors into consideration, weighing the available options,” [1] and arriving at the most appropriate conclusion.  Discretion is the exercise of judgment and is the opposite of routine and habitual obedience.  It brings knowledge, skill, and insight to fruition in unpredictable ways and allows the police to adapt rules to local circumstances within a rule-bound framework.  It involves making personal contributions, judgment calls, exercising autonomy, and individual solutions.  It's about making good, virtuous choices by habit or by the wisdom that comes from age and experience.    
            However, in the context of contemporary policing, discretion is more than just a grocery list of morality-based principles.  It is not simply the capacity to make choices, of being effectively free to choose between possible courses of action – but a permission, license, or privilege to use judgment in the formulation of a sensible outcome.[2]  It is a certificate of authority which gives police officers a vast amount of autonomy to act freely, so long as that authority is used responsibly.  As such, it has embedded constraints – implicit understandings about the range of choice that is legitimately available to officers in the execution of their duties.  These constraints may be articulated by reference to institutional, moral and/or administrative norms that may at times be mutually supportive, but which at other times may in tension.[3]

            An appropriate and perhaps satirical analogy of the nature of police discretion and its natural boundaries is Dworkin’s classic ‘doughnut theory.’[4]  He was able to distinguish between those areas covered by law and those left to be governed by police guidelines and regulations.  The doughnut theory stipulates that the doughnut itself is a ring representing the black and white rules which direct police conduct in a given situation.  The hole in the doughnut represents the gaps not specifically covered by these rules and, subject to police policy and procedures, it is here where discretion lurks.  It is imperative to recognize that discretion, albeit within the ring of rules, cannot exist except within the area left open by the surrounding belt of restriction.[5]  This constraint, which serves to limit the use of discretionary authority, cannot be underemphasized.  The scope and exercise of police discretion needs to be restricted in such a way as to preserve administrative flexibility, while simultaneously creating safeguards to protect the individual against arbitrariness and injustice.[6]

[1] Waddington, Patrick, Policing Citizens (New York, NY: Routledge, 1998) at 38.
[2] Kleining, supra at 3.
[3] Ibid.
[4] Dworkin, Ronald, The Philosophy of Law (Oxford, U.K.: Oxford University Press, 1979) at 44.
[5] Dworkin, supra at 46.
[6] Manley-Casimir, M. “Discretion in School Discipline” in Interchange, Vol. 8 (Toronto, Ont.: Ontario Institute for Studies in Education, 1977) at 85.

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