"Democratic policing": lessons from Ipperwash and Caledonia.

Sancton, Andrew

On 9 June 2006, Gwen Boniface, the commissioner of the Ontario Provincial Police (OPP), testified at the inquiry into the 1995 fatal shooting of Dudley George by OPP officers at Ipperwash Provincial Park, on land claimed by the First Nation of which George was a member. Because Boniface had no direct role in the Ipperwash events, her testimony was primarily concerned with outlining OPP policies relating to Aboriginal protests. Significantly, for the purposes of this article, her testimony came only a few days before Aboriginal protesters removed their barriers on a busy public road in Caledonia, Ontario, which had disrupted life in that community for weeks. Although it was understood that Commissioner Boniface would not be speaking at the Ipperwash Inquiry about events in Caledonia, the juxtaposition of the two events was obvious to all. Less than two months after her Ipperwash testimony, however, Commissioner Boniface abruptly resigned to take up a position in Ireland. She has never been asked in a public forum to explain her decisions relating to Caledonia.

This article outlines the connections between Ipperwash and Caledonia and what they tell us about a very important question in Canada: how are the police to be held accountable? The question is less important in most other democracies where the answer is clear: elected politicians acting through prescribed institutional frameworks make major decisions about policing and are held accountable for them. The first objective of this article is to explain why and how it can be argued that police policy making in Canada is a process independent of the governments to which police services are nominally attached.

Police independence and the Ipperwash events in 1995

One of the key subjects in dispute at Ipperwash was the alleged extent to which the Ontario government, led at the time by Premier Mike Harris, inappropriately directed police operations there. In the first volume of his report (Investigation and Findings), the inquiry's commissioner, Mr. Justice Sidney Linden, concluded that mistakes were made, but that no inappropriate direction had taken place (Ontario, Ipperwash Inquiry 2007: I, 676). In the second volume (Policy Analysis) he made recommendations for the future, but they came too late (31 May 2007) to affect the main events in Caledonia. Nevertheless, on the first page of his chapter on "Police/Government Relations" in the Policy Analysis volume of his report, Mr. Justice Linden wrote: "I suspect that ... police and government policymakers involved at Caledonia are more acutely aware of the importance of both the perception and fact of political interference in police operational decision-making because of their collective desire to avoid another Ipperwash" (II, 301). Two paragraphs later he stated that "in the legislative debates over the policing of the Caledonia occupation, there have been allegations of both improper political interference and of government shirking" (II, 302). One of the main purposes of this article is to examine the important implications of this statement.

However, at this stage in the article, the main value of the Linden report is that it provides an authoritative discussion of the Canadian understanding of police-government relations as they existed at the end of the twentieth century. Since Geoffrey Marshall's 1965 landmark book on the subject in England, there has been considerable academic analysis of the issue (Lustgarten 1986; Marshall 1965, 1986; Oliver 1997; Williams 1999) but it need not be reviewed here because the work has already been done, especially in the Canadian context, by researchers for the Ipperwash Inquiry (Beare and Murray 2007).

Mr. Justice Linden began his discussion by noting "that the doctrine of police independence is unique to certain common law jurisdictions, including England, Canada, Australia and New Zealand. It is not recognized as a legal principle in the United States or Scotland" (Ontario, Ipperwash Inquiry 2007: II, 310). (1) His observation about the United States should ring true for casual viewers of American crime shows, in which even upright, honest, big-city mayors are often portrayed as instructing police chiefs to pursue particular courses of action (for a real-life example featuring Rudy Giuliani, see Siegel 2005: 105). In the Canadian context, Linden's report fundamentally undermines much conventional wisdom about police independence in Canada, a fact which at least partly explains why Linden held that the Harris government had not inappropriately influenced police action at Ipperwash: the government was perfectly entitled to do so as long as it followed procedures that were clear, transparent and respected established lines of authority.

Consistent with other recent commentators, Linden traces much of the current confusion to a 1968 judicial decision by Lord Denning in Britain and to some vague wording in various statutes relating to the police. Linden quotes Denning extensively in the Blackburn decision. The most significant words are that a police chief (chief constable in England) "'is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that.... Nor can any police authority tell him so'" (Ontario, Ipperwash Inquiry 2007: II, 311). Linden notes that in the Campbell and Shirose case in 1999, the Supreme Court of Canada held that, despite apparent statutory provisions to the contrary, "'the Commissioner of the RCMP is not to be considered a servant or agent of the government while engaged in a criminal investigation. The Commissioner is not subject to political direction. Like every other police officer similarly engaged, he is answerable to the law and, no doubt, to his conscience'" (312). Linden does not question the contention that, with respect to what he calls "the core area of law enforcement" (who should be investigated, arrested and/or charged), police need to be independent of government direction. But he considers that there are many aspects of alleged police independence that are vague in Canada in general and in Ontario in particular (318-19). He attempts to clear up the confusion by adopting a model of "democratic policing." We shall return to this model later in the article.

Because Linden's report was not available at the time of the Caledonia occupation, it had no impact on the management and resolution of that crisis. But prior to the initial occupation at Caledonia on 28 February 2006, the Linden Inquiry had heard considerable testimony from important actors in the Ipperwash incident, many of whom were asked under oath to state their interpretations of the notion of "police independence." In fact, their testimony was not particularly helpful. For example, in August 2005 the OPP commissioner in 1995 appeared at the inquiry. He was presented with the following statement contained in a 1991 government discussion paper entitled, "Ministerial Control of OPP":

Unfortunately none of ... [the] reports point to a clear resolution of the problem. The difficulty is that the extent to which the Minister should intervene in the actions of the police has been determined by personalities, convention and necessity rather than by a clear statement of law or policy (Ontario, Ipperwash Inquiry 2005-06: 78).

Asked if he would agree, the former commissioner replied "I certainly would" (79). When asked later on about general issues relating to political control of the OPP, he rightly pointed out that

The OPP ... has its peculiarities. One of the issues that would have to be addressed, the OPP contracts it's [sic] policing service to many municipalities in the Province of Ontario. Each one of those municipalities has its own police service board (131).

Meanwhile, in their testimony, most witnesses seemed to accept unhesitatingly the nostrum that government ministers have no right to interfere in police "operational" decisions. On 21 November 2005, Deb Hutton, a senior member of Premier Harris' political staff in 1996, stated that

[t]he only role that the Ontario government or its elected officials could play--in government as it related to the OPP was one of a broad policy nature. So for example we certainly set policy as to the number of OPP that the government would fund for example, those--those sort of broad types of policy areas and that's as far as it went (Ontario, Ipperwash Inquiry 2005-06: 206).

Another difference between Ipperwash and Caledonia was that, during the Ipperwash crisis, the Ontario government considered itself the rightful owner of the property that was being occupied. Some of the statements about possible police action made in 1996 both in public and in private by cabinet members and their staff (including by Ms Hutton) related to what they thought were their rights as guardians of provincial property, not as the political masters of the police. On the basis of the evidence before him, Mr. Justice Linden was able to paint a picture of what he thought the various political actors believed about police--government relations in 1995. Such a portrait is likely to be more helpful than the possibly self-serving testimony of individual witnesses delivered ten years later.

Linden's report notes that the occupation of Ipperwash Provincial Park began on 4 September after it was closed to campers for the season. On that same day the OPP established its Incident Command Post nearby. On 5 September, the incident commander was visited and contacted by various civilian officials. He took a telephone call from the Chief of the Kettle and Stony Point Band, who stated that he did not support the occupiers and that he expected trouble "'unless somebody enforces a law against them'" (Ontario, Ipperwash Inquiry 2007: I, 220). The incident commander asked the chief to stay in touch. Shortly afterward, the incident commander was visited by the Chief Administrative Officer (CAO) of the local municipality, Bosanquet township, which at the time, as a rural area in Ontario, had no responsibility for local policing. He expressed his mayor's concern about a municipal road being closed off, but was told that the OPP had the situation "'well in hand'" (221). No one, including Mr. Justice Linden, ever claimed that the involvement of the band chief or the CAO was in any way improper. Later in the day, however, the mayor issued a press release in which he criticized the OPP for "'not arresting these 'Indians'" (222). Linden concluded that the press release "aggravated the situation" (223). At around the same time, the local Progressive Conservative MPP called a friend who was a local OPP officer, who in turn called the incident commander to inform him that the MPP "was going to call the Premier and say '[T]his is ridiculous' and that he wanted 'something done'" (231). The incident commander, who had also received a call from the local federal Liberal MP, instructed the OPP officer to keep him apprised of future communications with the MPP. When briefing his subordinate officers, the commander later told them that the MPP was "'updating the

Premier on the situation'" (232). The Premier's Office attempted to cool the anger of the local MPP by having political staff in the office of the minister responsible for the park tell him that "Ipperwash Park was a police matter and politicians should not comment" (250).

On the morning of 6 September, the mayor of Bosanquet visited the incident commander. Testifying at the inquiry about his interaction with the mayor at that time, the incident commander stated:

I think, if I'm not mistaken, Mayor Thomas came to the command post on his own. But it certainly was something I would have expected, either in person or by phone, to--to answer any questions because we had already had meetings prior to with Mayor Thomas. And I--I understood the anxieties that were at play here and I certainly didn't have any difficulty with Mr. Thomas coming to the command post so that I had that opportunity to have that one-on-one discussion with him so that he could understand the--the situation as we knew it (Ontario, Ipperwash Inquiry 2005-06: 122-3).

One page later in the transcript of the commander's testimony, the following exchange is recorded:

Q. And you saw nothing wrong or improper in the meeting with Mayor Thomas on September 6th, I take it?

A. I saw nothing inappropriate whatsoever.

Q. In fact, would--would it be fair to characterize it as a very important informational meeting?

A: From a public perspective, I think it's essential, quite frankly (124).

These exchanges illustrate one important point: whatever "police independence" might mean, it is not the same as judicial independence. If elected officials were speaking informally to judges about cases that were before them, there would be universal outrage.

Most of the media attention to testimony at the Linden Inquiry focused on who said what at various meetings at Queen's Park. The transcripts of the testimony provide fascinating insight into the interaction among politicians, political staff and bureaucrats during the early months of the Harris government. Despite denials and memory failures by the principals, Mr. Justice Linden concluded that politicians and their political staff clearly expressed their views at meetings with civil servants about exactly what the police should be doing at Ipperwash. Such views were quickly communicated directly to the incident commander by an OPP "liaison officer" seconded to the Ministry of the Solicitor-General. The incident commander in turn '"informed his officers about the political salience of what they were doing. This meant that junior OPP officers on the ground in Ipperwash felt they knew exactly what the premier wanted them to be doing--and many were perfectly willing to do it.

Consequently, Mr. Justice Linden recommended in his 2007 report that Incident Commanders must exercise discretion as to what political information is shared with his or her senior officers and be alert to the perception of political influence when exercising his or her discretion. There should be a buffer between the Incident Commander and politicians whether from the federal, provincial, or local orders of government (Ontario, Ipperwash Inquiry 2007: I, 694).

Furthermore, he recommended that

The Ministry of Community Safety and Correctional Services [formerly the Ministry of the Solicitor-General] should develop written protocols that clearly delineate the appropriate functions of police officers seconded to provincial ministries. In addition, politicians and civil servants should be briefed on the appropriate role of seconded officers (694).

Events at Caledonia in 2006

The Aboriginal occupation in Caledonia began on 28 February 2006. We know much less about subsequent events than we do about Ipperwash because there has been no public inquiry concerning Caledonia, but the main facts are well known. On 28 February, members of the Six Nations of the Grand River took over a new residential subdivision, the Douglas Creek Estates, in Caledonia, an urban settlement within the single-tier county of Haldimand. The land adjoins the Six Nations reserve and is part of longstanding Aboriginal land claims involving a much larger area (DeVries 2011). According to a "Chronology of Events at Caledonia" on the website of Aboriginal Affairs and Northern Development Canada (whose URL in June 2012 was http://www.aadnc-aandc.gc.ca/eng/ 1100100016337), in October 2005, Chief David General of the Six Nations' elected band council wrote to Henco Industries, the developer of Douglas Creek Estates, highlighting his concerns over proceeding with the subdivision given its location on disputed lands. Until February 2006, however, approvals for the subdivision went ahead in the normal way: piped infrastructure was installed; new houses were built; and some were sold before the subdivision was occupied. New commercial development near the subdivision also went ahead in the expectation that hundreds of new households would soon be coming to the area.

On 3 March, the developer of the uncompleted subdivision obtained an interim injunction from the Ontario Superior Court of Justice requiring the Six Nations, the occupiers, and Haldimand county to enable him to regain the peaceful use of his company's property. This set off a long judicial process that obviously complicated the negotiations between the federal and provincial governments and the Six Nations. On 20 April, the conflict escalated when, in response to an OPP attempt to enforce the interim initial injunction by removing protesters, some Aboriginal people blockaded two major roads on either side of the subdivision and a railway line that ran through it, thereby escalating the crisis considerably. (2) The blockades were not completely removed until 12 June. Perhaps the most important provincial political decision in the whole affair was to purchase the subdivision from the developer on 5 July and to compensate the developer and all the builders and homebuyers who were affected. Such a decision undoubtedly came from the highest levels. Without it, the conflict would surely have been much uglier than it was. Meanwhile, the occupation of what is now provincially owned land continues.

There were no deaths at Caledonia, a fact which can be attributed in part to the fact that the OPP did not attempt to physically remove the barriers once they were erected. But one construction contractor at a nearby site was badly beaten, there were other minor injuries, and many nearby residents felt intimidated and unable to enjoy the homes to which they thought they had clear legal title (Blatchford 2010). There has been federal compensation to the province, and provincial compensation to Haldimand county and to local businesses and residents. In July 2011, the provincial government paid $20 million to settle a class-action lawsuit against it for failing adequately to protect non-Aboriginal residents and businesses. The OPP has received much criticism for its relative passivity in the affair, including from its own rank-and-file members and from the Ontario Provincial Police Association (OPPA).

The period which most concerns us is from 20 April to 12 June, when Caledonia's main streets were barricaded and many residents could not go about their daily business. The questions at the heart of this article are not whether OPP inactivity with respect to the barricades and actions of the occupiers was good or bad or right or wrong. Rather, the article asks: Who is accountable for the actions or inactions of the OPP in Caledonia? Who receives the public credit for the prevention of deaths or the blame for the apparent breakdown of the rule of law?

One answer can be dismissed quite easily. Although the Haldimand County Police Services Board (HCPSB) is formally responsible for local policing, it contracted for police services from the OPP. Although the OPP claims that in its contracted municipal work it is "accountable" to the relevant local police services board (Ontario Provincial Police 2010: 4), no one has ever suggested that the Haldimand board had any influence whatsoever over OPP actions in Caledonia. By the time the streets were barricaded, the local commander had given way to a much larger OPP presence that was managed with little or no reference to the local detachment responsible for the municipal contract.

From the time of the original occupation at the end of February until the purchase of the development in early July, the HCPSB held four regular meetings. The minutes of the meeting for 15 March report that "Inspector Haggith [the local OPP detachment commander] outlined the status of the native occupation at the Henco development in Caledonia explaining the OPP response to date. Further discussion of the native occupation was referred to the closed portion of the meeting" (HCPSB 2006a: 3). The closed portion of the meeting lasted for 70 minutes. In accordance with the provisions of Ontario's Police Services Act (s. 35[4]), meetings may be closed if the board is "of the opinion that ... matters involving public security may be disclosed and, having regard to the circumstances, the desirability of avoiding their disclosure in the public interest outweighs the desirability of adhering to the principle that proceedings be open to the public" (Scott 2009: 67). Under provincial regulations (S.4 of 421-97) "Board members shall keep confidential any information disclosed or discussed at a meeting of the Board ... that was closed to the public" (Scott 2009: 67). Minutes of the April meeting make no reference to the Caledonia occupation, but the board met in closed session for another 70 minutes. At the May meeting, "Inspector Haggith spoke to the Board on the issue of the native occupation in Caledonia and its effect on the detachment's resources" (HCPSB 2006a: 2). Later the board met in closed session for 85 minutes. In June the board met in closed session for three-and-a-half hours, emerging at the end to approve a motion authorizing one of its members "to liaise with the OPP" in relation to "the ongoing Land Dispute at Caledonia.... The goal is to ensure that accurate and timely information is available to the local P.S.B. and in turn dampen rumours and inaccurate information regarding police actions" (Haldimand County Police Services Board 2006b). At the next meeting in August, there was no mention in the minutes of any explicit report from the designated member, but Inspector Haggith referred in his public report for the May--July period to "the spike in calls-for-service in Caledonia." The board later met in closed session for 130 minutes.

As part of its case against being included as a defendant in the class-action lawsuit, Haldimand county made public the minutes of a closed meeting of its council on 23 May 2006. Interestingly, the meeting was closed on the grounds that its subject matter related to litigation or potential litigation, but the minutes make no reference to litigation of any kind. All of the discussion related to the Caledonia occupation. "Concern was expressed with the OPP's role and actions to date and position that they would not go onto the site to remove the protesters.... Council expressed frustration with the double standard of law enforcement. It was felt that the OPP actions were not working and making matters worse. Council questioned if the OPP were prepared to do what is required" (Haldimand County 2006). Ironically, Haldimand county was successful in convincing the judge in the class-action lawsuit that it should not be a defendant, thereby partly undermining its own original rationale for the closed meeting. The judge's decision was based mainly on his determination that, because of its contract with the OPP, the county no longer controlled its own policing (KRP Enterprises Inc. v. Haldimand (County), [2007] CanLII 29975 (ON SC). Despite OPP claims that their local detachments are "accountable" to the local communities for which they have contracts, the decision on this matter suggested otherwise.

Caledonia in the Ontario legislature

The first defence of police independence in Caledonia came from Premier Dalton McGuinty on 20 April 2006, the day that the OPP unsuccessfully attempted to enforce a court order to remove the occupiers. Significantly, in light of future developments, he was responding to criticisms from the New Democratic Party that the police should not have intervened. Mr. McGuinty's response included these words:

... the member should really understand what he's saying. What he's saying is that we should have directed the Ontario Provincial Police. That's what he's saying. He's saying that we should have learned ahead of time of their plans to pursue a police action and that we should have told them that they are not allowed to do that. That's what he's telling us. We disagree with that approach. We believe in the independence of the Ontario Provincial Police, and once they have acted, we support them in their action (Ontario, Legislative Assembly 2006).

What is not at all clear is why the OPP decided to enforce the court order on 20 April, approximately seven weeks after it was issued. Speaking to reporters on the same day as the OPP action, Deputy Commissioner Maurice Pilon stated that "'we felt the risk to public safety was heightening'" and that this assessment was based on "'information we'd rather keep to ourselves at this point'" (Urquhart 2006). On 25 April, the following important exchange took place between NDP Leader Howard Hampton and Premier McGuinty:

Mr. Hampton: Just after the OPP resorted to use of force, the public was told it was because of confidential new information that the OPP had. But yesterday, your Minister of Community Safety said that they resorted to use of force because of the court order as a result of the private legal action. What we do know is that the use of force by the OPP escalated the tension and escalated the conflict.

So I'm asking you, because people are having a hard time understanding this: You've given two reasons. Which one is the real reason for the use of force by the OPP in what has all the possibilities of becoming a very serious conflict?

Hon. Mr. McGuinty: When I met with Commissioner Gwen Boniface earlier today, during the course of the briefing, I took the opportunity to express to her my deepest appreciation for the patience and determination to resolve this peacefully. I think if the leader of the NDP is looking for any kind of philosophy that informs the OPP, it reveals itself in this press release put out earlier today, which expresses a strong determination to resolve this in a peaceful way.... We are not going to direct our police when it comes to operational matters. But again, I think we need to ensure that the police know they have our support as they express restraint....

Mr. Hampton: ... One of the questions that remains unanswered is: Why, really, did the OPP resort to use of force? The original rationale was that they had new confidential information. When I asked your Minister of Community Safety yesterday, he didn't refer to that at all. He said it was because of the court order, as a result of private litigation. Is that how these issues are going to be determined under the McGuinty government, simply private litigation, and then the police act as a result of the court order flowing from the private litigation?

It seems to me, Premier, you've got a responsibility to the people of Ontario to show some leadership here. You had a warning of over a year. Now we have further escalation as a result of the OPP use of force. Please tell us: Where is the direction from your government, where is the leadership from your government, on this important issue?

Hon. Mr. McGuinty: I think now we have it. Now we've come to the crux of the position taken by the NDP. They believe that the government of the day should be providing direction to the Ontario Provincial Police on operational issues. We see things differently. We think it's important to understand that we do hot, in fact, live in a police state. We have a privilege here in this House of making laws, the judges have the opportunity to interpret those laws, and our police have the special responsibility to uphold those laws. This is not a police state; it is a democracy. The leader of the NDP should understand that the police have to exercise judgment. They have to exercise discretion from time to time when it comes to moving on these things. The fact of the matter is, yes, they were bound by a court order issued by an Ontario court. How long is the leader of the NDP suggesting that they not comply with that order? Maybe he's got another answer that he might be able to provide us with, but we have confidence that our police will do the right thing in the circumstances (Ontario, Legislative Assembly 2006).

In June 2006, the Progressive Conservative Party, the official opposition, became the government's main Caledonia critic, but its general line of attack was that the government was being too passive with respect to the occupiers. As far as responsibility for policing was concerned, the government response was the same as to the NDP, as is indicated by this exchange between the leader of the opposition and the premier on 12 June:

Mr. John Tory (Leader of the Opposition): My question is for the Premier. The media reports from this weekend in Caledonia suggested that an OPP officer stated off camera that they had been instructed not to engage in violent commotion or activity between those occupying the land, other external groups such as the media, local community members and Ontarians travelling through the area. Can you confirm whether or not this is the case, and will you also confirm that no element whatsoever of that instruction has come from your government with respect to how they carry out their duties to protect the public?

Hon. Dalton McGuinty (Premier, Minister of Research and Innovation): I can in fact confirm that. I am not aware of what instructions any particular police officer may have been referencing, but certainly we have hot provided instructions of any kind to the Ontario Provincial Police vis-...-vis Caledonia (Ontario, Legislative Assembly 2006).

The role of the commissioner of the OPP

Even though the provincial government failed to acknowledge responsibility for what the police were doing or not doing in Caledonia, we might have expected some general justification from the top leadership of the OPP. On 21 June, The Toronto Star reported the following:

Since native protestors began occupying the Douglas Creek estates development in February, police have been widely accused of turning a blind eye to lawbreakers, including those who dug up portions of the highway with a backhoe, lit tire fires and blocked the road.

"There were physical assaults taking place in front of you and you can't do anything about it. The OPP is a joke in terms of Caledonia. It has tarnished our name," said an OPP officer who spoke to the Star on condition of anonymity.

OPP Commissioner Gwen Boniface agreed to an interview with the Star, but cancelled yesterday, saying she fears her comments might upset negotiations between Ottawa, Queen's Park and the Six Nations.

Since the beginning of the Caledonia dispute, local residents and OPP representatives have been waiting for a public explanation of Boniface's rationale for the hands-off approach. Some believe she got her orders from Liberal government officials who wanted to avoid a replay of other land disputes, where police and protestors died (Leeder 2006).

On 8 July, three days after the provincial government purchased the Douglas Creek Estates from the developer, the Star reported that "Boniface and OPP officials have held recent meetings in Caledonia, including one with the Caledonia Citizens' Alliance, a grassroots group" (Leeder and Brennan 2006). (3) On 10 July, Commissioner Boniface gave her first press interview since the original occupation and claimed that "the right decisions have been made" in Caledonia. With reference to particular incidents of apparent law-breaking, the Star reported that "The commissioner insisted that she gave no special directions to officers dealing with native protestors. She also said she received 'absolutely' no direction from the provincial Liberal government ..." (Brennan and Leeder 2006).

Less than three weeks later, Boniface announced her resignation as commissioner in order to join a task force reviewing the national police force in Ireland. She had agreed to a three-year extension of her contract with the OPP earlier in 2006 (Brennan 2006). At the end of October, Julian Fantino, former chief of police in Toronto, took over as OPP commissioner. The government of Ontario has never accepted direct responsibility for Boniface's decisions on the grounds that they related to police operations, not to policy. In short, nobody has taken responsibility for what the police did, or did not do, at Caledonia. (4)

The Linden report

For the purposes of this article, perhaps the most important presentation made to the Linden Commission was the closing submission of the Government of Ontario, which had originally established the inquiry. It is important to note that this submission was made in August 2006, months after the initial Caledonia occupation and at a time when there was much criticism from residents in Caledonia about government inaction. With respect to police--government relations, the government lawyer stated:

The Solicitor General is entitled to receive information about police operations, but does not become involved in decisions pertaining to specific police operations or give direction regarding specific police operations.

The role of the Deputy Solicitor General is, in part, to ensure that the Solicitor General is screened from receiving detailed information about ongoing police operations in specific cases and that neither the Solicitor General nor the Deputy gives any direction to the Commissioner or to members of the OPP regarding police operations in specific cases. This is important to avoid the possibility of any actual or perceived political or government influence over ongoing police operations (Ontario, Ministry of the Attorney General 2006: 38).

It is significant that, although the government submission provided references for many of its other assertions, none was provided for either of these two paragraphs. As we shall see, Mr. Justice Linden, in his Policy Analysis volume, did not accept this interpretation of police independence.

Linden's report was not released until 31 May 2007, almost a full year after the road blockades were removed in Caledonia. Most of the media attention focused on his findings relating to the actions of Premier Harris and his ministers and advisors. But far more relevant was his general analysis of police--government relations, an analysis that effectively repudiated the hands-off position taken by the McGuinty government concerning Caledonia.

Anyone interested in the subject of police--government relations must read Linden's entire chapter on the subject. Only a few highlights--especially as they relate to Caledonia--will be discussed here. Linden's analysis makes considerable use of what he calls Professor Kent Roach's "spectrum of alternative legal and institutional arrangements to govern police/government relations" (Ontario, Ipperwash Inquiry 2007: II, 337-8). (5) Linden rejects "full police independence" and "core police independence" on the grounds that they do not bestow sufficient authority on the responsible minister. He rejects "governmental policing" on the grounds that it "accepts that central agencies within government will play a very important role in directing the police" (339). Linden's preferred model is "democratic policing."

This model acknowledges police independence with respect to particular decisions relating to law enforcement but "recognizes ... that the responsible minister should be informed of all aspects of police operations in order to encourage explanatory and cooperative forms of accountability and to ensure the minister's authority to intervene on policy matters" (Ontario, Ipperwash Inquiry 2007: II, 339). For Linden, there are many situations in which an "operational decision may require some kind of policy intervention" (329) by the government. An example would be "policies with respect to the use of force or to negotiation with protestors" (328), as long as they are generally applicable to similar disputes, even when the policy was first made in the context of a particular dispute.

Linden effectively demolishes much simple-minded rhetoric about the distinction between "policy" and "operations." "Policy" does not relate only to matters such as the size of the police budget; it also relates to decisions about how the police are to respond to specific challenges in the real world, such as protests and occupations. But confusion remains, especially when one thinks about how helpful (or not) the following passage might have been to the minister responsible for the OPP during the Caledonia occupation:

I hasten to add that even when the government occupies the policy field, the police will still retain discretion and independence with respect to many operational issues in implementing the government policy. For example, the police would still retain the discretion to decide when to arrest people, even if the government issued a clear and transparent policy declaring that an Aboriginal occupation will be considered a simple matter of trespass. The core of police independence would be meaningless if the government could direct when and/or how to enforce the law (Ontario, Ipperwash Inquiry 2007: II, 329).

A quick reading of Linden's two pages of recommendations might leave the impression that he is concerned above all with insulating the police from government control. But what he is really concerned with is protecting the police from ad hoc, informal influence by an unspecified array of government operatives, ranging from the premier to ministerial staffers, a pattern he documented in the Ipperwash events. The real substance of the recommendations, especially Recommendations 71-73, is to focus responsibility for the OPP on a single minister and to make it clear that that minister is responsible for policing policy, that the minister expresses such policy through public directives, and that such directives can extend even into policy matters relating to the "operational responsibility" (357) of the OPP commissioner.

But this aspect of Linden's recommendations received virtually no public attention. In the Ontario legislature members of the McGuinty government successfully portrayed the recommendations as confirming the traditional doctrine of "police independence," a doctrine that they claimed to have defended in Caledonia but which they said had been found to have been violated at Ipperwash by the Harris government. On 13 May 2008, the minister for aboriginal affairs stated the following in response to a question from the Progressive Conservative member for Haldimand-Norfolk:

I can tell you, this Attorney General does not direct the police. In fact, members of the executive council do not direct the police: not this minister, not that minister, not that minister. But that party would know about how to direct police, because they literally wrote the book on it. We had to hold a public inquiry into that party's activities. That's the party that wanted to "get the Indians out of the park."

This is the party and the government that called the Ipperwash inquiry and is implementing the Ipperwash inquiry and is following the recommendations of the Ipperwash inquiry (Ontario, Legislative Assembly 2008).

What action has the government taken with respect to Recommendations 71-73 of the Linden report? In an attempt to get an answer, on 30 March 2011 I directed an e-mail to the Ontario Ministry of Community Safety and Correctional Services, whose minister is now responsible for the OPP. I asked about the government's progress in implementing Recommendations 71-73. On 27 May, I received a reply from a mid-level civil servant who stated the following:

As you know, recommendations 71 through 73 suggested actions to improve clarity, transparency and accountability in the relationship between the provincial government and the Ontario Provincial Police (OPP).

The Ontario government is supportive of clarity in the relationship between the Minister ... and the OPP. In response to these recommendations, the Ministry has established internal best practices to clearly define the relationship and appropriate communications practices between government and the provincial police service.

In your letter, you asked about directives issued to the OPP since 2007. While the Police Services Act (PSA) permits the Minister to provide direction to the OPP, it is the Commissioner of the OPP who provides day-to-day operational direction. The Minister has not issued directives to the OPP about how it carries out its policing mandate. (6)

The e-mail then goes on to list the sources of various provincial administrative directives to Ontario police services, none of which has anything to do with the kind of policy issues addressed by the Linden Commission. In short, nothing has changed.

Conclusion

The Linden report should have sparked public discussion, in Ontario at least, about police accountability. To the extent that there was such a discussion, it related almost exclusively to the need to preserve "police independence" from the kind of apparent political interference the OPP were subjected to at the time of Ipperwash. The Linden recommendations concerning "democratic policing" are not without their ambiguities, but it is probably instructive to think about what might have happened in Caledonia had the provincial government been operating under the Linden framework.

As soon as the Douglas Creek Estates were occupied, the minister responsible for the OPP would have had a decision to make: does he issue a policy directive to the OPP or not? If the answer had been positive, the minister would have had to make the directive public and be satisfied that its content would be generally applicable in other similar circumstances in the future. Policy directives could quite properly have ranged from restraining police activity as much as possible while negotiations continued, to instructing that all available police resources and powers be used to maintain access to public roads and private property. The minister, of course, would have had to take direct responsibility for such directives. If the minister decided, however, not to issue any directives, the OPP commissioner would have been free to carry out her "operational responsibilities" as she saw fit, and the minister would have had to have been publicly responsible for not having issued a policy. In either case, it would not have been proper for the minister to issue directives about whom to arrest or when to start making arrests.

In light of Ipperwash, it is likely that the Liberal government would have chosen restraint. (Some people probably still believe that, despite its denials, it did encourage the adoption of such a policy by the OPP.) If it had done so at the beginning with a formal and public directive to the OPP, it is quite possible that the arguments used in court by the owner of the occupied property would not then have been sufficiently strong to obtain an injunction from a court of law to have the occupiers removed. In this context, it should be recalled that it was actions taken by the OPP to enforce this injunction that caused much of the violence and the barricading of the streets. In the absence of the injunction, the entire incident might well have been contained to the territory of the Douglas Creek Estates.

Constructing such hypothetical situations is, of course, fraught with peril. For example, the judge might have issued the injunction anyway. Another possibility is that, if the Liberal government knew it would have to take direct political responsibility for a policy of OPP restraint, it might well have decided that such a position was not politically viable.

Another complicating factor would have been the potential role of the HCPSB. Presumably because the Ipperwash incident did not involve municipal police services, Linden did not address the issue of the extent to which police service boards should have the authority to issue formal policy directives to local police services. But what if the HCPSB had such authority as well, and used it to issue a directive to its local OPP detachment that was different from the provincial directive? The provincial directive would surely have been paramount, because there is nothing in municipal contracts with the OPP that suggests otherwise. The OPP remains under a unified command structure even when it is acting under contract.

But what if an Aboriginal occupation took place in a municipality with its own police service (e.g., the City of Brantford, which is on the other side of the Six Nations reserve from Caledonia)? Or what if a municipal police chief took harsh action against Aboriginal protestors and then claimed that no one had a right to tell him or her when or how to enforce the law?

These kinds of questions need to be addressed. The lack of accountability for the overall policy of the OPP with respect to Caledonia is inexcusable in a country and province that is simultaneously committed both to enforcing the rule of law and to reaching just land settlements with Indigenous people. Despite the Linden report, some (including many provincial politicians) would no doubt still prefer that the commissioners of the OPP be responsible for deciding on the nature of the OPP response to Aboriginal occupations. If so, they should at least design a mechanism whereby commissioners are required to defend their own policy decisions publicly.

But a much more fruitful approach would be to follow the general thrust of the Linden report and rethink our notions of "police independence." Commanders in the Canadian Armed Forces are given considerable leeway by their political masters in determining how personnel are trained and deployed, especially when they are actually in a field of conflict. But no one suggests that they should be given a general mandate to "keep Canada secure" and then be left alone to decide what to do. The same should be true for our police services.

Since Caledonia, controversy has raged over the actions of the police during the G20 meetings in Toronto in 2010, the riot in Vancouver in 2011 following the final hockey game of the Stanley Cup finals, and the various occupations in late 2011 stemming from the "Occupy Wall Street" movement. Had it been generally adopted in Canada, the model of "democratic policing" advanced by Mr. Justice Linden in his Ipperwash report would have provided for much more public accountability concerning these incidents. Deciding how to respond to groups of people who pose real or potential threats to public order is too important a political decision to be left solely to the police.

References

Beare, Margaret E., and Tonita Murray, eds. 2007. Police and Government Relations: Who's Calling the Shots. Toronto: University of Toronto Press.

Blatchford, Christie. 2010. Helpless: Caledonia's Nightmare of Fear and Anarchy, and How the Law Failed All of Us. Toronto: Doubleday.

Brennan, Richard. 2006. "OPP's top cop quits to join Irish police task force." The Toronto Star, 29 July: A04.

Brennan, Richard, and Jessica Leeder. 2006. "OPP chief breaks silence." The Toronto Star, 11 July: A04.

DeVries, Laura. 2011. Conflict in Caledonia: Aboriginal Land Rights and the Rule of Law. Vancouver: UBC Press.

Haldimand County. 2006. Council in Committee, Closed Session: Minutes. Cayuga: Haldimand County.

Haldimand County Police Services Board. 2006a. Minutes. Cayuga: Haldimand County

--. 2006b. Media Release: Communication Resolution Passed. 27 June. Cayuga: Haldimand County.

Leeder, Jessica. 2006. "Police tactics under tire in Caledonia." The Toronto Star, 21 June: A04.

Leeder, Jessica, and Richard Brennan. 2006. "Petition calls for firing of OPP head." The Toronto Star, 8 July: A19.

Lewis, Chris D. 2011. "Policing Aboriginal critical incidents." The Police Chief 78 (June): 60-65.

Lustgarten, Laurence. 1986. The Governance of Police. London: Sweet & Maxwell.

Marshall, Geoffrey. 1965. Police and Government: The Status and Accountability of the English Constable. London: Methuen.

--. 1986. Constitutional Conventions: The Rules and Forms of Political Accountability. Rev. ed. Oxford: Oxford University Press.

Oliver, Ian. 1997. Police, Government and Accountability. 2nd ed. London: Macmillan.

Ontario. Ipperwash Inquiry. 2005-06. Transcripts. Toronto: Government of Ontario.

--. --. 2007. Report (4 vols). Toronto: Government of Ontario.

--. Legislative Assembly. 2006-08. Debates. Toronto: Legislative assembly of Ontario.

--. Ministry of the Attorney General. 2006. "Submissions of the Province of Ontario [Ipperwash Inquiry]: Part 2--Policy and Research." Toronto: Attorney General of Ontario.

Ontario Provincial Police. 2010. "The Corporation of the City of Sarnia Contract Policing Proposal." Orillia: Contract Policing Section, Business and Financial Services Bureau, Ontario Provincial Police.

Roach, Kent. 2007. "The overview: Four models of police-government relations." In Police and Government Relations: Who's Calling the Shots? edited by Margaret E. Beare and Tonita Murray. Toronto: University of Toronto Press.

Scott, Ian D. 2009. Police Services Act of Ontario: An Annotated Guide. Aurora ON: Canada Law Book.

Siegel, Fred. 2005. The Prince of the City: Giuliani, New York and the Genius of American Life. San Francisco: Encounter Books.

Swain, Harry. 2010. Oka: A Political Crisis and its Legacy. Vancouver: Douglas & McIntyre.

Urquhart, Ian. 2006. "Liberals learned from Ipperwash." The Toronto Star, 21 April: A06.

Williams, David. 1999. "Police accountability: Four cases and a statute." In The Law, Politics, and the Constitution: Essays in Honour of Geoffrey Marshall, edited by David Butler, Vern Bogdanor, and Robert Summers. Oxford: Oxford University Press.

Notes

(1) Arguably, because of its common law origins, the concept is less legally secure in Quebec. (See Roach 2007: 62)

(2) At this point in the Caledonia story, there are remarkable similarities to events in Oka, Quebec in 1990 (Swain 2010).

(3) For brief accounts of interactions between the Aboriginal Relations Team of the OPP with the occupiers, see Blatchford 2010, pp. 144-5 and 196.

(4) For a brief justification of OPP actions in Caledonia by the current commissioner, see Lewis 2011.

(5) See also Roach 2007.

(6) Although the e-mail to me was signed and would presumably be available through a freedom-of-information request, I see no reason to identify the author in this article.

The author is professor, Department of Political Science, University of Western Ontario. He would like to thank Michael Fenn, Peter Neary, Robert Young and the Journal's anonymous reviewers for helpful suggestions. The initial research for this paper related to multilevel governance and was part of the "Public Policy in Municipalities" project financed by the Social Sciences and Humanities Research Council of Canada.