Policing protest

Revealing some messy problems

Anyone who paid attention to policing issues in respect to the Freedom Convoy will have seen failures of law enforcement action, challenges around resources, break downs in cooperation, particularly when it came to the Ottawa Police Service as the police of jurisdiction charged with handling the Ottawa protests. The excuse offered is that the Freedom Convoy protests were unprecedented. I don’t buy that. That they came as a surprise is clear, but that is another matter, because surprise speaks to intelligence failure.

The good news is that law enforcement action was eventually able to clear out the Ottawa occupation, with the help of some of the powers provided by the Emergencies Act. The really good news was that there was no loss of life, no out-of-control rioting. It is also important to recognize that fears that enforcement action would only make matters worse, in terms of creating more intransigence, more protest and potentially, significant violence, proved unwarranted.

But important questions remain about the police response to the Freedom Convoy. I would put these in three buckets. One concerns the absence of any real contingency plans to deal with the Freedom Convoy if initial expectations of a short and entirely peaceful protest did not come to pass. As, of course, they did not.

The second concerns decision-making around when to move from engagement and negotiation with protest groups to enforcement action—soft policing to law policing. There was a lot of frustration in Ottawa about the slow transition. The panel did not really engage with this issue except at the very end, where the suggestion was made by Michael Kempa that the police response to the Freedom Convoy used an out of date playbook derived from the G20 protests in Ottawa relying on “containment” and waiting for a protest to “fizzle out.” Ottawa residents were obviously not very happy with this. Bonnie Emerson took things in a different direction by saying that ”containment” is not meant to be passive but has to involve considerable engagement through the PLTs with protestors to ensure that protest organizers and individuals understand exactly their responsibilities and where legal red lines lay, beyond which was criminality.

The third bucket is around something very difficult to explore. This is the question of police attitudes towards the Freedom Convoy. It would be entirely too simplistic to say that the police exhibited a degree of sympathy towards the Freedom Convoy protestors that they might not have displayed in the face of other protest movements (say indigenous protest or Black Lives matter). The reality is that policing of protests is meant to operate in a kind of sympathetic milieu, in order to liaise with protest groups, negotiate with them and through those methods to ultimately defuse any public order threats that may be posed. This is the very purpose of PLTs (Police Liaison teams) about which we have heard so much from witnesses before the Public Order Emergency Commission. For law enforcement, reaching for enforcement measures—hard policing—is a matter of last resort. But there are degrees of sympathy at play and this would be particularly important for both police threat assessments and any decision-making on transition from soft policing to hard policing methods.

Michael Kempa, a criminologist at the University of Ottawa, spoke to this. He argued that police sympathy was real but has not been measured. He thinks it could be and should be, in the interests of police effectiveness in future. Measuring would essentially involve a look into the social media profiles and activities of officers, a potentially divisive move.

The point was made that a small number of sympathetic police officers might have a real impact on the handling of a protest. But we need also to recognize that police forces are meant to be representative of society at large, so some degree of sympathy should not surprise us. Moreover, mass protest movements may not be monoliths. They may have a multiplicity of leaders and a diversity of causes folded in, so “sympathy” can be diffuse.

Beyond careful introspection and an ability to conduct internal security checks at some scale without overly damaging morale, what is needed here is an ethics of policing that reinforces the absolute need for an impartial response to a protest of any stripe. Training will be important to inculcate this. Policies that incorporate best practices are also critical. Joint exercises would be important to trial run responses. These were points made by several of the panelists, including Cal Corely, a former RCMP A/Comm (Assistant Commissioner) and an indigenous community policing officer from Winnipeg, Bonnie Emerson.

The discussion at the policy roundtable moved to a couple of interesting points around prospects for “self-policing” in a mass protest, and a role for private security forces. Self policing sounds fine, at least in theory, in the context of a more unified protest, and could reinforce efforts at police negotiations. There were elements of self-policing at play during the occupation of Ottawa but it was never sufficiently coherent.

Use of private security forces to deal with mass protest sounds to me a more dubious proposition. They could be a resource solution, sure, but will lack some critical elements around accountability and shared standards for policing protests. The prospect of private security roles could also inflame suspicious protest movements and raise risks of harm. The panelists confirmed that they have played a role in previous mass protests, so that is a counter. Cal Corley seemed a real enthusiast for private security forces but qualified this by suggesting that they be used for low risk/low profile activities.

Robert Diab, a law professor from Thompson Rivers University in B.C., moved the panel in a different direction by confirming his legal view that the Emergencies Act was necessary to create real exclusion zones to limit the capacity of a protest movement to sustain itself or grow its numbers. But he argued that such powers should be moved into ordinary police statutes. This argument seemed to be based on the notion that moving exclusion zone powers into police legislation would be more transparent. This does not to address the evident problems of normalizing such zones and their impacts on rights. It also misses the fact that exclusion zones under the Emergencies Act are a power that must be confirmed by Parliament and bound to be discussed in the media, thus providing for considerable public transparency.

There did seem a lot of pretty theoretical discussion about setting out frameworks for distributing police authority in the face of public protests depending on their scale. The thresholds for law enforcement jurisdiction transfer (e.g. from say the Ottawa Police Say to the OPP) seem to be based on a desire to avoid confusion and conflict.

How ideas about formalizing police jurisdictional authority might have derived from the actual experience of policing the Freedom Convoy or other historic mass protests was never made clear. The notion of having the RCMP automatically step in in the face of “nation-wide” protests seems to me highly unrealistic and out of touch with RCMP resources, quite apart from other questions about the reputation of the RCMP as a police agency across the country and among different communities.

The Commissioner seemed to doubt the idea of thresholds and automatic transfers of law enforcement leadership, arguing that police forces should be able to work things out. Sounds reasonable to me. Robert Diab suggested that the historical record sometimes shows that they don’t manage it. Oh dear.

The morning’s panel on national security suggested that it operates in a messy world. Maybe we need to better appreciate that the same is true for policing, as much as we would like to imagine that police operations are or can be routinized.