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.


Wednesday, 10 August 2011

Police Discretion - the Good, the Bad and the Ugly Part 6


The Bad – The Difficulties with Police Discretion
            Prior to a discussion of the problems associated with police discretion at the street level, it is worth mentioning the existence of a curious theoretical paradox.  Policing is a very structured, rule based institution.  It is a para-military establishment shaped by duties, regulations, procedures, and guidelines for behavioural and occupational conduct.  In addition, the police tender a public image of rule compliance and formality, a concept acknowledged by Manning’s front-stage dramaturgical analogy.[1]  This implies a rigid adherence to a specified code of conduct and a culture of rule obedience which may be philosophically inconsistent with the liberal use of discretion.  It is interesting, then, that a discussion surrounding the use of discretionary judgments, which are not expressly prescribed by any regulatory declaration, applies in such an ostensibly rigid design.
Critical moral liberalists might hypothesize that police discretion has no rightful place in a free society.[2]  Although this position appears extreme, there is some principled support for a critical attack on the use of police discretion which is particularly relevant to street level interaction.
The exercise of discretion by police officials injects a certain level of arbitrariness into the criminal justice system which can be interpreted as an intrinsic usurpation of the judicial function and the rule of law.[3]  The constitutional duties of the police require them to conduct investigations and bring accused persons to court upon determining that an offence has been committed.  The police belong to the executive and should not be responsible for making quasi-judicial decisions through the use of discretion, thereby effectively undermining the judiciary.
            Furthermore, police discretion may also have an erosive effect on the deterrence objective of the criminal law itself.  The law ceases to have the same impact on potential illicit activity when it is applied in less than consistent fashion.  This has become evident in Ontario with the elimination of discretion regarding criminality associated with domestic violence.  The street level officer’s discretionary capacity to avoid laying criminal charges in family situations has been abolished by a mandatory charge policy.[4]  This policy was in direct response to lackadaisical enforcement of existing laws which effectively undermined their deterrent effect, culminating in the tragic death of Arlene May in 1996.
            The police might also be commandeering the role of the legislature by failing to enforce enacted laws.  The ultimate answer may be that the police should not be delegated the discretion not to invoke the criminal law.  Its exercise could amount to a non-representative amendment to the existing law.  

Responsibility for the enactment, amendment, and repeal of the criminal laws will not, then, be abandoned to the whim of each police officer or department, but retained where it belongs in a democracy—with elected representatives.[5]

            What is more, discretion renders the law vague and uncertain.  The public has a natural right to know in advance what the law demands so that it can be complied with.  Any reasonable notice may be offset when citizens are permitted to engage in certain illicit activities on one occasion, but not on another.  This inconsistent public expectation is a direct product of street level officers applying their discretion either too generously or in situations where it is improper.  The real difficulty emerges when the factors contributing to an officer’s decision are based on subjective characteristics completely unrelated to the relevant facts in issue of the offence. 
            The use of discretion necessarily results in an unequal application of law.  Those admonishing the use of police discretion stress that all offences are justifiably subject to the correct prosecution of the law in order to maintain fairness and equality amongst citizens.[6]  Each officer should enforce the same propensity of authority to each and every person, regardless of circumstance.  This mode of policing suggests that officers should not be allowed to give special treatment to certain offenders based on evaluations other than a correct application of express legality because the effective result is a fundamental breach of the rule of law. 
Quite apart from an exacting application of the law, it is when capricious factors contribute to police discretion that not only an unequal application of the law fostered, but so, too, are abusive practices that can have tangible criminal consequences.  Of course, discretion can be a cloak under which abusive practices hide, but that does not necessarily mean that discretion itself is offensive.[7]  But because discretionary decision making involves the exercise of individual judgment, rather than a mechanical application of predetermined rules, it is subject to undemocratic and unfair uses.  It is especially during lower level street encounters where the application of police discretion can result in discriminatory practices, based partially or exclusively on arbitrary characteristics of the investigated subject.  These characteristics include, but are not limited to, enumerated human rights grounds such as race, ethnicity, sex, religious belief, age, and socio-economic status.  Consequently, discretionary evaluations can target the powerless and dispossessed; the poor, the uneducated, and ethnic minority residents in deprived neighbourhoods.  An officer’s judgment developed from discriminatory bias is not only morally deplorable, but is in direct violation with Charter principles, especially those guaranteed by the s. 15 equality rights.[8]  Without doubt, this conduct serves to undermine the constitutional rule of law and the fundamental legitimacy of the policing institution.
As a corollary issue, the use of police discretion against certain groups may contribute to the distortion of our broader understanding of crime.  The unnatural over-representation of particular groups in the criminal justice system, resulting from clandestine uses of discretion, could misrepresent the true nature of criminality and erroneously promote the belief that certain groups are more predisposed to criminality.[9]  Moreover, this mythical cultural labeling process can be self-fulfilling, further stigmatizing disadvantaged communities and serving to perpetuate existing stereotypes that may have contributed to the instigation of the criminal process in the first place – a vicious discretionary circle.


[1] Manning, supra.
[2] Reiman, supra at 231.
[3] Davis, Kenneth C., Police Discretion (St. Paul, MN: West Publishing Co., 1975) at 170.
[4] Ontario, Ministry of the Solicitor General, Policing Standards Manual (February, 2000) at 7.
[5] Goldstein, J. “Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice” (1960) Yale Law Journal 69 (4) at 587. 
[6] Lundman, Richard, Police Behavior (New York, NY: Oxford, 1980) at 161. 
[7] Waddington, supra at 38. 
[8] The Constitution Act, 1982, s. 15.
[9] Waddington, supra at 37.

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