The Limits of Legalized and After-the-Fact Accountability

AuthorKent Roach
| 51
The Limits of Legalized and
After-the-Fact Accountability
Winnipeg police ocer Robert Chrismas has observed that police ocers
can face “quadruple jeopardy” for alleged acts of misconduct. He has a point.
Police involvement in death and serious injury can be subject to independent
criminal investigations. It can also be subject to civil and Charter litigation,
public complaints, and disciplinary processes. As Ian D. Scott, the former
head of Ontario’s Special Investigations Unit (SIU), has written, “there
would appear to be massive duplication” in multiple proceedings arising from
the same event, but all of these dierent proceedings “engage dierent social
objectives.” In an attempt to respond to overpolicing, the police are subject
to more complex and lengthy forms of accountability than ever before.
At the same time, police are oen not found liable, especially in crim-
inal prosecutions. e police, better than most other suspects, know when
to “lawyer up” and exercise their right to silence. Police unions have talented
lawyers on speed dial to help defend ocers. ose lawyers can place victims
of police violence on trial with self-defence and other claims. ey can bring
preliminary motions to wear down those who bring civil lawsuits. And when
all else fails, they can settle lawsuits on a condential basis.
When the police are held liable, the public oen concludes that they
receive light penalties. Courts can exclude evidence because of Charter vio-
lations without ocers being disciplined or policies being changed. Disci-
plinary penalties oen involve temporary demotions and/or docking of pay
or days o. e oen-mild outcomes of all of this hyperaccountability help
52 | Canadian PoliCing: Why and hoW it Must Change
explain why  percent of respondents in a September  poll believed that
the police are not held accountable when they abuse their power.
Increasing penalties for police misconduct may not, however, be the
answer. e police will, if anything, even more vigorously resist accountabil-
ity measures if the penalties are higher. Higher penalties for overly aggressive
policing could result in overdeterrence, “depolicing,” or risk-averse policing
that could result in more underprotection.
Review of police conduct is required by the rule of law. e police are
the only civil servants who routinely carry guns. At the same time, Canada’s
legalized system of hyperaccountability seems not to be improving policing.
It does not seem to be diminishing repetitive acts of aggressive overpolicing
or underprotection examined in the last chapter. In the next chapter, I will
suggest that eective and proactive governance — not aer-the-fact hyperac-
countability — is necessary to improve policing.
Under the Charter of Rights and Freedoms, Canada has followed the
United States in relying on the decisions of the Supreme Court to establish
the vast majority of rules that govern police conduct. As the American experi-
ence demonstrates, however, a massive investment in legalized, aer-the-fact
accountability and due process is no guarantee that our police forces will be
eective and law abiding.
e Supreme Court of Canada’s jurisprudence on police powers is mas-
sively complex and dicult for law professors, let alone the police, to follow
and understand. e courts restrain some police actions, but they have also
used the Charter to expand police powers. Some investigative stops without
reasonable grounds for arrest that the Manitoba Aboriginal Justice Inquiry
in  declared to be illegal in the wake of J.J. Harper’s death are now legal
because of a  Supreme Court decision in another stop of an Indigen-
ous man in Winnipeg. e only real dierence is that the Indigenous man
stopped by the Winnipeg police in the  case more closely resembled the
suspect that the police were seeking than did Mr. Harper.
Courts, by nature, decide cases on the basis of all the facts. Justice Casey
Hill, an experienced criminal trial judge (and before that, a prosecutor), has
questioned whether the “entirely uncertain” limits produced by the courts on
police conduct provide adequate guidance for “street policing. Sometimes,

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT