Behind the throne…stands the executioner!
Updated: Oct 25
Author: R Elrick
This declaration was made by an old professor of mine while our class discussed the historic nature of state coercive power on citizens. In the modern day, who is responsible to ensure the executioner knows the rules; and abides by them?
In other words, what mechanisms are in place to ensure the authorities do not impinge upon the rights of the citizen unjustly?
In this brief article, I will discuss the issue of policing the police as it relates to the common law doctrine of ancillary powers. This is an “area of law in Canada in which new police powers are defined by the state through the courts”.[1] The two pronged test at play here can be used to ascertain, on a case by case basis, whether or not the police have acted rightly in the justifiable impingement of citizen rights. Then I will ask the question, what mechanisms are in place to ensure police accountability when it comes to investigating their own?
To highlight the issue, I will turn to the tragic case of Crystal Taman, a local woman killed in an auto collision with a drunk off- duty Winnipeg Police Constable.
Most citizens are not constitutional scholars or experts in police procedure. How does one
know if the police have overstepped their bounds? Do we even know what those bounds are?
In the area of Ancillary powers doctrine, it seems often the case that an individual will only find out
after the fact weather the police acted justly toward them. The courts will decide the matter on a case by case basis by applying a “reasonableness-based rationale that defines ancillary powers in common law”.[2] In this way, the Court “essentially creates new police powers to fill gaps in the law that authorize the duties of the police”.[3] It seems that in this way, the Court is acting to police the police by revealing what they are authorized to do, and also what they can’t.[4] Policy and procedure can then be amended once the grey area has been clarified. However, this seeming declaratory method will not aid the citizen already affected.
The two pronged test in ancillary powers doctrine has its origins in a British case, R v Waterfield.[5] It has since been referred to as the Waterfield test, and has been applied in Canadian courts up to the present day. The test consists of:
(i) Whether such conduct of the police falls within the general scope of any duty Imposed by statute or recognized at common law and
(ii) such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty. (Knowlton v R. 1974:446)[6]
It has been put forth in (Jochelson), that when the Court uses the Waterfield analysis, it acts as “both the legislator of police powers and the adjudicator of the constitutional legitimacy of such powers”.[7] The criticism here stems from the seeming fact that the judiciary are sole lawmakers in this regard, thus cutting Parliament out of the picture. This flies in the face of basic principles of liberal democracy.
However, despite criticisms as to process, the test has been used to at least ensure that police action has constitutional validity. This speaks to issues of accountability when police action is subject to judicial review. So, the judiciary can apply oversight to ensure police don’t overstep their bounds unjustifiably. What happens if the police underperform in the conduct of their duties, especially when that duty involves the investigation of another officer?
According to the Canadian Civil Liberties Association, “all provincial governments have the authority to enact their own version of a public complaint process and an investigative agency in their province”.[8] A broad criticism of this process has been made by University of Toronto Law professor Kent Roach. Roach notes that “investigative agencies can bring criminal charges against police but police officers are often successful in defending themselves against these charges”.[9] One could safely argue that this situation makes for a culture of seeming impunity among law enforcement. This “thin blue line” mentality can have tragic consequences.
This culture of impunity can best be illustrated in the case of Crystal Taman. In February 2005, Taman’s vehicle was hit by a truck driven by an off-duty Police Constable. She was killed in the collision. The officer driving the truck was charged with multiple offences, including impaired driving causing death and refusing a breathalyzer.[10] The officers responding to the scene of the collision were from the East St. Paul Police Department.
Due to an apparent lack of evidence, most of the charges were dropped and after a plea bargain deal, the Constable was sentenced to two years house arrest on a charge of dangerous driving causing death. The Taman family were upset by the plea deal, and in addition to public outrage, an inquiry was called for and eventually held in 2008.[11]
During the inquiry, the Chief of the East St. Paul Police testified, as he had been one of the first responders. During testimony, the Chief tried to defend his handling of the investigation, claiming “I think I did the best I could do (with) what I had there and with my abilities at the time”.[12] He went on further to testify that he didn’t suspect the accused had been drinking before the crash, contrary to evidence presented at the inquiry. In the final report, it was found that the Chief’s actions at the scene played a key role in the botched investigation. It was also found that the Chief falsified his notes, prompting a junior officer to do likewise.[13] It also came to light that both the Chief and the accused were erstwhile colleagues on the Winnipeg Police Service.
Following the inquiry, Manitoba Justice ordered an investigation into the actions of the St. Paul Police Department, and their handling of the Taman case. This led to charges against the Chief. It also led to the eventual disbandment of the St. Paul Police as they were replaced with the RCMP.[14] A corrupt police force is the hallmark of a society in crisis. In a rights based liberal democracy, a population must have faith in the integrity and accountability of those tasked with upholding the law. In addition, citizens should have a right to expect that the police will not overstep their bounds in the conduct of their duties.
Endnotes:
[1] Richard Jochelson, Kristin Kramer & Mark Doerksen, The Disappearance of Criminal Law: Police Powers and the
Supreme Court (Winnipeg: Fernwood, 2014) at 41.
[2] Ibid at 45.
[3] Ibid at 45.
[4] Ibid at 45
[5] Ibid at 45.
[6] Ibid at 47.
[7] Ibid at 57.
[8] Canadian Civil Liberties Association, “Who Polices the Police?: Police oversight in Canada” (20 March 2017), online: Canadian Civil Liberties Association <https://ccla.org/polices-police-civilianpolice-oversight-canada>/at 2.
['9] Ibid at 4.
[10] CTV News, “Former East St. Paul police chief faces charges in Taman investigation” (24 November 2010), online: CTV News https://winnipeg.ctvnews.ca/former-east-st-paul-police-chief-faces charges-in-taman-investigation>/at 1.
[11] Ibid at 1.
[12] Ibid at 2.
[13] Ibid at 2.
[14] Ibid at 2.
