POLS 3300 Chapter 6: Readings/Articles for Week 6

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Week 6
Policing in Canada in the Twenty-First Century: Directions for Law Reform
– Kermer, Kempa, Stenning and Wood:
Introduction:
During the last 4 decades of the 20th century some very significant changes occurred in
policing in Canada and other democratic countries these changes involved not only a
restructuring of the institutions through which policing is undertaken but also the development
of techniques for actually accomplishing policing goals
A ‘definite order’ is a set of explicit or implicit norms designed to regulate behaviours
(conduct), relationships, or expression, and to provide for the establishment of institutions
and procedures
Order may be formally defined (e.g., through laws enacted by a legislature), or more
informally defined (e.g., by customs and traditions passed on from one generation to another)
Commonly, however, the order that is actually policed in practice varies somewhat from the
order that is formally prescribed the existence of such gaps, however, indicates that
ascertaining the ‘order’ which is actually the basis for policing in any given context poses an
empirical question which cannot be answered by simply consulting the formal law, and that in
most circumstances the role of the law in policing is mediated both by social norms generally
and by the particular cultures of the organizations charged with policing
Orders are typically defined with a view to achieving particular objectives, and policing is the
means through which such objectives are sought to be achieved
One objective that is most commonly identified with formal laws (and hence as an objective of
policing) is the achievement of security and safety for members of the community being
policed
While security and safety are the objectives most commonly claimed for policing by state
authorities, they are certainly not the only discernible objectives of policing, and this is
becoming increasingly the case as the definitions of order and policing are undertaken by an
ever-wider variety of state and non-state authorities
Even in the case of policing by state authorities, objectives that have either little, or at best
tenuous, connection to security and safety, or that are actually incompatible with those
objectives, can be identified thus, in many countries, policing is undertaken with the explicit
or implicit objective of suppressing political dissent or particular minority groups
Even the pursuit of ‘justice’ as an objective of order and policing may sometimes be seen as
incompatible, or tenuously compatible, with objectives of security and safety
Some scholars have characterized non-state policing broadly as ‘policing for profit’ while we
believe that this represents an exaggerated, and often inaccurate, stereotyping of non-state
policing, it is no doubt an accurate description of the principal objective of much non-state
policing, and it illustrates that the objectives of order and policing are largely determined by
the particular interests of the state or non-state authorities who define order and sponsor the
policing of it
Because policing, as we understand it, is essentially about establishing and maintaining
order, it will be obvious that the role of law (and law reform) with respect to policing is both
direct and indirect
On the one hand, the law plays a key role in defining the ‘order’ that forms the basis for
policing although most people think first of the criminal law when thinking about the legal
order with which policing is concerned, the criminal law is in fact only one area of the law
(and in some circumstances by no means the most influential one) through which the order
that is maintained through policing is defined and policing itself is shaped
One of the challenges for law reformers in this area, therefore, is to identify what kinds of law
reform might best contribute to the kind of legal environment for policing that best reflects
core values
Much more directly, the law can shape policing through the enactment or judicial recognition
of rules and procedures, and of institutions, through which policing is carried out, governed,
and held accountable
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Week 6
In this chapter, we take ‘community’ to mean a collectivity, whether it be defined in terms of a
specific geographic area, by a sense of shared identity on the basis, for instance, of
gender, nationhood, race, ethnicity, or sexual orientation or by a shared sense of goals
organized through economic, political, or cultural activity
While a ‘community’ often reflects all three of these attributes, it is important to note that
some of the most active communities are ones that are ‘imagined,’ in the sense that they are
not based in a particular physical space or territory
Communities, of course, do not just happen they are shaped, influenced, facilitated, and
constrained by a host of factors, including the law the nature of communities, in turn, has an
influence on how they are policed, and by whom
Consequently, law reformers who are interested in policing need to pay attention to the ways
in which the law shapes communities that are the sites of policing
In addressing the role of law in policing Canada, we start from the assumption that, in a
democracy such as outs, a principal objective of lawmakers should be to establish a legal
environment for policing that is supportive of essential democratic values fair, equitable,
and just policing that is as inclusive as possible and in which fundamental human rights of
everyone are recognized, upheld, and protected
All of these notions (fairness, equity, justice, inclusiveness, and respect for human rights) are
also ‘political’ in the sense that what is accepted as ‘fair,’ ‘equitable,’ ‘just,’ and so on, within a
given society or community is, in a true democracy, typically determined through some
process of political negotiation and compromise that requires a balancing of competing
interests – ‘policing,’ then, is inevitably and by definition ‘political’ in this sense
In this chapter, we attempt to identify the kinds of legal reform strategies most likely to
produce a legal environment that is most conductive to the development of a democratic
politics of policing that is to say, political processes most likely to produce and promote
policing that reflects the core ideals (such as fairness, equity, justice, inclusiveness,
protection of human rights, etc) most valued in a democracy
The Current Legal Environment:
The legal environment within which policing occurs in Canada is complex and consequently
not easy to summarize briefly we start by describing the more direct ways in which policing
is regulated through the law, and then consider the broader range of laws that indirectly
shape and influence policing
Constitutionally, the responsibility for legislation most directly related to policing is divided
between the federal Parliament and provincial legislatures
Paragraph 91(27) of the Constitution Act vests the Parliament of Canada with the exclusive
authority to enact criminal law and procedure, and it is under the head of legislative authority
that most of the legal powers for criminal law enforcement (a vital tool for much policing are
enacted)
Such legislation sets out not only the criminal law enforcement powers of state police officers
(mostly referred to as ‘peace officers’ in the legislation) but also those of non-state individuals
(including ordinary citizens) who may be engaged in policing activities
While federal legislation makes clear distinctions between the criminal law enforcement
powers of peace officers, owners of property, and ordinary citizens, however, it does not
explicitly recognize the existence of specific non-state policing institutions or personnel such
as contract and in-house security guards or investigators
Rather, these latter agents have the same criminal law enforcement powers as ordinary
citizens and as the property owners for whom they work (and whose legal agents they are)
Paragraph 92(14) of the Constitution Act, on the other hand, vests provincial legislatures with
exclusive authority to legislate with respect to the ‘administration of justice’ within their
respective provinces, and it is pursuant to this head of legislative authority that most state
police services in Canada are established and regulated
In addition, paragraph 92(13) vests provincial legislatures with exclusive authority to legislate
in relation to ‘property and civil rights’ in their respective provinces, and paragraph 96(16)
vests similar authority with respect to ‘all matters of a merely local or private nature in the
province’
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Week 6
It is under these heads of legislative authority that provinces regulate various non-state
policing institutions such as contract security agencies and their personnel, as well as various
activities of property owners and businesses that are relevant to policing (e.g., the rights of
employers to exercise control over their employees, of landlords and property owners with
respect to their tenants and invitees, of educational institutions with respect to their students,
etc)
Paragraph 95(15) allows provincial legislators to legislate with respect to the enforcement of
provincial laws, thus providing another important source of legal powers for those doing
policing (e.g., under trespass statutes, highway traffic legislation, etc)
The apparent sharp distinction between the legal status and authority of state and non-state
police, however, is implicated by a number of factors
One of these is the common practice whereby non-state police personnel are granted ‘special
constable’ status for specific, limited purposes such appointments give non-state police the
status, authority, and powers of state ‘peace officers’ when engaged in those functions with
respect to the private property that they police; among other implications, this means that
such non-state police are partially legally accountable to (and subject to control and
governance by) state authorities, as well as to their private employers, for those of their
functions to which their special constable appointments relate
A similar blurring of legal status and accountability arises when state police officers provide
services directly under contract to private employers during their off-duty hours private
employers of state police officers for such purposes are most typically corporations, but they
may also be private citizens
Finally, there are police personnel who are employed by organizations that are ‘quasi-public’
but also have some ‘private’ characteristics university police or security personnel hired by
Crown corporations are good examples of such legally ‘hybrid’ police personnel; although
they are employed by organizations that have many ‘public’ characteristics and can be
considered state organizations, their role is in many ways more similar to that of non-state
security personnel employed by private corporations, and is frequently further complicated by
the fact that they also hold limited special-constable appointments
In sum, it can be observed that there is no straightforward legal dichotomy between state and
non-state police rather, there exists in law a continuum of police legal status and authority,
with clearly state police at one end and equally clearly non-state police at the other, and a
whole range of ‘quasi-state’ and ‘hybrid’ police in between
Of equal and growing importance to the legal environment for policing since its adoption in
1982, has been the Canadian Charter of Rights and Freedoms this document, which is
entrenched in the Constitution Act, sets out minimum constitutional standards to which all
legislation and governmental activities must conform
The Charter has particularly significant implications (usually entailing constraints of various
kinds) for the policing activities of state authorities since policing so often involves restraints
on liberty and invasions of privacy (and hence encroachments on rights and freedoms)
Because the standards set out in the Charter apply only to governmental activities, however,
the constraints it imposes on policing activities rarely if ever apply to the policing activities on
non-state authorities, unless such non-state authorities can be considered to be acting in
some way as agents of the state
Thus, the legal environment generally provides much greater latitude for coercive and
intrusive policing activities of non-state authorities than for those of state authorities
As might be expected, the application of the Charter to those police in the middle of the
public-private spectrum just as discussed is often a matter of some uncertainty and an
evolving case of law
In many, if not most, cases in which order and policing must be scrutinized for conformity with
the Charter, values and interests must be balanced in arriving at a conclusion
Section 1 of the Charter has, in practice, given the courts, rather than legislatures, the
ultimate authority to determine what is or is not ‘demonstrably justified’ order and policing in
our Canadian democracy, at least when Charter rights and freedoms are at issue
anticipating the court’s resolutions of such issues poses a special challenge for law reformers
in this area
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