How Canadian Cops' Legal Immunity Endangers the Public

On July 28, in London, Ontario, a police pursuit of two bank robbers resulted in three collisions. The suspects’ car hit another car, and police cars hit two other cars, the second of which was a taxicab, which appears to have had the right-of-way in an intersection. The taxi driver has been released from the hospital, but his passengers, 27-year-old Porsche Clark and her 9-year-old daughter Skyla, as of August 1st, remained in hospital in critical condition.

The London Free Press reports: “Under Ontario law, police may pursue a fleeing vehicle if a crime has been committed or is about to be committed. Police must determine whether the need to protect public safety by stopping the vehicle outweighs any possible public risks from the pursuit.” Indeed, that is the law, under the Police Services Act (PSA).

Simply put, this gives the police an immense amount of leeway. Essentially, the police will determine whether the need to keep the public safe requires them to put the public at risk. This contradicts the first of six principles of the PSA under which “police services shall be provided throughout Ontario,” namely “The need to ensure the safety and security of all persons and property in Ontario [emphasis added].” This principle should preclude police pursuits which might put anyone in danger. That is, the police ought not be allowed to trade your safety for my safety, regardless of whether the danger arises from the reckless driving of the police, or the reckless driving of the criminal as a result of the police pursuit.

Unfortunately, these conflicting rules are typical of government policy. This is how bureaucrats, and especially courts, are given wide latitude to interpret the law, often protecting those who are supposed to protect us.

Responsibility of Police Officers

The PSA principle stated above, “The need to ensure the safety and security of all persons and property in Ontario” is again emphasized in PSA Section 43 “Criteria for hiring”: “No person shall be appointed as a police officer unless he or she … is physically and mentally able to perform the duties of the position, having regard to his or her own safety and the safety of members of the public.”

Taken together, that principle and Section 43 are not ambiguous. And if the crazy police pursuit policy did not exist, this should be enough to hold police accountable for actions which endanger the public, right? Unfortunately, no, because they protect themselves with Section 50 “Liability for torts.”

Section 50 stipulates that a municipal police services board — not police officers themselves — “is liable in respect of torts committed by members of the police force in the course of their employment.”

Additionally, “The board may … indemnify a member of the police force for reasonable legal costs incurred … in respect of any other proceeding in which the member’s manner of execution of the duties of his or her employment was an issue, if the member is found to have acted in good faith.” However, “acting in good faith” is a broad concept which, in Canada, as in the US, usually produces immunity for police officers.

As it turns out, the board is not actually liable for any of this because Section 50 further stipulates that “The council is responsible for the liabilities incurred by the board. …” Council means City Council, and we know what that means. Taxpayers are ultimately liable, and the reality is that taxpayers pay a lot of money to settle lawsuits resulting from the indiscretions of police officers.

Even if most officers consistently exercise what rational civilians would consider to be “good judgment,” the law nevertheless punishes taxpayers in order to protect officers who make bad decisions. And nine-year-old Skyla Clark is old enough to understand how this can create perverse incentives.

Government’s Rationale

The coercive nature of government fosters a culture where little incentive exists to control the behavior of individuals operating within government bureaucracies, whose budgets are renewed, and often increased, in spite of taxpayers’ dissatisfaction.

At the same time, we are supposed to accept at face value the assertion that society can grow and prosper only if government agents are granted legal immunity for actions they undertake in the performance of their public duties. For if they fear the personal consequences of their own mistakes, they may hesitate to take actions which they sincerely believe to be in the public interest. With this fear running through their minds, they would be frozen in a state of inaction, and citizens would suffer the effects of a rapidly decaying society. However, when granted the privilege of externalizing the costs of their actions on to the backs of taxpayers, then, and only then, are the government’s angels able to function. This is the gospel according to government.

The truth is that those who are tasked with serving the public interest, while protected by legal immunity, are well positioned to serve whatever interests they choose. The doctrine of immunity is a ruse, a license to abuse, and a not too subtle confirmation that some of us will always be above the law. It encourages people to do bad things. It promotes a sense of invincibility, superiority, entitlement, and outrage toward others who forget to bow in the presence of their masters.

In 2008, young Garett Rollins learned this the hard way as he celebrated his 19thbirthday. He and his friends were complying with a police request to leave the party, and Rollins questioned the rough treatment of a girl by Constable Benjamin Tomiuck, who responded “We can do whatever the f_ _ _ we want.” “You don’t have to be such dicks about it,” Rollins replied. Upon hearing those words, Constable Matt Pouli viciously assaulted the unaggressive Rollins. Nine years later, Rollins was awarded $28,500 in damages. It is unclear whether any of this money was paid by Pouli, but it is clear that he remained on active duty, with a salary of $134,031.98 last year.

Conclusion

In 2016, Ombudsman Ontario arrogantly claimed that “The government has demonstrated that it is willing and able to respond to urgent public concerns about policing and police culture, and to set provincewide rules in the public interest. It did so in 1992 with its original guideline for the use of force. It did so in 1999 to end dangerous high-speed police pursuits.”

However, as Porsche Clark, Skyla Clark, Garett Rollins, and many others like them know, those new rules were just another example of the government paying lip service to the concerns of the public.

Police officers — and other government agents — are routinely excused for actions for which ordinary civilians are prosecuted, convicted, and imprisoned. It is mystifying and frightening that we support politicians and bureaucrats who constantly moralize about the virtues of equality, while they shamelessly use their power to avoid equality before the law.