Kate Puddister
Kate Puddister spoke 6 times across 1 day of testimony.
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Kate Puddister, Prof. (Political Science – University of Guelph)
Thank you. Good morning. My name is Kate Puddister and I'm an associate professor in the Department of Political Science at the University of Guelph, and I am pleased to be here with you today. My research and teaching are in the areas of law and politics and criminal justice policy. With colleagues, I have researched and written on several aspects of police governance and accountability. This work includes a study of the RCMP's Mr. Big undercover technique as a test for various types of police oversight for a routine but covert policing operation. My current research examines civilian police oversight in Canada with a focus on Ontario in particular. I've written on the investigation, prosecution and sentencing of police officers in Ontario and the work of the Ontario Special Investigations Unit as a method of police oversight and accountability. My work demonstrates the very complex and challenging nature of these cases for the justice system. Through my work, I try to highlight the importance of public legitimacy and police oversight and the various sites of accountability for police. My research has shown that for some matters of policing, parliamentarians, responsible Ministers and police oversight agencies either show little interest or are incapable of regulating police conduct in an ongoing basis or in approaches that are more systematic and comprehensive. To this end, there are examples of elected officials in Canada being unwilling to take on difficult matters of police policy and operations instead of choosing -- instead, choosing to rely on a notion of police independence that is too expansive and unhelpful for effective democratic governance of policing. I see my role on this panel to think about connections to police accountability and civilian oversight with respect to police government relations. In thinking about this topic, we are often presented with discussions about the importance of police independence and the dangers if police independence is not taken seriously in a democracy. Too much government direction of the police and overreach presents a problem for the rule of law, but too much police independence raises issues for democratic accountability and other problems for the rule of law. This conversation usually turns to distinctions between policy, something that is the rightful domain of governments and police service boards compared to operations, something that is the rightful domain of police themselves. I know that we'll discuss these issues this morning, but my perspective is that this distinction and an attempt to draw clear line between the two does a disservice. This focusing on the distinction between policy and that of operations leaves out critical conversations about the role of the public, through civilian oversight, and the importance of other sites of accountability, such as the courts, the media, and inquiries like the present. Importantly, this formulation allows governments to shirk responsibilities with respect to policing. Perhaps as a method of political strategy. Instead of having a more nuanced discussion about the respective roles of each and how this might change based on the nature of policing that is required, considering the wide scope of responsibilities of the police. Police in Canada are tasked with a wide range of responsibilities, as laid out in legislation: crime prevention, law enforcement, assistance to victims, public order maintenance, and emergency response. Each comprise different and occasionally competing demands. When thinking about the governance of the police, there’s value in having a nuanced conversation about these different roles and how police independence or operational responsibility might take on a different meaning and importance. Perhaps there’s a greater role for government oversight when responding to issues of public order policing, compared to the core responsibilities of the police to investigate a particular person or persons and to lay charges. My perspective is, is that there’s value in establishing, through public policy, the responsibilities of both government and the police, to articulate the accountability mechanisms, to define procedures of communication, information sharing and direction, and so we can identify cases of undue influence if they deviate from these guides. Enacting policy and legislative guidelines can promote openness by allowing for the setting of policy priorities, debating the direction of those priorities, and for policy evaluation. All of which can be aimed at ensuring democratic values and principles are alive and well in Canadian policing and police policy. Clear rules can articulate lines of accountability and oversight, which can not only guide police/government relations in the future, but it can also further public confidence. And with that in mind, I look forward to our discussions this morning.
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Kate Puddister, Prof. (Political Science – University of Guelph)
Thanks. Yes. So yeah, I want to focus more on the policy operations part of this questioning that we’re going through right now. And I think the distinction that we tend to rely on, policy on one side, and operations on the other, is really not useful. And of course, this is not a novel opinion. This has been written time and again in commissions of inquiry, starting I think with the McDonald Commission in 1981, but also more recently in the Missing and Missed Report by Justice Epstein in 2021. So this is a conversation we’ve been having for a long time. The reports make it clear that it’s difficult to draw a bright line between policy and operations in every scenario, and I would suggest that’s not how things actually operate in practice, that we need to avoid these absolutes. So a few examples that are a little bit different than what we’ve been talking about so far is, you know, if a government is concerned about the disproportionate use of force against a particular group, can it direct police policy and resources to address this, or is that a matter of operations? Other examples that complicate this are mandatory charging policies developed by governments in issues of intimate partner violence, policies that have existed for decades. We also see examples where the police must have approval from the Attorney General to lay particular types of charges. So even just saying police operations is something that policy makers, like boards, and governments, and Ministers have no space, doesn’t reflect how things actually operate in practice. As a political scientist, I’m really interested in those questions of policy. And I think police policy should be open to debate. It should be created and evaluated in a manner that ensures accountability for decision makers and transparency. As a student of public policy, I know that its development is not a straight line. We often speak of the policy cycle, the need for ongoing analysis, and review of policies. This is important because we want policies that can be revisited if new circumstances or problems arise so we can amend and revise those policies. But good policies will reflect, as best possible, the situation on the ground. Generally when we’re having discussions about police/government relations and the policy operations distinction, references are made to the principle of police independence that Malcom mentioned earlier. Routinely we see elected officials comment on the proper role of government as limited in the face of respecting police independence. Statements like, “We can’t direct the police,” or, “we can’t tell the police what to do” are not necessarily accurate. Here we see references to the police being answerable only to the law itself. In my view, this is not a helpful understanding for police independence. As was mentioned earlier, the Supreme Court of Canada discussed police independence in the 1999 decision, R v. Campbell and Shirose. Here the Court articulates that when an officer is investigating a crime, they are not acting as a government functionary or agent of anyone. The Court draws connections between police independence from the executive as fulfilling the constitutional principle of the rule of law. However, I want to emphasize that in this case, the Court was only speaking on police powers of investigation and the decision does not provide guidance for other forms of policing, or the other duties of the police. I also urge us to think about the distinction between accountability and answerability versus that of control. My perspective is, is that there’s need for more government responsibility in policing, certainly at the federal level, and not less. Police independence, or some prefer the term operational responsibility, should not be interpreted in a broad manner to cover all things operational, which I think Michael agrees with. Instead, it should be narrowly tailored to respect what are sometimes called the quasi-judicial role of the police: investigation, charging, and prosecution of particular individuals. In other matters, this is where the space for government and policy can come in. Democratic models of police/government relations recognizes that for some decisions of policing, it would be improper for the government to make determinations. Of course, for example, a government cannot say, “Arrest this specific person.” But it is important for the police service board or the relevant Minister to be informed of aspects of police operations to ensure accountability and democratic input and to allow ministerial authority to intervene in policy matters, should they arise. Ministers have an obligation to develop policies, review those policies, and explain and defend them in the legislature. When governments do not fulfil their duties to provide direction, we have to rely on after the fact accountability mechanisms, like courts and oversight bodies. Based on my research, these are limited mechanisms for accountability. They only come into play after the fact and they are difficult to ensure outcomes. Courts are highly restrictive, they’re expensive, they’re hard to access, and I can speak later, if necessary, about the very important challenges faced by police oversight agencies. Importantly, after the fact accountability mechanisms, the harm has already been caused. They have a limited function to act in a preventative manner, whereas policies set by police boards and governments that reflect on the ground operations can potentially serve a preventative function. So the final thing I’d like to say before turning it over to one of my colleagues is that I think public order policing can be understood as different from other types of policing and may invite greater government involvement, whether that’s from the Minister or the Police Services Board. And I’d like to articulate why this is different. Public order policing, we have competing demands and rights between those who are engaging in protest, but also third parties and other communities that can experience significant consequences because of those protests. There can also be concerns about regarding access to public and government services, and of course concerns about foreign relations. There might also be important considerations of protecting vulnerable groups. Here the line between policy and operations becomes much less clear and specific processes and procedures for government direction may be warranted. I’ll leave it there.
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Kate Puddister, Prof. (Political Science – University of Guelph)
Thank you. Yes. So I'm going to suggest two. The first is not novel or new, and has actually already been mentioned already, but I think one of the biggest challenge for police- government relations in Canada is thinking about the RCMP Act. So we've had a lot of really great conversation about what Toronto has done, and I think that's a really great model, and I think things are working well there. The Ontario Police Service's legislation has some more defined roles about police-government relations and police independence. But when we look to the RCMP Act, in section 5, in particular, we find none of this sort of guidance. So the current situation federally with the RCMP really lacks a statutory framework in articulation of police independence. It's unclear who can intervene and when, the nature and scope of that intervention, there is no clear guidance on what process should happen if there's a disagreement between the Minister, so the Minister of Public Safety, and the Commissioner. This, of course, results in a lack of transparency and accountability for those who are involved. Because of this, with the RCMP, our situation relies heavily on leadership and decisions of key actors and that they will act in good faith. Here, I'm going to put the suggestion on the table that policy has an important place here to set a framework to deal with these situations in the future. Having defined codified definitions of police independence can help address these issues and make it less likely that political or partisan interests on behalf of the government will come into play. So here, I'm thinking we can look certainly to the legislation in Ontario as a good starting point. We also want to be reminded of the Supreme Court’s decision in R v Campbell as a definition for that core function of the police. So here, legislation could specify that independence applies to specific operations such as specific arrests, investigations, and charging. I urge any recommendations to avoid just operations. I think we’ve spent a lot of time discussing why that’s not a useful demarcation point. Thinking through this, it might be legitimate for governments to provide direction to policy as it relates to crime prevention, maintenance of public safety, delivery of services, general law enforcement, while other areas might be less legitimate, like enforcement of law in a particular case, decisions regarding individuals, including individual police officers, and issues regarding individual members of the police service. Of course, reasonable, informed people may disagree where this direction from the government is proper and where it is not, but these are important conversations that can only be had once we take a step towards articulating these matters in legislation, and that legislation can be amended when it's clear that there are errors or gaps. This ensures that we don’t have to start from scratch each time. I also agree with the proposal that’s been put forward by Kent Roach in a variety of publications that this legislation could require directions be made in writing and be made public between the Minister of Public Safety to the Commissioner, and that these written directions are provided within a set period of time unless, of course, it would compromise an ongoing police operation or investigation, but, of course, that would be the limited exception. The second suggestion I want to put before the Commission and has come up on the side of some of the conversations we’ve had already, is the consideration of a role a truly civilian police oversight board for the RCMP. The RCMP roots are paramilitary in nature and the force has evolved in a manner that is distinct from other police forces in Canada that have taken a more civilian approach to policing, like the situation in Toronto. Civilian oversight for the RCMP, in my opinion, is lacking and is out of step with other police services in Canada. The agencies tasked with providing oversight for the RCMP in matters criminal and conduct leave much to be desired. Creating a version of a police service board for the RCMP would help to increase democratic accountability and create opportunities for increasing diversity of those who are involved in governance and moving away from that troubling line -- direct line from the minister to the Commissioner that was mentioned earlier. A board can ensure that ministerial direction is appropriate and given when necessary. This can be helpful to transition the RCMP away from being a paramilitary organization, which was a recommendation from the recent House of Commons Standing Committee that examines systemic racism in policing. Membership of this board, like boards in Ontario, could have a combination of elected and appointed members, but appointed members could provide an important opportunity to ensure diversity of representation, especially of groups that have a history of distrust of the police and have experienced over-policing from the RCMP in particular. It could also include members that have particular expertise or lived experience that would be helpful in police governance. Like other police boards, the majority of these meetings could be held in public, receive submissions from the public. Similar boards could be considered for provincial jurisdictions in which the RCMP provides policing on a contract basis. I want to end with just one criticism that’s going to be obvious. And important criticism would be that a police board would serve to diffuse responsibility. But given the framework that I’ve suggested and the public nature of these proceedings, the decision of the board and policies enacted would create more potential for accountability and lay true any overt attempts to diffuse responsibility. Of course, the minister would have to chair the board and answer to parliament to maintain ministerial responsibility, but I’ll leave it there.
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Kate Puddister, Prof. (Political Science – University of Guelph)
Sure.
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Kate Puddister, Prof. (Political Science – University of Guelph)
Well, perhaps I’m just reiterating what I said before, that I think a civilian board is essential here. I do think in the current configuration the relationship between the Public Safety Minister and Cabinet could be altered; this could be a halfway step. We could think about the Public Safety Minister and its relationship to Cabinet similar to the Attorney General and its relationship with Cabinet, which would not be too far out of bounds because the Solicitor General used to be part of the Attorney General. And so when I’m speaking of the Attorney General, I’m thinking of the role in such that they represent the views of the Attorney General at Cabinet, solicit views from other members around the Cabinet table, but still hold that ultimate independence to make decisions. A model like that could be implemented for a Solicitor General or the Minister of Public Safety, but I suggest perhaps one other change would be necessary. Currently we have a Minister of Public Safety that has a wide portfolio of responsibilities. Other jurisdictions, like New Zealand, for example, have a minister of just policing, so perhaps in the scenario I’m suggesting we have just a minister of policing that’s fulfilling that duty. But I’ll close in saying I still think the more compelling solution is a civilian oversight board.
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Kate Puddister, Prof. (Political Science – University of Guelph)
Sure. So my area of research on this is mostly on Ontario, but thinking about the jurisdiction of these oversight bodies, and the SIU in particular, is what I’m going to talk about. And it’s useful to focus on the SIU because that’s the model that’s been exported across Canada. And I think one of the biggest challenges in relying on an oversight body like that to provide accountability, is that they have actually a very limited jurisdiction in which they can investigate. The SIU, in particular, is involved in serious injury, death, allegation of sexual assault, or the discharge of a firearm. Beyond that, there are other accountability mechanisms that come into play, but their jurisdiction is actually very limited, and I think the public has a very poor understanding of what they can actually do. The other significant area of limitation for the SIU and for many oversight bodies, is that they don’t have the ability to engage in systemic review, such as like we’re having right now, to examine larger issues; to think about connections between particular events that they’ve investigated; or perhaps, you know, if there’s repeat issues with a force, the director can issue a letter to the chief, but they don’t have the same powers to compel a full review. So their role is very limited in that they are reactionary only. Very important mechanism of oversight but are very limited in the ability to provide any, you know, guidance going forward beyond criminal investigation.