Posted at 1:00 p.m.
Last week, like a movement that prevails in the United States, the question of reducing or limiting the budget devoted to policing has resurfaced.
Over the past two years, the measures taken by the Quebec government – some of which were manifestly illegal and unconstitutional – to stem the pandemic crisis resulting from COVID-19 have seriously undermined individual rights and freedoms.
The political interventions and orders given to Quebec police officers have also engaged their personal responsibility, as the Supreme Court of Canada reminded us in a recent decision. The violation of the principle of police independence, we must admit, is not, however, the exclusive prerogative of the current government.
Systemic attacks
Over the past two decades, and more particularly the last judicial year, numerous political and legal interventions by the Quebec government have undermined the principle of police independence, a component of the principle of judicial independence.
The following cases can be highlighted: the dismissal of the director general of the Sûreté du Québec by the Parti Québécois government in 2012 then led by Pauline Marois, the suspension of the director of the Sûreté du Québec by “your government” of the Coalition avenir Québec in 2019, the relentlessness of the Attorney General of Québec against the Sûreté du Québec and, more recently, the legal remedies exercised by the City of Québec – which I do not hesitate to describe as SLAPPs – against the union of his police service (which denounces the budget cuts) in order to limit his freedom of expression.
Although I have been able to read thousands of court decisions over the past 40 years and still read several hundred a year, only very rarely have I read reasons for judgment so incisive and so critical of a government and, more particularly, to the Attorney General of Quebec.
The highest court of the Quebec state – the Court of Appeal of Quebec – denounces these political interventions of the Government of Quebec made against the Sûreté du Québec and points out the relentlessness of the Attorney General of Quebec against Quebec police.
These interventions and this relentlessness of the Quebec state against police independence are extremely serious and must be publicly condemned.
Indeed, there can be no doubt that one of the most fundamental questions in constitutional law relating to police activity concerns its independence from the holders of executive power. However, this fundamental principle of police independence has however been violated, flouted and violated both by the Government of Quebec and by its delegates – the Attorney General of Quebec and the City of Quebec – on numerous occasions.
For the creation of an independent police services commissioner
Although the government of Quebec modified, in 2019, the process of appointing the director general of the Sûreté du Québec by entrusting it to the National Assembly of Quebec, this cannot be enough, however, to guarantee the constitutional principle of police independence.
Several judges of the Court of Québec have warned the population against the danger posed by this reckless, abusive government attitude that undermines the rule of law and the rule of law.
We must, as of now, guarantee a perfect seal between the executive power – whether government ministers, its delegates, the Attorney General of Quebec or, even, the cities and municipalities – and the police in order to respect the constitutional principle of police independence.
This is why I propose and recommend that the Government of Quebec adopt a bill to create an independent Commissioner of Police Services of Quebec (in particular, the current Commissioner of Police Ethics would be added), who would create a rampart between the Government of Quebec and all Quebec police forces, from the Sûreté du Québec to the autonomous police forces serving Aboriginal communities, including the autonomous police forces serving municipalities and metropolitan communities.
The commissioner would be appointed by the National Assembly of Quebec, on the recommendation of the premier, with the consent of the leaders of all opposition political parties, and with the approval of two-thirds of its members. The independence of police forces is not only important, but also, and above all perhaps, at the heart of the rule of law and the rule of law.
* Constitutionalist, specialist in the right to privacy and police law, the author was senior constitutional adviser to the Royal Canadian Mounted Police