Malcolm Thorburn
Malcolm Thorburn spoke 6 times across 1 day of testimony.
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Malcolm Thorburn, Prof. (Law – University of Toronto)
Thank you. Bonjour, et merci, Monsieur le commissaire, pour l’invitation à participer aujourd’hui à la discussion. Je m’appelle Malcolm Thorburn, je suis professeur titulaire et vice-doyen aux études supérieures à la Faculté de droit à l’Université de Toronto. Je tiens aussi la Chaire de recherche pour l’innovation. J’enseigne le droit pénal et le droit de la preuve et j’effectue des recherches sur la police et sa place dans l’ordre constitutionnel au Canada, plutôt sur le plan théorique, mais aussi sur le plan pratique. Je donnerai mon discours en anglais aujourd’hui, mais je serai ravi de répondre à des questions dans les deux langues officielles. I'll start my presentation by outlining what I take to be the main concerns that should structure our thinking about police government relations. I know that many of my fellow panelists are criminologists, police officers, political scientists, who will bring enormous -- who have already brought enormous insight into the policy considerations that pull us toward one arrangement or another. I'm going to focus my own thoughts on some of the legal considerations, common law doctrines, constitutional principles, and so on, that I believe should structure our thinking on this topic. And the central idea I want to put forward is one that we've already heard mentioned here, that in Canada, I believe we have for too long had a rather vague and sometimes often overblown conception of police independence from government. As a matter of common law doctrine, and of constitutional principle, made clear in many places, our Supreme Court's decision in '99 in Campbell, for example, it is clear that the police should be fully independent of the government, police services boards, minister, whoever, while engaged in criminal investigation, commencing or ending investigations, laying charges and the like. That much, I think, is clear as a matter of law, and I think I would agree, as a matter of policy. And that is because in these situations, when the police are targeting specific individuals for the attention of the criminal justice system, full independence is essential to the integrity of their operations. Without it, there is a significant danger that the criminal justice system might become a tool of the government of the day. As with other parts of the criminal justice system, impartiality is crucial to its legitimacy. But outside the context of criminal investigation, there is no good reason, I think, to think that the police should be fully independent of government. Indeed, there are plenty of good reasons to think that they should not. So the police have wide discretion, considerable coercive power over increasingly wide variety of different areas, well beyond the scope of criminal investigations. It is, I think, intolerable in a democracy that all that power and discretion should be exercised without significant democratic accountability and input. When making decisions about crowd control at large-scale protests, for example, there are important public policy considerations at play. The possibility of economic life for the surrounding community, access to education, healthcare, other important services, sometimes matters of international trade, and so on, that must play a part in decision-making about how to police those protests. So we've seen in a number of important judicial reports on policing, from Justice Morden about the G20, Justice Linden on Ipperwash, and others, urging a more pragmatic allocation of decision-making power, and certainly an increasing flow of information over an array of police activities. Unfortunately, though, many politicians, solicitors general, police services boards, others, have assumed that police independence should cover much more than just the investigation of crime. What's more, of course there is legislative language in Ontario, section 31(4) of the Police Services Act, that draws this sharp distinction between operational decisions with respect to day-to-day operations and policy matters. But I believe that broader understanding of police independence undermines the accountability and ultimately democratic legitimacy of policing outside the area of criminal investigation. So how then should we demarcate areas where the police should maintain strict independence from areas where more government input is appropriate? Well, first, I think we should continue to ensure full police independence over criminal investigations, and we should do so in clear, unambiguous, statutory language. But outside that area of criminal investigation, we should make clear, also in clear statutory language, that police independence is not a bar to the free flow of information to and from police services and boards, and to some direction from government. Making clear that these other areas of police operations are not subject to strict police independence will allow for a proper flow of information between police services and government. As Justice Morden pointed out 10 years ago, in his report on policing the G20 Summit, police services boards cannot perform their oversight function if they lack adequate information about the police services operations. And further, we should allow for more guidance and input from government in crafting policies, priorities and objectives in these other policing areas. As we have seen at virtually every large-scale protest in Canada over many years, including earlier this year, the police lacked clear guidance about how to regulate those protests. The police need more and clearer legal guidance about how to deal with these large-scale protests and other critical points, as there sometimes would. That said, I wish to acknowledge that it is very important that political guidance and the sharing of information should not become a road into partisan capture of policing. The police mission must be one that is subject to democratic oversight, accountability and input, but not to become the servants of the government of the day. So to that end, I think we ought first to make any government input clear, publicly accessible, and in writing, such that those -- that guidance can be subject to democratic accountability, also that, where possible organisations, such as police service boards, can act as intermediaries between elected officials and police departments. I look forward to the discussion later this morning. Thank you very much.
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Malcolm Thorburn, Prof. (Law – University of Toronto)
Yes. Thank you. I am glad to see that there is some convergence on some of these questions among the panelists. The question of what exactly the scope of government input might be into police operations turns on a number of questions. As Professor Kempa already pointed out, there's a big difference between providing specific directions and asking for information, and even making suggestions and calling for a response. In those kinds of questions, I think what we need to do is keep in mind, also as Mr. Teschner pointed out, recognise that it is not a simple model of setting down policy and then leaving it to the chief to create specific day-to-day directions based on that, but rather, a relationship with the flow of information in both directions and a give-and-take on questioning how those particular implementations are going to be made out. What I want to suggest, though, is that in certain contexts the foreshortened prime window of planning and execution is going to make that dynamic ever denser. That in some contexts, planning and priority setting can take place well in advance, that kind of discussion can take place in a way that is more easily insulated from day-to-day operations because it happens long before those day-to-day operations take place. In circumstances, like the ones we saw earlier this year, in Toronto at the time of the G20, and a number of other events, sometimes the flow of information needs to occur much more quickly and decision-making as well. And so I think the easier distinctions that we're drawing, as to whether or not we are making specific directions to day-to-day operations, becomes much more difficult to draw. So bringing this conversation back to one of the questions we were first asked to discuss, about whether governments should provide directions in establishing priorities for which regions' police resources should be deployed in, in the usual case where timing is such that it is much -- where we have time to set out broader policies with a broader set of directions, that may not be required. In situations, in some of these critical point situations, the time window is going to be such that the flow of information, the flow of directions will be virtually simultaneous with some of those policy day-to-day decisions. So the kind of input -- it would be unrealistic, I think, to say that the kind of input boards might have could be fully insulated from that kind of operationalisation. So would it be best to try to insulate oversight boards, and particularly Ministers, in the case of RCMP and so on, from directing chiefs on those specific matters, absolutely. That -- although I would want to emphasize, I think, that public order policing is a step, a very significant step, away from the specific law enforcement role of police with charging and so on. It is true that, nevertheless, we want to make sure that the government of the day is not giving specific directions on those questions. Given that time window, however, I think it’s unrealistic to suggest that we can keep them quite so separate.
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Malcolm Thorburn, Prof. (Law – University of Toronto)
Thank you very much. I guess I just wanted to say a couple of things. I think what we saw in the operation in Toronto on the Freedom Convoy was convergence of greater democratic accountability and successful operation. And so the extent to which information was shared and this not only provided greater input and democratic accountability, but also greater operational success, I think you can show that there’s kind of synergies that are at work there. What I want to emphasize though is that there are plenty of places where that has not happened, and in the existing framework, other police services have felt still constrained, even 10 years after the Morden Report, constrained in the kind of information they’re sharing, not ensuring the kind of free back and forth of advice that Chief Ramer was just describing, that you were able to benefit from in operation with the Freedom Convoy there. And so what I want to emphasize here is a little bit -- is quite similar to what I want to emphasize on that first question, which is that it’s one thing to say, “Here’s how we ought to operate,” and there’s another to provide clear guidance to police forces across the country and to police boards across the country as to exactly how to make sure that they live up to that. And this is where clear statutory language is helpful and sometimes clear regulations. But on the level of the kind of successful integration of information and democratic input, I think that’s a good one.
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Malcolm Thorburn, Prof. (Law – University of Toronto)
Just a quick intervention. I just want to emphasize that it's all the more important, first of all, that board -- we look at board composition, not only in their representativeness, but also in their ability to provide useful interventions and to know what questions to ask when serving on the board, to be able to provide useful insight. The model that several of us have been discussing this morning of a flow of information, question and answer between board and the chief requires that the board members have a certain level of ability and knowledge of some of those areas in order to engage in that kind of conversation. I just want to emphasize also something that I think goes a bit, maybe too much emphasis, but the centrality of some kind of intermediary between elected government officials and police chiefs that organizations like RCMP and so on. Where there is -- where we lack that board structure, there is a real concern about sliding from democratic accountability to too much -- a too close relationship with the government of the day.
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Malcolm Thorburn, Prof. (Law – University of Toronto)
Very briefly, I think Professor Puddister put it very well and I -- like Professor Kempa, I would say I endorse all of the recommendations that she made. And I just want to summarize of this by saying that clarity and direction is needed, that there are practices that have been enormously successful, as we saw in Toronto Police Services handling of the Freedom Convoy, but what we need is guidance to police services across the country to make sure that information sharing, these kinds of decision-making processes are widespread. The same thing is true of clarity of a board structure, and that there should be a board structure for those without one, such as the four organizations that Professor Leuprecht identified. And on -- the last thing on board structure, I think we can’t underestimate the importance of representativeness, both the matter of the mayor representing the city’s interest as a whole, but also of underrepresented groups who have a very important role in providing insight to police services.
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Malcolm Thorburn, Prof. (Law – University of Toronto)
Just a quick intervention. It’s just important, I think, that we distinguish areas where the reason why we want to leave police independence is because of their kind of quasi-judicial function in making arrests and so on from this area where mostly what we’re talking about is expertise. And so in that area, we may want to insist we should defer to those who have expertise on the ground, making these decisions. But there, the kind of dialogue that Chief Ramer was just describing, asking hard questions, saying, “Why aren’t you doing this and so?” is entirely appropriate, in a way that it would not be when we’re talking about specific investigations.