Michael Kempa
Michael Kempa spoke 27 times across 2 days of testimony.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Sure. Thank you very much, Commissioner, and all the counsel who are here. I very much appreciate being included. What I wanted to do, essentially, today was some briefer comments on overall strategies for dealing with mass protests and really focus my comments on opportunities for integration, integration planning, some of which are, as yet, under exploited, but where there may be directions for improvement in the future. In an over-sweeping type statement, we can say that the lessons of policing mass protest that were learned at the G20 in Toronto in 2010 were in many ways applied in the mass protests in the Ottawa region, and across Canada for that matter, but the lessons of G20 were, in many ways, not applicable to the nature of protests that we saw this time around. Simply stated, very much the lesson of G20 was to have police work on more of a stand back type strategy of containment, where over a period of time, protests would run their course, dissipate, and ultimately, where an enforcement action may be necessary, it would be on a smaller scale. That type of approach in Ottawa was heavily criticized, as we all know. And we spoke in terms of a new paradigm in protest type, for which many of the lessons of the past do not seem to apply. So in terms of meeting that new challenge, pooling collective knowledge, pooling collective resources is a major issue. And of course, we’ve covered the ground thoroughly that coordination across policing agencies, coordination between police agencies and their civilian oversight bodies, and political overseers is extraordinarily difficult. So the comments that I’ll make, I’ll mostly focus on the framework in Ontario for the reason that Ontario was very much a focus in terms of police coordination for this Commission, but also, very often, what we see in Ontario legislation finds its way into police frameworks across the country over time. So the current reality in Ontario is that police interaction and police governance is ultimately governed by the Police Services Act of 1990. The most recent piece of legislation, 2019’s COPS, the Comprehensive Ontario Police Services Act, of which the Community Safety Act is a part, is as yet unproclaimed. Some of the institutions that are created by that legislation are in sort of semi-operation at the moment, such as the inspector general of policing that we began to learn about the other day in the testimony of Mr. Weatherill. But we’re still waiting on the development of regulations prior to that legislation coming into full effect. So in terms of coordination across agencies and particularly at the level of planning and sharing resources, there are obviously the proactive and reactive dimensions to integration. At the proactive level, it is clear that where police services boards, by the authority of the Police Services Act, 1990, as made clear in the Morden Report, although this is mostly the subject of other panels, do have the authority to ask questions, and even offer input or advice, which chiefs are free to take or leave, on matters of operational planning for most issues, but most especially for major events, what Justice Morden calls “corporate events”, which is to say events that are large enough that the entire police service is implicated in dealing with that particular event. So there is certainly a role for boards working proactively with their chiefs to ask if the possibility, the need to coordinate with other police organizations could be on the table, and perhaps leading that conversation with their chief and linking up through currently the OCPC by the 1990 Police Services Act, and moving forward, that same role, I understand, will be taken over by the Inspector General with the new legislation. My understanding is that the IG would serve as a type of quarterback role for police services boards, with the Solicitor General coordinating messages, offering mostly procedural advice, rather than policy advice, to boards from the Inspector General. Where there’s an anticipation that there might be the need for a major event of resources and coordination, ---
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Sure.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Certainly.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Certainly. Where there is a need, or there’s an anticipated need for coordination with other police organizations, boards could reach out through the OCPC, or later the IG, to discuss the matter between their chief and the heads of other police organizations and pose questions as to what types of coordination or resources might be needed. In terms of post hoc or reactive coordination, however, there is certainly the possibility of this type of discussion between chiefs, their boards, the OCPC, or IG and other police services within the Police Services Act, but the thresholds for when this might happen and who might lead these conversations is left as an open question in the legislation, which is to say, there’s a lot of ambiguity as to who would drive these particular discussions. So it’s very clear that boards set policy, boards are involved in questioning on operations and offering input the chiefs are free to take or leave, but at the time that a chief of police would indicate to their board that things have gone sideways and they're not capable of providing adequate and effective policing given disturbances associated with a major event, it would fall to the Board or the Chief to approach another police organization, in the case of Ontario, that would be the OPP, seeking for the resources. At the moment, the IG, the Inspector General would be intended as the body that should be notified of this move that a Board and/or their Chief would be making. Where a Chief makes the request directly to the Commissioner of the OPP, the Commissioner of the OPP is obligated to provide support to the OPS, in this case, but it would be within that Commissioner's interpretation of what type of support would be appropriate. Where a Board maybe doesn't agree with their Chief and would be making a request directly to the OPP, for example, the Commissioner of the OPP is not required to necessarily provide support, but if he or she decides that support is necessary, again, it is within their discretion to decide what type of support might be appropriate. This system, while it allows for this type of discussion and coordination, is silent on what exactly the thresholds would be to move the discussion if there's not agreement, for example, between a Chief of Police, a local Chief of Police, municipal, their Board and the OPP in the example of Ontario. So this is to say that our system works well where the stress test or the event is not so difficult to handle that it stresses that particular system, or where there's an alignment of opinion or personalities or priorities of the personalities involved. In other words, if there's good working relationships between Boards, Board heads, Chiefs of Police and Commissioners of the OPP and those who are either on OCPC but more later -- or when the legislation is updated, the Inspector General, it works well where there's agreement between these particular players. What might be suggested though would be a series of thresholds where automatic degrees of either coordination or either transference of decision-making authority might move between organizations depending on the nature of the ask and the nature of the circumstance. So we heard testimony from Commissioner Carrique of the OPP, for example, that there are over 200 requests of the OPP for various forms of assistance over the course of the year. Most of them are quite small in scope and size, and most of them come with very few strings attached on the part of the OPP. As the ask gets larger in terms of number of police officers, the OPP explains that it has a responsibility for influence over what will be done with its resources. And obviously, for reasons of collective agreement of having to ensure the safety of their officers and membership, they want influence over what will be used with their personnel resources. It's been suggested in some of my conversations with police professionals in these organizations that perhaps as the ask increases and the size of officer or resource request increases, the degree of OPP influence would increase in a commensurate way. So for example, and I'm not sure what the thresholds would be, these would be open questions, if a municipal police service was asking for a percentage of officers relative to its own membership in greater of a certain threshold, it would come with automatic integration of OPP involvement in the planning stages. And if that threshold was to increase further to a certain percentage, it may then be an automatic threshold where the OPP would simply take over responsibility for operational planning entirely. The suggestion being that if these were automatic thresholds, and I’m not sure what they would be, this would remove the implication, implied or otherwise, that the municipal police service was in some way failing, and it was just the scope and nature of the operation and the request of the OPP that would dictate their level of influence over planning moving forward. The last thing I'll say is -- before we move on, is simply I've been asked whether the issue of bias within police organizations can influence the execution of their operations. I would say that that is almost certainly the case. We are confident that there was and are across police services in Canada, at minimum, significant levels of sympathies for anti-vaccination movements, as there would be for various political positions moving down to the extremes of the polls, to the extent that the police are drawn from society, they would reflect the attitudes that exist in society. We simply don't know the end at this time. It has not been measured. So what was put to me by a member of OPS, which I thought was very insightful, was they said that less than 10 percent of officers can impact more than 90 percent of operational outcomes, where if you have a small number of officers with sympathies to various causes, it's quite easy for a small number to have an outsized impact on the execution of an operation. So a little bit in the way that the CAF has undertaken measurement of the position of different political ideologies within their ranks, it is a priority area to actually map the N, the size of these sympathies within police organizations. I'll leave it there.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Sure.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
I would just add, in terms of overlapping the question of Indigenous involvement with questions of resources, the involvement of protest groups in self-policing initiatives within protest was under-discussed in the current context and is something that has come up as a major trend in policing mass protest over the last 20 years. Very often this has been tied to questions of PLT and negotiation of so-called protest green zones, where in exchange for moving protest into agreed areas after a period of time in symbolically important areas; this can be done in exchange for the involvement of protest leadership in taking some responsibility for the groups over which they have control. This obviously works better in situations where protesters are more unified, in terms of factions on the ground and so forth, which often is the case in Indigenous protests, as opposed to mass protest of the type we saw in Ottawa. And further, something that fell out of use around the current protest was the involvement of private security entities in protest policing. This was a major feature of the G20 security planning in Toronto, and it’s been a major trend for the last 25 years or so. This has been something that did not come up and was not a part of the current policing response or security response around the current issue. And this comes up, both at the level of private security potential involvement at the lower level of street enforcement, just enforcement of bylaw, or the guarding of physical space, all the way up to the high end of strategic planning. And also, critically, the digestion of intelligence and its -- sort of the laying out the options for the operationalization of that intelligence. So what the operational implications of different types of intelligence may be. It’s just something that, curiously, was completely absent from the current situation across Canada.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Yes ---
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Yes, and that becomes part of the proactive dimension of coordination that was missing this time, on the basis that people explained. It was a paradigm shift that nobody fully comprehended its implications as it was approaching. But the idea that would again be that the fulcrum of all of this seems to be, unambiguously, it is police services boards that lead these conversations, whether they currently have the capacity to do so at the moment or not, and to be asking their Chiefs and facilitating perhaps with other groups, who can be involved in the policing assemblage. So just for example, there’s been some discussion that police services boards might take on the role more of community safety and wellbeing boards, to fit in with that type of municipal-level planning which -- of which policing is a part. It would be a similar type approach for public order proactive planning.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Just to add or to build on what Cal Corley was saying is the main benefit of specified thresholds for when provincial, or if the RCMP provides provincial policing on contract to take over some influence or all control of operational planning for a jurisdiction, if it's set to a threshold, it removes the implication that the municipal police service is failing in some way. So this can be tied either to or some combination of the threshold of security threat, such as in Quebec with the levels one through six, or/and to some proportion of total request of personnel power coming from the provincial or federal authority that's providing provincial policing via contract. So you might imagine, just for example, that if a police service was asking for personnel somewhere in the range of 10 percent to 50 percent of its total size, that would automatically kick off integrated planning between the 2 police agencies. If it was a request that went to a larger -- an even larger number, something on the order of more than 50 percent of the size of the service making the request, it might be a situation of ceding operational planning to the agency that is giving the personnel support. Now I don't know what the precise numbers would ideally be, but some sort of proportional formula might work well, and just create that expectation that this is simply what happens. It's not an implication of an inferior police service or poor management, a lack of confidence in a police leader, and it also takes some of the pressure off of the current situation on police services boards to be the deciders in these circumstances. In the end, if there's disagreement, for example, as a complete hypothetical, if a chief of municipal police did not want to cede operational control to a provincial police authority and the board of that municipal service thought it was a good idea, the board could force the issue by threatening to dismiss their chief, which is their prerogative. It is an extremely harsh response to bring about the desired result, and probably not one that many boards would feel confident to make, given that very often they don't even have the confidence that they have the legal authority to ask questions of operational planning, let alone dismiss their chief for not ceding operational control to another police agency. So by rendering these formulaic, you are relieving some of the pressure over what is ultimately a group of civilian overseers who don't have that level of expertise on technical matters in police planning.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
So I just -- to respond to some of the comments of my colleagues, in particular, I have sympathy for the idea that you might have a definitional threshold to decide who would have responsibility for taking the operational and planning lead on a particular type of event. Two precisions that come up around that are, number one, there may not be an agreement around the table as to what type of definitional situation you are in. So, for example, some players around the table may say we are in an instance of a mass protest that poses a serious security risk and, therefore, by this definition, planning would fall automatically to the provincial agency, or a federal agency; whereas, other players at the table may say, no, this is an ordinary protest that stays within our jurisdiction of primary planning. So I would just say, even if you were to take a definitional threshold, you would probably have to tether it in some way to a magnitude threshold of some form. So protest is typically the domain of the municipal police service, unless there is a request for personnel support exceeding a certain number or proportion; whereas, something different, you know, a national security issue to do with a bomb -- a coordinated bomb threat might automatically, no matter the amplitude or size of that situation, might automatically pass to another agency. But I do think that to avoid confusion around the table, you would have to tie it in some way to a size issue, size measurement threshold.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Sure. So to answer, I would just say, but obviously before we get to the question of the involvement of the Federal Government, the chain of planning would pass from Municipality to Province, to the Federal Government. So I think the thresholds that I was speaking of was more in terms of the primary response before we got to any situation ---
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Michael Kempa, Prof. (Criminology – University of Ottawa)
--- of emergency. So proactive planning. Do we have any idea that we may be asking for resources from other police organizations and therefore a need to coordinate command on some level? And then afterward, things are going poorly, we are making a request, what is the level of integration automatically? Is it coordinated or does the other agency take control? This is before you get to a situation of the Federal Government saying it’s completely broken down.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Just similar on the point of exclusion zones when we speak about moving people to green zones for protest and the importance of allowing people to access symbolically significant space. It's -- again, it's not in terms of a strict time limit where people would have 48 hours in a significant space before being required to move along. Rather, there would, of course, have to be legitimate legal reasons for which a threshold to be met where a protest or members of a protest would be asked to go to a green zone perhaps as part of a self-policing arrangement. I mean, long before we get to a situation of a mass protest threatening national security or any -- within even earshot of an Emergencies Act conversation, there are issues of threat to public safety, threat to officer safety, and lower standards where there -- that might be the bar for beginning to open up green space for a protest, partially as a strategy to begin to separate the very -- the vast majority of honourable protesters that are there to make a point, from the smaller number, who over time become a larger number attaching themselves to a protest with other objectives and less honourable intentions.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Just, Commissioner, if I could, I would just end on the point; I know it’s been very alarming for people to see what was widely seen as the collapse of the civil policing system in the face of what began as an honourable protest. I would just -- there is a reassuring point to make, and that’s that major public disorder episodes have always been major turning points in how policing is set up and delivered. Even the advent of modern public policing came on the heels of major civil disturbance; which is simply to say, it’s entirely within our power to reorganize the policing system to meet these challenges. It’s a small reassuring point.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
So Michael Kempa.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
So just very quickly. Commissioner, I absolutely agree. I think that the thresholds that I’m speaking of are for when consensus were to break down. The system works well when there’s agreement at the moment. It’s where there’s disagreement, the ambiguity leaves it open and nobody’s quite sure who has the final say. So perhaps you could have it that if there was an agreement on how to proceed, you would only move to thresholds when things would begin to break down, just for clarity.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Well sure. I think that the difficulty that has come in Ottawa has to do with just simple confusion over who may bring -- who may ask whom for resources, in what order of -- what order of request. So where it started with the police of jurisdiction, it always starts with the police of jurisdiction. In Ottawa, the main point of coordination as it exists, is the Police Services Board. So where that board determines with their chief that they have a need for further resources, it is unclear at present to whom that board is supposed to go next. There is -- the Office of the Inspector General is intended to develop into the role, is my understanding, as the next point of call. But those regulations are not yet written, and the authority for the IG to act is not yet established by the new COPS Act in Ontario. So if that office is currently working only by the delegated authority of the Solicitor General’s Office, it’s only doing part of its functions right now. So boards have not gone to the IG for that support as to who they would then ask for resources. Would they go to OPP? Would they go to Protective Services for the Parliamentary Precinct? Would they go elsewhere? So it should be the IG that would be the first point of call to provide that advice, to advise, in the circumstances, where the first port of call would be.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Sure. Well, I think that the main point that emerged in terms of the strategies that police services deployed in Ottawa, Coutts, Alberta, in the earlier protests, and then Toronto and Quebec City going in a different direction, having observed what happened in Ottawa, is that the initial strategy was from a standard playbook that was essentially drawn up after the G20 in Toronto of containment and allowing protests to sort of fizzle out on their own time prior to any enforcement or apart from very dangerous behaviours, but for minor enforcement to not be undertaken until protests had dissipated. And we heard a little bit about that in terms of even on the interpretation of intelligence that came in where police officers said, "Well, when we filtered that through our experience of typical protest, our typical experience is that protests last for a finite period of time, focussed on an identifiable set of issues." So in this case, that strategy just is in no way designed for a multi-layered protest with different objectives with no particular end date in mind, other than the achievement of a long list of particular mandate and broader political objectives. So the stand-back approach, police officers put this to me in terms of, “We simply followed the playbook that came out after the G20 in Toronto, and it was completely inappropriate to the circumstances.” So where I’ve spoken with police officers about, “Well, where is the sort of in between; between aggressive policing, which was the old style of handling mass protest, versus the containment strategy?” They all came back to early engagement with PLT; negotiation at an earlier stage to do with what people might -- where they would begin to identify problems such that they might be willing to move at a future time if certain things were observed, so there was almost a pre -- there would be a pre-understanding of what behaviours wouldn’t be acceptable and when there might be a need to move; and preparation for enforcement of more minor violations at an earlier stage so that things like the bedding in a vehicle simply wouldn’t be able to happen. And police officers subsequent to the Freedom Convoy in February have pointed to using some of these things in more recent protests in Ottawa around Rolling Thunder in April and the Canada Day protests that followed along. So just simply that that containment strategy, which was lauded in many cases after the G20, was inappropriate in these circumstances.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Great. Thank you very much for including me, Commissioner. And as you know, the issue of political engagement and civilian oversight engagement with policing has plagued the Canadian system since the McDonald Report in 1981, so over 50 years, but I have every confidence that we will resolve these issues here today and through the work that you'll do on the Commission after all this time. I approach policing basically as a window into politics and political economy, which is simply to say, the way that a society sets up its policing system, divides responsibilities between public policing authorities, private policing authorities and civil or volunteer policing authorities says a lot about their broader views of the proper role of the state generally, what a market is and what its purpose is, who it serves, what a civil society is and what a civil society can contribute to the broader political economic context, how to define citizenship and how rights of citizens are to be institutionalized, including who is included and sometimes accidentally excluded from these regimes of rights. So that's at the theoretical level. At a practical level, I'm simply interested in who makes the decisions around policing policies, operations and the exercise of policing power. And my general concern is that all three of these things are as democratic as possible, which means as close to community as possible, as reflective of community values and needs as possible, balanced by the need for the exercise of policing power as a form of legal power to be independent and democratically accountable. Now the way that those things come together in different circumstances will vary. The answer will not always be the same depending on what type of policing powers we're talking about and what circumstances, but generally by interrogating those questions, you get a good window into democratic theory and political economic theory. Thank you.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Thank you. So Commissioner, I've made a real commitment to our panel chair to be as practical as possible in my discussion today and to really try to avoid getting bogged down in the theoretical weeds that have accumulated over the last 50 years on this particular topic. The issue of whether or not the policy operations distinction is even useful, in terms of discussing what types of questions political overseers or civilian overseers can ask of police organizations, what types of direction these same bodies can give police is a good one. And I think the metaphor that’s come up over and over again over the course of this Commission is the separation of church and state, where the idea was that political direction or questioning should definitely not cross some sort of a threshold which was understood as church throughout the Commission. But the opinions as to what exactly the line was within the church were mixed from the evidence that you heard here. There were some that would have given you the idea that political overseers or civilian overseers should not even put a toe into the church, for example. And there were others who said no, political overseers can come in and ask questions, but certainly not even make a suggestion or tell us what to do on any operational level whatsoever. So what I would suggest when we go through the history of the reports looking at these matters at the level of civilian oversight bodies, police services boards, Linden is the report that is most helpful for us -- excuse me; rather, the Morden Report is the most helpful for us. At the provincial level of political direction, it’s Linden. And at the federal level, of course, it’s the McDonald Report, and the more recent Brown Report looking into these matters with the RCMP. So what I would suggest, rather than thinking of church and there’s really no role for the state or political or civilian overseers inside the church; in fact, they’re fully welcome in. They can ask questions about operations; they can give advice about operations at a general level, but they ought not to be allowed into the confessional, which is to do with the exercise of police powers, specifically. So my answer to the question on whether that dichotomy is useful is, I would say yes, but I actually prefer to think in terms of a trichotomy that just makes it a little bit more specific. So on the one hand we do have policies, which is the domain of either civilian oversight bodies where they exist, or the political Ministers responsible, if we’re talking about the federal level of the RCMP. Then there are plans, which can be conceived as the more general level of operations, where there is a legitimate role for any of these bodies to ask questions; demand answers to these questions; offer even suggestions about overall plans. But in the end it is the final decision of the chief whether or not those suggestions will be executed at the level of plans on the ground. And then finally, powers. Powers -- the exercise of powers is the most specific level of operations. This is the confessional, and this is where there is absolutely no role for civilian oversight bodies or for the political directors of policing; the Ministers responsible. So where we think about some of your more specific questions, for example; what directions may police boards in governments legitimately provide to police? Well, obviously they’re setting policies, but in terms of an operation, like something for a major protest event, there is no precise legal definition for what type of advice a board would give a chief of police on how to generally go about strategizing to deal with a mass protest. This comes from the Linden Report as well. Rather there needs to be a deliberative discussion process in place where these issues would be worked out. I know that very many would say it’s difficult to define these things in law, and it’s important to leave some space for your professionals to have room to work these things out amongst themselves, within a framework. So I’m suggesting this is a general but specific enough framework; policy, plans, and powers, that within plans, there’s the space for the participants to negotiate where the board would offer advice and where they would stop. Some of this would be common sense, for example. The boards members are typically not police professionals, so they don’t have experience in deciding exactly where you would send contingents of officers on particular corners, and so forth, nor would they even have very many questions about those issues at that level for their Chief. They would have questions about whether certain laws might be used as tools to be enforced, but not when and where those laws would be enforced or not. The timing and the ultimate decision to use those authorities would be for the police and the police alone. What types of information can boards or political masters ask for? On matters of operations, they should be asking questions about planning before and after plans are designed and executed. So before, again, the types of questions that a common-sense approach within this framework would dictate, would basically be what any good board of management would be asking; “Chief, how did you come up with this particular approach? Were other alternatives considered?” The board may have no idea what other alternatives would look like, but a good board of management makes sure that their executive officer in whatever branch has considered alternatives, for example. “Is there any evidence to suggest that this would be a better approach than something else?” The chief might simply reply, “Yes, this was a model that was deployed to good effect in protests in Seattle. We feel that there’s some similarities and that’s why we’re following this model here.” It’s a standard, deliberative-type approach in that sense. On your next set of questions here, we have a question, “May governments provide directions establishing priorities for which regions, for example, police resources should be deployed during a major event that impacts multiple locations?” So the simple answer to that is yes, absolutely, and that’s by Linden, where it’s clear that the provincial government could issue such direction, providing they do so in writing, so that this direction would be publicly visible. If the public felt that this was unreasonable direction, the government would then be accountable for providing that level of detailed instruction to the police. Further, if the head of the OPP, for example, were to feel that those were unreasonable directions on the basis that they could compromise public safety, that Commissioner would provide that explanation; again, in a public fashion, so that the logic of where the police were going, either before, if that could compromise the safety of the operation before, that could be explained after, where the police are going and why. What decisions in relation to managing protests should be made by the police alone? At the level of power, nobody should have any say as to how exactly when or in what fashion an operation will be executed by the police organization. So while a board may ask are certain laws going to be enforced, for example, around the transportation of jerry cans of fuel, that board cannot direct that at a specific time of day you will begin enforcing these laws in any location in Ottawa; or elsewhere, for that matter. So finally, on that question of policy operations, I would suggest it is a helpful distinction, providing you break operations down in terms of plans and powers. Powers are obvious and legally defined. Plans don’t need to be legally defined, it’s just within that space, there has to be that deliberative process. And if there is confusion, if the agreement as to what constitute a plan breaks down, we do have mechanisms to take this disagreement to other bodies. So for example, my understanding would be when the new COPS Act for Ontario is proclaimed, the Inspector General would serve this role advising police services boards whether or not they within their rights to ask for certain information, and to enforce compliance on the part of police chiefs, if they were withholding information that a board was legitimately entitled to. But hopefully, with that sort of hanging over them, they would be able to resolve these things through the deliberative process. I think that the last thing I’ll say about that is that it is only Ontario and Manitoba in their Police Services Acts that specify any notion of police operational independence. I think it would be beneficial to remove the word “Operational” entirely from any legal definition of police independence. Simply refer to it as “Police independence,” referring to the exercise of police powers, and to specify that boards and political overseers are entitled to issue this type of direction at the level of policy and plans, providing that they do so in writing. For this reason, the private Member’s bill at the federal level for the RCMP, C-308, does have some improvements, but is probably wrongheaded on its specific mention that nobody shall provide any operational direction to the RCMP on any level, although the rest of the private Member’s bill does have a lot to recommend it. So I can leave that there.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Just I wanted to emphasize Ryan Teschner’s point that the first point of entry for political influence is a board, rather than direct political engagement by an elected representative in police matters for the reason that that political engagement is rendered publicly visible through the board structure. So there’s not a person in Ottawa, for example, who is not aware of the Police Services Board in Ottawa at this point. However, that’s not the case for other police organizations. So OPP, the precise board structure is a bit of a mystery to most people in the Province of Ontario. Most Canadians would not even be aware that there is an advisory board for the RCMP. At this time, through the RCMP’s difficulties, there have been very few public statements of that body. So that is something that has been unresolved more at the provincial and federal level than at the independent municipal level of policing, that the primary port of call for political influence at the municipal level is a board. It’s fuzzier at the provincial and federal level.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
I -- just to say that I agree with everything that Kate Puddister just said, except I would add one precision, or maybe a slight difference which also follows Roach and I think can be inferred from other sections of Campbell, that when defining police independence, you simply jettison the terms “operations” altogether, and define “police independence” itself in terms of the exercise of their powers of investigation, arrest, and delaying of charges. Of course, they do that in consultation with the judiciary and the Crown, but that is the area -- and that also follows, as I say, Kent Roach. To echo Kate as well, the importance of the minister being on any board for the RCMP is, I feel, replicated at the municipal level. Mayors should be on their police services boards, if for no -- for two reasons, number one, to align policing direction with broader city municipal planning, such as in areas of community safety and wellbeing, but also just to ensure that there is no perception or reality that there could be any political meddling in policing from any other mechanism behind the curtains or whatever other than through that board, if, for no other reason, to eliminate that public perception.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Sure. So I would just say the moment it has to do with the actual carrying out or execution of the operation; that’s the moment where the board cannot direct. So the board may have a policy that PLT or negotiation is an important part of mass protest management, but exactly when that negotiation would be carried out would be a police leadership decision because they would be weighing in the safety of their officers; whether they had identified groups to negotiate with. But then the board would be asking -- properly asking questions if they felt that they didn’t see, for example, PLT started. They could ask why, and demand a response. And if they were given an adequate reason along those lines, that’s basically the end of the matter. And if they weren’t given an adequate, they could say, “Well, when will it be starting?” But, fundamentally, they could not force the chief to begin on a particular moment.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Well I could just start the conversation by saying I think the -- it’s always open to the chief of a municipal police service to have direct conversations with the provincial police service, whether that’s an independent or contracted RCMP, if they require more resources. The Board would be the first point of communication through, later, the Inspector General, but currently the OCPC to the Solicitor General communicating that they were in some kind of difficulty. But it is -- it is not likely the role of the Board to make a specific request for the enactment of either the provincial emergencies legislation or definitely the federal emergencies legislation, simply to indicate that they are having trouble providing adequate and effective policing, and then when asked whether that’s limited to resources, or also if there’s some authorities that are missing.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Sorry, that was also exactly my meaning. I may not have put it as clearly.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
No. Just that in fact that close relationship with the Commissioner being a Deputy Minister has been specifically identified as a source of the number of the problems facing the RCMP, in that whether there is real or perceived political pressure on the Deputy Minister/Commissioner, there has been a tendency to manage upwards to anticipate the needs of the Minister in ways that may not reflect the needs, the bottom -- the downward needs of the organization. That, of course, was the main conclusion of the Brown Report.
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Michael Kempa, Prof. (Criminology – University of Ottawa)
Well, no. As Ryan Teschner is alluding to, without proper resources -- police services boards have not had a record of untrammelled success across Ontario or Canada for that matter. And in fact, for example, in the United Kingdom, they have moved away from the police authority model, which is the same, essentially, as the Police Services Board model, for an elected local body that through the theory of being elected has even greater legitimacy to intervene in operational type matters and so forth. So it's -- it is a question of whether -- to evaluate whether the Police Services Board model is a good one for Canada, it's a bit unfair to look at the track record on the basis they have never had the training, resources, or clear explanation of their authorities to actually carry out their functions.