Politicians need to be clear: is it a case of can’t or won’t tell police to uphold laws?

Ontario Provincial Police prepare to remove Mohawk protesters.

Throughout the protests in support of the hereditary Wet’suwet’en chiefs, the Trudeau government has hid behind the principle of police independence, asserting it cannot simply order the RCMP to go in and arrest protesters.

On Monday, however, Transport Minister Marc Garneau said that provincial police would “… be moving in and responding to the injunctions that have been put in.”

OK. So what gives? Do the police take direction from the government or not?

It’s a serious question given the level of protests we’ve seen during the past two weeks and the billions of dollars these protests have cost the economy, to say nothing of the thousands of layoffs.

Most Canadians would like to think that the police are there to uphold the rule of law and that the government can direct police to make arrests.

Up until earlier this week, the Trudeau government has hid behind the principle of police independence, arguing that it would be inappropriate for the government to direct the day to day operation of the RCMP.

Is that really the case?

Yes and no.

Police independence has a long history in British common law and there have been a number of high profile court cases that have defined what the principle means in operation.

Yes, the police are independent of the government and are bound by their duty to uphold the law.

What that means in practice is that the police are not subject to partisan machinations. The responsible minister cannot order the police to arrest a political opponent. For that matter, the government cannot order arrests of anyone.

But, no, the police are not a law unto themselves. There are also federal and provincial statutory regulations and laws that set out what a government’s chief public safety minister can tell police to do.

The RCMP Act, for example, says directions from the minister cannot require the RCMP to disregard any of its lawful duties. Secondly, any directions cannot infringe on the independence of the RCMP regarding their law enforcement functions and, thirdly, directions cannot be so broad in nature as to reach beyond federal jurisdiction.

The RCMP, however, can be directed to uphold the law. That, after all, is one of their primary functions.

Since there are more than enough laws that would apply in the case of the more flagrant protests, asking the police to uphold the law and defend the law from the illegal acts of protesters would surely fall under a government’s obligations to its citizenry.

If it does not, then federal and provincial legislatures need to take a serious look at the statutory framework governing law enforcement. No one wants to live in a police state, but at the same time law abiding citizens need assurances that their elected representatives are permitted to act in the best interests of democracy and the rule of law.

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