Political Interference and the Statutory Responsibility of Fredericton City Council

 

Responsibility

Just over two weeks ago, in the immediate aftermath of the arrest, search and seizure inflicted on Charles Leblanc, Police Chief stood up and declined to answer any questions about this puzzling and deeply troubling incident.  In the complete void in which we currently drift, a few questions beg for answers:

What professional police procedures were followed leading up the incident?

What priorities and policies established by Fredericton City Council were followed in pursuing this matter?

At what point has, or will, the Crown Prosecutor become involved in this matter?

Why has this action been conducted by the Fredericton Police Force in view of the well-documented history of conflict with Charles Leblanc?

Since the Fredericton Police Force is now embroiled in a conflict of interest and perceptions of bias both by reason of the original action and now due to the scathing criticism and constitutional turmoil it has drawn upon itself as a result of the action, it falls to City Council to address the issue at the earliest opportunity.

City Council is the statutory governing body of the Fredericton Police Force.  Council has the legal responsibility for the actions of the Fredericton Police Force and in the current situation, where a man’s constitutional rights have been deliberately violated by the Fredericton Police Force, should act.

For over two weeks, Brad Woodside has remained completely silent on the issue.  Of course, Brad is well acquainted with the issues.  He speaks to Chief MacKnight frequently, and receives reports of all extraordinary incidents in the city.  He is also in an awkward position due to a long-standing, cordial, and well-documented relationship with Charles Leblanc that is the subject of over 100 videos posted on Youtube.

Brad’s personal peccadillo is no excuse for inaction.  It is Fredericton City Council as a whole that “owns” the business of the Fredericton Police Force.  If Brad is shy about personal involvement in the matter, he can and should recuse himself and appoint a deputy to lead Council to do what is right for the City of Fredericton.

Doing what is right means taking all necessary steps to ensure, in the face of intense criticism and ridicule, that the Fredericton Police Force has acted correctly in this matter, and that its actions withstand the scrutiny that it deserves now and as the matter progresses.

Time is ticking.  So evident are the problems with the police action that scrutiny has rapidly descended into ignominy, and Fredericton City Council, as the legal oversight body, is rapidly becoming the lawful owner all of the blame and liability that may ensue from the rash action of its Police Department.

Political Interference

It has been suggested that City Council can do nothing for fear of “political interference”.  At first, the word “shibboleth” jumped to mind.  After looking into it a bit, it looks much more like a red herring.

It seems to work somewhat as a shibboleth.  Everyone who has been subjected to this defense of Brad’s inaction has been cowed into silence or worse.  No!  We would not want that!  They immediately adopt the respectful silence of the majority who have never looked into the matter.

On second thought, that silent majority should consider that we elect people to political office precisely for the purpose of interfering politically with something or other.  Perhaps not in Fredericton though.

In the present context, it is easy to understand why political interference has a negative connotation, and a general “no-go” for politicians with respect to the police.  Though it happens often enough, we do not want our mayor and city councillors pressuring the police to press charges against enemies, nor to look the other way for friends.

This is not that.  This is the job of a Mayor and City Council, as the statutory oversight body of a police force, taking a potentially unpopular, at least partly public stand in a well documented case in support of the constitutional rights of a constituent.  No risk of skullduggery, just the political risk of doing something unpopular though correct.  Political interference at its finest.

I have found no legal sanction, other than at the polls, for such action with regard to a police force.  The principle of non-interference is implicit in the oversight powers granted by the Police Act of New Brunswick:

3.1(2)A civic authority

(a)shall, in consultation with the chief of police, establish the priorities and objectives of the police force,

(b)shall establish policies for the police force in accordance with this Act and the regulations,

(c)shall issue instructions as necessary to the chief of police but not to any other member of the police force and the instructions issued shall not be in respect to specific operational decisions or not in respect of the day-to-day operations of the police force, and

(d)shall ensure that the chief of police carries out his or her duties in accordance with this Act and the regulations and with the priorities, objectives and policies established by the civic authority under this Act.

The right and duty of City Council to supervise the police department is defined by the interplay between paragraphs 3.1(2)(c) and 3.1(2)(d).  Pursuant to para. 3.1(2)(c).  It is correct to say that Council cannot "instruct" the Police in respect to a decision to investigate etc i.e. blatant interference. That does not rule out asking probing questions pursuant to para. 3.1(2)(d).  In fact, it is a duty of Council to do just that in appropriate circumstances under (d).

There are ample concerns about the actions of the Fredericton Police Force with regards to Charles Leblanc that City Council has a duty to scrutinize.  Generally, Council exercises its oversight by setting policies, priorities and objectives and supervising the Chief of Police to ensure he carries out Council’s will and obligations imposed by section 3.1(3):

3.1(3)A chief of police

(a)shall lead the police force and oversee the operation of the police force in accordance with this Act and the regulations and the priorities, objectives and policies established by the civic authority under this Act,

(b)shall have all of the powers necessary to manage and direct the police force so as to fulfill the responsibility of the civic authority to provide and maintain an adequate police force in the municipality or the region, as the case may be, in accordance with this Act and the regulations,

(c)shall apply professional police procedures in the day-to-day operations of the police force,

(d)shall ensure that the members of the police force carry out their duties in accordance with this Act and the regulations,

(e)shall report directly to the civic authority in respect of the operation of the police force and the manner in which the chief of police carries out his or her responsibilities under this Act and the regulations, and

(f)shall obey the lawful instructions of the civic authority.

There is no explicit law or rule against political interference with the wide latitude of police discretion which is exercised within boundaries set by civic authorities.  In a nutshell, Dennis Forcese states in Police: selected issues in Canadian law enforcement (Dundurn Press Ltd., 2002-07-11):

While Canadian police...have traditionally been accorded been accorded a high degree of operational discretion, they have nonetheless remained subject to effective government control (page 9).

Constitutional Principle of Political Non-Interference

Much of the shock and awe when the “non-interference” bomb is dropped arises because there is a very strong constitutional protection for non-interference with the discretion of the Crown Prosecutor in prosecuting or staying charges.  Refer to R. v. Stelco Inc., 2011 ONCJ 471 (CanLII) for a discussion of this topic:

[130]   Furthermore, the Supreme Court of Canada, in the context of a wrongful prosecution proceeding, in Miazga v. Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 S.C.R. 339, [2009] S.C.J. No. 51 (QL), at paras. 45 to 49, recognized that Crown counsel or prosecutors must be independent from political influence and that the decision to initiate or continue criminal proceedings lies at the core of prosecutorial discretion [emphasis is mine below]:

The decision to initiate or continue criminal proceedings lies at the core of prosecutorial discretion, the nature and contents of which were described by this Court in Krieger as follows (at paras. 43 and 46-47):

"Prosecutorial discretion" is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General's office and which are protected from the influence of improper political and other vitiating factors by the principle of independence.

...

Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether: R. v. Osborne (1975), 25 C.C.C. (2d) 405 (N.B.C.A.); and (e) the discretion to take control of a private prosecution: R. v. Osiowy reflex, (1989), 50 C.C.C. (3d) 189 (Sask. C.A.). While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General.

Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor's tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum. [Emphasis added.]

The independence of the Attorney General is so fundamental to the integrity and efficiency of the criminal justice system that it is constitutionally entrenched. The principle of independence requires that the Attorney General act independently of political pressures from government and sets the Crown's exercise of prosecutorial discretion beyond the reach of judicial review, subject only to the doctrine of abuse of process. The Court explained in Krieger how the principle of independence finds form as a constitutional value (at paras. 30-32):

It is a constitutional principle in this country that the Attorney General must act independently of partisan [page363] concerns when supervising prosecutorial decisions. Support for this view can be found in: Law Reform Commission of Canada [Working Paper 62, Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor (1990)], at pp. 9-11. See also Binnie J. in R. v. Regan, 2002 SCC 12 (CanLII), [2002] 1 S.C.R. 297, 2002 SCC 12, at paras. 157-58 (dissenting on another point).

This side of the Attorney General's independence finds further form in the principle that courts will not interfere with his exercise of executive authority, as reflected in the prosecutorial decision-making process... .

...

The court's acknowledgment of the Attorney General's independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our Constitution. Subject to the abuse of process doctrine, supervising one litigant's decision-making process -- rather than the conduct of litigants before the court -- is beyond the legitimate reach of the court... . The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawn constitutional lines are necessary in areas subject to such grave potential conflict. [Emphasis added.]

See also R. v. Regan, 2002 SCC 12 (CanLII), 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 166, per Binnie J., dissenting on another issue.

In exercising their discretion to prosecute, Crown prosecutors perform a function inherent in the office of the Attorney General that brings the principle of independence into play. Its fundamental importance lies, not in protecting the interests of individual Crown attorneys, but in advancing the public interest by enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference, thus fulfilling their quasi-judicial role as "ministers of justice": Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at p. 25, per Locke J. In R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601, at p. 616, L'Heureux-Dubé J. acknowledged the importance of limiting judicial oversight of Crown decisions in furtherance of the public interest:

[T]he Attorney General is a member of the executive and as such reflects, through his or her prosecutorial function, the interest of the community to see that justice is properly done. The Attorney General's role in this regard is not only to protect the public, but also to honour and express the community's sense of justice. Accordingly, courts should be careful before they attempt to "second-guess" the prosecutor's motives when he or she makes a decision. [Emphasis added.]

Thus, the public good is clearly served by the maintenance of a sphere of unfettered discretion within which Crown attorneys can properly pursue their professional goals.

That said, the general rule of judicial non-intervention in the prosecutorial exercise is not absolute. In the public law context, this Court in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, unanimously affirmed the availability of the doctrine of abuse of process in criminal proceedings, but (at p. 137) strictly limited judicial discretion to stay proceedings as a result of abuse of process to the "clearest of cases". In Power, L'Heureux-Dubé J. for a majority of this Court described the high threshold that must be met to justify judicial interference with a Crown attorney's decision to prosecute an accused (at pp. 615-16):

I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the "clearest of cases", which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention.

To conclude that the situation "is tainted to such a degree" and that it amounts to one of the "clearest of cases", as the abuse of process has been characterized by the jurisprudence, requires overwhelming evidence [page365] that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice... . Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare. [Emphasis added.]

As stated earlier, the question of whether the Attorney General and Crown attorneys enjoy absolute immunity from a suit for malicious prosecution in the private law context was answered in the negative by this Court in Nelles. As the Court explained, the question was ultimately one of policy. The Court concluded that when a prosecutor acts maliciously, in fraud of his or her professional duties, that prosecutor steps outside his or her proper role as "minister of justice", and as a result, immunity from civil liability is no longer justified. Where an accused is wrongly prosecuted as a result of the prosecutor's abusive actions, he or she may bring an action in malicious prosecution. Like the test for abuse of process, however, there is a stringent standard that must be met before a finding of liability will be made, in order to ensure that courts do not simply engage in the second-guessing of decisions made pursuant to a Crown's prosecutorial discretion.

 [131]   Thus, Crown counsel or prosecutors are independent, objective, and have a  quasi-judicial role as “Ministers of Justice”.  After charges are laid, a Crown counsel or prosecutor will review the file and assess whether to proceed with the prosecution and will effectively use a higher bar in deciding whether to proceed with the prosecution of a charge then may be the standard applicable in a preliminary inquiry or in a motion for nonsuit.  The standard that the prosecutor uses in deciding whether to proceed is whether there is a “reasonable prospect of conviction”, in addition to considering whether there is a public interest in proceeding.

The principles that lie behind the constitution protection of the Crown Prosecutor’s independence are absent from consideration of the exercise of police discretion.  I have quoted extensively from R. v. Stelco to establish one point.  Despite the very strong constitutional protection of the prosecutor's independence, there are instances where a Court will intervene.  These are clear cases of abuse of process, conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community.

Although the principles of political non-interference applies to the actions of a prosecutor, it is noteworthy that there is already evidence giving rise to substantial apprehension of improper motives and bad faith, within the police force, in the action that has been taken against Charles Leblanc.  The evidence of bad faith within his police force against Charles Leblanc is well known to Chief MacKnight, and those facts are unlikely to have missed the attention of Brad Woodside.  Accordingly, by proceeding in the face of known grounds for perceived bias and conflict of interest without intervention, those individuals may also be tainted by the same improper motives in the ongoing persecution and criminalization of Charles Leblanc.