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, 12 August 2011

Police Discretion - the Good, the Bad and the Ugly Part 7 - Final Installment

The Ugly – Police Discretion and Investigative Detention
            The relatively recent common law investigative detention authority has further magnified the above-mentioned discretionary dangers.  This discretionary tool, which is mandated neither by statute nor by police procedure, is used by police officers engaged in aggressive patrol practices designed to fulfill their crime-fighting function.  As the majority of police-citizen encounters occur in the absence of any outside supervision, and often in circumstances of low-visibility, front-line police officers, therefore, have a great deal of discretional latitude throughout the decision making process.[1]  It is with this increase of discretionary police authority, characterized by a relaxed standard for justifying state intrusion on civil liberties, that “the possibilities for inequitable treatment and corruption increase.”[2]      
This is partly because statutory authority is substituted for ambiguously created, ex post facto, common law rules.  In R. v. Simpson,[3] the Ontario Court of Appeal found that in situations where the police have ‘articulable cause’ to believe that an individual is implicated in criminal activity, they are authorized to briefly detain that person for investigative purposes.  The Supreme Court of Canada subsequently endorsed the Ontario Court of Appeal’s treatment of investigative detention in R.v. Mann.[4]  The highest court modified the standard from ‘articulable cause’ to ‘reasonable suspicion.’  When contrasted with ‘reasonable grounds,’ the statutory standard for arrest,[5] this relaxed standard for restriction of liberty provides more opportunity for abusive discretionary action by the police, particularly toward those members of socially disadvantaged groups. 
            The ambiguity of the standard can most certainly have an affect on the conduct of some police officers.  Whenever the rules of restriction are unclear, they tend to strengthen the very conduct they are intended to limit.[6]  The officer who is initially inclined to stop individuals unjustifiably is also likely to use a more flexible legal standard, like ‘reasonable suspicion,’ to camouflage what are, in reality, unsubstantiated investigatory intrusions.[7]  Clearly, for the officer who is already prone to use his discretion in an inappropriate manner, a lack of clarity in the rules significantly increases this risk.[8]
            While the police are expected to exercise discretion in detaining individuals for investigation, there is great concern about what factors influence these decisions.[9]  While the formation of suspicion is primarily driven by situational factors related to the nature of the suspected criminality, it can also be based on more than the mere conduct of the person arousing suspicion.  In particular, the decision to detain an individual for investigation may present opportunities for discrimination on racial grounds.[10]  Surely, investigative detentions are not immune from the racist practice that has tainted the exercise of police discretion in other forums.  For example, at the very core of the controversy surrounding issues such as racial profiling is a police officer’s initial decision to suspect that someone is involved in illegal behavior.[11]  No doubt some police officers hold overtly racist views that may lead them to abuse their detention powers.  It is perhaps more plausible, however, that many police officers “subconsciously operate on the basis of stereotypical assumptions regarding visible minorities.”[12]  An officer’s assessment of his grounds for detention may be partially skewed by a belief that certain visible minorities are predisposed to criminality.  Although race is not a legitimate justification for an officer to take formal action against an individual, sufficient evidence exists to conclude that the law is administered inconsistently in a way which both “creates an impression of discrimination and allows for the introduction of personal prejudices into police practices.”[13]  For example, in R. v. Smart,[14] uniformed police officers arbitrarily detained a young black man under the guise of investigative detention.  The officers claimed that the accused resembled someone who they knew to be a drug dealer and conducted a search of him.  A short series of questions in cross-examination revealed that the officers clearly knew the individual being detained wasn’t the person they suspected.  The officers blatantly carried out an arbitrary detention and search based on little more than the colour of his skin, notwithstanding the fact that they had no legal authority to do so.  
            While decisions to detain might not be knowingly influenced by racial factors, they may be influenced by other equally disturbing considerations such as socio-economic status, sex, age, ethnicity or sexual orientation.  But regardless of the actual source and character of discriminatory influences on an officer’s investigative detention discretion, decisions to detain which are based on prejudicial personal or institutionalized dynamics are those which should be condemned.  In brief, granting overly broad discretionary authority to police officers without adequate boundaries unleashes the disconcerting potential of allowing discriminatory actions to be concealed as valid exercises of discretion.[15]
            The question is not really about the appropriateness of discretion, as much as a concern with controlling its operation.  After all, discretion can lead to injustice if it used in abusive, discriminatory, or capricious fashion.[16]  Ideally, the formation of suspicion which precedes a discretionary decision should be aroused by the actual behaviour of suspects.  Police suspicion should be objectively based on prior knowledge, observation, and the time and place of an incident.[17]  Preventive police action should not be allowed, however, when it is motivated by a suspicion of criminal activity solely, or primarily, based upon the personal attributes of the target.  Regrettably, real-world experience suggests that both race and social status are important considerations for police officers in forming suspicions.[18] 

Conclusion
            Most public interaction with the police occurs at the street level, whether during a ‘routine traffic stop’ or during the course of an active criminal investigation.  The nature of the interaction is often shaped by a police officer’s duty to enforce the law and investigate crimes which is not deemed as absolute and is subject to the exercise of discretion.  Police discretion is characterized by moral judgments made by human agents in situations where a number of permissible options are presented.  Numerous factors contribute to the use of discretion by the front-line officer which allows him to fashion solutions to situations where the strict application of law may not be best suited to productive outcomes.  It is during lower level street encounters where the application of discretion is a necessary component of both successful police operations and the criminal justice system at large.  However, police use of discretion may also result in a certain level of unpredictability and, at worst, abusive practices based on arbitrary and irrelevant characteristics of the investigated subject.  These characteristics can include those which are protected by the Charter and human rights legislation.  The capricious application of discretion not only fosters an unequal application of the law, but can result in discriminatory practice that can lead to tangible negative consequences in criminal proceedings.  Granting the police greater discretionary authority through common-law created rules that are ambiguously detailed further exacerbates these issues and undermines the rule of law and the institution of policing itself.


[1] Alpert, G. “Police Suspicion and Discretionary Decision Making During Citizen Stops” (2005) Criminology 43 at 12.
[2] Kleining, supra at 10. 
[3] R. v Simpson, supra. 
[4] R. v. Mann (2004), 185 C.C.C. (3d) 308. 
[5] Criminal Code, supra, s. 495(1) 
[6] Skolnick, Jerome, Justice Without Trial: Law Enforcement in Democratic Society (New York, NY: Macmillan, 1994) at 12.
[7] Stribopoulos, supra at 41. 
[8] Ibid. at 95. 
[9] Williams, G. H. “Police Discretion: The Institutional Dilemma – Who is in Charge?” (1983) 68 Iowa L. Rev. at 19. 
[10] Davis, Kenneth C. “Controlling Racial Discrimination in Policing: A Discussion Paper” (1993) 51 U. Toronto Fac. L. Rev. at 31. 
[11] Alpert, supra at 14. 
[12] Stribopoulos, supra at 14. 
[13] Williams, supra at 24. 
[14] R. v. Smart, [2005] O.J. No. 6117. 
[15] Davis (1993), supra at 35. 
[16] Freeman, M. “Controlling Police Discretion” (1981) 6 Poly L. Rev. 51 at 41. 
[17] Alpert, supra at 39. 
[18] Ibid.

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