Defunding the Police, Part I

What is Behind It

Around Christmas time, I happened to be scrolling through my Twitter feed and I came across a defence lawyer’s tweet that was criticizing the eligibility requirements to sit on a municipal police services board. The issue at hand had to do with defence lawyers being ineligible to sit on police services boards. It was a quite interesting, albeit a little short. When I was scrolling through some of the comments, I came across a couple of calls to “defund the police”, and it motivated me to want to dig deeper and identify the core challenges around policing. So here we go.

For many newcomers and first-generation Canadian families that have come to Canada after escaping civil war, there is a different level of appreciation for societies with law and order. Law and order are the key drivers behind a functioning society and, without these drivers, societies are almost guaranteed to erupt into complete chaos. It is that simple. I say this because we are going to explore the polarizing slogan and idea, “Defund the police”, where the meaning behind the message continues to change depending on who is saying it. My position is that there needs to be a shift from focusing on the financial aspects of policing to enacting legislation that would actually address the very grievances that gave way to the slogan and idea.

The Background Behind “Defund the police

The “Defund the police” slogan came to prominence during the George Floyd protests in 2020. The slogan was in response to what appeared to be a rise in recorded interactions between police and black persons which would end in a black person losing their life. There were some really disturbing recordings including a middle-aged black man that was choked and shot to death for selling CDs in front of a convenience store, a black youth that was shot to death while running from police, and the suffocating of a black man that had had an issue with a store clerk, which gave way to the slogan, “Defund the police.” Despite the fact that all of this had transpired in the USA, a country with a polar opposite gun culture compared to Canada and with a considerably stricter justice system, many of the key ideas and themes ended up making their way to Canada.

Although I do believe that the noise generated by the “Defund the police” slogan did help to bring attention to the importance of having trained police and the need to have police with body cameras, the slogan has often meant something different to each person. The slogan itself would also end up becoming a staple among activists while also becoming a point of contention for pro-police groups.

These days it is quite common to see debates about the “polarizing” slogan and idea of defunding the police, but very little has changed in terms of legislation, specifically in Canada. I have asked myself why activists, community organizers and community groups have chosen to focus almost entirely on police budgets over the unfavorable legislation that exists in Ontario’s Police Services Act, and I believe that it has to do with a limited understanding of the structures that contribute to the institution of policing. There are three key structures: specific legislation around policing, police services boards, and law societies. Unless these structures are addressed, the same issues around policing will continue to persist because it is these structures that are at the core of the challenges and not the funding of police.

Understanding Legislation Around Policing

Grasping the complexities around any legislation can be complicated for non-lawyers because lawyers are responsible for interpreting the law because of how often laws are written vaguely.  But it becomes even more complicated when it comes to legislation around policing. In Ontario, the legislation in place to govern the conduct of police officers is known as the Police Services Act (PSA). The PSA also provides protections for police officers that act in good faith, but it would be fair to say that these protections go too far, because the PSA also provides protections for police officers that act in bad faith and commit criminal acts outside of their work hours.

When it comes to police officers going off the rails and committing crimes and still receiving protections for their actions, it would be fair to say that Ottawa takes the cake.

In 2019, an Ottawa police officer was sentenced to a conditional discharge in exchange for a guilty plea to unlawful entry after breaking into a family’s home while being armed with a large kitchen knife and uttering threats to that family’s teenage son for allegedly selling his son some Marijuana. To make matters worse, that police officer showed up to the house on his own accord, without a warrant, and he flashed his Ottawa Police Services badge to force his way inside the family’s home. However, as long as that police officer promised not to break the law for the next 12 months after his sentencing, he would be spared a criminal record. The judge’s reason behind this lenient sentence was due to that police officer not having a criminal record, but police officers have almost always been spared criminal records for everything except killing a person.

This police officer had a lengthy internal discipline rap sheet, which included him crashing an uninsured car into a construction fence and fleeing the scene of the accident.  On that occasion he had finished working as part of a police security detail while former American president George Bush was in Ottawa.  He had also been disciplined for discharging his gun in the locker room of an Ottawa police station. None of the police officer’s actions resulted in a criminal record, but we can be sure that if this was an average person that these actions would have resulted in a criminal record, time in jail, and much more.

In 2020, an Ottawa police officer pleaded guilty to two counts of discreditable conduct under the Police Services Act after they forced their tenant into their car and threatened to kill them and bury their body, as well as telling their tenant, a husband and father, that he would sell the tenant’s child in order to raise enough money to pay for rent.

Seriously, a police officer in Ottawa said all of that.  However, the disciplinary hearing officer stated that the letters of support that this police officer had submitted made it clear that he had acted in a professional manner throughout his career, ignoring the fact that this same police officer had been convicted of discreditable conduct and insubordination after he had assaulted a “youth” while on the job. After everything this police officer had put their tenant and his family through, he was given an absolute discharge which spared him a criminal record. This police officer was demoted, and did go down in police rank, but for the entire duration of these proceedings, around four years, he was suspended “with pay” from policing, so essentially a four year holiday while still getting paid.

The only thing that the article forgot to mention about this police officer is that they are a first-generation Canadian whose family emigrated to Canada after civil war erupted across the former Yugoslavia, specifically from Bosnia and Herzegovina. Instead of taking advantage of the opportunities made available to him, he seemed to relish behaving like a Bosnian gangster, saying the type of things that war criminals would say to innocent people before they actually killed them to people living here in Ottawa. There is an endless number of people all around the world that would do anything to emigrate to Canada and make the most out of every opportunity made available to them, so if this police officer still wants to be a Bosnian gangster, perhaps he can swap places with someone that is currently living in a third-world country who would love the chance at a better life and to be able to chase the Canadian dream.

There are countless other examples of police officers going off the rails and committing crimes including two separate groups of Ottawa police officers that were charged for corruption in 2020, one for a tow-truck scheme that resulted in police officers receiving cash kickbacks and the other for trafficking fentanyl. The tow-truck scheme was described by police brass as a type of an organized crime scheme while the fentanyl situation was attributed to bad actors influencing police officers, but there have been quite a few of those in Ottawa. However, this should be enough examples to demonstrate just how flawed and misused certain protections can be. Acting in good faith and acting in bad faith are polar opposite acts. One deserves protections, the other does not.

Getting Familiar with Municipal Police Services Boards

The Province of Ontario describes the purpose of a police services board (PSB) as overseeing how policing is provided in their local community. PSBs are supposed to contribute to the community’s safety and well-being by working with citizens and organizations to make sure their community receives appropriate policing. Their specific responsibilities are outlined as; determining objectives and priorities for police services, establishing policies for the effective management of the police force, appointing members of the police force, preparing a business plan at least once every three years, recruiting and appointing the chief of police and any deputy chief, monitoring the performance of the chief of police, and participating in collective bargaining and working agreement processes as the employer.

Although the size of a PSB depends on the population size of a municipality, they are equally comprised of persons elected to municipal council and Provincial appointments of non-elected persons, and a single person from the community that is chosen by council. Once PSB members are selected they are required to take an oath to sit on the PSB, and that oath mainly focuses on upholding the confidentiality of PSB matters, but also acting in good faith.

One of the biggest criticisms about PSBs revolves around an eligibility requirement that stipulates that applicants must not be a person who practices criminal law as a defence counsel. Although the Province of Ontario does not list this specific eligibility requirement on their website’s page about PSBs, it does state that there are other statues, regulations, rules or directives that currently exist or may be established that apply to agencies, boards or commissions, while the City of Ottawa specifically highlights this eligibility requirement on their website’s page about council committees and boards.

The issue with this eligibility requirement is that only a defence lawyer would be barred while a lawyer that represents police or one that prosecutes criminal offences (known as the Crown) would not be. This specific eligibility requirement gives the sense that PSBs only want lawyers that advocate in favor of police and not those that might be critical about some aspects related to policing. However, the bigger problem is that it seems to assume that all defence lawyers would be anti-police and incapable of fulfilling their oath, and it becomes even weirder once you realize that both Crown lawyers and defence lawyers are involved in the process of promoting lawyers to serve as judges.

I believe having lawyers that have experience working as defence lawyers can only be a positive, given the new perspectives that they bring. Additionally, having lawyers that have experience working as defence lawyers would likely prevent a PSB from being dissuaded from acting on matters if a PSB’s designated lawyer was to misinterpret a situation and provide an inappropriate legal opinion. That is why it is fair to say that the time seems to be right for policy makers to revisit the eligibility requirements and make the appropriate revisions.

My Experience Interacting with These

Now, the reason I feel I am in a position to talk about these structures is because I have quite a bit of experience dealing with them and it is one hell of a story, but you have to wait till next week to read about it.