Why we can’t police the police

Why is it so hard to fire rogue police officers in Canada? because we are losing control of our system of government.

In saying so, we mean no disrespect to the brave men and women in blue who stand between us and criminal violence and fraud. We are lucky to live in a country where most cops are brave, competent and trustworthy. but that is beside the point. Individual police officers are human, and humans are fallible. moreover, police forces are governmental institutions and prone to the typical failings of those institutions. High on that list is the excessive regard for their own members at the expense of the public if not held rigorously to account.

As National Post reporter richard Warnica noted Friday, “Canadian police officers are, on average, fantastically well paid. Fully half the Toronto force earned more than $100,000 last year. They have ironclad pensions and spectacular benefits. And they enjoy something that has become increasingly rare in Canada: a job for life. In different jurisdictions, with different rules and different disciplinary processes across Canada, one constant remains: it is next to impossible to fire a cop.… On the off chance they are charged, convictions are rare. Among those few unlucky enough to be found guilty, firing is still the exception.”

To repeat, we respect the work police do. but all kinds of people in Canada do important, stressful jobs. Only in the public sector does the typical employee enjoy fabulous pay, perks and job security even in the face of wrongdoing. Thus the main problem with Canadian policing isn’t a problem with policing at all. It’s a problem with the public sector that is increasingly a constitutional crisis.

We tend not to see it in that light for two reasons. First, we tend not to think of the police as part of “the government” but as a separate, special entity. Second, we tend not think clearly about the division of “the government” into three branches with sharply different powers and duties: one to make rules, one to carry them out and one to settle disputes about them.

This division of responsibilities, or “separation of powers,” has lately broken down badly in Canada. Not only do judges increasingly make rules instead of settling disputes about them; the executive increasingly dominates the formal rulemaking procedure, as cabinet and bureaucrats reduce legislators to rubber stamps. And as legislatures fade, the frustrated citizens who elect them lose control of “the government,” in the sense of the effective machinery of the state.

robert Peel famously insisted the police “maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police.” but as professionals paid to protect the community from force and fraud, the police are necessarily part of the government and, within government, of the executive branch. They must not make laws or judge cases. Their job is to carry out the law.

Seen from that perspective, the “root cause” of the current problem is simple. The executive in Canada has torn free of legislative restraint and predictably succumbed to the all-to-human tendency to put its own interests ahead of the public. In a closed and insular world, politicians and public servants scratch one another’s backs and live high off the hog. Including the police. To take one egregious example, during the last Ontario election, the incumbent Liberal government was being investigated by police, whose union campaigned for them after its members received lavish settlements from the government.

most police are honest and honourable. but when institutions break down, so does public trust. And when officers seem to stand above the law, and too close to the public treasury, Peel’s rule is violated.

Policing the police is always exceptionally tricky because of Juvenal’s famous question, “Who shall guard the guardians?” Hence most forces have separate internal affairs divisions, often unpopular with colleagues but necessary to maintain integrity. And in the old days, visibly maintaining that integrity was crucial to avoid trouble from municipal, provincial or federal legislators.

Not anymore. bad cops are not fired because supervisors and chiefs are not afraid they’ll be punished for not firing them. Salaries and overtime are out of control for the same reason. The “blue wall” shuts out scrutiny, and public trust, not because police are different from other members of the executive branch but because they aren’t.

Officers accused of wrongdoing must of course have proper procedural protection. If supervisors can discipline them capriciously, it opens forces to political pressure from above. If members of the public can subject them to frivolous disciplinary procedures, it opens them to harassment from criminals. but clearly if cops caught in flagrant misconduct frequently face only minor, even trivial punishment, the system has broken down.

In Canada it has. The police here mostly enjoy and deserve the trust of citizens. but if no one guards these guardians, they will forfeit that trust and find it extremely hard to regain. If so, we will all lose something precious.