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New Brunswick Policing Study: Legal Status of Police Volume IV December 1991 RV 8159 .142 144 v . 4 The New Brunswick Policing Study was funded by the Solicitor General of Canada, the New Brunswick Department of the Solicitor General and the New Brunswick Municipal Police Assistance Fund. v.Y '&ew Brunswick Policing Study) Legal Status of Police Volume IV ti December 1991 New Brunswick Policing Study: Legal Status of Police Volume IV Published• under the authority of the Department of the Solicitor General Province of New Brunswick Canada Printing: The Merritt Press Ltd. ISBN 1-55048-922-4 THE LEGAL STATUS OF THE POLICE A Background Paper prepared for the Department of the Solicitor General New Brunswick by Mary E. Hatherly, B.A., LL.B., LL.M. Senior Policy Advisor Department of the Solicitor General New Brunswick Fredericton, New Brunswick December, 1991 TABLE OF CONTENTS TOPIC PAGE THE STRUCTURE OF POLICING SERVICES Introduction 1 The Constitutional Framework of Policing 8 THE DELIVERY OF POLICING SERVICES The History of Policing in Canada 11 1. The Office of the Constable 12 2. Pre-Confederatiop Policing 14 3. Post-Confederation Policing 16 (i) External Accountability 16 (ii) Police Professionalism 18 The Legal Structure of Policing Services 22 II INDEPENDENCE, ACCOUNTABILITY, CONTROL The Police and Politics 29 The Scope of Police Independence 33 Current Structures of Control and Accountability: Municipal Forces 43 1. The Officer and the Chief 43 2. The Police and Local Government 46 (i) Institutional Competence 49 (ii) Operational Control 54 3. The Police and the Solicitor General 58 4. The Role of the Police Commission 63 5. The Role of the Crown 67 THE STATUS OF THE RCMP 73 CONCLUSION 74 ENDNOTES 76 THE STRUCTURE OF POLICING SERVICES [T1he police are the public and ...the public are the police; the police being the only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen, in the interests of community welfare and existence -- Sir Robert Peel, 1822 The function of the police implies making a contribution to society twhich has to be integrated with other administrative and judicial functions) in the form of social control which not only contributes to the protection of social achievements but also creates the conditions for social development and renewal aimed at achieving the essential values of our democracy. -- The Ontario Task Force on Policing 11972) INTRODUCTION The description of the police as "members of the public who are paid to give full-time attention to duties which are incumbent on every citizen, in the interests of community welfare and existence" which was first offered by Sir Robert Peel in 1822 anticipates the essential structural indicia of contemporary policing agencies. If viewed as "the civil force to which is entrusted the duty of maintaining public order, enforcing regulations for the prevention and punishment of breaches of the law and detecting crime"', it is apparent that the modern public law enforcement regimes which have been established in Canada have experienced only minimal transformation since the inception of their predecessors in eighteenth century England and WaleS2. Not only do the police continue to be distinguished from other security forces by the public and professional character of their institutional structureS3 but from a substantive perspective, despite the absence of any generally agreed-upon statement of principle formally governing the conduct of law enforcement, both statute and jurisprudence confirm the primary identification of the policing role with the objectives of crisis intervention and crime control'. Thus, for example, section 12(l) of the New Brunswick Police Act' stipulates that "each police officer is charged with responsibility", joAtf alia for "maintaining law and order, preventing offences against the law [and] enforcing penal provisions of the law." 2 At the same time, it must be conceded that while the policing enterprise is traditionally associated with the administration of the criminal law, it is not confined to this activity but has been supplemented by the accretion of additional responsibilities. Therefore, from a purely operational or functional perspective, any description of policing which is restricted to the prevention of crime and the detection and apprehension of criminals is incomplete. In common with all other Canadian jurisdictions, the responsibilities of the police officer in New Brunswick have been augmented by the legislative assignment of a variety of collateral duties including the escort of persons in custody, service and execution of court process, the provision of courtroom order, and the enforcement of orders issued in family proceedings (such as custody and protective intervention orders), in which capacity the police assist the efficient operation of other components of the criminal justice system. Nevertheless, such services may properly be regarded as ancillary to the principal criminal law enforcement role of the police officer which is expressed through the exercise of the powers of investigation, arrest and charge. The police occupy a pivotal position in the administration of criminal justice through their responsibility for crime control'. However, the critical nature of their role in ensuring the operational efficiency of a fair criminal justice system depends less upon the scope of the duties which are assigned by statute and common law than upon the external conditions and the manner in which police powers are exercised. Concentration upon a formal inventory of the duties of the police to the exclusion of any discussion of either the social framework in which such duties are performed or of the powers which are applied to their fulfilment, deflects attention from the consideration of institutional issues which are equally, if not more, significant. From a contextual perspective, it must be emphasized that any analysis of the policing role which focuses solely upon the objective of crime control is incomplete without attention to the countervailing influence of what have been described as modifying qualifiers. 8 Such 'modifying qualifiers', which are of three classes, denote those features of the social fabric which inhibit or prevent full compliance with the goal of crime.control and which therefore temper the exercise of police powers. Thus, while the product of external forces, such 'modifying qualifiers' function adjectivally to define the substantive content of the policing role. 3 The first and most obvious constraint upon police activity occurs as an incident of the physical and social framework in which law enforcement is undertaken and is typified by factors such as budgetary restrictions (which may produce limitations upon availability of personnel, facilities, technology, equipment and analogous resources), demographic characteristics of the policed territory, the impact of personnel affiliation and unionization, access to training programs and related matters. The existence and degree of systemic restrictions wields a dual influence upon the discharge of the policing function. First, considerations of cost and scale will govern the pragmatic capacity of police forces to accomplish functional goals. Secondly, such constraints may operate in a prospective fashion, exerting an impact upon the definition of the policing mandate and the identification of law enforcement priorities. The importance of systemic qualifiers upon the exercise of the police function cannot be underestimated. However, while of obvious materiality, such variables pertain less to the analysis of the policing function than to the social context in which this function is discharged and are, for that reason, extraneous to the policing mandate and largely beyond the control of law enforcement authorities. Of greater importance are two other species of qualifiers which, when viewed in conjunction, refer to institutional controls defining the manner in which policing is conducted . Within this latter category, a primary qualification upon law enforcement is attributable to the legal doctrines and instruments which entrench individual