Oversight awry: municipal police and elected oversight bodies
Part I: the Problem and our typical solution
This analysis of police supervision in Canada, the United Kingdom, and the United States will appear in two parts. The first part breaks down the problem with civilian policing oversight; the second part addresses the issue with reference to English precedents that were received in Canada and the United States.
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Much has been said about defunding police forces and putting those funds to better use sustaining developmental and social services. There is a further, less discussed, need to rethink the management and oversight of police services.
This oversight, though a noble nod toward democratic ideals, has come under pressure at a time when police forces are mistrusted by minority populations. This phenomenon sweeping United Kingdom, Canadian, and American jurisdictions evokes the ages-old debate between technocrats and idealists, or philosopher-kings and democrats.
The slogan ‘defund the police’ paints this issue in stark terms, but the sentiment is pure: cops have been observed committing gross abuses. Even if these are never proven in a legal sense, they diminish respect for and trust in the state’s judicial apparatus.
Militarization of policing is one side of this coin; we might shine more light on the supervision of militarization under civilian police boards. The pattern that may be observed across an admittedly small sampling of police forces is that civilian oversight is often reticent to engage (for one reason or another) with the police forces over which they supposedly lord. This inability to engage has, I think, been missed in the current discussion of police violence and the police’s role in communities. Shining a light in this limited series may help spur some reflection on how we would like our police to be better held to account.
My home of Ottawa has served as a recent example of the perils of civilian oversight. Civilians are no guaranteed experts, nor are they remotely impartial judges. In Ottawa’s case, a group drawing attention to injustices perpetrated against indigenous and black subjects was forcibly removed by police hours before meeting with members of the Ottawa Police Services Board. The group refused to meet with the Board after arrests were made. The Board’s response to these events stated that it did not interfere in the police service’s operational decisions. The timing of the police’s intervention remains suspect.
Part of this issue lies with the Board’s statutory inability to interfere in the police’s operational decisions. This common prohibition is counterweighed by the Board’s investigative and regulatory power, which can be deployed in cases where unfair behaviour might undermine judicial or police authority. No questions appear to have been asked of Ottawa’s police chief by the Board.
The Board, moreover, failed to uphold one of the principles underpinning policing in Ontario: ensuring that subjects’ constitutional rights are upheld. Justice Marlyse Dumel dismissed a drunk driving case because officers failed to respect the accused’s right to counsel. The Justice noted that there was no police regulation that required arresting officers to be informed that their cases were dismissed due to breaches of Canadian constitutional rights. The Board is aware of this problem, but the police chief failed to propose—and Board members do not seem to have asked for—any further measures to ensure Ottawans’ constitutional rights are respected.
Taking a wider view of Ottawa’s police service in Canadian context also shows that vulnerability to police discretion is likely to lessen a person’s confidence in the police force. Keep in mind that vulnerability is likely to make anyone more critical of authority; know also that authorities with data in hand can take more meaningful steps toward fostering empathy. Statistics Canada’s annual data for public perceptions of police shows that interactions between victims, witnesses, and those suffering from atypical behaviour and police are less likely to produce trust in police.
Subjects with disabilities were similarly less likely to trust police. Visible minorities reported perceiving police as treating people fairly 34% of the time; non-visible minorities reported 45% under the same heading. The data also shows that Canadians aged forty-five years or older tend to trust police more than those below forty-five.
Building public trust on these numbers requires broad appeal to sometimes divergent demographics. Police services boards can temper differences between police culture and vulnerable groups’ experiences.
The Ottawa Police Service’s lacunae are not trifling things, nor are they wholly beyond civilian oversight, as the Ottawa Police Services Board suggested by evoking operational decisions. Proactive and reactive oversight is needed to ensure that operational decisions are in line with community and legal values. This kind of work is community building in its most elementary sense, and Ottawa’s Police Services Board fell below the mark when it failed to publicly inquire into the reasons for the police’s arresting protestors on the eve of their meeting Board members.
The United States
Lest these statistics and problems seem remote or too local, the United States’ national numbers for trust in police are even more grim. The total population may, for the most part, trust police. Vulnerable communities in the United States exhibit far less trust.
These numbers are complimented by a marked lessening of trust from Generation Z. This generation’s trust in US police dropped from 56% in June 2019 to 44% in June 2020.
The erosion of trust, which has obviously manifested in protests across the US and in Canada, has prompted American authorities to turn toward democratically elected police oversight. Fort Worth, Texas, announced such a change on December 2, 2020. Ballot box initiatives in San Jose, Los Angeles, Portland, Seattle, Philadelphia, Pittsburgh, and Columbus instituted enhanced civilian oversight.
American county governments’ extant powers over policing do not exhibit much civilian oversight. Sheriffs are typically elected and thus derive authority directly from the electorate, whose oversight comes solely in the form of elections. State and federal police forces may have the right to lay charges, but these rights are relatively limited by the burden of proof.
The Los Angeles County Sheriff’s department (not to be confused with the LAPD, which is a municipal force overseen by police commissioners), for example, is led by an elected sheriff. Though this sheriff must possess minimal qualifications, the County’s Board of Supervisors has no power over the sheriff. The Board can only ‘direct the sheriff to attend, either in person or by deputy, all meetings of the board, to preserve order, and to serve notices, subpenas, citations, or other process, as directed by the board’ [sic].
The movement toward civilian oversight in the United States is encouraging if not timely. Its relevance as an effective force for cultural changes that can build badly eroded trust in communities remains to be seen.
The turn toward elected oversight or, indeed, the existence of such oversight is a richly rewarded political move in liberal-democracies. As I’ve indicated above, a tension exists between popular government and government by technocrats. A common lawyer might, perhaps, question such a distinction for its covalence. Technocracy cannot seriously exist in democratic governments. I will address this concern more fully in the second part. Suffice for the present to say that elected police oversight can effectively govern police if elected members are willing to invest time and energy beyond simply meeting to hear citizens’ concerns and deliberate.
Ontario’s current regime provides boards with all the powers necessary to effectively oversee police services. Boards’ oversight is determined by the level of scrutiny each member provides. In the wake of the Toronto Police Service’s killing Sammy Yatim, retired Supreme Court Justice Frank Iacobucci conducted a study that made 94 recommendations to improve Toronto Police’s handling of people in crisis. The Police Services Board’s oversight was not at issue in this review. Justice Iacobucci adverted to this fact:
The Board plays a key role in the democratic oversight of the police, and in ensuring accountability of the police to the community that the police serves. Although I do not make specific recommendations for Board involvement in overseeing the implementation of this Report (because to do so would be beyond my mandate), the Board will undoubtedly have an important oversight role to play.
A year after the Justice released his report, Alok Mukherjee, then just retired from chairing the Toronto Police Services Board, noted that many of Justice Iacobucci’s recommendations had not been implemented. His statement so soon after retiring stands in stark contrast to Justice Iacobucci’s call to action.
New oversight in American jurisdictions and existing oversight in Canadian provinces requires active oversight to be effective. The City of Toronto’s 2014 example is one where active oversight does not seem to have worked: the Chief of Police asked a retired judge to investigate the police service. The judge’s report, though detailed and very considered, was not the product of civilian oversight. The Board’s conduct was thus not in Justice Iacobucci’s scope, nor did he purport to comment upon it.
The City of Ottawa’s Police Services Board is another example of a fairly staid organization defined by its members’ misapprehension of statutory powers. The Board possesses the ability to inquire into police conduct on its city’s behalf; it chose to define itself as a deliberative assembly focused solely on policy. This act of self-definition hems most of the Board’s powers in, leaving the Board with little to inquire upon and still less with which to discipline.
As Americans look at these examples in an effort to implement more civilian oversight of police forces, the lesson is that you get the government that you deserve. Activist groups ought to take sharper aim on their civilian oversight panels, to encourage—to really push these individuals (themselves likely overworked for the positions that they occupy) toward greater oversight. The tone need not be confrontational, but a principled stand needs to bring police oversight to account. Only then can police be adequately overseen.
The next installation of The Judicious Sasquatch will delve into how effective oversight might be accomplished. This analysis will have regard for historical precedents and, as always, an eye toward applying them to strengthen public policy.
Until then (hell, even after the next installation is out), please feel free to engage with this post.