Oversight awry: municipal police and elected oversight bodies, part II

Elected oversight of municipal (or provincial) police forces is, as I indicated in my previous post, a difficult system by which to enforce standards on police. Foremost among the difficulties of this system: the relative lack of enforcement power granted to these boards. A corollary difficulty is the civilian nature of the oversight. Lack of power and civilians’ frequent inexperience with the machinations of judicial power make civilian oversight a tepid solution to the concerns that are currently being raised about police forces.

The Toronto example from my previous post is low-hanging proof of these difficulties. Justice Iacobucci’s recommendations following the Toronto Police Services’ killing of Sammy Yatim were left mostly unimplemented by the Board one year after the report came out. The limited powers of police oversight boards in Ontario are largely to blame; the remaining blame must fall to the Board itself. What powers exist for the Board to exercise, notably the power to instruct the police chief on matters relating to the department, is legislative and discretionary. These words mean that few legal tools exist to review a police board’s decisions.

Canadian history, however, shows that more responsive models exist; these, however, are not prefaced by the shibboleth: ‘elected oversight’.

One system widely used in nineteenth-century Canadian policing involved police magistrates (essentially justices of the peace) exercising supervision over police constables. This system operated in straight judicial fashion. The magistrate of a police force directly supervised and sanctioned constables, and held the post to the exclusion of other positions.

The benefit of such keen oversight cannot be overstated: a single official sits in appeal of policing decisions, and a single official has all judicial powers necessary to require police to comply with her or his decisions.

This system is, of course, dated, and it was roundly criticized in the Ontario legislature as late as 1962, where Liberal MPP Elmer Sopha said that:

There is in short no justification for the continuation of this practise in this province. Let us get the magistrates away from their connection with the police depar[t]ment. Then you will see one corrective and prophylactic effect it will have on the administration of justice. If they are not connected with the magistrate, you will find that the policemen in their conduct will–those few who are guilty of mis-behaviour, and perhaps guilty of brutality towards citizens–will indeed be more wary of having their conduct reviewed before a magistrate who occupies the independent position that I posit.

Ontario Legislative Assembly, Official report of debates, 4th Sess., 26th Legis., p. 992.

A countervailing view was later posited in 1979 by Norman W. Sterling, a progressive conservative member of the Standing Committee on the Administrative of Justice:

It might be interesting to go back in history some time. Originally, a board of commissioners was first appointed prior to Confederation. In the early days, a police magistrate was a member. In the year after Confederation, in 1868, a county court judge was appointed at that time. So for some 110 or 111 years we have had the county court judge as a member of the police commission.

The members of the municipal police force are governed and directed by the police board. This body is designed to ensure that the police are independent of direct political control of the municipality. The autonomy of the police boards, in my view, is essential to the proper administration of justice. This independence would be lessened if the police officials were either directly controlled by the municipally elected officials or were, in fact, municipally elected officials.

Ontario Legislative Assembly, Official report of debates, 3 Sess., 31st Legis., p. 1796.

These competing views are alive today, and they animate this post: judges ought not try cases in which they have participated in a non-judicial capacity; municipal officials (presently appointed to Ontario police boards) should not sit on such boards because they inject municipal politics into policing.

Lessons from history, however, indicate that we might resolve this tension by appointing a senior justice of the peace in each county or municipality as a police magistrate. This officer would be barred from hearing cases of police misconduct during the course of criminal proceedings; he would instead investigate and adjudicate all matters relating to police misconduct as separate cases. For those who insist on the shibboleth, two municipally appointed lay assessors would assist the magistrate in each case (my grandfather served as a lay assessor in Sweden).

This solution is not elected oversight. It is instead judicial oversight designed for quick responses to police misconduct. The rationale behind this proposal will be revealed with reference to some historical texts.

Historical sources

The police magistrate before Confederation was an omnipotent official that served as a specialized justice of the peace. One source describes the magistrate as a municipal official tending to local concerns:

A Police Magistrate, in the eyes of the law is nothing but two Justices of the Peace rolled into one, who is paid to see, among other things, that the by-laws of his city or town are kept inviolate.

Wicksteed, R.J. The Inferior Magistrates, or, Legal Pluralism in Ontario. Early Canadiana Online 25765, 1886, p. 2

To this definition must be added a more general oversight of policing. The system was inherited from England, where justices of the peace chose constables to keep the peace:

the usuall manner is, that these High Constables of Hundreds be chosen either at the quarter Sessions of the peace; or if out of the Sessions; then by the greater number of the Justices of peace of the Division where they dwell.

Dalton, Michael. The Countrey Justice Containing the Practice of the Justices of the Peace out of Their Sessions. 5th ed. EEBO, STC (2nd ed.) / 6210. London: John More, 1635, cap. 16.

High Constables would, in conjunction with the justices, select further constables for keeping the peace.

Through developments and export, the official evolved such that special magistrates were appointed to oversee police, but justices continued to be involved in appointing police:

The Constable is a Peace Officer generally chosen by the Justices at their Quarter Sessions, and is the proper Officer to a Justice of the Peace, and bound to execute his warrants.

Taylor, Hugh. Manual of the Office, Duties and Liabilities of a Justice of the Peace. Early Canadiana Online 43246. Montreal: Armour & Ramsay, 1843, p. 130; see also, Dempsey, Ricahrd. Magistrate’s Hand-Book. Early Canadiana Online 49619. Toronto: Rowsell & Ellis, 1860, p. 40.

Newfoundland, moreover, explained the relationship between police and all judicial officers in legislative terms:

The Magistrate, however, is responsible to the government for the maintenance of good order within his district, the detection of crime, arrest of criminals, and generally the carrying out of the law—very large powers and authority are given to Magistrates by Imperial and Local Acts. The Policeman is the Executive Officer of Justice, and he must attend to all lawful orders of the Magistrate and obey them implicitly, he should also attend strictly to all suggestions of the Magistrate in carrying out the law ; he should keep his worship fully informed of all matters of a public nature that come to his knowledge.

Prowse, Daniel Woodley. The Justices’ Manual, or, Guide to the Ordinary Duties of a Justice of the Peace in Newfoundland. 2nd ed. Early Canadiana Online 67826. St. John’s, Nfld: 1898, p. 118.

These sources identify two bonds between justices and constables or police officers. The first is that justices of the peace, the judicial officers closest to their communities, have historically been involved in the appointment of police. The second is that police are agents of the courts, which agency requires them to heed not only judicial decisions, but expressions of judicial policy about policing.

This system endured, but admitted increasing elected oversight such that, by 1970, the mayor of a municipality sat with a provincial court judge and a provincial appointee as municipal police boards. These boards had sweeping power to appoint and dismiss officers, to enact by-laws for the management of the police force, and to summon witnesses under oath. These powers stem in part from the judicial powers that have animated police appointments and police control through the ages.

The judge had, by 1980, been removed from the composition of police boards; a second provincial appointee took the judge’s place, thus ending judicial involvement in direct police oversight.

Oversight maintained

Balancing the benefits of elected oversight with judicial power

This system of appointing and supervising police has, of course, now changed. There is a firm division between judicial authority and police forces. The noises that led to this shift may be heard in Mr. Sopha’s comments to the Legislative Assembly in 1962.

The separation of powers is, indeed, an important republican principle; trust between subject and government is an essential part of a constitutional monarchy.

Appointing a justice of the peace to sit with two lay assessors effectively balances these preoccupations. The justice is the emanation of judicial power over police conduct; the lay assessors are appointed by elected officials, so represent elected oversight.

Reunifying judicial oversight with police forces emphasizes the central role of any policeman, which is defined by Daniel W. Prowse in his treatise on Newfoundland justices:

The constable will always remember that the object of arresting a prisoner is to bring him before a Magistrate as soon as he reasonably can.

p. 118, emphasis original.