Brent Robinson: Albertans Should Demand Accountability on Public Health Enforcement
From freedom rodeos and rule-flouting churches, to ugly anti-lockdown protests, Albertans should demand any enforcement
By: Brent Robinson
Like many Albertans I was struck by the scenes of hundreds of people gathered to take part in a No More Lockdowns Rodeo Rally in central Alberta on May 1st and 2nd. I found myself asking why it was that the police appeared to take no action to enforce the public-health orders in the face of apparently flagrant violations by the organizers, participants and attendees. If we are all subject to these orders, we all have an interest knowing that they are being enforced.
So I asked. The RCMP response: they did not take any enforcement steps at the scene because they did not believe violations of any public-health orders would result in criminal charges.
On Wednesday, May 5 during a press conference that included updates on enforcement of public-health orders, Justice Minister Kaycee Madu stated that RCMP, Alberta Health Services and local law enforcement made a decision at that time to “not intervene while that particular event was going on” but instead to “deploy intelligence so they could follow-up with the particular individuals involved in planning the event.” The minister went on to say that there are investigations ongoing.
I know I feel — and I suspect the reasons these questions were put to the Minister are because many Albertans feel — that this approach is grossly inadequate to prevent and discourage these types of events to prevent the spread of COVID-19 and get us out of this pandemic. And it is unclear who to hold accountable for these failures. Is it the failure of the police officers to enforce these measures with the proper amount of diligence, or a failure of the government to provide clear direction on the importance of the enforcement of public-health orders?
The answer, unfortunately, is not clear because the directions that have been given to the police for the enforcement of these public-health orders have not been made public. This allows the minister to avoid accountability by hiding behind the concept of police independence.
Police independence is important. The Supreme Court of Canada has recognized that police independence is important to ensure that “everybody is subject to the ordinary law of the land regardless of public prominence or governmental status.” More specifically when it comes to policing, society is better off if police decisions about whether they investigate or prosecute someone are not based on whether the potential offenders are favoured by the government of the day.
However, if police independence is not accompanied by ministerial accountability for enforcement, we lack a democratic mechanism to hold failures of police enforcement.
The challenge for democratic accountability that arises from the conflict of these two principles in policing is well documented. If the people demand accountability from the minister, the minister pleads that the police are independent and he or she has no ability to influence their operations. In theory, the police ought to be answerable to the law through the courts. The problem with this theory, as pointed out by Professor Ken Roach in his submissions to the Québec Commission of Inquiry into the Protection of the Confidentiality of Journalistic Sources, is that “rhetoric about the police only being accountable to the law rings hollow in cases where there is no court case to review police conduct or governmental interferences with police independence.” This is what the rodeo situation looks like right now. There’s no court case, and the government appears satisfied to wash its hands of the matter.
Similar challenges with police action and ministerial responsibility have been recognized and documented in prior public hearings into police misconduct. Parts of these inquiries even concluded that the confusion between ministerial responsibility and police independence was used by politicians after the fact to shirk responsibility for things that ought to have been within their responsibilities to avoid. This sounds familiar.
The Ipperwash Inquiry, which looked into the conduct of the OPP and the Ontario government in the events surrounding the death of Dudley George, has probably gone the furthest to recommend a solution. It recommended that ministers provide clear, written and public directions on how policing should take place.
The public should insist on this level of clarity in the policing and enforcement of public-health orders at events such as the rodeo at Bowden this past weekend. We shouldn’t be left guess as to what ought to have taken place. Minister Madu has said that a new law enforcement protocol is being put into place. That protocol should be made public so the public can assess if police are complying with it and the minister be held accountable for its failings.
Brent Robinson is a lawyer who is not currently practicing and lives in Okotoks, Alberta. You can find him on Twitter @okotokslawyer.
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