Andrew Potter: Why won't the police enforce the law?

Understanding that police are in the business of maintaining order as they define it helps explain what otherwise seems strange behaviour by police.

By: Andrew Potter

Why won’t Canadian police enforce the law?

That simple question, which became so pressing during the Freedom Convoy crisis of early 2022, has been raised anew in recent weeks amidst growing public disruption over Hamas’s attacks on Israel on October 7, and Israel’s subsequent military invasion of Gaza. In response to that conflict, many Canadians have taken to the streets and other public spaces to exercise their legitimate rights to freedom of assembly and freedom of expression, and to give support to one side or another. 

But a lot of this assembly and expression also appears to cross the line into criminality, in the form of harassment, threats, hate speech and incitements to violence. A recent high-profile case was on Sunday, at a pro-Palestinian protest that took place in Toronto’s Eaton Centre shopping mall, where a large number of people — many of them masked — demonstrated in front of the fast-fashion retailer Zara. The company had been criticized for an ad campaign that seemed to draw in imagery from the destruction in Gaza; Zara said the ads had been shot before the conflict, but they nevertheless pulled them. 

Yet the Eaton’s Centre protest went ahead, which led to many members of the public becoming upset at having their Christmas shopping disrupted. But that disruption appeared to cross the line into criminality when a masked protester was filmed repeatedly pointing at someone and saying “I will lay you to sleep” and “I’ll put you six feet deep.” As the camera pans around, you can see that this obvious threat is being made in the presence of a number of police officers. 

As lots of people who saw the video on social media were quick to point out, this is a crime — at least if we take section 264(1) of the Criminal Code at face value:  “Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat to cause death or bodily harm to any person.” Conviction of this offence can mean up to five years in prison. Similarly, section 319(1) of the criminal code says that every one who “incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace” is also guilty of an indictable offence punishable by up to two years' imprisonment. Much of what has gone on recently at the various public protests clearly falls into incitement of hatred.

So there seems to be a lot of law breaking going on, without much in the way of corresponding law enforcement. So Canadians naturally wonder, why won’t the police enforce the law? Why is no one being arrested for any of this?

One common answer is that police have been asked to always “de-escalate” a situation, and that it is better than the alternative. As National Post columnist Chris Selley put it in a series of tweets about the Eaton’s Centre confrontation, “We never notice or appreciate them [police] doing it. We just get annoyed when they *don’t* crack the heads of people we don’t like: Hamas fetishists, anti-vaxxers, rail blockaders, Ottawa occupiers…”

There’s something to this. But the idea that the police are deliberately refusing to enforce the law as a sort of effort at law enforcement harm reduction betrays a subtle but important misunderstanding of what it is that the police are actually up to. 

Most people think that police are there to enforce the law. They investigate crimes, collect evidence, identify wrongdoers and make arrests. This is a view of policing drilled into us by generations of police procedural television, most obviously by the opening narration from Law & Order: “In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime; and the district attorneys, who prosecute the offenders.”

Except the truth is, enforcing the law in the police procedural sense is a very small part of what policing is. Everyone — including the police themselves — might think they are in the business of enforcing the law, but what they really do, most of the time, is maintain order. But — and here’s the crucial point — they maintain order according to the situation as it is defined by the police themselves. 

There is an old but essential article about policing by the organizational theorist John Van Maanen, called “The Asshole”, in which he spells out the fundamental typology of street policing. In the cop vernacular, there are three main character types: suspicious persons (those who may have committed an offence), know-nothings (civilians who have no clue what is going on around them), and, finally, assholes, who are defined as those who do not accept the police definition of the situation.  

To be clear, the assholes here aren’t necessarily, or even usually, the suspected criminals. For cops, assholes are the people who, when told to “move along” or “nothing to see here,” insist on asking “Am I under arrest?”, or who declare “I know my rights!” Other assholes are people who see someone committing an infraction and ask the cops why they aren’t arresting that person, or who decide they are going to make a “citizen’s arrest.”

What assholes do is call into question the role of the particular cop they are dealing with, as well as the legitimacy of the police in general as the final arbiters of the good and the right, and the ultimate upholders of the social order. And to this extent, assholes are more threatening to the status of the police than are suspected lawbreakers (who simply confirm the role of the police in the scheme of things).

Understanding that police are in the business of maintaining order as they define it helps explain what otherwise seems strange behaviour by police. During the Freedom Convoy occupation of Ottawa for example, many city residents were shocked to find themselves detained, manhandled, or otherwise “moved along”  by their own police for the crime of pushing back against the occupiers, most notably at the “Battle of Billings Bridge.” This led many Ottawans to wonder just whose side were the cops actually on. The answer, of course, is the cops are on the side of the cops.

A more tragic example is the case of Angeli Gomez, a Texas woman who had two children in Robb Elementary School in Uvalde, Texas, where a former student killed 19 children and two teachers. While the “active shooter” situation was underway, Gomez went to the school and tried to force the police to get inside the school. For her efforts she was put in handcuffs; when she was eventually released, she hopped a fence, broke into the school, and managed to save her own children. For months after, Gomez was harassed and followed by the Uvalde police, because she committed the unpardonable sin of calling into question the police interpretation of the situation and events at the school. 

All of this also helps explain the behaviour of the police in Canada over the past few months, and in particular what went down at the Eaton’s Centre last weekend. From a policing perspective, the big problem there wasn’t the disruption by the pro-Palestinians; that’s something that is easily enough dealt with, if the police were to so choose. No, the real problem for the cops were those who were filming the protests, posting videos showing the police standing around, which led to a lot of online heckling of the police for (allegedly) not doing their job. 

Finally, this gives some context to some otherwise curious tweets over the past few days by the Toronto Police Association (which is the Toronto police union), responding to online complaints and questions about perceived police inaction. For example, in reply to tweets from Toronto Sun columnist Joe Warmington, who wondered why these obvious threats were okay, the TPA replied: 

Officers were at the Eaton’s Centre to respond to a protest where threats were directed to a member of the public, not to police. The victim chose not to pursue the matter. TPA members are working each day to ensure protests do not escalate & we are grateful for their efforts.

In other words: “Mind your own business, asshole.” 

Andrew Potter lives in Montreal. Follow him at his newsletter Nevermind: The Forgotten History of Generation X.

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