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Blog September 8, 2016

The Police: Freedom of Expression and Freedom of Information

If asked to use the words “the police” and “freedom of expression” in a constructive sentence, I would guess 9 out of 10 Canadians would come up with something like: “It’s essential that the police not violate our freedom of expression.” And this spring-to-mind sentence is obviously true.  Less obvious perhaps is that it also essential that the police themselves are able to exercise their right of free expression and that our own information rights factor into the issue of police expression. 

In 2016, the BC Human Rights Tribunal issued an important decision in respect of employees’ rights to political expression.  The employee in question was Const. David Bratzer, who is with the Victoria Police Department and also a member of the public policy advocacy group Law Enforcement Against Prohibition (LEAP).  The question was whether the police department’s attempts to restrain Bratzer’s off-duty speaking on behalf of LEAP discriminated against him in his employment on the basis of his political beliefs, contrary to s.13 of the BC Human Rights Code

In the main, this was a case about the extent to which an employee’s duty of loyalty to an employer can legitimately restrict that employee’s political speech.  The usual framework of legal assessment applied, so that the employer was required to accommodate the employee’s political activity to the point of undue hardship.  And that point, said the tribunal, is where the conduct of the employee is “clearly incompatible with the individual’s duties”.  That is a high standard:  “one may expect that point will not be reached unless there is evidence of impairment or if other less intrusive or restrictive means have either been tried and found wanting or have been considered and rejected for good reason.” (para. 323). 

Bratzer’s win in this long legal battle is not only a win for employees in many sectors whose political speech rights are often at issue (teachers being a big one in this category).  It is also a win for the general public in the sense that it opens up that famous “marketplace of ideas” to political views from all ranks of police. This probably doesn’t excite you much if you think, not unfairly, that the police already enjoy a considerable advantage in making their voices heard relative to the Average Josephine. No question they do, but mostly in the upper ranks. 

The Canadian Association of Chiefs of Police has a very large megaphone and is often taken as the de facto ‘voice of Canadian policing’.  The tribunal, in rejecting the notion that advocating for law reform was incompatible with police duties, noted that lobby groups like The Canadian Association of Chiefs of Police do almost nothing but advocate for law reform, and theirs cannot be the only legitimate voice. 

Nor should the right to participate in advocacy be restricted to senior members of management, or their lobbying organizations.  The Canadian Association of Chiefs of Police, by virtue only of being composed of senior management of police departments, can have no greater right to participate in the political process than does a beat cop, subject of course to reasonable restrictions that the duty of loyalty imposes. (para 321)   

And why might we want ‘the voice of Canadian policing’ to be less filtered? For one, effective legal and policy reforms aren’t going to be achieved if we don’t have information.  We need to know where the views within Canadian policing are contested.  For two, we really don’t know much about how the “official” voices of Canadian policing work. 

Here in British Columbia we’ve got a BC Association of Chiefs of Police and a BC Association of Municipal Chiefs of Police who have been known to characterize themselves in two completely different ways, depending on the circumstances.  Called upon to produce documents under FOI, they have been known to respond that custody and control of the records are private (belonging to the association), not public (belonging to the police), and therefore not governed by under the public sector FOI laws.  However, called upon to respond to a complaint of unregistered government lobbying, the associations said that it is part of the employment contract of the chiefs to take part in these professional associations, so they are acting as police chiefs in doing so. The Office of the Registrar for Lobbyists agreed and found that even if the chiefs were acting collectively to speak on issues important to them, that collective action did not change the fundamental nature of their action as local government employees. 

In other words, when you want information from the police chiefs associations, you can’t have it, because they are private sector.  And when you want them to register as lobbyists for their lobbying activities, they don’t have to, because they are government employees, and public sector.  The effect of this blatant contradiction is to create maximal non-transparency. 

The BC Civil Liberties Association and the BC Freedom of Information and Privacy Association have been loudly protesting this eating-cake-whilst-having it, arguing that the BC police chiefs associations must be put into Schedule 2 for inclusion under the Freedom of Information and Protection of Privacy Act.  We argue that the quasi-constitutional status of freedom of information rights is vastly undermined by allowing for the creation of bodies where government records and information can be moved “off the books”.  This is a fight we are hoping to win.  But in the meantime, what we know about the inner workings of these entities is next to nothing.

And these are entities that are almost invariably calling for legislation that directly impacts our constitutional rights.  Currently the Canadian Association of Chiefs of Police is calling for legislation that would give police the ability to get a warrant to “compel the holder of an encryption key or password to reveal it to law enforcement” to unlock our electronic devices.  This would be a radical departure from some of the fundamental principles of justice.  But it will no doubt be seriously considered in the government’s cyber-security consultation and if a bill were introduced, very likely it would be the Canadian Association of Chiefs of Police who would be called to testify at Committee to speak in favour of the bill.  Other groups or individuals will be called to speak who will oppose the bill, but ‘the voice of Canadian policing’ will speak as a monolith.  

And it’s not.  We need two things urgently to help us gain insight into what is needed for effective policing and rights protection in the context of policing. We need to understand policing better on fronts that range from drug policy to lawful access, and for that we need 1) a greater diversity of voices from the policing community (see rah, rah for the Bratzer decision) and 2) transparency and accountability to extend into the policing bodies, like the chiefs associations, that so powerfully dominate in the public discourses on these matters.     

September 8, 2016
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