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CRIM 3655
James Sheptycki

CRIM 3655 – FALL BOOK NOTES th Readings for October 15 , 2013 Stenning: Understanding Discretion in Modern Policing Discretion is a ubiquitous and legitimate aspect of modern policing, though its scope and limits are poorly understood What is Police Discretion? - Police work by its very nature is discretionary in the sense that it involves the exercise of choice or judgment o Every level of police work, especially at the micro level, involves choice on part of the officer - Discretion pervades common law systems of criminal justice at every stage, and may be contrasted with the principle of legality that ostensibly seeks to limit discretionary justice, more or less, in many continental European civil law systems - Most cited definitions of discretion is that offered by Kenneth Culp Davis: o A public officer has discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action or inaction  Does not distinguish between acceptable and unacceptable bases for discretion - Distinction between discretion and what one might term “interpretive judgment” o The former almost always involves some of the latter, but the latter does not itself constitute the former - Policies with respect to the exercise of discretion by police are understandably often controversial, and may change over time depending on public attitudes o Child and domestic abuse used to be private matters, but now it is not - Discretion also involves discrimination o Discrimination can be applied positively to a particularly refined person as a person with discriminating taste; on the other hand, it can be negatively applied to improper or prejudiced race-based decision making - Police are expected not to discriminate on the basis of race in making law enforcement decisions, while at the same time, urged to be sensitive to ethnic, religious or cultural traditions and differences in dealing with members of the public The Concept of Police Independence: Protecting Police Discretion from “Improper” Political Influence - A major concern since creation of the new police in 19 century has been to ensure that when exercising their discretion, they are insulated from unwanted partisan political and other powerful corporate or personal influence and pressures - To ensure discretion is exercised in broader public interest - Courts have held that police decision making is amenable to judicial review - However, courts are reluctant to interfere in police decisions First Principles: Discretion as a Foundation for Humane Administration and Community Support - Peel’s principles were highly influential in guiding the development of the “new police” - At the time they were created, the principles served as a broader political purpose, namely to promote the legitimacy, and garner public acceptances, of the new police - Principles do not address issue of discretion directly, but idea of discretion underscores several of them - During the creation in 1829, commissioner included that they were not to be understood as containing rules of conduct applicable to every variety of circumstances that would occur during their duty o Police constables legitimately possess discretion in how they exercise their legal powers and duties to prevent crime, keep the peace and enforce the law Tampering Legality with Justice, Fairness and “Common Sense” - Principles entreat officers to be absolutely impartial in their service to the law, but this must be reconciled with equally prominent principle that cautions against excessively strict enforcement of the law and promotes use of discretion to temper the structures of legality - Four main reasons why discretion is both necessary and legitimate aspect of police work: o 1) no legislature has succeeded in formulating laws which encompass all conduct intended to be made criminal and which clearly exclude all other conduct o 2) failure to eliminate poorly drafted and obsolete legislation renders the continued existence of discretion necessary for fairness o 3) Discretion is necessary because limited resources make it impossible to enforce all laws against all offenders o 4) strict enforcement of the law would have harsh and intolerable results - Issue is when should the duty of strict enforcement give way to other considerations th th - In 19 and 20 century, clear mandate on police to distinguish between the “respectable” and the “rough” classes - This led to police playing their part in reproducing inequalities, or even enhancing them - The pre-eminence attached to public order within policing – its so-called “moral street- sweeping” function – has significantly shaped the content of police culture - Discrimination has also been grounded in police regulations - Regulation emphasises the importance of equality before he law, while at the same time institutionalising departures from this standard through promoting diversionary justice for otherwise “respectable” rule-breakers Policing Discretion and the Role of Guidelines - Underlying fear that exercise of police discretion may lead to arbitrary, corrupt or unethical behaviour - Modern view is that risks of misuse of discretion can be addressed by structuring its exercise through administrative guidelines - Strong organisational pressure to identify police authority in the perceived safety of statute rather than the vagaries of the common law, which from a police perspective is difficult to identify and subject to constant revision by the courts - The only statutory acknowledgment of police discretion relates to the decision to prosecute - Discretion to institute proceedings focuses on satisfying two considerations: o Sufficiency of evidence o “the public interest”  Involves consideration of a wide range of factors – draw on guiding decisions issued by the office of the director of public prosections  Example: OPM has list of considerations relevant to whether or not the public interest requires a prosecution in a given case - This above method is problematic because public interest as determined by frontline police officers may differ from the public interest as determined by public prosecutors evaluating briefs of evidence - Broad public interest considerations may be invoked as a “cover” for more suspect motivations Duty to Investigate Versus Discretion Not To: Reconciling Opposing Legal Considerations - Duty to investigate crime thoroughly and professionally is reflected in police service charters, in the objects clauses of police acts, and in the statements of police ethics and values - Investigative failures also dent public confidence in policing - In most common law jurisdictions there has been a judicial reluctance, on public policy grounds, to impose on police a duty of care through the tort of negligence - It was argued by dissenting judges that imposing a duty on police not to harm suspects through negligent investigation would inevitably pull officers back from targeting an individual as a suspect and may lead to an overly cautious approach to the discharge of their duties o inherent opposition of duties owed by police to the public and duties owed to private citizens affected by police investigations, has been regarded as sufficient reason for denying liability on policy grounds - landmark decision of the supreme court of Canada has created a new tort of “negligent investigation” o creates uncertainties about the extent to which the new tort extends beyond targeted suspects to others who suffer losses o the classes of plaintiff to which this new tort may potentially extend include persons of interest, victims, and members of general public o decision only dealt with suspects under investigation – everybody else dealt with on case-by-case basis - basic legal principles guiding discretion identified by the supreme court are derived from administrative law – grounded in notions of reasonableness, proportionality and transparency - some of these principles overall with 6 principles developed by Association of Chief Police Officers (ACPO) in UK used to promote police compliance and human rights: o legality – is there a legal basis for police actions? o Proportionality – was action taken proportionate to threat or problem it sought to prevent? o Relevance/Necessity – was action relevant to particular threat/problem o Subsidiarity – was action the least force/intrusive available o Equality of Arms – in any trial process, did defendant have the same information and access to information as the police/prosecution o Remedy – is there an independent public remedy available to citizen - Nothing in Supreme Court of Canada’s decision limits the power of parliament to legislate on police discretion - In sum, two decisions of Supreme Court of Canada in 2007 are landmarks in policing law o Both decisions affirm centrality and legitimacy of police discretion, impose new duties, and potential civil and criminal liabilities on police officers o Show how individual police officers, balancing competing operational and legal demands, may feel themselves to be between “rock and a hard place” Conclusion - If substantive laws and principles on which guidelines are based are unfair, then the guidelines will merely serve to perpetuate that unfairness - Judicial review has its limitations - Central problem is that police work falls between the two points of accountability – the parliament on the one hand, and the courts on the other - Galligan offers a remedy to this issue: invest authorities other than courts, such as an Administrative Appeals Tribunal, with powers of oversight and review. This, combined with further emphasis on guiding rather than eliminating discretion entirely, would be positive Rankin & Winsa: As Criticism Piles Up, so do the Police Cards - Data from 2008-2012 shows black in Toronto stopped and documented to a higher degree than blacks who were stopped and frisked by NYC police - Number of black male residents from 15-24 who were carded exceeds by a small margin the number of young black males who live in Toronto - Filed out 1.8 million contact cards, involving more than a million individuals, in stops that typically result in no arrest or charge - Chief Blair believes that encounters that involve stopping, questioning, and documenting people, if don’t properly, is good policing o Also believes racial bias is a reality in society - Deputy Sloly believes carding is a valuable tool - Critics say that stopping and questioning of citizens has eroded trust of police in communities that are dealing with violence and may actually make so
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