Kent Roach (University of Toronto – Faculty of Law) has posted Police Investigative Independence versus Police Supervisory Authority and the Rule of Law on SSRN. Here is the abstract:
This article assesses how the independence of investigating police officers can both conflict and be reconciled with police supervisory authority and how police investigative independence can be critical in upholding a rule of law that applies the law impartially to all. The first part contrasts an office-based understanding of police independence as based on the original authority of each investigating officer with a hierarchical understanding of police independence based on the powers of the Chief Constable. Although the latter understanding is supported by Lord Denning, the former concept is supported by the Supreme Court of Canada’s recognition in Campbell and Shirose of police investigatory independence as a constitutional principle. The second part examines various conflicts between investigatory police independence and police supervisory authority with particular emphasis on the Royal Commission on the Donald Marshall Jr. Prosecution’s findings that superior officers interfered with the investigations of Nova Scotia cabinet ministers. The final section provides principles to distinguish legitimate from illegitimate supervisory authority. These principles draw on the unique jurisprudence of Canada’s Military Police Complaints Commission in considering complaints that military police supervisors have interfered in investigations. Police supervisors can provide policies, advice and procedures to guide and improve the exercise of investigatory discretion. They can also replace investigating officers who do not have the necessary experience to conduct a particular investigation. Nevertheless, investigating officers have the ability to refuse to follow orders that infringe their investigatory independence. Both the independence of investigating officers and the right to refuse orders that improperly impinge on it can and have assisted in applying the rule of law equally to all.
Recommended!