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, 2 August 2011

Police Discretion - the Good, the Bad and the Ugly Part 5

The Good – Why Police Discretion is Desirable and Justified

If one were to evaluate encounters between citizens and law enforcement officials, it would become evident that what emerged often bore little relation to what might have been expected from a simple reading of the formal legal requirements[1]

What the above passage implies is that we do not live in a society of total enforcement characterized by a strict application of the law in all circumstances.  The very nature of our free and democratic society allows us to endorse the use of police discretion.  Canada, as a liberal constitutional democracy, is not a police state where citizens are ruled absolutely by the omnipresence of the police.
Any normative insistence that the police should merely enforce the law in a system of total enforcement is less than helpful and highly questionable.[2]  First, it is far from clear that the police could strictly enforce the law, even in principle.[3]  The law is so extensive that no criminal justice system could process every case which the strict enforcement of the law would generate.[4]  If matters that are resolvable in other fashions were not kept out of the courts, the efficiency of the judicial system would be severely crippled, even beyond its current state of congestion.  Second, laws necessarily involve a degree of interpretation, the requirement to either construe the meaning of the law and/or decide if it applies in a particular situation.  Because of the uncertainties that inevitably accompany certain rules, it is virtually unimaginable that police action could be anything other than discretionary. 
Furthermore, the law simply cannot be rigidly applied to the endless multitude of diverse circumstances encountered by uniformed officers.  Any insistence on strict enforcement fails to contemplate the realities and complexities of policing in modern society.[5]  Aside from laying charges and apprehending criminals, Ontario’s Police Service Act prescribes the duties of a police officer as, amongst others, preserving the peace, crime prevention, and assisting victims of crime.[6]  These duties can sometimes come in conflict with each other and certainly require a degree of flexibility and cooperation with the public.  A regime of strict enforcement ignores the labyrinth of law enforcement interests and responsibilities that go beyond simple crime control.

The law simply does not cover every situation that a police officer encounters in the field.  In cases where the law may be clear, it might be more prudent for the officer to ignore strict letter-of-the-law interpretations.  Laws are passed in a vacuum, and usually written quite narrowly.  Police encounter a wide range of behaviors and a variety of situations that the law hasn't even thought about yet.[7]

Hence, discretion is a prerequisite for the essential functioning of the police, especially when considering the ultimate goals of the officer exercising it which, without a doubt, rise above simple law enforcement. 
In addition, to prescribe that police officers should enforce the law without regard to the ends of justice is to effectively substitute means for ends – a brand of social malaise and normative disintegration that sociologist Robert Merton described as ‘ritualism.’[8]  The compassion, empathy, and charity of humanity is unduly compromised when our public officials place primary importance on strict rule enforcement as a surrogate for the purposive ends of fairness and decency.
            Theoretical submissions aside, from what source is the use of police discretionary authority derived?  It is important that as the government’s arm of criminal enforcement, the police must be granted their authority in accordance to the “principle of legality.”[9]  This principle demands that “every official act must be justified by law.”[10]  Clearly, there are no express directions to be found in any federal or provincial statute concerning the exercise of police discretion.  Yet, discretion is implied in both the arrest provisions of the Criminal Code and motor vehicle stop authority found in the Highway Traffic Act.   The Criminal Code prescribes that a police officer may arrest a person who is found committing, or who is believed on reasonable grounds to have committed, a criminal offence.[11]  This is not a mandatory instruction to the police to adhere to the principle of total enforcement.  In effect, it allows the police the ability to choose whether or not to pursue an arrest at their discretion, subject to certain restraints.[12]  Similarly, the Highway Traffic Act allows police to stop a motor vehicle being operated on a highway virtually at their discretion.[13]  The Supreme Court supported this discretionary authority in R. v. Ladouceur,[14] so long as the officer has done so for the purposes of identifying the driver, to check for sobriety, or to inspect the mechanical fitness of the vehicle. 
            It has been argued that the use of discretionary authority is more generally drawn from the existence of a form of social contract involving all pertinent stakeholders; the public, the government, the judiciary, and the police.[15]  This permission does not actually require the consent of the governed, but only a reasonable and implicit approval of the powers it would be logical to grant the police.  This concept is eerily reminiscent to the vesting of an investigative detention authority to the police by the Ontario Court of Appeal’s use of the ancillary powers doctrine in R. v. Simpson.[16]  While this discretionary authority was not to be found in any statute or prior jurisprudence, the Simpson Court gave the police an instrument by which they were granted those ancillary powers that would assist them in the fulfillment of their extensive duties, which includes their general crime fighting function.[17] 
            Our common law jurisprudence has further recognized police discretion is an essential feature of the criminal justice system which is exercised on a daily basis.  

The fact that police discretion is an essential component of both our criminal justice system and the work of a police officer is not in issue. This discretion makes it possible to apply the law more fairly in real-life situations faced by the police[18].

            Furthermore, our courts have acknowledged that a system attempting to eliminate discretion, which lies at the heart of the policing function, would be unworkably complex and rigid.[19]  It is doubtful that our society desires a ministerial agency of justice, one that would mechanically follow the letter of every rule and regulation in an assembly-line fashion.  Instead, we ask for responsible officials who show “good judgment” and exercise discretion by assessing the context of each and every situation.  It is undeniable that the rule of law demands equal application of the law to all who fall under its jurisdiction.  But, as can be seen, it is equally well recognized that successful public regulation depends on the exercise of discretion with respect to how the law is enforced and under which circumstances.  Discretion is the art of suiting action to particular conditions and certainly, the law without discretion would be a “very blunt instrument.”[20] 
            This is of particular importance with regard to modern policing strategies such as community policing and intelligence led policing.  These approaches require a more enhanced relationship, even partnership, between the police and the community at large.  In this context, it has been suggested that the police should play a major role in fashioning and implementing a proper law enforcement policy for their community.[21]  It is certainly likely the inclusion of selective enforcement options in these guidelines may amount to the gaining of community support, a proposition vital to the success of these policing blueprints.  

Police discretion exists in matters of criminal justice and is a response to, among other things, the community's wish that not all those who commit minor offences should be arrested by the police or prosecuted[22]

            Discretion can be the impetus for bringing the police, the offender, and community stakeholders together, bypassing the application of potentially unhelpful enforcement and providing the opportunity for more holistic resolutions, such as informal restitution, public education, and the diversion of future offences. 

[1] Kleining, supra at 1.
[2] Goldstein, H. “Police Discretion: The Ideal vs. the Real” Public Administration 23 (Sep), 140-8 at 33.
[3] Waddington, supra at 38.
[4] Goldstein, supra at 43.
[5] Ohlin, Lloyd, Discretion in Criminal Justice: The Tension Between Individualization and Uniformity (Albany, NY: Suny Press, 1993) at 26.
[6] Police Service Act, R.S.O. 1990, c. P.15, s. 42 (1).
[7] Waddington, supra at 133.
[8] Merton, Robert, Social theory and social structure (New York, NY: Free Press, 1968) at 416. 
[9] Stribopoulos, J. “A Failed Experiment? Investigative Detention: Ten Years Later” (2003) 41 Alta. L. Rev. 335 – 393 at 6. 
[10] Hogg, Peter, Constitutional Law of Canada (Toronto: Carswell, 1997) at 31-4. 
[11] Criminal Code, supra, s. 495(1). 
[12] Ibid., s. 495(2). 
[13] Highway Traffic Act, R.S.O. 1990, c. H.8, s. 216.
[14] R. v. Ladouceur (1990), 56 C.C.C. (3d) 22

[15] Reiman, Jeffrey, Critical Moral Liberalism (Lanham, MD: Rowman & Littlefield , 1996) at 228.

[16] R. v. Simpson (1993), 79 C.C.C. (3d) 482. 
[17] Stribopoulos, supra at 28. 
[18] R. v. Beaudry, supra at 3.
[19] R. v. Beare (1988), 45 C.C.C. (3d) 57 at 410.
[20] Waddington, supra at 38.
[21] Remington, F. “Police in a Democratic Society” (1965) Journal of Criminal Law, Criminology and Police Science at 361.
[22] R. v. Beaudry, supra at 25.

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