Expert Report

prepared for

The Joint Federal/Provincial Commission

into the April 2020 Nova Scotia Mass Casualty

Exercising Judgment:
Understanding Police Discretion
in Canada

Benjamin J. Goold
University of British Columbia

May 2022

masscasualtycommission.ca
 EXERCISING JUDGMENT:
Understanding Police Discretion
in Canada

Report for the Mass Causality Commission

May 2022

Benjamin J. Goold
Peter A. Allard School of Law
University of British Columbia
 Understanding Police Discretion

Table of Contents
I. INTRODUCTION 1
II. DEFINING POLICE DISCRETION 3
A. Police Discretion as the Capacity to Choose 4
B. Police Discretion as a Privilege and Resource 9
C. Why Defining Police Discretion Matters 11
III. POLICE DISCRETION AND POLICE DUTIES 14
A. Statutory Duties and the Police 15
B. Duties to Protect, Warn, and Investigate 19
C. The Role of the Charter 24
D. Revisiting Questions of Definition 25
IV. FACTORS INFLUENCING POLICE DISCRETION 27
A. The Factors Influencing Police Discretion 34
B. Recent Research on Police Discretion in Canada 41
V. RECONSIDERING POLICE DISCRETION IN CANADA 49
REFERENCES 55
 Understanding Police Discretion

I. Introduction
Discretion is central to policing in Canada. Every day, the police make thousands of decisions

that affect the lives of Canadians across the country, determining when the law should (or should

not) be enforced, how public complaints and crimes are investigated, and what happens to those

suspected of breaking the law. In many cases, these decisions are made by police officers in

direct contact with members of the public and play a crucial role in shaping the relationship

between those individuals and the state. While public officials in many capacities have discretion

to make decisions in the ordinary course of their work, the decisions made by police officers are

underpinned by their unique ability to use force in the execution of their duties, accompanied b y

extensive powers with respect to arrest, detention, search and seizure, and the gathering of

evidence.

This report aims to shed light on several key aspects of police discretion and decision-

making, beginning with the fundamental issue of the relationship between discretion, law, and

the legal duties of the police. The report is not a comprehensive overview of the extensive

literature on police discretion in Canada and elsewhere but instead looks to provide a foundation

for broader discussions about the scope of police discretion, the factors that influence its

exercise, and whether it needs to be subject to more extensive and effective limitations.

Fundamentally, the report considers whether the role of the police as a public institution and the

demands placed on police officers as individuals are compatible with the notion of discretion as

traditionally conceived. Given the many challenges facing the police in Canada today, there is a

pressing need for a serious and structured discussion about the nature and scope of their

discretion and whether it should continue to be regarded as an inescapable aspect of modern

policing.

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 Understanding Police Discretion

This report is divided into four substantive sections. The first focuses on the challenges of

defining police discretion and presents two contrasting accounts of discretion from the literature

on policing: one that regards officer discretion as a freedom arising from the absence of effective

limits on police authority; and another that views that same discretion as a form of privilege or

resource granted to the police. Defining police discretion is central to this report for two reasons.

First, it is a necessary precondition to engaging in wide-ranging and principled discussions about

how discretion does and, more importantly, should operate. Where police discretion derives from

and its relationship to law are fundamentally connected to questions of oversight and regulation.

This leads to the second reason that defining police discretion is so important: doing so forces us

to think carefully about the function of the police in Canadian society – in particular whether

officer discretion is an inevitable consequence of the way in which contemporary forms of

policing are currently structured. Being upfront about the normative conceptualizations of

discretion thus allows for more clearsighted consideration of police reform more broadly.

Building on the discussion in section II, section III examines the relationship between

police discretion and police duties in Canada, arguing that regardless of whether we view police

discretion as a freedom or a privilege, it remains the case that this discretion must be exercised in

accordance with various established statutory and common law duties. Here, the aim is to draw

attention to the fact that police discretion – even when exercised in low-visibility environments

and free from substantial and effective oversight – is nonetheless bounded by our understanding

of the policing function and the duties that derive from it. This section also considers the way in

which these duties have evolved in Canada, particularly since the introduction of the Charter of

Rights and Freedoms and, as will be discussed, a growing willingness on the part of courts to

allow private law actions in negligence against the police.

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 Understanding Police Discretion

Section IV provides an overview of the research literature on the use of police discretion

and, with it, a typology of the different factors that influence the exercise of that discretion. After

a brief examination of the key characteristics of police institutions and the organizational settings

in which discretion operates – frequently referred to as “low policing” and “high policing” 1 – the

section goes on to discuss how the character and attitudes of officers, suspects, and victims of

crime can influence the exercise of discretion. The section then considers how these situational

factors interact with other variables that determine the use of discretion, including the nature and

location of the offence and the type of police service involved.

The final section of the report returns to the challenges associated with reforming police

discretion and argues that there is a pressing need for legislatures at the provincial and federal

levels to provide a clear legal basis for the exercise of that discretion – along with a coherent set

of statutory rules that govern and limit its use. The report then concludes by highlighting the lack

of independent research on police discretion and calls for greater engagement on the part of

police services at all levels with academic lawyers, sociologists, criminologists, and police

scholars in Canada.

II. Defining Police Discretion

There are many competing definitions of discretion in law. Common to almost all of them,

however, is an emphasis on the opportunities created by rules for individual judgment and the

exercise of authority. For Westen, discretion is the “area within which the discretion-holder has

the authority to adopt, or not adopt, whatever rule he [sic] deems fit.” 2 For Galligan, it is “a

1
Brodeur, JP. (1983) “High Policing and Low Policing: Remarks about the Policing of Political Activities” Social
Problems 30(5): 507–20.
2
Westen, P. (1982) “The Meaning of Equality in Law, Science, Math, and Morals: A Reply” Michigan Law Review
81: 604–63, 642.

3
 Understanding Police Discretion

sphere of autonomy within which one’s decisions are in some degree a matter of personal

judgment and assessment.” 3 For Christie, the essence of discretion lies with “choice in the

context of power relationships.”4 These recurring ideas – of discretion as both the ability to

choose and the capacity to exercise power – were perhaps best captured by Pratt and Sossin in

2009:

Discretion arises when an official is empowered to exercise public authority and afforded
scope to decide how that authority should be exercised in particular circumstances. At
root, discretion is about power and judgment. 5

As Pratt and Sossin went on to note, law and discretion are also inevitably bound together: “more

law means less discretion, and less discretion means more law.” 6 In other words, as Dworkin

once observed, discretion is like the “hole in the donut” – it does not exist except as a space

created by law, and its scope is limited by the law that surrounds and produces it. 7

A. Police Discretion as the Capacity to Choose

In the context of policing, one of the most influential definitions of discretion can be found in the

work of the American legal scholar Kenneth Culp Davis. Writing in the late 1960s, Davis

observed that “a public officer has discretion whenever the effective limits of his [sic] power

leave him free to make a choice among possible courses of action or inaction.”8 Where that

3
Galligan, DJ. (1990) Discretionary Powers: A Legal Study of Official Discretion. Oxford: Oxford University Press,
8.
4
Christie, GC. (1986) “An Essay on Discretion” Duke Law Journal 5: 747–78, 778.
5
Pratt, A & Sossin, L. (2009) “A Brief Introduction of the Puzzle of Discretion” Canadian Journal of Law and
Society/La Revue Canadienne Droit et Société 24(3): 301–12, 301.
6
Pratt & Sossin (2009), 302.
7
Dworkin, R. (1977) Taking Rights Seriously. Cambridge, MA: Harvard University Press, 77.
8
Davis, KC. (1969) Discretionary Justice: A Preliminary Inquiry. Baton Rouge: Louisiana State University Press,
4. For a discussion of the influence of Davis’ work on police discretion, see Nickels, EL. (2007) “A Note on the
Status of Discretion in Police Research” Journal of Criminal Justice 35(5): 573–78.

4
 Understanding Police Discretion

public official is a police officer, this discretion translates into the power to make policy with

regards to individuals:

The police are among the most important policy makers of our society, and it is high time
that the public should realize this reality. They make more discretionary determinations
in individual cases than any other class of administrators; I know of no close second…
Although the police constantly make policy, they pretend not to, and they try to keep the
public from realizing that they make policy. 9

It is important to note that Davis was alive to the possibility that his definition of

discretion could be seen as overly broad. As such, he also stressed that officials like police

officers are often subject to guidelines and policies that set out criteria for the acceptable use of

their discretion. 10 The question for Davis, however, was whether such guidelines and policies

were sufficient to prevent the misuse of discretion and the very real harms that stem from what

he referred to as “discretionary injustice”:

[B]y and large, injustice results far more from exercise of discretionary power than from
application of rules. The greatest and most frequent injustice occurs in discretionary
action, where rules and principles provide little or no guidance, where emotions of
deciding officers may affect what they do, where political or other favoritism may
influence decisions, and where the imperfections of human nature are often reflected in
the choices made. 11

This early attempt to define the discretion exercised by public officials like the police was

significant because it came at a time of growing academic interest in policing and law

enforcement. As Bronitt and Stenning have observed, much of this interest can be traced to the

work of several prominent US scholars, most notably the criminologist and legal academic

Herman Goldstein. 12 Writing in early 1960s, Goldstein argued that the police – contrary to the

9
Davis, KC. (1970) “Discretionary Justice” Journal of Legal Education 23(1): 56–62, 61.
10
See Bronitt, SH. & Stenning, P. (2011) “Understanding Discretion in Modern Policing” Criminal Law Journal
35(6): 319–32, 321.
11
Davis (1970), 56–57.
12
Bronitt & Stenning (2011), 320. See Goldstein, H. (1963) “Police Discretion: The Ideal versus the Real” Public
Administration Review 23(3): 140–48, 148.

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 Understanding Police Discretion

prevailing view at the time 13 – do not in reality pursue policies of “full enforcement.” Instead,

they are constantly called on to exercise discretion and make decisions about which laws should

be enforced and whose conduct requires their attention.14 As Goldstein acknowledged at the

time, this stems in part from the fact that the police do not have the resources to respond to every

violation of the law they encounter. Whether or not the police choose to admit it, the widespread

use of discretion is central to the pragmatic execution of their work and the effective functioning

of police organizations:

The real choice for a police administrator is not between “full enforcement” and
“discretion” but rather more precisely between the ideal and reality... An essential first
step [to improving policing] will then be to inform the public, to challenge some of our
basic concepts, to take stock of the total responsibilities of the police, to recognize the
limitations under which the police operate, and to acknowledge the need for the exercise
of discretion. It is then likely that a new atmosphere will be created which will foster
some new thinking and some new developments to aid in the improvement of the total
system for the administration of criminal justice. 15

Although Goldstein had significant concerns about the use of police discretion, he also believed

that denying its existence was a mistake. Instead, he argued that openly recognizing the central

role played by discretion was vital, both to the police’s desire to be seen as professionals and the

public’s need to have confidence in them:

The police have sought professional status. But professional status does not normally
accrue to individuals performing ministerial functions. One of the marks of a true
profession is the inherent need for making value judgments and for exercising discretion
based upon professional competence. To deny that discretion is exercised gives support
to those citizens who maintain that the job of a police officer is a simple one, that it
requires little judgment, and that it is not worthy of professional status. By

13
See Scott, MS. (2004) “Police Discretion” in LE Sullivan, MS Rosen, DM Schulz, and MR Haberfeld (eds),
Encyclopedia of Law Enforcement. Thousand Oaks, CA: Sage.
14
This practice would later be referred to as “selective enforcement.” See: Klockars, CB. (1985) The Idea of Police.
Beverly Hills: Sage, 93. As Ericson observed in 2007, in Canada, the idea that the police exercise discretion
began to be discussed openly only in the 1960s. See Ericson, RV. (2007) “Rules in Policing: Five Perspectives”
Theoretical Criminology 11(3): 367–400, 368.
15
H Goldstein (1963), 148.

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 Understanding Police Discretion

acknowledging the discretionary role the police do fulfill, the drive toward a higher
degree of respect and recognition for law enforcement personnel is given impetus. 16

Crucially, Goldstein’s reflections on the impossibility of full enforcement and the

inevitability of discretion were published only three years after another important work on police

discretion. Appearing in the Yale Law Journal in 1960, Joseph Goldstein’s article “Police

Discretion Not to Invoke the Criminal Process” contained two key insights into the nature of

police discretion that were to become focal points for much of the scholarship on policing that

followed.17 First, Joseph Goldstein noted that a great deal of police discretion is exercised in

what he referred to as “low-visibility” environments, such as the street. 18 As a consequence, it is

difficult to subject police decision-making to meaningful scrutiny or establish effective systems

of oversight. Second, Goldstein drew attention to the fact that police discretion also encomp asses

the decision not to act when faced with an event or situation that might warrant intervention.

Non-action on the part of the police can in fact play as much if not more of a role in shaping the

character of law enforcement as does direct action.

As significant as these observations about low visibility and action/inaction were at the

time, even more important was Joseph Goldstein’s insight that they were inextricably related.

Going further, Goldstein noted that the exercise of police discretion not to act is harder to subject

to oversight and review than an exercise of police discretion to act, yet it nonetheless has a

potentially greater impact on the administration of criminal justice:

Police decisions not to invoke the criminal process largely determine the outer limits of
law enforcement. By such decisions, the police define the ambit of discretion throughout

16
H Goldstein (1963), 148.
17
Goldstein, J. (1960) “Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the
Administration of Justice” Yale Law Journal 69(4): 543–94.
18
Although the distinction between “low-visibility” and “high-visibility” environments may no longer be as stark as
when Goldstein was writing – in part due to the prevalence of public area CCTV and the ubiquity of cellphone
cameras – it remains the case that a great deal of routine police work is carried out in environments where there is
no direct supervision or possibility of formal oversight.

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 Understanding Police Discretion

the process of other decisionmakers-prosecutor, grand and petit jury, judge, probation
officer, correction authority, and parole and. pardon boards. These police decisions,
unlike their decisions to invoke the law, are generally of extremely low visibility and
consequently are seldom the subject of review. Yet an opportunity for review and
appraisal of non-enforcement decisions is essential to the functioning of the rule of law in
our system of criminal justice. 19

Taken together, the writings of Joseph and Herman Goldstein can be seen as the

beginnings of an important shift in the study of policing and police decision-making. By openly

rejecting the “myth” of full enforcement and observing that police discretion encompasses

inaction as well as action, they played a central role in what Nickels has referred to as the

“discovery” of discretion. 20 Their work – and the many critical studies of policing that emerged

in the decade that followed – also had a direct influence on efforts to arrive at a definition of

police discretion that addressed growing concerns about how discretion operates within the

criminal justice system – and in particular how its exercise can lead to the differential treatment

of marginalized communities and problems of systemic bias and discrimination . Although some

have argued that Davis’ definition of police discretion was intended to be purely descriptive, it is

hard not to see his reference to “effective” limits as an acknowledgement of the fact that the

exercise of police discretion often takes place outside of the constraints imposed by law. Indeed,

Davis explicitly noted that his definition necessarily includes “a good deal of discretion [that is]

illegal or of questionable legality.”21 According to Ericson, researchers who subscribe to the idea

of “police discretion-as-deviance” tend to fall into one of two categories: those who see the

exercise of such discretion as a benign practice aimed at ensuring legal rules do not “get in the

way of efficient criminal investigations and desirable outcomes”; and those who view it as a

19
J Goldstein (1960), 543.
20
Nickels (2007), 570. See also Beckett, K. (2016) “The Uses and Abuses of Police Discretion: Toward Harm
Reduction Policing” Harvard Law and Policy Review 10(1): 77–100.
21
Davis (1969), 4.

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 Understanding Police Discretion

form of noble cause corruption, with the police favouring crime control over a commitment to

due process. 22

B. Police Discretion as a Privilege and Resource

Davis’ writing on police discretion has proved to be enduring – so much so that the influence of

his work is “readily discernible in even the most rudimentary introductions to the subject.”23

Having said this, helpful alternatives to Davis’ definition do exist. According to Kleinig, for

example, it is a mistake to describe police discretion as the ability to make decisions in the space

created by the absence of legal rules or other restrictions. In Kleinig’s view, when police officers

act outside the scope of their legal authority – or in ways that are fundamentally at odds with

their role and responsibilities – they cannot be said to be using their discretion. An officer who

uses excessive and unjustified force against a member of the public is obviously making a

decision, but in Kleinig’s view, they are not exercising discretion. 24 Building on this observation,

Kleinig has argued instead that police discretion is akin to a permission or privilege to make

decisions in certain circumstances:

Police discretion is a normative resource that police possess, one that authorizes them to
use their considered judgment in certain ways in certain situations. It may be that they are
authorized to determine whether a situation should have their intervention or whether to
respond to some demand that is made. In other words, whether or not a particular
situation falls within the ambit of their social peacekeeping powers may be a matter of
discretion. 25

As Kleinig himself has noted, this view of discretion stands in direct contrast to the one

offered by Davis. Where Davis saw police discretion as a capacity – a “decision-making power

22
Ericson (2007), 370.
23
Nickels (2007), 573.
24
Kleinig, J. (1996) The Ethics of Policing. Cambridge: Cambridge University Press, 83.
25
Kleinig (1996), 86.

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 Understanding Police Discretion

that is not completely covered by rules” 26 – Kleinig instead sees a prerogative: an authority to

“use one’s own judgment about how to make a practical determination.”27 Importantly, Kleinig

has noted that the use of discretion is more acceptable when the person exercising it is seen “as

possessing special knowledge and expertise in relation to their sphere of service.” 28 In the case of

the police, this raises the question of whether policing is seen and treated as a profe ssion. If it is

– and police officers are professionals – then the exercise of police discretion is more likely to be

regarded as legitimate: not just by others within the criminal justice system but also by those who

are subject to that discretion. 29

These divergent accounts of police discretion represent two fundamentally different

understandings of police action/inaction and ultimately two different conceptualizations of the

policing function more generally. Although Davis and Kleinig both recognize that the police

have discretion, for one that discretion exists largely because the unsupervised character of

police work – and the ineffectiveness of legal and other controls – gives officers the freedom to

make choices. For the other, discretion is something that the police are granted in response to

their role and in recognition of their expertise. Moreover, the police are expected to exercise this

authorized prerogative with discretion.30

Although work by Davis and Kleinig has helped to frame debates about the nature and

scope of police discretion, it remains the case that a widely accepted definition of police

discretion has remained elusive. Looking at recent writing on policing in Canada, for example,

26
Kleinig (1996), 83 (referring to Davis). Davis himself did not use the term “capacity” in his account of discretion.
27
Kleinig (1996), 83.
28
Kleinig (1996), 83.
29
Kleinig (1996), 83.
30
Kleinig (1996), 83.

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 Understanding Police Discretion

many discussions of police discretion avoid the issue of definition altogether and move directly

to the question of how that discretion is exercised. A notable exception to this approach,

however, can be found in Schulenberg’s 2015 article on discretion and non -arrest decisions.31

Although she refers to both Davis’ and Kleinig’s accounts of police discretion and concedes that

the term remains ambiguous, Schulenberg has helpfully explained why this is the case:

Specifically, the problem is that we continue to lack a comprehensive understanding of

decisions invoking less police authority and social control than an arrest… [But] to focus
on the decision to arrest is overly simplistic for two reasons. First, current mandates
emphasize community policing, which by definition involves working with citizens to
resolve problems and the use of nonarrest actions to resolve problems. Second, arrests
occur less frequently than other dispositional alternatives, providing a strong rationale for
developing a better understanding of other types of police authority, such as the decision
to request a particular behavioural change. 32

The point made here is an important one. To be meaningful, any definition of police discretion

must reflect the fact that such discretion extends well beyond discrete and quantifiable matters

that are directly related to arrest, investigation, and the prosecution of crime. Although it may be

going too far to argue – as Moskos has – that “every interaction between the police and the

public involves discretion,”33 Schulenberg is right to suggest that many accounts of police

discretion – and accompanying efforts to understand how it is exercised – have been too narrow.

C. Why Defining Police Discretion Matters

It would be a mistake to see disagreements over the definition of police discretion as examples of

rarefied academic debates that have little to do with the realities of policing. The question of

whether discretion is something that arises out of the necessities of police or instead is a power

31
Schulenberg, JL. (2015) “Moving beyond Arrest and Reconceptualizing Police Discretion: An Investigation into
the Factors Affecting Conversation, Assistance, and Criminal Charges” Police Quarterly 18(3): 244–71, 247.
32
Schulenberg (2015), 247–48.
33
Moskos, P. (2012) “Damned if You Don’t: The Dilemma of Police Discretion” ACJS Today: Academy of
Criminal Justice Sciences 37(2): 19–21.

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 Understanding Police Discretion

that is expressly granted to the police, is a fundamentally important one. If we take the view that

discretion is an inevitable consequence of the realities of policing and the problem of imposing

“effective limits” on police officers’ authority, then our key question is most likely to be: what is

the best way to ensure that this discretion is used appropriately and effectively? If, however, we

regard discretion as a privilege or prerogative given to the police, then our question may be a

different one: are there aspects of their work that merit the granting of discretion and, conversely,

other aspects that should not be subject to discretion?

The issue of definition is particularly important in the Canadian context. Prior to the

introduction of the Charter of Rights and Freedoms, the prevailing view of police discretion and

the approach taken by Canadian courts were very much aligned with Davis’ definition. As

Stribopoulos has noted,

Before the Charter, gaps in the patchwork of statutory and common law rules relating to
police powers were rarely of any practical concern to law enforcement. In circumstances
where the legal limits on police authority were unclear, the police had discretion in
deciding how to act. 34

However, by opening the door to constitutional claims in the context of criminal proceedings, the

Charter has brought with it a greater focus on the nature and extent of police discretion in

Canada. Combined with growing public concern over abuses of police power,35 this has led to a

situation in which the courts are now routinely asked to consider whether an exercise of police

discretion has violated a suspect’s Charter rights, exposing many of the “serious deficiencies in

34
Stribopoulos, J. (2005) “In Search of Dialogue: The Supreme Court, Police Powers and the Charter” Queen’s Law
Journal 31: 1–74, 4.
35
See Ibrahim, D. (2020) “Public Perceptions of the Police in Canada’s Provinces, 2019” Juristat, Canadian Centre
for Justice Statistics (25 November 2020).

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 Understanding Police Discretion

the scattered collection of statutory and common law rules that make up the law of police powers

in Canada.” 36

Although Stribopoulos has made use of Davis’ definition in his analysis of the Supreme

Court’s approach to police powers in light of the Charter, in many respects his call for

Parliament to better regulate these powers – and provide meaningful safeguards around the use

of police discretion – lines up better with Kleinig’s view of police discretion as a privilege.

Quoting Davis, Stribopoulos has observed that “[s]ometimes the proper course may be to make

legal the illegal official practices that have long been a part of our system,” before going on to

note that bringing such practices out into the open is an important first step towards regulating

them.37 This argument is stronger, however, if one starts from the position that discretion is

something that is given to the police – a “normative resource” – rather than something that is

taken by them. Returning to Kleinig:

[P]olice discretion is not simply a decision-making power that police possess in virtue of
the relatively unsupervised nature of their work. It is a normative resource that we grant
them or recognize that they have. As such we should expect this authority or prerogative
to be grounded in certain justifying considerations. 38

If the “we” here is the public that the police ultimately exist to serve, then it is for Parliament –

and not the courts – to decide on these justifying considerations and lay them out in the sort of

comprehensive scheme of legislated police powers and procedures envisaged by Stribopoulos. 39

This approach is also more consistent with the principle of “policing by consent,” which is

foundational to the idea of policing in Canada. 40

36
Stribopoulos (2005), 4.
37
Stribopoulos (2005), 73, quoting Davis (1969), 12.
38
Kleinig (1996), 83.
39
Stribopoulos (2005), 71.
40
Goold, BJ. (2016) “Policing and Human Rights” in B Bradford, B Jauregui, I Loader, and J Steinberg (eds), SAGE
Handbook of Global Policing. London: Sage, 232.

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 Understanding Police Discretion

As a final point, regardless of whether we favour Davis’ or Kleinig’s definition, it is

important not to lose sight of the shared understanding of police discretion that has eme rged over

the last sixty years. While a definitive, overarching formulation of police discretion has yet to be

established in Canada or elsewhere, many common features of police discretion have been

identified. These include the fact that discretion tends to be concentrated in the lower levels of

police organizations, is routinely exercised by relatively inexperienced officers, and is largely

unsupervised.41 These are all aspects of policing that will be considered in sections IV and V

below.

III. Police Discretion and Police Duties

As has been noted, in the United States the “discovery of police discretion” occurred against the

backdrop of a longstanding public commitment – on the part of the police as well as legislators

and policy-makers – to the principle of full enforcement. 42 Importantly, however, full

enforcement has never been a stated policy or guiding principle in Canada. 43 Because the legal

and institutional foundations of policing in Canada are based on Peelian principles developed in

the United Kingdom during the-nineteenth century,44 the role of the police has instead been

framed in terms of common law duties, as well as statutory mandates and responsibilities, rather

than idealized notions of full enforcement.

41
Lundman, RJ. (1979) “Organizational Norms and Police Discretion: An Observational Study of Police Work with
Traffic Law Violators” Criminology 17(2): 159–71, 160.
42
Ericson (2007), 369.
43
Schulenberg (2015), 246. See also Carrington, PJ & Schulenberg, JL. (2008) “Structuring Police Discretion: The
Effect on Referrals to Youth Court” Criminal Justice Policy Review, 19(3): 349–67.
44
Robertson, N. (2012) “Policing: Fundamental Principles in a Canadian Context” Canadian Public Administration
55(3): 343–63.

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 Understanding Police Discretion

A key question that follows from this is whether these mandates give rise to legally

enforceable duties that compel the police to act in particular ways or otherwise limit their

discretion. As will be discussed in this section, to date Canadian courts have recognized a

number of interrelated duties that can give rise to a private law action in negligence against the

police, as well as remedies under the Charter of Rights and Freedoms. This stands in contrast to

many other jurisdictions such as Australia, New Zealand, and the United Kingdom , where the

courts have been far more reluctant to hold the police accountable for harms arising out of the

exercise of their discretion.45 However, as progressive as the Canadian judicial approach may

appear, the case law on statutory duties has developed in the absence of a clear legislative

foundation or framework for the exercise of police discretion. In this regard, police discretion in

Canada appears to fit the Dworkinian model, with the duties established by statute being the

“donut” and police discretion being the “hole.” As will be examined more closely in the next

section, this approach has resulted in a situation whereby police discretion – at least in terms of

its legal meaning– is understood as a set of practices and behaviours that are defined by the

limits placed on them (by duties) rather than as emanating from any clear legal foundation.

A. Statutory Duties and the Police

Policing services in Canada are provided at the federal, provincial, and municipal levels of

government, with the duties of the police being set out in a range of federal and provincial

statutes. The Royal Canadian Mounted Police, who provide policing services at all three levels,

are governed by the RCMP Act.46 According to sections 18 and 37 of the Act, RCMP officers

have duties to preserve the peace, prevent crime, and apprehend criminals, all of which must be

45
Bronitt & Stenning (2011), 326.
46
Royal Canadian Mounted Police Act, RSC 1985, c. R‑10.

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 Understanding Police Discretion

performed promptly, impartially, diligently, and with respect for the rights of all persons and the

importance of “maintaining the integrity of the law, law enforcement and the administration of

justice.” 47 Notably, the word “discretion” – at least as it pertains to police officers – appears only

once in the entire Act, and then only in reference to the removal and storage of goods seized

under warrant. 48

Turning to provincial police legislation, there is considerable variation when it comes to

statutory descriptions of the role and responsibilities of provincial and municipal police.49 In

some instances, the relevant language is both general and expansive. In British Columbia, for

example, section 7(2) of the Police Act 1996 states that the provincial police:

[M]ust perform the duties and functions respecting the preservation of peace, the
prevention of crime and offences against the law and the administration of justice
assigned to it or generally to peace officers by the commissioner, under the director's
standards or under this Act or any other enactment. 50

In other provinces, however, the legislation is more detailed. Entitled “Duties of Police

Officers,” section 42(1) of the Ontario Police Services Act 1990 sets out a list of nine separate

police responsibilities, the first six of which are:

(a) preserving the peace;

(b) preventing crimes and other offences and providing assistance and encouragement to
other persons in their prevention;
(c) assisting victims of crime;
(d) apprehending criminals and other offenders and others who may lawfully be taken
into custody;
(e) laying charges and participating in prosecutions; and

47
RCMP Act, s 18(1) and s 37(a)–(c). Note that section 18 contains a number of other duties, including the duty to
execute all warrants and escort “convicts and other persons in custody to or from any courts.”
48
RCMP Act, s 40.2(10).
49
For a detailed survey of provincial police statutes, see Long, K and Hollands, A. (2014) “Memorandum: Murdered
and Missing Indigenous Women Legal Strategies.” Legal Strategy Coalition on Violence Against Indigenous
Women (July 2014), https://www.leaf.ca/wp-content/uploads/2015/06/2014-07-14-LSC-Memo-re-MMIW-Legal-
Strategies.pdf (accessed 6 April 2022).
50
Similar language with regards to the duties and functions of municipal police departments can be found in section
34(2) of the Act.

16
 Understanding Police Discretion

(f) executing warrants that are to be executed by police officers and performing related
duties

In addition to this list, section 42(3) of the Act also states that police officers in Ontario have

“the powers and duties ascribed to a constable at common law.” 51 In Nova Scotia, the Police Act

2004 strikes something of a middle ground between these two approaches. While Section 30(1)

sets out the duties of the provincial police, the list is less extensive than that found in the Ontario

legislation and uses language that is more general than its equivalent in British Columbia:

A member of the Provincial Police is charged with the enforcement of

(a) the penal provisions of all the laws of the Province;

(b) any penal laws in force in the Province, other than laws of a municipality; and
(c) the laws of a municipality, where specified by the Minister.

In the following section, however, the Act goes on to state that the provincial police shall

provide policing services that include: crime prevention; law enforcement; assistance to victims

of crime; emergency and enhanced services; and public order maintenance.

While it is beyond the scope of this report to provide a detailed analysis of all police

legislation in Canada, even a cursory review of the statutes that govern policing reveals a striking

lack of detail when it comes to the powers and responsibilities of the police. The relevant

legislation does not lay down clear rules designed to limit different forms of police decision-

making (as Davis’ understanding of discretion might demand) or provide a principled basis for

the conferral of discretionary power (in the sense anticipated by Kleinig). Returning to

Dworkin’s metaphor, the statutes may go some way to outlining the donut (the duties imposed on

the police), but they say next to nothing about the hole (police discretion).

51
The BC Police Act 1996 also states in s 38(1)(a) that municipal constables and special municipal constables have
“all of the powers, duties and immunities of a peace officer and constable at common law or under any Act.”

17
 Understanding Police Discretion

Looking beyond statutes to the various administrative rules produced by the police

themselves, the situation is not much better. As Ericson observed, throughout the 1970s and

1980s, police organizations in Canada and elsewhere produced a staggering volume of

administrative rules, many of which purported to promote consistency and accountability in

police decision-making and the exercise of discretion. 52 According to Ericson, however,

researchers have found little evidence that such rules have any meaningful impact on police

decision-making or accountability:

Analysts were quick to point out that administrative rule proliferation seemed to be largely a self -
referential exercise in the management culture of police organizations. Most rules “died” as the
ink dried on the paper on which they were printed. Again, the police do not simply follow the
rules. Indeed, in most cases they are not even aware of them... Clearly, it cannot be contended that
administrative rules control police decisions in any direct manner. Indeed, in recent years some
police organizations have reduced or even scrapped their administrative rule manuals.53

The fact that neither the legislation nor police regulations meaningfully account for

discretion means that Canadian courts have been left with the difficult task of determining

whether the police are under a positive obligation to act in certain contexts and how their powers

and duties should be understood against the backdrop of both private law and the Charter. In

response, there is an emerging jurisprudence on police duties to protect, warn, and investigate,

but as will be examined in the next section, the courts have so far struggled to provide a clear

account of police discretion or a principled legal basis for its existence.

52
Ericson (2007), 379. According to Ericson, the RCMP had generated 8800 pages of such rules by the early 1990s.
For a more general discussion of administrative rule-making in Canadian policing, see also Ericson, RV &
Haggerty, KD. (1997) Policing the Risk Society. Toronto: University of Toronto Press.
53
Ericson (2007), 371–72.

18
 Understanding Police Discretion

B. Duties to Protect, Warn, and Investigate54

Although legislation across Canada makes extensive use of the word “duty” when referring to

the role and responsibilities of the police, the case law on police duties is relatively limited. As

Buckley noted in her report on police duties for the BC Missing Women Commission of Inquiry,

this is partly because the Canadian system of police accountability relies on a system of

complaint and discipline but also because the common law has traditionally set a “high threshold

for suing the police or prosecution authorities for failure to investigate crimes or inadequately

investigating crimes.” 55

Canadian courts have, however, held that the police have a general duty to protect, which

can encompass similar duties to warn and investigate. The scope of this duty – and the question

of whether a police officer can be said to have breached it as a result of a decision not to act –

was considered by the Ontario Court (General Division) in Jane Doe v Toronto (Metropolitan)

Commissioners of Police (1998).56 In this case, the plaintiff was sexually assaulted by a man who

entered her second-floor apartment from a balcony. Four similar assaults had occurred within the

same area in the months leading up to the attack, and the police chose not to warn the public of

the danger out of fear the assailant might escape apprehension. The plaintiff sued the

Metropolitan Toronto Police for damages on the grounds that (1) the police conducted a

negligent investigation and failed to warn women of the risk of an attack; and (2) the police had

54
This report does not provide an analysis of the current law for use in legal submissions or legal proceedings, and
the discussion in this section should be viewed exclusively as scholarly overview and assessment of the relevant
case law.
55
Buckley, M. (2012) “Violence against Women: Evolving Canadian and International Standards on Police Duties
to Protect and Investigate.” Background research report for the British Columbia Missing Women Commission of
Inquiry (June 2012), https://missingwomen.library.uvic.ca/wp-content/uploads/2010/10/RESE-5-June-2012-MB-
Violence-Against-Women-Evolving-Legal-Standards-on-Police-Duties-to-Protect-Investigate.pdf (accessed 6
April 2022).
56
Jane Doe v Metropolitan Toronto (Municipality) Commissioners of Police [1998] OJ No 2681 (QL).

19
 Understanding Police Discretion

violated the plaintiff’s rights under sections 7 and 15 of the Charter. In what is widely regarded

as a landmark decision, the court found in favour of the plaintiff on both counts. Speaking

directly to the question of police duties and negligence, Justice MacFarlane was clear that the

police could be held responsible in tort for their failure to protect the plaintiff and other victims:

In my view, the police failed utterly in their duty to protect these women and the plaintiff
in particular from the serial rapist the police knew to be in their midst by failing to warn
so that they may have had the opportunity to take steps to protect themselves… Here
police were aware of a specific threat or risk to a specific group of women and they did
nothing to warn those women of the danger they were in, nor did they take any measures
to protect them. 57

In reaching this conclusion, the court observed that the “police are statutorily obligated to

prevent crime and at common law they owe a duty to protect life and property,” citing as

authority the decision of Schroeder JA in Schacht v The Queen some 25 years earlier:

The duties which I would lay upon them [the police] stem not only from the relevant
statutes to which reference has been made, but from the common law, which recognizes
the existence of a broad conventional or customary duty in the established constabulary
as an arm of the state to protect the life, limb and property of the subject. 58

Although the decision in Jane Doe v Toronto Police refers to police discretion only once,

in its discussion of the relevant Charter issues, the court noted that such discretion must be

exercised in a manner that is consistent with the principles of fundamental justice. In this case,

the use of that discretion was found to be both discriminatory and negligent. Significantly, the

court also noted that a lawful exercise of discretion could provide the basis for a claim in

negligence. On this point, Justice MacFarlane referred approvingly to the earlier decision of the

Divisional Court in the same case. Responding to a motion to strike out the plaintiff’s statement

57
Jane Doe v Toronto Police [1998], 46.
58
Schacht v The Queen in right of the Province of Ontario et al (1973), 1 OR 221, 231. Although the decision in
Schacht is still authority for the proposition that the police owe a common law duty to protect, Bruce Feldthusen
has suggested the case might not be decided the same way in light of recent Supreme Court decisions. See
Feldthusen, B. (2017) “Bungled Police Emergency Calls and the Problems with Unique Duties of Care”
University of New Brunswick Law Journal 68: 169–201, 187.

20
 Understanding Police Discretion

of claim, Moldaver J (as he then was) observed that simply because an exercise of police

discretion is legitimate, it does not necessarily follow that the duty that discretion is being

exercised in relation to has been discharged:

The law is clear that in certain circumstances, the police have a duty to warn citizens of
foreseeable harm… I would add to this by saying that in some circumstances where
foreseeable harm and a special relationship of proximity exist, the police might
reasonably conclude that a warning ought not to be given… It would, however, be
improper to suggest that a legitimate decision not to warn would excuse a failure to
protect. The duty to protect would still remain. It would simply have to be accomplished
by other means. 59

The question of whether the police can be held liable for failing in their duty to protect

was also considered in BM v British Columbia (Attorney General).60 Here the plaintiff brought

an action in negligence against the RCMP for their failure to investigate her complaint against a

former common law partner despite his documented history of serious violence towards her and

others. Seven weeks after an RCMP officer declined to investigate the plaintiff’s complaint,

which she made immediately after being threatened and chased by the defendant, the defendant

broke into her home with a shotgun, murdered her friend, and shot her then twelve-year-old in

the shoulder. After the plaintiff and her children managed to escape, the defendant burned down

the house and committed suicide. Although the action failed on the grounds that the plaintiff was

unable to establish a sufficient causal connection between the police decision not to investigate

and the eventual attack, the trial judge held that the police clearly owed the plaintiff a private

duty of care.

Although the decision in BM v BC Attorney General has been subjected to significant

criticism,61 in confirming that the police could be held liable for a failure to discharge duties

59
Doe v Metropolitan Toronto (Municipality) Commissioners of Police [1990] OJ No 1584 (QL).
60
BM v British Columbia (Attorney General) [2004] 10 WWR 286, 31 BCLR (4th) 61 (BCCA).
61
Sheehy, EA. (2005) “Causation, Common Sense, and the Common Law: Replacing Unexamined Assumptions
with What We Know about Male Violence against Women or from Jane Doe to Bonnie Mooney” Canadian

21
 Understanding Police Discretion

imposed on them by law, the case built on judicial momentum established by Jane Doe v

Toronto Police less than a decade earlier. This momentum culminated some three years later in a

pair of decisions handed down by the Supreme Court – Hill v Hamilton-Wentworth Regional

Police Services Board [2007] and R v Beaudry [2007] – both of which dealt directly with the

relationship between police discretion and police duties. 62

The decision in Hill v Hamilton-Wentworth Police is particularly significant on two

fronts. First, the Supreme Court stressed that the inherently discretionary nature of police work

did not insulate the police from liability in negligence. Instead, the Court noted that the police

were required to exercise their discretion “in accordance with professional standards and

practices, consistent with the high standards of professionalism that society rightfully demands

of police in performing their important and dangerous work.” 63 Going further, the Court also

noted:

Police are not unlike other professionals in this respect. Many professional practitioners
exercise similar levels of discretion. The practices of law and medicine, for example,
involve discretion, intuition and occasionally hunch. Professionals in these fields are
subject to a duty of care in tort nonetheless, and the courts routinely review their actions
in negligence actions without apparent difficulty.64

Secondly, the Court rejected any suggestion that recognizing the police owe a private law

duty of care would have a chilling effect on policing. In addition to noting that there was no

empirical evidence to support such a suggestion, the Court went on observe that even if it was

the case that exposing the police to liability in tort might alter their behaviour, this may in fact be

desirable:

Journal of Women & Law 17(1): 87–116; Chamberlain, E. (2012) “Tort Claims for Failure to Protect: Reasons for
(Cautious) Optimism since Mooney” Saskatchewan Law Review 75: 245.
62
Hill v Hamilton-Wentworth Regional Police Services Board [2007] 3 SCR 129; R v Beaudry [2007] 1 SCR 190.
63
Hill v Hamilton-Wentworth Police [2007], para 52.
64
Hill v Hamilton-Wentworth Police [2007], para 53.

22
 Understanding Police Discretion

In theory, it is conceivable that police might become more careful in conducting

investigations if a duty of care in tort is recognized. However, this is not necessarily a bad
thing. The police officer must strike a reasonable balance between cautiousness and
prudence on the one hand, and efficiency on the other. Files must be closed, life must
move on, but care must also be taken. All of this is taken into account, not at the stage of
determining whether police owe a duty of care to a particular suspect, but in determining
what the standard of that care should be. 65

These ideas – that police discretion is not absolute and must be exercised according to

standards – was echoed and then elaborated on further in R v Beaudry. Crucially, the Court held

that any exercise of discretion must be capable of being justified on both subjective and objective

grounds – that is, although officers are free to use their judgment when performing everyday

duties, that same judgment must be exercised without bias and on the basis of legally relevant

factors:

Far from having carte blanche, police officers must justify their decisions rationally. The
required justification is essentially twofold. First, the exercise of the discretion must be
justified subjectively, that is, the discretion must have been exercised honestly and
transparently, and on the basis of valid and reasonable grounds. Thus, a decision based on
favouritism, or on cultural, social or racial stereotypes, cannot constitute a proper
exercise of police discretion. However, the officer’s sincere belief that he properly
exercised his discretion is not sufficient to justify his decision. 66

Taken together, these cases mark a significant shift in the approach taken by Canadian

courts to the exercise of police discretion. As Bronitt and Stenning have rightly observed, they

both “affirm the centrality and legitimacy of police discretion, and impose new duties, and

potential civil and criminal liabilities, on police officers.”67 They also mark a break from the

approach taken in other common law jurisdictions, where courts remain reluctant to expose the

police to actions in tort for failures to discharge statutory duties.68 Having said this, a number of

commentators have suggested that these decisions do not go far enough and provide limited

65
Hill v Hamilton-Wentworth Police [2007], para 56.
66
R v Beaudry [2007], paras 37–38.
67
Bronitt & Stenning (2011), 329.
68
Bronitt & Stenning (2011), 326.

23
 Understanding Police Discretion

remedies for harms arising from the misuse of police discretion. 69 As will be discussed below,

this leaves open the question of whether legislators at the federal and provincial levels should

take a more proactive role in regulating the exercise of police discretion and provide statutory

remedies where the police have failed to discharge fundamental duties, including the duties to

protect and warn.

C. The Role of the Charter

To date, there have been very few examples of the Charter being used as the basis of legal

actions against the police – or broader efforts to hold police organizations accountable for harms

arising out of investigative failures or operational decisions. One of the most notable remains

Jane Doe v Toronto Police, where the court upheld the plaintiff’s claims in relation to sections

15(1) and 7 of the Charter. As has already been noted, the court made clear that police discretion

must be exercised in accordance with principles of fundamental justice, and where the actions of

the police lead to an infringement of a plaintiff’s Charter rights, they can be held accountable:

The police investigation was carried out in a way that denied the plaintiff equal protection
and equal benefit of law as guaranteed to her by s 15(1) of the Charter. The conduct of
the investigation and, in particular, the failure to warn was motivated and informed by the
adherence to rape myths as well as sexist stereotypical reasoning about rape, about
women, and about women who are raped. The plaintiff was discriminated against by
reason of her gender. Women were treated differently because some members of the
force adhered to sexist notions that, if warned, women would panic and scare off the
attacker. Further, the defendants deprived the plaintiff of her right to security of the
person under s 7 of the Charter by subjecting her to the very real risk of attack by a serial
rapist. They were aware of the risk but deliberately failed to inform her of it. Because the
defendants exercised their discretion in the investigation in a discriminatory and
negligent way, their exercise of discretion was contrary to the principle of fundamental
justice. The plaintiff was entitled to an award of damages as a remedy under s 24 of the
Charter. 70

69
Buckley (2012), 25. See also Sossin, L. (2007) “The Oversight of Executive Police Relations in Canada: The
Constitution, the Court, Administrative Processes and Democratic Governance.” Research Paper Commissioned
by the Ipperwash Inquiry, https://www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/policy_part/meetings/
pdf/Sossin.pdf (accessed 6 April 2022).
70
Jane Doe v Toronto Commissioners of Police [1998], 3–4.

24
 Understanding Police Discretion

As significant as this decision was at the time, there is little evidence to suggest that it led

to an increase in Charter-based actions against the police or more judicial scrutiny of police

decision-making and discretion. As Buckley has pointed out, the willingness of the court to use

constitutional remedies when dealing with claims against the police “underscores that civil

liberties and fundamental human rights are always at stake in police decision-making,”71 but it

nevertheless remains the case that the Charter jurisprudence on police duties and the role of

discretion is underused and underdeveloped. This raises the question of whether Charter

litigation can or should be regarded as a potential avenue for imposing limitations on the use of

police discretion.

D. Revisiting Questions of Definition

In many respects, it is possible to see Kleinig’s view of police discretion – as a privilege granted

by law – running through Canadian decisions like Jane Doe v Toronto Police, BM v British

Columbia, Hill v Hamilton-Wentworth Police, and R v Beaudry. Certainly, the courts have

acknowledged that the exercise of police discretion must be understood in the context of the

duties imposed on the police by statute and common law. As will be discussed in the final

section of this report, however, these cases also expose the limits of judicial oversight and

regulation when it comes to police decision-making. The courts may be willing to hold the police

accountable for failing to discharge various duties to protect, warn, and investigate, but they have

been reluctant to address more fundamental questions about the nature and legal legitimacy of

police discretion.

71
Buckley (2012), 27.

25
 Understanding Police Discretion

Before leaving questions of definition, it is worth pausing to consider another view of

police discretion in the Canadian context. Writing in 2007, Ericson argued that it is a mistake to

regard police discretion as something that exists outside of or in opposition to criminal law and

procedure. Drawing on the work of an array of police scholars in Canada and the United

Kingdom, Ericson instead suggested that such discretion should be understood as a product of

criminal law and procedure, enabled in part by an adherence to the idea of policing by consent

on the part of both the police and the policed:

Policing by consent is the usual way in which police work gets done. Having the subject
of police investigation consent to routine information checks, searches and interrogations
avoids statutory requirements. For example, a consenting suspect can be searched without
reasonable and probable grounds for suspicion. Policing by consent also reduces the
visibility of police discretion. Records are less likely to be kept and supervision is
rendered more difficult. Researchers have observed that consent is usually sought even
when police have obtained warrants that legally authorize their investigative activity
because it is preferable to do business in a compliance mode. 72

Although Ericson did not attempt to define police discretion or to engage directly with

either Davis’ or Kleinig’s contrasting approaches, his account can be seen as straddling the two

positions. On the one hand, Ericson recognized (as Davis did) that police discretion arises out of

the spaces created by law and the pragmatic demands of police work; on the other, he

acknowledged (as Kleinig has) that police discretion is also a direct product of law and enabled

by it. Notably, Ericson also drew attention to the fact that law can be used as a framework for

rationalizing police decisions and exercises of discretion after the fact so as to render them

legitimate and appear to be governed by rules. Police decisions are “routinized through the use of

formulaic phrases that not only justify the decisions taken but also serve as a form of rhetoric ,”

with this rhetoric crucially providing other actors (such as lawyers and judges) with the sort of

72
Ericson (2007), 373, citing Ericson, RV. (1981) Making Crime: A Study of Detective Work. Toronto: Butterworths
and Dixon, D. (1997) Law in Policing. Oxford: Clarendon Press

26
 Understanding Police Discretion

comprehensible rationale needed to ratify those decisions. 73 Tellingly, Ericson drew a connection

between these processes of rationalization and the role of police culture – both in terms of how

rules are understood and how actions are explained in relation to those rules.74 Although it is

well beyond the scope of this report to explore the relationship between police discretion and

police culture, these complex dynamics should be front of mind in any broader discussion about

police decision-making and accountability.

IV. Factors Influencing Police Discretion

Discretion plays a central role in almost every aspect of policing in Canada. Regardless of

whether we view police discretion as a capacity or a resource, the fact remains that the use of this

discretion determines not only how and when the law is (or is not) enforced but also how

policing policies and priorities are determined, how police resources are allocated and deployed,

and how the police engage with other state agencies, private organizations, and the public at

large. Put simply, it is impossible to understand policing in Canada without also understanding

how police discretion operates and, more importantly, what factors influence the exercise of this

discretion.

Unsurprisingly then, there is a vast body of academic literature on how police discretion

is exercised. 75 Building on the early insights of scholars like Herman and Joseph Goldstein, as

well as criminologists such as Herbert Packer, Jerome Skolnick, and Egon Bittner,76 hundreds of

73
Ericson (2007), 373.
74
Ericson (2007).
75
For a brief overview of research on police discretion in the United States, see Beckett (2016).
76
Skolnick, JH. (1966) Justice without Trial: Law Enforcement in Democratic Society. New York: Wiley; Bittner,
E. (1967) “The Police on Skid-Row: A Study of Peace Keeping” American Sociological Review 32(5): 699–715;
Bittner, E. (1970) The Functions of the Police in Modern Society: A Review of Background Factors, Current
Practices, and Possible Role Models. Chevy Chase, MD: National Institute of Mental Health; Packer, HL. (1964)
“Two Models of the Criminal Process” University of Pennsylvania Law Review 113(1): 1–68.

27
 Understanding Police Discretion

studies of police discretion have been published over the last 50 years, many of which focus on

understanding how discretion operates in particular contexts and the role it plays in police

organizations and police working culture. Although this literature is extensive, it is also limited

in a number of important ways. As has already been noted, with few exceptions, most scholars

have either explicitly or implicitly been content to take Davis’ definition as their starting point

and treat police discretion as something that is somehow extra-legal, used by the police to fill the

gaps apparently left by law. As a result, critiques of police discretion have tended to concentrate

on the consequences that flow from its use rather than on the more fundamental question of

whether the police should be permitted to have discretion in certain contexts in the first place.

To some extent, this lack of focus on the definitional question can be seen as a

consequence of the low-visibility problem identified by Joseph Goldstein in the 1960s. If police

discretion is something that is exercised out of sight and is not easily eliminated, then the

question understandably becomes: what are the observable outcomes of police discretion and

how should we respond to apparent abuses of it? And when attention has been directed to the

question of how to regulate and limit police discretion, the focus has been not so much on law

and the legal basis of discretion but rather on police attitudes and behaviour. As a consequence,

police recruitment, police training, police discipline, and external oversight have all taken centre

stage, with the result that the question of whether it is possible to eliminate police discretion via

law in certain key contexts is rarely seriously considered.

Another limitation of the research on police discretion has been its relatively narrow

focus, most notably on decisions to stop and arrest. This is in part because decisions to stop and

arrest are among the more visible examples of police discretion. Often taken in full view of the

public, the decision to stop and arrest an individual is particularly significant because it marks a

28
 Understanding Police Discretion

crucial moment at which the individual comes into direct contact with the power of the criminal

justice system and the state – and open to the prospect of charge, detention, prosecution, and

punishment. In this respect, the decision to stop and arrest (or not) is a gateway decision,

determining not only how an individual suspected of a crime will be dealt with (or not) but also

the contours of the criminal justice system itself. As such, the decision to stop and arrest has the

potential to embody the sorts of “discretionary injustices” highlighted by Davis in his

examination of police power.

The other main reason why the practice of stop and arrest – and the role played by police

discretion in those decisions – has attracted so much attention is due to concerns about the

factors influencing that discretion. There is an abundance of evidence that decisions to stop and

arrest are subject to various forms of bias based on the race, appearance, and demeanour of

suspects, with the result that certain groups are radically over-represented when it comes to arrest

and charging rates. 77 Since the 1960s, concerns over racial profiling and other forms of selective

policing and law enforcement have led to multiple studies aimed at identifying and mitigating the

factors that influence the decision to stop and arrest. Although the majority of these studies have

been carried out in the United States, research in Canada has also produced compelling evidence

of racial bias when it comes to the decision to stop and arrest. As Professor Kanika Samuels-

77
For a discussion of the role of race in police decision-making in Canada, see Wortley, S a nd Owusu-Bempah, A.
(2016) “Crime and Justice: The Experiences of Black Canadians” in B Perry (ed) Diversity, Crime and Justice in
Canada, 2nd edn, pp. 140–67. New York: Oxford University Press; Unnever, J, Owusu-Bempah, A, and Deryul,
R. (2017) “A Test of the Differential Involvement Hypothesis” Race and Justice 9(2): 197–224; Wortley, S.
(2018) “A Double-Edged Sword: Street Checks, Public Safety and the Impact of Racialized Policing” in L Foster,
L Jacobs, B Siu, and S Azmi (eds), Racial Profiling and Human Rights Policy in Canada: The New Legal
Landscape, pp. 238–52. Toronto: Irwin Law; Wortley, S and Jung, M. (2020) “Racial Disparity in Arrests and
Charges: An Analysis of Arrest and Charge Data from the Toronto Police Service.” Ontario Human Rights
Commission (July 2020), https://www.ohrc.on.ca/sites/default/files/Racial%20Disparity%20in%20Arrests%
20and%20Charges%20TPS.pdf (accessed 6 April 2022).

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 Understanding Police Discretion

Wortley explained in her evidence to the Standing Committee on Public Safety and National

Security:

[R]acial differences with respect to police contact remain even after controlling for other
relevant factors including gender, social class, neighbourhood characteristics and
criminal behaviour… In other words, racial differences in police contact cannot be
explained away by poverty or involvement in crime. Race matters. If you’re a Black man
in Canada, the question is not if you will be stopped, but when. 78

These findings are significant because they shed light not simply on how discretion

operates in the context of stop and arrest but also on larger problems of systemic racism in

Canadian policing and the criminal justice system more broadly. Yet as important as decisions to

stop and arrest are, the lack of research on how discretion operates in other contexts has resulted

in an incomplete picture of police decision-making. As Smith et al have observed:

Research on police decision-making during encounters with citizens addresses only a

very small portion of what officers do during the course of their work. Because these
behaviors are examined within the context of police–citizen interactions, they largely
ignore activities taken outside the presence of citizens. As such, questions remain about
what explains officer discretionary behavior when they are not in contact with citizens…
There remains a dearth of research addressing officer choices beyond police–citizen
encounters and unrelated to the invocation of police authority. This shortcoming is
exacerbated by the relative lack of research since the advent of community policing. 79

This is a point that has also been made by Jennifer Schulenberg, who has argued that

research on police discretion needs to move beyond the narrow focus on the decision to arrest. 80

After noting that we lack a comprehensive understanding of police decision-making as it relates

to less significant exercises of power than an arrest, Schulenberg has referred to work by

Worden, who has argued that we need to exercise caution when drawing general lessons about

police behaviour from research on arrest alone:

78
Standing Committee on Public Safety and National Security (Canada). (2021) “Systemic Racism in Policing in
Canada.” House of Commons, 43rd Parliament, 2nd session, https://www.ourcommons.ca/Committees/en/SECU/
StudyActivity?studyActivityId=10959882 (accessed 6 April 2022), 58.
79
Smith, BW, Novak, KJ, Frank, J, & Lowenkamp, C. (2005) “Explaining Police Officer Discretionary Activity”
Criminal Justice Review 30(3): 325–46, 326–27.
80
Schulenberg (2015), 248.

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 Understanding Police Discretion

[I]t appears that the arrest decision is unique in that it is based to a significant degree on
situational cues that officers interpret in similar ways. Consequently, while analyses
using arrests as a dependent variable might be useful for some analytic purposes, they are
quite limited as vehicles for the development of a broader theory of police behavior…
[S]ituational explanations of the arrest decision probably cannot be successfully applied
to the other choices that police officers make on the street; continued research on the
situational determinants of police behavior, to the exclusion of other factors, may be of
limited theoretical value. 81

Building on this point, it is also important to note that there are other, deeper

methodological problems associated with the research on police discretion. As Nickels has noted,

the absence of a clear and coherent definition of police discretion – combined with the fact that

exercises of discretion are rarely capable of being observed directly – means that much of the

research literature on police discretion is essentially inferential in nature:

Nowhere within this vast body of research is “discretion” itself directly operated,
measured, or associated with any cause or effect. The status of the term is entirely
ambiguous. It seems implied that discretion refers to either the observed behavior of
police or its variability, or to the measured influence of extralegal factors on such
behavior. At the same time, it seems to refer to some unobserved (perhaps unobservable)
process through which explanatory models bridge extralegal factors to behavioral
outputs—some “black box” of the subject’s consciousness... None of this research can
properly be understood as studying discretion, per se. Instead, it is the examination of
police behavior as determined by a number of causal variables, among which one finds
no specific variable labeled “discretion.”82

In many respects, Nickels’ analysis of this fundamental lacuna resembles the critique levelled

above, namely that policing legislation and regulation fail to adequately account for police

discretion per se.

It is against this general background and with these important limitations in mind that this

section provides a summary of the factors that influence police discretion. Far from attempting to

present a comprehensive overview of the research on police discretion in Canada and elsewhere,

the aim is instead to provide a broad typology of factors that influence the exercise of that

81
Worden, RE. (1989) “Situational and Attitudinal Explanations of Police Behavior: A Theoretical Reappraisal and
Empirical Assessment” Law and Society Review 23: 667–711, 702 (quoted in part in Schulenberg (2015), 247).
82
Nickels (2007), 571.

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 Understanding Police Discretion

discretion, focusing on the distinction between individual and situational factors, as well as the

role of environment and place. This overview will then be used as the basis for the discussion of

paths to reform in section V.

Before proceeding, however, it is important note that any discussion of the factors that

influence police discretion needs to be sensitive to the unique organizational contexts of policing.

Although police services in Canada conform to a standard bureaucratic arrangement – with

seniority and managerial responsibility being concentrated at the top of the organization – in

contrast to many other public agencies, a great degree of discretionary power rests with those at

the bottom of the hierarchy, most notably frontline police officers. It is these officers who are

routinely called on to make decisions about when to enforce the law, respond to complaints, and

investigate possible crimes. When coupled with the fact that much of this discretion is typically

exercised in low-visibility environments (for example, on the street or in police vehicles), this

leads to the least senior members of the organization wielding significant amounts of

unsupervised authority. As Johnson et al have observed:

Police organizations fit very well with Weber’s classical model of organization. The
mandate of police organizations as the coercive arm of the state inherently requires strict
control and formal structure. The adoption of a paramilitaristic structure has traditionally
been applied to police organizations as the organizational model to provide such
regimentation. However, the paramilitaristic structure, with its strict formality and chain
of command, is in conflict with the devolution of authority necessary for responsive
street-level decision-making supported by a rational-legal organizational structure.83

83
Johnson, AD & Vaughn, MS. (2016) “Decoupling and Police Organizational Structure” Administrative Theory &
Praxis 38(3): 157–67, 158–59, citing Terpstra, J. (2011) “Two Theories on the Police: The Relevance of Max
Weber and Emile Durkheim to the Study of the Police” International Journal of Law, Crime, and Justice 39: 1–
11; Weber, M. (1947) The Theory of Social and Economic Organization, AM Henderson and T Parsons (trans).
New York: Oxford University Press; Gilbert, MJ. (1997) “The Illusion of Structure: A Critique of the Classical
Model of Organization and the Discretionary Power of Correctional Officers” Criminal Justice Review 22(1): 49–
64; Brown, MK. (1981) Working the Street: Police Discretion and the Dilemmas of Reform. New York: Russell
Sage Foundation, 70.

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 Understanding Police Discretion

Acknowledging this institutionally embedded conflict between an outward, formal

adherence to chains of command and the day-to-day realities of ordinary police work is essential

if we are to understand the role played by police discretion in Canada. Regardless of whether we

view discretion as a capacity or a resource, the fact remains that efforts to control the exercise of

that discretion will depend in large part on the ability of police services – or external bodies – to

control the behaviour and change the working practices of frontline officers.

As a final point, it is also important to note that many of the studies referred to in this

report focus almost exclusively on large metropolitan or urban police services, and there is a very

limited body of research on the use of police discretion in rural police departments. As Fyfe

observed over twenty years ago, the problem is compounded by the fact that many of the police

departments that have been the subject of extensive study may not themselves be especially

representative, even of large urban forces:

The extant research on police discretion is biased in a number of ways regarding the
types of agencies that are included. The vast majority of studies focus on relatively large
municipal police forces, leaving mostly unexplored small urban departments, sheriff’s
departments, rural agencies, special police agencies, and large but geographically
dispersed state police agencies. There are reasons to expect some different patterns in the
exercise of police discretion from the usually studied agencies, thus undoubtedly
restricting the possibility of new insights about what influences police discretion under
what circumstances. And perhaps most telling, except for the occasional research
compelled by legal process, research on police discretion tends to occur at the more
progressive agencies that have less discomfort in exposing themselves to scrutiny by
outsiders. 84

Despite these various caveats and qualifications, it is important not to lose sight of the

fact that there is a broad consensus in the research literature on the types of factors that do

influence police discretion. While we must exercise caution when talking about particular

contexts – and especially specific police services in Canada and elsewhere – there is now over

84
Mastrofski, SD. (2004) “Controlling Street-Level Police Discretion” Annals of the American Academy of Political
and Social Science 593(1): 100–18, 107, citing Fyfe, JJ. (2002) “Too Many Missing Cases: Holes in Our
Knowledge about Police Use of Force” Justice Research and Policy 4(1–2): 87–102.

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 Understanding Police Discretion

sixty years of research on police discretion, much of it focused on the central question of how

officers make decisions and what affects their exercise of discretion.

A. The Factors Influencing Police Discretion

One of the key questions that has faced researchers seeking to understand the phenomenon of

police discretion is how to distinguish between the different variables and factors that influence

the exercise of this discretion. Writing in 1980, the US criminologist Lawrence W. Sherman

suggested that police behaviour is best understood as being dependent on variables that fall into

one of five broad categories: individual, situation, organization, community, and legal. Given

how influential Sherman’s typology has been in terms of structuring subsequent discussions of

police discretion over the last forty years, his classification is worth noting in full:

The approaches to explaining the variation in these aspects of police behavior can be
classified into five levels of analysis: individual, situational, organizational, community,
and legal. The individual approach attempts to explain variation in the behavior of police
officers with the characteristics of the officers themselves, such as length of service, race,
and sex. The situational approach attempts to explain the outcomes of citizen–police
encounters with the characteristics of the situation, such as relationship between
complainant and suspect, number of police officers present, whether the encounter was
initiated by a citizen request or a police decision to intervene, and demeanor, race, class,
and other characteristics of the suspect and complainant. The organizational approach
attempts to explain rates of police behavior across either suborganizational units or entire
police organizations with such characteristics as patrol strategy or percentage of college
graduates in a police department. The community approach attempts to explain rates of
police behavior across municipal police departments with the characteristics of the
communities they police, such as economic and demographic composition, political
ethos, or structure of government. Finally, the legal approach attempts to explain police
behavior at various levels with the constraints of procedural and substantive law that the
written legal system attempts to impose on the police. 85

As Sherman went on to note, none of these five approaches amounts to a “substantive

theory of police behaviour.” Instead, they provide limited empirical support for claims about the

influence of particular variables on police decision-making. Significantly, Sherman stressed that

85
Sherman, LW. (1980) “Causes of Police Behavior: The Current State of Quantitative Research” Journal of
Research in Crime and Delinquency 17(1): 69–100, 70.

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 Understanding Police Discretion

much of the research on policing he surveyed in producing his five categories was focused on

“bivariate assertions” – that is, they considered the impact of a single variable (such as suspect

demeanour) on police behaviour. Multivariate studies were at the time few and far between,

something Sherman argued was a shortcoming that needed to be addressed in order to develop a

comprehensive and useful theory of police behaviour.

In the years following Sherman’s article, a number of writers have sought to refine and

build on his initial classifications. According to Worden, for example, it is possible to divide

research on the factors that influence police discretion into two broad categories: situational and

attitudinal:

Situational explanations hold that officers’ behavior in police–citizen encounters is

influenced by structural characteristics of the immediate situation: the nature of the
problem, the attributes and actions of the citizens, and contextual variables. Research of
this genre has led to the conclusion that officers’ behavior is largely a response to
situational cues (Berk and Loseke, 1980–81). The second approach is to examine the
behavioral patterns of individual officers to explain variation in terms of officers’
attitudes. Attitudinal explanations hold that officers develop distinctive “styles” of
performing their duties, and that the development of their behavioral styles is shaped by
their attitudes and values. 86

Although Worden cited Sherman before presenting his own classification scheme – with the

implication that it represents a condensed version of Sherman’s approach rather than a departure

from it – Worden’s focus on these two broad categories marked a significant step forward in the

study of police discretion. By explicitly drawing out the notion of policing “styles,” Worden

drew a clear distinction between the impact of what might be regarded as internal and external

factors when it comes to the exercise of police discretion. Put another way, we can understand

situational factors as encompassing things external to an officer (and police organization), while

86
Worden (1989), 668, citing Berk, SF & Loseke, DR. (1980) “‘Handling’ Family Violence: Situational
Determinants of Police Arrest in Domestic Disturbances” Law and Society Review 15: 317–46; White, SO. (1972)
“A Perspective on Police Professionalization” Law and Society Review 7: 61–85; Muir, WK. (1979) Police:
Streetcorner Politicians. Chicago: University of Chicago Press; Broderick, JJ. (1977) Police in a Time of Change
(Morristown, NJ: General Learning Press; and Brown (1981).

35
 Understanding Police Discretion

attitudinal factors relate to the characteristics of the officers and organizations themselves. This

distinction provides a simple but powerful way of distinguishing between factors for the purpose

of reform. While it may, for example, be possible to change the way in which situational factors

affect police decision-making through policies, guidelines, legal rules, and other such formalized

mechanisms, attempts to affect attitudinal variables are more likely to be aimed at recru itment,

training, oversight, and discipline.

In his review of the research on police discretion, Worden also made a number of

observations that continue to resonate. First, he drew attention to the fact that the emphasis on

arrest decisions is problematic, not just for the reasons identified above but also because it

impedes “further theoretical progress.”87 Second, Worden drew attention to the fact that many

accounts of police discretion start from the assumption that the boundaries of an officer’s

authority – and the objectives that the officer is expected to pursue – are “clearly defined and

well understood.” This is in fact rarely the case, and something that needs to be accounted for in

our efforts to understand how discretion is exercised in practice:

[A] theory of police behavior must also reflect the ambiguity and uncertainty of the task
environment in which officers work, where formal and informal rules and procedures are
in many cases vague and may even conflict, characteristics of the incidents into which
they intervene may be variously interpreted, causal connections between actions and
outcomes may be unclear, and the objectives toward which they are expected to direct
their efforts are stated in general terms (if at all) and may be inconsistent. Officers must
interpret these features of the task environment as they choose their courses of action.
This ambiguity and uncertainty, I shall argue, can be expected to attenuate the
relationships between situational factors and officers’ attitudes on the one hand and
officers’ behavior on the other. 88

Finally, Worden also acknowledged the need for theories of police behaviour and

discretion to pay greater attention to the structural features of police organizations, either by

87
Worden (1989), 668.
88
Worden (1989), 671.

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 Understanding Police Discretion

comparing officer behaviour across different types of police departments or through

incorporating structural variables into future studies. Unfortunately, Worden’s call for more

research on the organizational determinants of police discretion went largely unheeded. Writing

some seventeen years later in 2006, Chappell et al observed that only a few studies – most

notably by Smith in 1984 and then Mastrofski, Ritti and Hoffmaster in 1987 – had examined the

influence of police organizational structures on the decision to arrest. 89 Despite the fact that these

studies suggested that “variations in departmental management styles and culture [could] explain

a significant amount of variation in the proclivity of police officers to exercise their arrest

powers,” Chappell et al noted that their continued relevance was limited due to a reliance on

historical data and changes in the policing landscape since the 1980s – changes that saw many

police departments in the United States move to problem-oriented strategies and a greater

emphasis on community policing. 90 For their part, Chappell et al suggested that the

organizational typology first developed by Wilson in 1968 – which categorized police agencies

according to whether the officers within those agencies adhered to a “watchman,” “legalistic,” or

“service” style 91 – was of “limited use” when it came to contemporary discussions about the

influence of organizational structure and working culture on police discretion. Instead, they

argued that organizational factors may not be that important at all:

The findings from this study suggest that the policing literature and conventional wisdom
on controlling police discretion may place too much emphasis on the influence of
organizational context. Officers may be more driven by the situational exigencies that
vary from community to community – many of which are beyond the direct control of
police bureaucrats. 92

89
Chappell, AT, MacDonald, J M, & Manz, PW. (2006) “The Organizational Determinants of Police Arrest
Decisions” Crime & Delinquency 52(2): 287–306, 288.
90
Chappell, MacDonald, & Manz (2006), 288.
91
Wilson, JQ. (1968) Varieties of Police Behavior. New York: Atheneum
92
Chappell, MacDonald, & Manz (2006), 302–3.

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 Understanding Police Discretion

Returning to the question of classification, in a recent multivariate study of police arrest

decisions, Jessica Huff has suggested that much of the work on police discretion to date can be

seen as contributing to two broad theoretical frameworks. The first of these frameworks, which

Huff has referred to as “officer-oriented theories of police discretion and arrest decisions,”

maintains that the exercise of police discretion depends largely on the attitudes of individual

police officers and their demographic characteristics, as well as the attitudes, demeanour, and

characteristics of the suspects, victims, and members of the public with whom the police interact.

Into this category she places work by DJ Black, whose early sociolegal account of police

discretion has remained highly influential. 93 Black argued that the use of police discretion in any

given situation will vary according to the relative social positions of those involved, most

notably the officer, the suspect, and the victim. 94 As Huff has noted, Black also drew attention to

the fact that certain discretionary decisions necessarily involved “more law” than others, which

could have an impact on the relevant power dynamics that underpin the decision-making

process:

One of the major contributions of [Black’s] work is the proposition that law varies in
quantity, with some actions constituting more law than others… This means that those of
higher social standing are more able to invoke the law, that law enforcers are more likely
to apply the law against those of lower social standing than themselves, and that laws will
be more strictly enforced in low status neighborhoods. 95

Into this same category, Huff has also placed work by Steve Herbert on the importance of

normative ordering in policing, as well as a range of studies that have examined the potential role

played by various officer characteristics in the use of discretion, including an officer’s race or

93
Black, DJ. (1971) “The Social Organization of Arrest” Stanford Law Review 23(6): 1087–111; Black, DJ. (1976)
The Behavior of Law. New York: Academic Press; Black, DJ. (1980) The Manners and Customs of the Police.
New York: Academic Press.
94
Huff, J. (2021) “Understanding Police Decisions to Arrest: The Impact of Situational, Officer, and Neighborhood
Characteristics on Police Discretion” Journal of Criminal Justice 75: 101829 at 7.
95
Huff (2021), 7.

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 Understanding Police Discretion

membership of a particular ethnic group; their gender; their level of education; and the ir length

of service.96

The second theoretical framework identified by Huff, which she has referred to as

“social-ecological theories of police discretion and influences on arrest,” includes research that

explores the relationship between discretion and neighbourhood characteristics, including crime

rates, socioeconomic factors, and racial heterogeneity. As Huff notes, much of this work has

focused specifically on identifying the sources of racial bias in policing:

An enduring debate in the policing research is whether identified racial/ethnic disparities

in discretionary outcomes are due to biased decision-making (whether implicit or
explicit) or to differential concentrations of crime and police resource deployment. This
has resulted in examinations of the influence of neighborhood characteristics on variation
in officer use of discretion across different social-ecological contexts.

Importantly, Huff has also included various social control theories in this second framework,

including early work by Blalock and others that suggest the police use law – and the power to

arrest – as a means of controlling minority populations. 97 Research on the role of place – in

particular, the socio-economic characteristics of neighbourhoods – is also included in this

category, with Huff noting that it provides “mixed support” for social-ecological theories of

police discretion. 98

96
Herbert, SK. (1997) Policing Space: Territoriality and the Los Angeles Police Department. Minneapolis:
University of Minnesota Press. Some of the key studies cited by Huff include Brown, RA, Novak, KJ, & Frank, J.
(2009) “Identifying Variation in Police Officer Behavior between Juveniles and Adults” Journal of Criminal
Justice 37: 200–8; Donohue III, JJ & Levitt, SD. (2001) “The Impact of Race on Policing and Arrests” Journal of
Law and Economics 44(2): 367–94; and Novak, KJ, Brown, RA, & Frank, J. (2011) “Women on Patrol: An
Analysis of Differences in Officer Arrest Behavior” Policing: An International Journal of Police Strategies &
Management 34(4): 565–87.
97
Blalock, HM. (1967) A Theory of Minority-Group Relations. New York: John Wiley; Suttles, GD & Suttles, GD
(1972) The Social Construction of Communities, Vol. 111. Chicago: University of Chicago Press.
98
Huff (2021). Some of the more recent studies referred to include: Johnson, RR & Olschansky, EL. (2010) “The
Ecological Theory of Police Response: A State Police Agency Test” Criminal Justice Studies 23(2): 119–31;
Lum, C. (2011) “The Influence of Places on Police Decision Pathways: From Call for Service to Arrest” Justice
Quarterly 28(4): 631–65; Kane, RJ, Gustafson, JL, & Bruell, C. (2013) “Racial Encroachment and the Formal
Control of Space: Minority Group-Threat and Misdemeanor Arrests in Urban Communities” Justice Quarterly

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 Understanding Police Discretion

Although Huff has not purported to provide a comprehensive overview of the research on

police discretion, her theoretical frameworks allow for the easier identification of particular

currents in what is a vast body of literature. Notably, she has also acknowledged that – regardless

of whether the research in question falls into the category of officer-oriented theories or social-

ecological theories of police discretion – it is generally accepted in the literature that situational

factors play a significant role when it comes to police decision-making. As Huff has noted, for

example, multiple studies have suggested that offence seriousness is a key factor in the decision

to arrest. Similarly, the question of whether an arrest resulted from a public complaint (or was

instead police-initiated) can also have an impact on the exercise of police discretion. 99

As this brief overview of efforts to classify the factors affecting police discretion has

demonstrated, there is no comprehensive theory of police behaviour that can provide a clea r

account of how the police exercise their decision-making powers. As Huff has rightly observed,

this is due in part to the challenges associated with developing mutivariate models of police

behaviour. While researchers might agree that direct observation of officer behaviour and

decision-making would provide the clearest insight into the operation of police discretion – what

Huff has referred to as “systematic social observation” – in most instances, this is simply too

expensive and time-consuming (and requires significant access by researchers to the police,

which in many cases is difficult to obtain).

It is with these limitations in mind that the next section provides an overview of recent

research on police discretion carried out in Canada, identifying significant gaps in our

understanding of how police discretion currently operates at the municipal, provincial, and

30(6): 957–82; Sobol, JJ, Wu, Y, & Sun, IY. (2013) “Neighborhood Context and Police Vigor: A Multilevel
Analysis” Crime & Delinquency 59(3): 344–68.
99
Huff (2021).

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 Understanding Police Discretion

federal levels, and highlighting major areas of interest and concern for police researchers, as well

as possible avenues for future work.

B. Recent Research on Police Discretion in Canada

It is important to note that empirical research on policing in Canada – and on police discretion in

particular – is much less extensive than that to be found in countries like the United States or the

United Kingdom. Even when compared to countries with a similar population size such as

Australia, it remains the case that independent studies of Canadian police behaviour and

discretion are few and far between. This report does not consider in detail the reasons for the

dearth of Canadian research in this area. However, a combination of factors no doubt play a role,

including the relative lack of government and charitable foundation funding for large-scale

qualitative research on policing, as well as the difficulties that face researchers seeking access to

policing organizations at all levels in Canada. 100 Moreover, much like in other jurisdictions, what

research there is on police discretion in Canada has focused almost exclusively on the decision to

arrest. But as has already been noted, the “social intervention” aspect of policing involves many

forms of formal and informal decision-making, and caution therefore needs to be exercised when

extrapolating conclusions about the exercise of police discretion from only the specific context

of arrest.101

In terms of the research itself, in Canada the focus has been primarily on the role of

discretion in the policing of minorities and young people. Although a number of independent

100
See Ricciardelli, R & Griffiths, CT. (2017) “North of 49: The Dynamics of Canadian Policing” Police Practice
and Research 18(6): 524–27; Huey, L & Ricciardelli, R. (2016) “From Seeds to Orchards: Using Evidence-Based
Policing to Address Canada’s Policing Research Needs” Canadian Journal of Criminology and Criminal Justice
58: 119–31; Standing Committee on Public Safety and National Security. (2014) “Economics of Policing:
Report.” House of Commons, 41st Parliament, 2nd Session.
101
Schulenberg (2015), 248.

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 Understanding Police Discretion

inquiries have investigated the under- and over-policing of Indigenous communities and

systemic problems with respect to the police response to violence against Indigenous women and

girls,102 very few empirical studies have directly examined the operation of discretion with

respect to the policing of Indigenous people. 103 This presents a significant problem when it

comes to discussions about the role of police discretion in Canada, particularly given that it is

now generally accepted that many municipal and provincial police services – as well as the

RCMP – suffer from longstanding problems of systemic racism. As Chief Bryan Larkin observed

in his Presentation to the Standing Committee on Public Safety and National Security in 2020,

we have “study after study, including government commissioned reports, that demonstrate we

have an issue with systemic racism throughout our justice system, which includes our legal

system, our courts, and our police services.”104 Given this, there is clearly a pressing need for

102
Linden, SB. (2007) “Report of the Ipperwash Inquiry, Volumes 1–4.” Ontario Ministry of the Attorney General
(May 2007), https://www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/report/index.html (accessed 6 April
2022); Oppal, WT. (2012) “Forsaken: The Report of the Missing Women Commission of Inquiry, Volumes I –
VI.” British Columbia (November 2012), https://missingwomen.library.uvic.ca/index.html%3Fp=30.html
(accessed 6 April 2022); National Inquiry into Missing and Murdered Indigenous Women and Girls (Canada).
(2019) “Reclaiming Power and Place: Final Report of the National Inquiry into MMIWG, Volumes 1a and 1b”
(June 2019), https://www.mmiwg-ffada.ca/final-report/ (accessed 6 April 2022).
103
Owusu-Bempah, A & Luscombe, A. (2021) “Race, Cannabis and the Canadian War on Drugs: An Examination
of Cannabis Arrest Data by Race in Five Cities” International Journal of Drug Policy 91: 102937. To date, much
of the academic research on the relationships between policing and Indigenous communities in Canada has
focused on police violence towards Indigenous people, the failure of the police to provide services to Indigenous
communities, or Indigenous attitudes to the police. See Rudin, J. (2006) “Aboriginal Peoples and the Criminal
Justice System.” Research paper prepared for the Ipperwash Inquiry,
http://www.archives.gov.on.ca/en/e_records/ipperwash/policy_part/research/pdf/Rudin.pdf (accessed 6 April
2022); Comack, E. (2012) Racialized Policing: Aboriginal People’s Encounters with the Police. Halifax:
Fernwood; Cao, L. (2014) “Aboriginal People and Confidence in the Police” Canadian Journal of Criminology
and Criminal Justice 56(5): 499–526; Palmater, P. (2016) “Shining Light on the Dark Places: Addressing Police
Racism and Sexualized Violence against Indigenous Women and Girls in the National Inquiry” Canadian Journal
of Women and the Law 28(2): 253–84; Alberton, AM, Gorey, KM, Angell, GB, & McCue, HA. (2019)
“Intersection of Indigenous Peoples and Police: Questions about Contact and Confidence” Canadian Journal of
Criminology and Criminal Justice 61(4): 101–19; and Samuels-Wortley, K. (2021) “To Serve and Protect
Whom? Using Composite Counter-storytelling to Explore Black and Indigenous Youth Experiences and
Perceptions of the Police in Canada” Crime & Delinquency 67(8): 1137–64.
104
Evidence, 1st Session, 43rd Parliament, Meeting 12, 14 August 2020, 1215 (Chief Bryan Larkin, Chief of Police,
Waterloo Regional Police Service, and member of the Drug Advisory Committee, Canadian Association of
Chiefs of Police). See also Standing Committee on Public Safety and National Security (2021), cited above.
Speaking in a similar vein, former Vancouver Police Board Chair Kennedy Stewart acknowledged “the existence

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 Understanding Police Discretion

more independent research on the role that police discretion plays in systemic racism with

respect to Indigenous people in Canada – not just in relation to the decision to arrest but also

with regard to operational decision-making, the development of policing strategies, and resource

deployment.

Turning to the policing of minority communities more generally and Black communities

in particular, commentators have drawn attention to a lack of Canadian research on the

relationship between race and police practices,105 but there is evidence that race plays a

significant role in the decision to stop, search, and arrest in Canada. Drawing on extensive

interview data collected in 2007, for example, Wortley and Owusu-Bempah have found that

when it comes to “street-level” interactions with the police – which frequently involve the use of

discretion – Black people are far more likely to be stopped and searched (which also increases

their likelihood of being arrested and drawn into the criminal justice system):

According to our results, blacks are over three times more likely to experience multiple
police stops than whites or Asians and are three times more likely to report being
searched during these police encounters. Black males appear to be particularly vulnerable
to police stop and search practices. Black respondents are also six times more likely than
respondents from other racial backgrounds to report that they have close friends or family
members who had been a recent victim of racial profiling. Importantly, racial differences
with respect to both direct and indirect police contact remain statistically significant after
controlling for other relevant variables including age, income, education, driving habits,
community-level crime, alcohol and marijuana use and criminal history. These findings
suggest that race matters. 106

of systemic racism in all our public a nd private institutions, including police services.” See Vancouver Police
Board. (2020) “Statement from the Vancouver Police Board regarding Police Reform.” Media release (22 June
2020), https://vancouverpoliceboard.ca/police/policeboard/documents/2020-06-22-Board-Statement-Provincial-
Review.pdf (accessed 6 April 2022). Furthermore, RCMP Commissioner Brenda Lucki also acknowledged in
June 2020 that “systemic racism exists in the RCMP” and that there had been a failure to treat “racialized and
Indigenous people fairly.” See Royal Canadian Mounted Police (RCMP). (2020) “Statement by Commissioner
Brenda Lucki.” Media release (12 June 2020), https://www.rcmp-grc.gc.ca/en/news/2020/statement-
commissioner-brenda-lucki (accessed 6 April 2022).
105
Wortley & Jung (2020), 7.
106
Wortley, S & Owusu-Bempah, A. (2011) “The Usual Suspects: Police Stop-and-Search Practices in Canada”
Policing and Society 21(4): 395–407.

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 Understanding Police Discretion

Writing some ten years later, Wortley and Jung noted in their 2020 report to the Ontario

Human Rights Commission that a series of other Canadian studies have also suggested that

Black people are “highly over-represented with respect to certain discretionary offences.” 107

Although they prefaced their review of the research literature by noting that “studies that

examine the impact of both offender and victim race on arrest decisions have rarely been

conducted in Canada,” Wortley and Jung have pointed to the fact that Black people in Canada

are more likely to be subjected to racially biased police decisions – particularly the decision to

stop and search – than white people, with the result that they are also more likely to be charged

with drug possession and related offences. Summarizing their own work on the role of race in the

decision to arrest and charge, Wortley and Jung also have noted that their findings with respect

to the Toronto Police Service (TPS) are consistent with those from similar studies across Canada:

The data presented in this report expose dramatic racial disparities with respect to TPS
charge practices. In the past when faced with such statistics, police services and
associations have often argued that disparity does not prove discrimination. However, in
our opinion, the gross racial disparities documented by this inquiry strongly support the
argument that racial bias exists and must be taken seriously. 108

The relative lack of independent research studies is not the only barrier to a better

understanding of the relationship between race and police discretion in Canada. As Wortley and

Jung have pointed out, historically, the police and governments in Canada “have not responded

well to academic and community requests for data collection and data analysis frameworks that

107
Wortley & Jung (2020), 7. A number of studies on the relationship between race and policing practices in Canada
are cited in Wortley and Jung’s submission to the Commission, including: Wortley, S & Tanner, J. (2005)
“Inflammatory Rhetoric? Baseless Accusations? Responding to Gabor’s Critique of Racial Profiling Research in
Canada” Canadian Journal of Criminology and Criminal Justice 47(3): 581–609; Wortley & Owusu-Bempah.
(2016); Wortley (2018); Wortley, S & Kellough, G. (2004) “Racializing Risk: Police and Crown Discretion and
the Over-representation of Black People in the Ontario Criminal Justice System” in A Harriott, F Brathwaite, and
S Wortley (eds), Crime and Criminal Justice in the Caribbean and among Caribbean Peoples, 173–205.
Kingston: Arawak Publications.
108
Wortley & Jung (2020), 109.

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 Understanding Police Discretion

would better address allegations of racial bias.”109 This problem has been compounded by the

fact that many police services in Canada do not collect racially disaggregated arrest data. This

problem has been highlighted repeatedly by police researchers in Canada, with Millar and

Owusu-Bempah arguing that it can be viewed as tantamount to the “whitewashing” of police

racism via data suppression.110 Problems related to the transparency of policing data were also

recently highlighted as part of an inquiry into the use of street checks in Nova Scotia. 111

In addition to this research on discretionary charging and racism, a number of Canadian

studies have examined the operation of police discretion in relation to young people. Fitzgerald

and Carrington, for example, have noted that there is a considerable body of evidence to suggest

that personal characteristics such as age and gender play a significant role when it comes to how

the police make decisions with regards to juveniles in Canada. 112 In particular, they have pointed

to Canadian studies that suggest that the police are more likely to treat younger individuals more

leniently, with demeanour also being a strong additional predictor when it comes to how police

discretion is used. On the specific question of the relationship between age and race, Fitzgerald

and Carrington have noted that the research in this area suggests the two variables interact in

complex ways:

Some research supports the suggestion that the effect of race on police decision-making
may in fact be “conditional” or “interactive” in that it is “dependent on the level of other
variables.” For example, in Wortley and Tanner’s (2005) study of Canadian young
people, low-risk black youth were more likely to receive police attention than low-risk

109
Wortley & Jung (2020), 114.
110
Millar, P & Owusu-Bempah, A. (2011) “Whitewashing Criminal Justice in Canada: Preventing Research through
Data Suppression” Canadian Journal of Law and Society/La Revue Canadienne Droit et Société 26(3): 653–61.
111
See Wortley, S. (2019) “Halifax, Nova Scotia: Street Checks Report.” Nova Scotia Human Rights Commission,
available at https://humanrights.novascotia.ca/streetchecks (accessed 18 May 2022); MacDonald, JM & Taylor, J.
(2019) “Independent Legal Opinion on Street Checks Halifax.” Nova Scotia Human Rights Commission,
available at https://humanrights.novascotia.ca/news-events/news/2019/street-checks-legal-opinion (accessed 18
May 2022).
112
Fitzgerald, RT & Carrington, PJ. (2011) “Disproportionate Minority Contact in Canada: Police and Visible
Minority Youth” Canadian Journal of Criminology and Criminal Justice 53(4): 449–86, 454–55.

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white youth, but this relationship did not hold among high-risk youth. Thus, the level of
DMC [disproportionate minority contact] had a negative association with the level of
deviance of the juvenile. Wortley and Tanner found that similar proportions of black and
white high deviance youth reported being stopped by police in the past two years (83% of
blacks and 82% of whites); but among low-deviance youth, the racial difference in police
stops was large and statistically significant (49% of black youth versus 17% of whites).
They argued that this finding suggests there are racial differences in the extent to which
‘‘good behaviour’’ protects youth from police attention.113

More recently, a number of other studies in Canada have confirmed that young Black

people are more likely to be the subject of police attention and receive less favourable treatment

when it comes to the exercise of officer discretion.114 For example, in her study of youth

diversion programs in Canada, Samuels-Wortley has found that Black youth are more likely to

be charged than their white counterparts, particularly when it comes to drug possession

offences.115 In addition, she has also found that young Black and other minority females are less

likely to be cautioned than white females. After noting that “the decision to divert youth away

from the justice system is based primarily on the discretion of individual police officers,”

Samuels-Wortley has concluded that selection bias plays a significant role in police decision-

making, leading to less favorable outcomes for minority youth:

Ultimately, racial bias may play a sufficient role in the Canadian youth criminal justice
system. This study highlights that in particular, bias within policing can have a specific
impact on racialized youth in Canada. Police discretion plays a significant role in who
enters the court system, thus any biases may influence arrest decisions. Police should

113
Fitzgerald & Carrington (2011), 456, citing Bishop, DM. (2005) “The Role of Race and Ethnicity in Juvenile
Justice Processing” in DF Hawkins and K Kempf-Leonard (eds), Our Children, Their Children: Confronting
Racial and Ethnic Difference in American Juvenile Justice. Chicago: University of Chicago Press, 28; and
Wortley, S & Tanner, J. (2005) “Inflammatory Rhetoric? Baseless Accusations? Responding to Gabor’s Critique
of Racial Profiling Research in Canada” Canadian Journal of Criminology and Criminal Justice 47(3): 581–609,
596.
114
Owusu-Bempah, A & Wortley, S. (2014) “Race, Crime, and Criminal Justice in Canada” in S Bucerius & M
Tonry (eds), Oxford Handbook of Ethnicity, Crime, and Immigration, pp. 281–320. Oxford: Oxford University
Press.
115
Samuels-Wortley, K. (2022) “Youthful Discretion: Police Selection Bias in Access to Pre-charge Diversion
Programs in Canada” Race and Justice 12(2): 387–410.

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 Understanding Police Discretion

acknowledge the role they may play in the overrepresentation of Black and Indigenous
peoples in the Canadian youth criminal justice system. 116

Returning to Fitzgerald and Carrington’s overview of the research literature, they have

also drawn attention to a number of Canadian studies that suggest police in metropolitan areas

are more likely to choose a formal response when dealing with juveniles. 117 In one of the studies

referred to, for example, Jennifer Schulenberg attempted to test four prominent ecological

theories of crime – urbanization theory, social disorganization theory, opportunity theory, and

the overload hypothesis – with a view to better understanding how police discretion is exercised

with respect to young people in Canada. Although Schulenberg has acknowledged that her study

was limited in a number of important ways – particularly in terms of measuring how different

theories of policing are operationalized – she has noted,

[T]he use of formal action with youth by Canadian police forces does seem to be affected
by the size of the community and its level of social disorganization but not by the
opportunity for crime, the actual crime rate, or the workload of the police. 118

Interestingly, other studies have also suggested that the use of police discretion in relation to

young people may vary between metropolitan and rural areas. For example, Schulenberg and

Warren have noted that community relationships are more likely to play a role when it comes to

police decision-making in rural areas:

The factors considered important by officers working in metropolitan areas suggest an

offense orientation by placing more weight on the characteristics of the offense and not a
victim’s preference or a youth’s personal situation. In contrast, officers in rural, small-
town jurisdictions display a stronger focus on offenders and victims as these officers are

116
Samuels-Wortley (2022), 406.
117
Schulenberg, JL. (2003) “The Social Context of Police Discretion with Young Offenders: An Ecological
Analysis” Canadian Journal of Criminology and Criminal Justice 45: 127–58; Schulenberg, JL, Jacob, JC, and
Carrington, PJ. (2007) “Ecological Analysis of Crime Rates and Police Discretion with Young Persons: A
Replication” Canadian Journal of Criminology and Criminal Justice 49: 261–77.
118
Schulenberg (2003), 149.

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 Understanding Police Discretion

the most likely to consider victim preference and the relationship between the victim and
offender as a factor when compared to other officers in other community types. 119

While these findings have been confirmed by subsequent studies, more recent research

has shed additional light on how various personal and context specific factors influence how

police discretion is exercised with respect to young Canadians in non-metropolitan areas. Based

on a study of police interactions with young people in three municipalities in British Columbia ,

Card et al have concluded that age, gender identity, and race have a significant impact on how

police discretion is exercised:

Notably, we found that gender non-binary and Indigenous participants were more likely
to experience punitive measures (i.e., being handcuffed or arrested), even after adjusting
for histories of drug dealing, past police encounters, and contextual factors. Younger
participants were also more likely to be searched or frisked by police regardless of illegal
activity or being suspected of a crime at the time of the encounter. These findings
indicate that outcomes of encounters between young people and police may be
discriminatory – predicated on individual’s visible characteristics, such as race, gender,
and age. 120

Before concluding this brief overview of the research on factors influencing police

discretion in Canada, it is important to note that new lines of inquiry have begun to emerge in

recent years. Notably, a number of prominent researchers have now turned their attention to the

question of how police discretion is exercised in relation to persons with issues regarding mental

health.121 In addition, various studies and reports have also examined the role played by police

discretion in the criminal justice system’s response to gender-based and intimate partner violence

119
Schulenberg, JL. (2010) “Patterns in Police Decision-Making with Youth: An Application of Black’s Theory of
Law” Crime, Law and Social Change 53(2): 109–29, 126. See also Schulenberg, JL & Warren, D. (2009) “Police
Discretion with Apprehended Youth: Assessing the Impact of Juvenile Specialization” Police Practice and
Research: An International Journal 10(1): 3–16.
120
Card, KG, Selfridge, M, Greer, AM, Hepburn, KJ, Fournier, AB, Sorge, J, & Macdonald, S. (2021) “Event-Level
Outcomes of Police Interactions with Young People in Three Non-metropolitan Cities across British Columbia,
Canada” International Journal of Drug Policy 91: 102824.
121
See, for example, Schulenberg, JL. (2016) “Police Decision-Making in the Gray Zone: The Dynamics of Police–
Citizen Encounters with Mentally Ill Persons” Criminal Justice and Behavior 43(4): 459–82; and Shore, K &
Lavoie, JA. (2019) “Exploring Mental Health-Related Calls for Police Service: A Canadian Study of Police
Officers as ‘Frontline Mental Health Workers’” Policing: A Journal of Policy and Practice 13(2): 157–71.

48
 Understanding Police Discretion

and sexual assault in Canada. 122 Unfortunately, however, it remains the case that there have been

few Canadian-specific studies of the operation of police discretion in these contexts.

Considering the challenges that have faced researchers in Canada who have sought to

study the role of discretion in the policing of Indigenous people, racial minorities, and young

people, this is hardly surprising. It does, however, point to a persistent problem when it comes to

discussions about the nature and function of police discretion in Canada: they have largely taken

place against the backdrop of a profound and longstanding dearth of independent research on

police behaviour at the municipal, provincial, and federal levels. When compared to countries

like the United States and the United Kingdom, it is no exaggeration to say that Canada lags

behind when it comes to police research, with the result that it is difficult to ensure that the

development of policing practices and policies in Canada are sufficiently driven by evidence.

This is a point that will be further developed in the next and concluding section.

V. Reconsidering Police Discretion in Canada

This report has attempted to provide insight into the meaning and operation of police discretion

in Canada. As is apparent from the previous sections, discretion lies at the heart of almost every

aspect of policing at the municipal, provincial, and federal levels in Canada, and as a result, it is

difficult to distinguish between the many factors that influence how it is exercised or how its use

determines how suspects, victims, and members of the public are treated by the criminal justice

system. In the Canadian context, debates about the proper role and limits of police discretion are

122
Salerno-Ferraro, AC & Jung, S. (2021) “To Charge or Not to Charge? Police Decisions in Canadian Sexual
Assault Cases and the Relevance of Rape Myths” Police Practice and Research 1–14; Fagerlund, M. (2021)
“Gender and Police Response to Domestic Violence” Police Practice and Research 22(1): 90–108; Ryan, C,
Silvio, D, Borden, T, & Ross, NM. (2022) “A Review of Pro-arrest, Pro-charge, and Pro-prosecution Policies as a
Response to Domestic Violence” Journal of Social Work 22(1): 211–38; Gill, C, Campbell, MA, & Ballucci, D.
(2021) “Police Officers’ Definitions and Understandings of Intimate Partner Violence in New Brunswick,
Canada” Police Journal: Theory, Practice and Principles 94(1): 1–20.

49
 Understanding Police Discretion

also constrained by a shortage of independent academic research on how police discretion

functions in different contexts and on how the day-to-day decisions of the police impact the lives

of the individuals and communities they come into contact with and serve.

Faced with these challenges, it is tempting to conclude that there is little that can be said

about police discretion in Canada generally and that calls for reforming the way in which police

discretion operates should be narrow and focused on particular contexts – such as stop, search,

and arrest, or on the experience of particular groups, such as Indigenous people and their

communities, racial minorities, and young people. Although there is obvious value in taking such

an approach – not least because it allows us to prioritize efforts at reforming police discretion

with a view to minimizing its negative impacts on already vulnerable and marginalized

individuals – it would be a mistake to assume that a broader discussion of the nature of police

discretion in Canada is not possible or desirable.

As section II of this report highlighted, although police discretion was first “discovered”

by sociologists and criminologists over 60 years ago, our understanding of that discretion

remains plagued by a lack of clarity about the source and nature of that discretion. Returning to

the contrasting accounts offered by Davis and Kleinig, it should be apparent that definition

matters. How we view police discretion – whether as a product of the limits of rules or as a

resource granted to the police – has significant implications for the question of how we should

respond to it. More significantly, clarity about the nature and operation of police discretion can

help us to address fundamental questions of regulation and reform.

Writing in 2005, James Stribopoulos presented a powerful argument in favour of greater

parliamentary regulation of police discretion, based in part on a critique of judicial attempts to

impose effective restraints on the exercise of police powers in Canada. According to

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 Understanding Police Discretion

Stribopoulos, the police perception that “the law is only remotely related to the realities of their

work” was reinforced by what he referred to as a “free floating legal structure” propped up in

part by a series of decisions by the Supreme Court:

[J]udicially created rules, no matter how clear they may be, cannot effectively regulate
police power. Enforcement of judicially created rules depends on judicial censure,
usually through the exclusionary remedy. Redress in cases where innocent individuals are
unjustifiably detained, searched or arrested is quite unlikely. The fatal flaw with the
Court’s use of law-making devices lies in the fact that they cannot produce the sort of
procedures most needed if low-level exercises of police discretion are going to be
effectively checked. In fact, by forestalling a dialogue on the subject of police powers
between the Court and Parliament, judicial lawmaking actually has the unfortunate
tendency of aggravating the low visibility of police–citizen abuses. 123

Later in the same article, Stribopoulos went on to argue that, given the inability of judicially

created rules to effectively regulate police power, Parliament must step in and enact clear rules

and procedures that set appropriate limits on the exercise of police discretion:

[O]ne of the major challenges in effectively regulating police authority is the low
visibility of most police–citizen encounters. Clear and prospective rules will undoubtedly
help to confine and structure police discretion but will do little to actually “check” police
authority. What is needed most are administrative procedures that serve to check low-
level and routine exercises of police discretion-procedures such as reporting
requirements, approval by senior officers for certain investigative activities or
procedures, and even more independent checks (for example, where feasible, through the
warrants process). Even though the Court can insist on express and legislated rules, its
options seem limited where the rules create a scheme that contains insufficient procedural
checks and is therefore vulnerable to systematic evasion and abuse by those acting under
it. 124

One of the strengths of Stribopoulos’ argument here is that it comes at the conclusion of a

detailed and comprehensive analysis of the relevant Canadian case law on police powers, an

analysis that highlights the institutional limits of the Supreme Court and its inconsistent approach

to this issue – particularly since the introduction of the Charter of Rights and Freedoms.

Significantly, Stribopoulos has acknowledged that his analysis relies on Davis’ definition of

123
Stribopoulos (2005), 61.
124
Stribopoulos (2005), 72.

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 Understanding Police Discretion

police discretion, and police discretion in Canada – at least in the days before the Charter – has

risen to the fore in situations where the legal limits of police authority are unclear.

Although Stribopoulos has made a strong case for Parliament to step in and place police

powers in Canada on a clear legal footing, it would be even more compelling if grounded in a n

understanding of discretion more aligned with that advanced by Kleinig. Put another way, if we

view police discretion as a privilege or resource granted to the police – to be used “with

discretion” – then it makes even more sense for Parliament, as the source of that privilege, to

provide a clear basis for its exercise and for statutory rules and procedures that circumscribe its

use. All of this is to say that in order to move forward in our consideration of the role of police

discretion in Canada, we should look to abandon the idea that it is something extra -legal or

outside the scope of rules.

Moving to this view of police discretion – one that sees it as a normative resource that is

granted rather than a capacity that is assumed – also provides a more coherent basis for

conversations about both oversight and limitations in certain contexts. If we start from the

position that police discretion is conferred and is therefore a legitimate, legally bounded exercise

of authority, then it becomes easier to justify efforts to subject that discretion to oversight and

review. This model would also represent a fundamental challenge to the view often held by

police officers that discretion is an unavoidable, extra-legal necessity that makes it possible for

them to do their job (and as such, efforts to restrict it should be resisted). Police discretion may

well be necessary and desirable but only insofar as it is granted by express mandate – and

therefore subject to meaningful review. Returning to Kleinig’s analysis,

Discretionary authority may be granted in advance, within the limitations mandated by

laws, regulations, and supervisory determinations. And particular exercises of that
discretion, like exercises of judicial discretion, may be open to public review and
discussion. As long as this is so, such discretion has every claim to be part of a
democratic order. The “rule of law, not of men” is directed against arbitrary exertions of

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power, not against discretion. Discretion, as a normative resource, is a form of decision-

making power that is embedded in a rationale, and although that may not be sufficient to
justify its every exercise, it is to be firmly distinguished from action based on personal
preference. That authority may, as a result of public scrutiny, be broadened or narrowed
via legislation, judicial review, or administrative rule making. As with the previous
objection, the crucial issue regarding the democratic conformity of police discretionary
authority will concern its limits rather than its general legitimacy. 125

Before concluding this report, it is important to draw attention to two fundamental

problems that should be key considerations for any policymakers, legislators, or police managers

tasked with reforming the operation of police discretion in Canada. The first of these is the vague

and incomplete language around police powers contained in the majority of provincial and

federal policing statues. As discussed in section III, there is considerable variation in how the

police role – and the powers and duties that go with it – is framed in different parts of Canada,

which has only contributed to a lack of clarity about the nature and limits of police discretion.

Finally, it cannot be over-emphasized how the lack of independent research on police discretion

hampers informed debate about the future of that discretion. Despite the considerable efforts of a

small number of academic lawyers, sociologists, criminologists, and police scholars in Canada,

there are major and disturbing gaps in the research literature when it comes to how police

discretion functions, particularly in relation to Indigenous communities and the police response

to serious crimes of violence against women.

As has already been noted, some of these gaps can be attributed to a lack of funding and

the difficulties associated with obtaining criminal justice data. However, in many respects the

problem derives from a more fundamental problem – a lack of engagement on the part of police

services in Canada with academic research. As many commentators have noted, gaining access

to police organizations – for the purpose of interviewing and observing officers – is extremely

125
Kleinig (1996), 89.

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difficult in Canada. Speaking before the Standing Committee on Public Safety and National

Security in 2013, Griffiths highlighted the particular challenge of developing ongoing research

relationships with the police:

[O]ur research endeavours with respect to policing in Canada are scattered, and there is
no coordinating effort. There are very few linkages among universities, governments, and
police services. Research is often being done on a one-and-done basis, whether it’s by
private consulting companies such as KPMG or by university-based scholars who work
on a single type of project and then move on. We really don’t have a coordinating body.
We really don’t have a repository, if you will, for police research, and an organization,
agency, or institute that could serve as a catalyst for facilitating these collaborative
relationships, and equally as important, for the dissemination of information.126

While this is a problem for the development of independent research on policing

generally, it is particularly problematic when it comes to the study of police discretion. Studying

arrest statistics and patterns of incarceration can only take us so far. If Canada wants to move to

a position where decisions about how to regulate police discretion are driven by evidence – and a

deeper understanding of how decisions are actually made – then researchers need to have access

to officers. Going further, this access needs to be provided at all levels of our police services.

Although a great deal of police power is exercised at “street level,” discretionary decisions are

made at every level of the police organizational hierarchy. If we are to seriously address many of

the issues concerning the exercise of police discretion identified in this report, then police

services need to be willing – or possibly compelled – to engage with independent researchers.

Moreover, government needs to be willing to properly fund this research – not just on a

piecemeal basis but as part of a larger commitment to police accountability and ensuring that

police powers are exercised in a manner that is consistent with the rights and values expressed in

the Canadian Charter of Rights and Freedoms.

126
Standing Committee on Public Safety and National Security (2014), 42. A number of prominent Canadian police
scholars attempted to address this problem by establishing the Canadian Society of Evidence-Based Policing
(CAN-SBP) in 2015. See the CAN-SBP website, https://www.can-sebp.net/.

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 Understanding Police Discretion

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