Discretion is yours, sayeth the law

Morley Lymburner
November 01, 2010
By Morley Lymburner
Blue Line has always considered it important to provide our readers with plenty of case law because modern police officers need to understand why a law or procedure has developed. However, officers must avoid reading so much into case law that they become paralyzed by it. The recent decision by Ontario judge Susan Himel is a good case in point. Himel recently struck down Canada’s prostitution laws, thereby challenging every police officer’s ability to use appropriate discretion in line with community standards.

Blue Line has always considered it important to provide our readers with plenty of case law because modern police officers need to understand why a law or procedure has developed. However, officers must avoid reading so much into case law that they become paralyzed by it. The recent decision by Ontario judge Susan Himel is a good case in point.

Himel recently struck down Canada’s prostitution laws, thereby challenging every police officer’s ability to use appropriate discretion in line with community standards.

Gone are the days of setting the benchmark for the creation of laws through elected officials. Since the Charter many members of the judiciary have come to believe they have a duty to decide cases on what feels most politically correct rather than basing judgements on existing law. Parliament has now been reduced to the level of either rubber stamping these decisions or creating new laws with the view toward testing the court system rather than community standards.

On a ride-a-long several years ago I heard many RCMP officers voice concern about a judge who went very light on drug offences, no matter the type or quantity. They could bust a gang or drug lab, only to see them sentenced to 40 hours of community service or to donate to a local charity in lieu of a fine – or both.

This judge refused to convict anyone for driving a car without insurance because the minimum $2,000 fine was, in his estimation, too severe. He was highly critical of police use of force, only levying a fine in the most extreme circumstances. Extreme meant an officer had to spend a few days in hospital.

When confronted with these circumstances, police should first and foremost remember that their duty is to prevent offences and their job is NOT a popularity contest. Despite all

the glowing press spun out by PR departments, policing is not about officers dressing up in fuzzy animal suits or being dunked for charity. It is all about preventing crime.

Sending out a strong enforcement image to the community is an effective way to prevent crime. I do not wish to burst any bubbles in the judiciary but true crime prevention is accomplished through the vision of every officer on the street enforcing the law, not within the hallowed halls of the courtroom. Much like a hockey referee, it is the officer patrolling the community that sets the pace for the level of crime. They should never be dissuaded from this duty by a judicial system they feel is not holding up its end of the bargain.

A case in point from my own experience was a judge who felt my laying speeding charges of 50 km/h in a 40 km/h zone was inappropriate, preferring I go after those doing 55 to 60 km/h. As he threw out charge after charge, I considered following his advice but decided against it, instead opting to go out of my way to flood his court with offences at exactly 50 km/h in a 40 km/h zone.

The judge called me into his chambers and asked me to explain my rationale. I explained it was a new school zone that had just been changed to a 40 km/h limit. Enforcement is the only way I could get the message out to the public. Surprisingly, he saw my point and now understood that we both had levels of discretion that should work in harmony for the good of the community. He agreed to back me up, thanked me for getting the message across to him, returned to the courtroom and proceeded to increase fines upon conviction.

You may not encounter a similar judge but law enforcement is not a contest for convictions. I remember some time back when officers were inappropriately evaluated by their “conviction rates.” It is not the duty of police to get a conviction, only to bring a true bill to the courts. Extenuating circumstances are ultimately up to the defence to present and the courts to determine their evidentiary worth.

At the street level each officer must determine what level of enforcement is necessary for the good of the community rather than what will please the courts. This discretionary enforcement level should be determined by the officer’s good conscience and tempered by the wisdom of peers and superiors. Nothing should prevent them from being their own trend setter and bringing their own sense of values and creativity to the job that must be done.

After all is said, the police selection process is suppose to screen for good judgement and discretionary ability. If you wear the badge, you are expected to have it. This cannot be instilled by any police college, nor by court judgements.

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