Opinion: The Beltline buck stops with Calgary’s police commission

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On Friday, the Calgary police commission held a hearing on the disruptive Beltline demonstrations. The hearings were booked in response to a groundswell of complaints and a counter-protest. As of the Friday deadline for this article, the hearing’s outcomes won’t be certain. But that doesn’t matter much, since the bigger question is why the commission is considering this issue now, and not weeks or even months earlier. Their failure to do so reflects a larger problem with the passivity of Canadian municipal police boards that we’ve seen in Ottawa and Toronto, Winnipeg and Vancouver, and so on throughout the system.

In a democracy, civilian police oversight is critical to maintain public trust. In most western democracies, police forces ultimately answer directly to an elected official at some point in the system, just as provincial police and the RCMP ultimately answer to ministers in their respective governments. Yet under Alberta law, as in most other Canadian provinces, municipal police are governed by a police board model. The structure is built to do the opposite, separating civic elected officials from police decision-making as much as practically possible. The majority of commission members are appointees.

The results have not been ideal, and they certainly aren’t democratic. And it’s easiest to see those flaws on the budget side. Even though police budgets are the largest line item for almost every Canadian city, and the most likely to increase, police spending rarely gets close scrutiny from police commissions or boards. Those city councils (like Alberta’s) that are permitted to ask questions rarely dig deeply. Any fiscally conservative suggestion that police services can manage resources better is waved off as interference or “defunding.” In contrast, police forces in decidedly pro–cop American cities are routinely asked to manage overtime, cut spending on real estate or special units, adjust shift schedules, move desk officers back onto patrol or deploy better tech to manage costs (to name just a few common strategies).

Of course, oversight over money isn’t the only problem. City cops in Canada also face growing but reasonable public expectations about force reduction, enforcement fairness and protest management. Frustration over the “occupation” of downtown Ottawa, Calgary’s Beltline protests and other similar demonstrations across Canada in the last few years are just the most recent examples. One new feature of events in Ottawa and Calgary: the appearance of aggressive citizen counter-protests. These transcend the usual left-versus-right shouting matches you sometimes see. Now, we’re seeing ordinary civilians assembling to counter demonstrators because they no longer believe police forces are enforcing the law consistently.

To be clear, there should be some limits in oversight. Politicians, boards and commissions should not be in the business of ordering a particular arrest, managing investigations or micromanaging tactical operations, given the moral, legal and safety issues involved. But police departments have a certain self-interest in training police boards and commissions to serve as applause committees. Canada’s prevailing doctrine of “no operational direction of police” is increasingly used like a get-out-of-oversight-free card.

In legal reality, boards like the Calgary police commission are meant to have and use more authority. Under Section 31(1) of Alberta’s Police Act, municipal police commissions must “establish policies providing for efficient and effective policing.” A commission can “issue instructions, as necessary, to the chief of police in respect of the policies” they establish. Section 31(2) provides that every police officer is “subject to the jurisdiction of the commission” and “shall obey the directions of the commission,” provided those directions flow through the chief of police.

That doesn’t give the commission the moral right or the authority to demand that Bob and Jane Smith be arrested at the next Beltline protest. But it does empower police commissions to set policy on how operations should go, before holding the chief and his officers accountable against those policies. If Calgary’s commission had been more responsive, events in Ottawa should have triggered an urgent, commission-led review of plans and policies in anticipation of similar disruptions. If Calgary’s commission had been ahead of the game, it would already have clear policies — not internal policies, but commission policies — on fair enforcement of laws against protests to apply here.

One problem with protest enforcement across the country has been mirrored in Calgary. Chiefs like Calgary’s Mark Neufeld repeatedly insist that “the right to protest” is in the Charter, rendering police helpless to enforce existing laws against disruptive protests. In fact, the Charter doesn’t actually contain a “right to protest” that is open-ended on protest tactics. Rights to freedom of expression and assembly exist, but both are “subject to reasonable limits prescribed by law.” If the commission had been more proactive on protest enforcement policy, it would have a better handle on how those legal limits could be applied here.

How could it do that? With its own legal opinions, for starters. Perhaps the best review of police commission weakness and deference in Canada was Toronto’s inquiry into G20 policing, released just under 10 years ago. One of retired justice John W. Morden’s recommendations was that police board members needed active and regular access to legal advice, independent from lawyers in either the police service or the city administration. Given their immense responsibilities, this seems prudent. Even small corporate boards do this. Yet, a decade after Morden’s report, even the concept of seeking independent legal advice is often seen as mysteriously extreme for police commissions.

Without that kind of advice, volunteer board members and civic appointees are left to drown in issues far beyond their pay grade. Consider the Zoom-broadcast circus in Ottawa during the “trucker” occupation, when councillors and police service board members in a public meeting began to toss out random laws as suggestions for possible enforcement strategies. When one member asked if it might help if the city declared a state of emergency, Ottawa’s city solicitor intervened to reject the idea. Two days later, the City of Ottawa declared a state of emergency after all.

My own view is that the model is so broken that it needs reform. At least a half-dozen other police oversight models exist in other countries, better preserving police independence in investigations without ceding control of public money or public policy in the process. It’s time Canadian provinces picked one as an alternative.

But reform isn’t likely to happen any time soon, for a range of shortsighted political reasons. So in the meantime, police boards need to step up, set more policy and ask tougher questions, despite the barriers. In Calgary, that means the police commission needs to be more proactive, urgently, in anticipating problems and controversies like the Beltline protest escalation, rather than waiting for them to drop onto its agenda.

Brian Kelcey is a Winnipeg-based urban public policy consultant. He previously served as budget adviser to the mayor of Winnipeg in the mid-2000s, and as a senior political adviser to Ontario’s Progressive Conservative government from 1999 to 2003.