Thank you very much for this invitation to assist with the important work of this joint committee.
Although I am a member of the Public Order Emergency Commission's research council, I should stress that I am speaking only in my individual capacity and, indeed, I am not privy to the commission’s internal deliberations as it prepares it report.
I have written about the events leading to the declaration of emergency, both in my book Canadian Policing: Why and How it Must Change and in an article in a special issue, volume 70, number 2 of Criminal Law Quarterly, where Professor West also has an article.
In both of these venues, I suggest that the use of emergency powers was related to policing and policing governance failures. This is an important matter even when the Emergencies Act is invoked, because section 20 of the Emergencies Act preserves the existing and, I would submit, fragmented and dysfunctional governance silos of the local, provincial and national police.
Let me make three points. One is that, if you compare the police responses in Ottawa and Toronto, you will see that the Toronto response was more effective and reflected the lessons of the Morden report that there should not be watertight compartments between policy and operations, something that was inelegantly referred to more than once in the emergency commission as “church and state”.
This lesson should have been learned long ago, at least since the 1981 McDonald commission, which, like the Supreme Court in its 1999 decision in Campbell and Shirose, stressed that police independence is limited to the ability of every police officer to make law enforcement decisions about whom they will arrest and investigate. Everything else, in my view, is potentially a matter that the responsible governing authorities, the democratically accountable authorities, can assume responsibility for. In a democracy, the police should not be self-governing.
My second point is to address Bill C-303, which is before Parliament. It is a good idea, in that it recognizes that the responsible minister can direct RCMP policies in the form of public directions. It has the potential to clarify police governance. Unfortunately, it continues to define police independence too broadly by exempting RCMP operational decisions, including day-to-day operations, from the ministerial directives. The term “operational” only occurs in policing laws in Ontario and Manitoba, and has indeed caused much confusion and the sort of under-governance that led to the Ottawa police board's having no published policies before the convoy arrived about how to police protests on Wellington Street. They had policies on labour protests and on indigenous protests, but no public policy on Wellington Street.
My final point is that we need such policies. We need to think creatively about these policies, including how to use barriers as a means to reconcile the right to peaceful protest with human safety.
I would urge this committee to be creative and to explore the suggestions of former Senator Vernon White about a redesign of Wellington Street. I would also urge you to consider giving the RCMP a clear lead in policing the parliamentary precinct and border crossings, but only if its governance and resource policies are addressed.
Bill C-303 could be part of this reform, but only if its overbroad definition of police operational independence is rejected through an amendment, one limiting police independence. Police independence should also be defined so that it does not impede the ability of police leaders to control and manage their organizations. Again, this can be done if we limit it to law enforcement discretion.
I would be happy to answer any of your questions. I have particular concerns addressed in my Criminal Law Quarterly article about some of the elements of the events with respect to the Emergencies Act.
Thank you very much.
