The Dangers of Police “Operational” Independence

Police “operational independence” is an overbroad and confusing term. Moreover, the idea that those who govern the police have no role in anything that can be characterized as police operations was significantly to blame for the policing failures that led to the use of the Emergencies Act in February 2022 to clear the Ottawa occupation. The first part of this article examines the origins and meaning of police independence. It suggests that there is a growing consensus on limiting the ambit of police independence to the exercise of law enforcement discretion. The second part examines the juridical statute of police independence. It concludes that police independence limited to law enforcement discretion is an important constitutional principle and principle of fundamental justice. The third part argues for the codification of such limited law enforcement police independence in all Canadian policing acts. The Ottawa policing failures demonstrates that Justices Morden’s and Epstein’s attempts to limit the ambit of police operational in Ontario legislation have not been successful. Clear legislative definition of police independence as only applying to law enforcement decisions such as those relating to investigations, arrests and prosecutions is necessary