The governance deficit: reflections on the future of public and private policing in Canada.

• Author: Burbidge, Scott

La presence croissante des services de securite prives dans notre societe et surtout le fait que ces entreprises executent des taches qui sont generalement considerees comme le domaine exclusif des forces policieres souleve des questions fondamentales de gouvernance et de responsabilisation des forces policieres pour une societe; democratique fondee sur les principes juridiques et le respect des droits de la personne. Du point de rue des principes juridiques et du respect des droits de la personne, le present article affirme qu'il est inacceptable que, alors que les forces policieres (du moins en theorie) sont assujetties et sont tenues de rendre compte a un gouvernement democratiquentent elu et au public, les agents des services de securite prives ne soient pas assujettis aux memes dispositions de gouvernance et de responsabilisation democratique, lorsqu'ils exercent les memes fonctions que leurs homologues.

Etant donne la legislatiou federale et provinciale actuelle sur les droits de la personne et l'elargissement recent de la legislation federale sur la protection des renseignements personnels et sur l'acces au secteur prive au Canada, il ne devrait pas y avoir d'obstacles de competence et constitutionnels insurmontables a etendre le concept d'un code de deontologie incorporant le respect des droits de la personne au secteur des services de securite prives pour autant qu'ils participent a l'exercice des pouvoirs de police tels que les enquetes, la detention, l'arrestation, la cueillette et le partage des renseignements personnels, etc. Un tel elargissement representerait un progres important vers l'atteinte d'un objectif de gouvernance et de responsabilisation democratique efficace et Complet pour les forces policieres, ainsi que pour les services de securite prives.

1. Introduction

   Yet ... what is now known about private policing provides compelling evidence ... that what we are witnessing through the growth of private policing is not merely a reshuffling of responsibilities for policing public order but the emergence of privately defined orders, policed by privately employed agents, that are in some cases inconsistent with, or even in conflict with, the public order proclaimed by the state. (Shearing and Stenning 1987:13-14) With respect to the functions of policing, we agree ..that nonstate providers of security now perform all the tasks once reserved to the public police ... They patrol, guard, investigate, respond to emergencies, monitor, collect intelligence, work undercover, constrain, ameliorate crime-producing conditions, advise about crime prevention and control disorder. The tasks of policing are increasingly being shared between public and private providers. (Bayley and Shearing 2001: 17) The two preceding passages from scholarly research into private policing, the first looking at trends up to the mid-1980s and the second from early in the twenty-first century, reflect milestones in the evolution of private policing, not only in Canada but also in many other liberal democratic jurisdictions. What they clearly imply is not only a massive quantitative growth over the period in question but, even more importantly, major structural changes in the entire sector of policing and law enforcement.

   But while the key features of the evolution in this sector are evident, in terms of the growing number of personnel in the various sectors of private policing and the emergent roles and activities of private police, some of the most important implications of this growth for the democratic governance of policing and the civil rights of Canadian citizens are less apparent. It is the intent of this article to highlight some of the major findings of recent studies of private policing in Canada and other jurisdictions, then to present some possible avenues for law and policy to address what I see as the "governance deficit" that has been the consequence not only of the pervasive growth of private policing in our society but also of a major restructuring of the entire public safety sector. Though the issue is not pursued in this discussion, this restructuring of public safety includes not only the private and public police but also the law enforcement functions of a host of federal and provincial law enforcement departments and agencies.

   This kind of discussion would seem to be timely, given that at least four provinces--Ontario, Quebec, Nova Scotia, and British Columbia--are in the process of introducing new legislation to regulate the private security industry.

   It is also important to note at the outset that the idea that there should be more regulation of private policing is not promoted only by those outside the industry. For example, in the United Kingdom, the private security industry has lobbied since the 1950s for government regulation of the industry (George and Button 1998: 1). In Canada, representatives of the private security sector have repeatedly approached the Ministry of the Solicitor General (now the Ministry of Public Safety) seeking support to initiate a process that would eventually lead to the creation of a national body to promote professionalism and improved standards for the industry. To initiate the process, a Human Resources Canada national human resource study could be undertaken, similar to the public policing study that was recently completed (Strategic Human Resources Analysis of Public Policing in Canada 2001). Such a study is long overdue.

   As a final prefatory observation, it is important to acknowledge the views of members of the private security industry, who have pointed out that the industry is already accountable in many ways: to the individuals and the corporate and community bodies that employ them, to the civil and criminal law, to the competitiveness of the marketplace, and, on occasion, to scrutiny by the media (Rigakos 2002a: 44). This same argument has been made in the recent academic literature (Stenning 2000: 325; Button and George 2001: 55). These viewpoints are worthy of serious consideration, since the question here is not whether private policing is subject to forms of governance and accountability that are more or less effective than those applicable to public police but, rather, what kind of governance and accountability arrangements ought to be in place to exercise the appropriate democratic oversight over police activities and practices, whether these functions are performed by private or by public police.

   The starting point for this analysis is, accordingly, the notion that we live in a liberal democratic society governed by the rule of law, where the rights and privileges of citizens are enshrined in human rights legislation. In Canada, this includes the Charter of Rights and Freedoms as well as federal and provincial human rights legislation. The basic notion is that, thanks to the rule of law and our human rights legislation, Canadian citizens can always count on the protection of these legal institutions, whether they find themselves in public spaces, in private spaces, or on mass private property.

   This perspective is supported by some recent normative analyses of private policing (see Loader and Walker 2001: 1) that have argued that, within the normative framework of the liberal democratic society, it is only the state or national government (and not the private sector) that has the capacity to mobilize all of the ingredients that, together, provide policing services that ensure the security and safety of the community. The state, as the embodiment of the values of society, is uniquely capable of ensuring public security, characterized by a monopoly of the legitimate use of force, coordinated governance, collective provision, and communities of attachment:

   citizen identification with the state policing also contains a recognition of the relationship between policing and "publicness," of the importance of national public institutions being accountable to a large public and certainly influenced by this "material public." ... In doing so, it remains open to a vision of policing that continues to associate that socially significant practice with considerations of fairness, justice, equity and democracy; and it challenges the idea that the safety and security of citizens should rest on the shoulders of individuals, or be given over to commercial interests. (Loader and Walker 2001: 24) The examination of options for ensuring effective governance and accountability arrangements for private as well as public policing proceeds from the perspective of the governance model for public police that prevails in Canada, the United Kingdom, and Australia. According to this generalized model, the public police are subject to direction from and accountable to a public governance authority; equally importantly, the actions and policies of public police are subject to oversight by an independent public complaints authority (Stenning 2001: 147). The legislation creating existing public complaints regimes in Canada embodies, to a greater or lesser extent, these same core principles, which should govern public institutions and services in a democratic society committed to the rule of law and respect for human rights. Leaving aside the important question of the effectiveness of these public complaints authorities in achieving their stated objectives, they are nevertheless an important means of holding the public police to account for actions, policies, and practices that have a direct impact on the lives of citizens, particularly where the rights of individual citizens or even communities may have been violated.

   The growing presence of private policing in our society, and especially the fact that they perform many policing functions traditionally regarded as the preserve of public police (see Rigakos 2002a), raises fundamental questions of police governance and accountability for a democratic society based on the rule of law and respect for human rights. Clearly...