The Limits of Legalized and After-the-Fact Accountability

• Author: Kent Roach
• Pages: 51-73

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four

The Limits of Legalized and

After-the-Fact Accountability

INTRODUCTION

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.

THE LIMITS OF USING A LABYRINTH OF CHARTER RULES TO

REGULATE THE POLICE

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,