Controversy erupted this week after allegations surfaced that the Liberal government may have tried to interfere in the Royal Canadian Mounted Police (RCMP) investigation into the 2020 mass shooting in Nova Scotia that killed 17 people.
According to RCMP Supt. Darren Campbell’s records, RCMP Commissioner Brenda Lucki said in a phone call that she had promised the Office of the Prime Minister and then-Secretary for Public Safety Bill Blair that the RCMP would provide information about the weapons used by the shooter , would publish publicly. Lucki was reportedly furious when the RCMP failed to do so.
The Liberal government is said to have wanted the information released to advance its gun control agenda. Critics and opposition politicians accused the government of wanting to use the tragedy for political purposes. Lucki, Blair and Prime Minister Justin Trudeau have denied there was any interference in the investigation.
But how and when – if at all – should those who make laws be able to boss around those who enforce them? When was there a police intervention and what were the consequences?
CBC News spoke to some experts to explain the strained, legally fuzzy, and often contentious relationship between police and policymakers in Canada.
Why should the police be separated from politics?
The Supreme Court of Canada cites the rule of law as a fundamental principle of Canadian democracy. It is considered important to our constitutional order that no one, even the most powerful politicians in the country, should consider themselves above the law.
But there is another reason for police independence – in our democracy, the government should be accountable to the people, which means that people should not be afraid that the police will act against them on government orders.
“I think what we want to do is avoid a ‘police state,'” said Kent Roach, a professor at the University of Toronto Law School. “And by that I mean that we want to avoid politicians telling the police who to investigate and who not to.”
In states where the government can tell the police what to do, experts say a pattern of government critics and opponents ending up in jail quickly emerges.
For these reasons, police autonomy in law enforcement and public protection is an integral part of most well-functioning liberal democracies.
“Leaders shouldn’t micromanage police services, it goes against the very idea of democracy,” said Temitope Oriola, professor of criminology and sociology at the University of Alberta.
What does the law say?
Although these principles appear to be part of basic civic education, Roach says they are, and many people, including police officers and politicians, often don’t understand them well.
But there may be a reasonable excuse — the law itself isn’t clear.
“I think part of the problem here is that the lines of legitimate government directives to police and illegitimate government directives are very vague.” he said.
While police independence from government is important in our democracy, Roach says it’s a principle not always reflected in our laws.
“For example, the police cannot bring hate propaganda charges without the prior consent of the Attorney General,” he said.
“So there’s kind of no absolutes.”
In Lucki’s case, RCMP law states that the commissioner “has control and administration of the force and all matters related to the force” but “under the direction of the minister.”
Roach said the law is confusing because it doesn’t detail what instructions mean, including the type of instructions a minister should give to an RCMP officer. It is also not stated whether instructions must be given in writing or whether they can be given orally.
“It’s completely vague, right?” Roach said.
Roach wants the RCMP Act to be amended to clarify what types of orders the government can legally impose on the RCMP.
He said there is a clear division between orders, which set rules for the police in general that are acceptable in a democracy, and orders for the police to act in a certain way, or to take action against a certain person, in a particular case, what is not the case.
He says a legitimate government policy for police could be a policy about what information police are allowed to release, or directing police to stop a particular technique or practice.
But one policy that would be unacceptable would be directing the police to charge someone with a crime.
During the 1997 APEC Summit in Vancouver, it was found that the government had interfered in RCMP operations by directing how the Mounties protected then-Indonesian President Suharto. In a public inquiry into the summit, Judge Ted Hughes concluded that the government had twice tried to disrupt police operations by trying to get police to keep protesters away from Suharto.
Hughes recommended that the government amend the RCMP Act to clarify the police’s independence from the government. So far, no government has acted on the recommendation.
Roach says there could be a reason for the lack of action and clarity.
“I suspect that in a way, both the police and the politicians like to maintain the status quo, which is pretty vague and murky,” he said. “That is too bad.”
What happens when politicians try to be police?
Politicians shouldn’t tell the police what to do, but sometimes they just can’t resist. While some politicians come from law enforcement backgrounds, most don’t – and it can show when they try to interfere in policing.
“They don’t have the skills, the knowledge, the expertise, the lived experience to make operational decisions,” said Laura Huey, professor of sociology at Western University.
She cited the APEC-Suharto controversy of 1997 as an example, but there are more recent ones.
Huey says Ottawa Mayor Jim Watson’s attempt to negotiate with Freedom Convoy protesters earlier this year comes to mind — a critical incident command expert who said her had made a bad situation worse.
“Most police services that deal with public order have people who are very experienced, highly qualified professionals who specialize in negotiating in situations like this,” she said.
“So we want the mayor to go down and fiddle with something he knows absolutely nothing about and has zero effect anyway?”
Roach says his favorite example is former RCMP Commissioner Leonard Nicholson, the most decorated Mountie in history, whose name RCMP headquarters bears.
In 1959, the government of John Diefenbaker asked Nicholson to send more officers to oversee a labor dispute in Newfoundland. Nicholson chose to resign rather than comply with the order.
“So that shows that this idea that the RCMP doesn’t like political direction… is built into the DNA of the RCMP,” Roach said.
Is there a better way?
If there is too much political interference in policing, there is too little danger.
Voters don’t elect police officers, but they elect politicians, so they have a role of police control.
“Nor can society afford to have an unaccountable police force,” Oriola said.
A section of the Liberal 2021 campaign platform is dedicated to changes to the RCMP, particularly to make the Mounties more accountable.
Oriola calls the government-police relationship a “delicate one” that requires “a delicate balance” and where intentions should be considered.
“Are you giving orders to the police to punish political opponents, or are you giving orders … so that we can have a better society and an improved society based on the political priorities that you have championed?” he said.
Huey says more training for police departments that hire police chiefs could enable them to make better hiring decisions, which in turn could create more confidence in police leadership and lead to less political interference.
“I think when we hire highly competent people, we have to give them the space to make the decisions,” she said.
According to Roach, one potential solution, in addition to more legal clarity around interference, is legislation that would require all government ministers directing police to do so in writing – including requiring the directing to be public.
He believes that the RCMP law could be changed with this requirement and only allow this outside of individual cases.
“It seems to me that in a democracy, citizens have a right to know what the minister is doing,” Roach said. “I think that this policy system could not only promote transparency, but avoid all this controversy.”
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