Police Services Boards and the Widening Oversight Gap

Essay, Government, Anil Anand

Policing is the only authority sanctioned to use force against its citizens, and is a powerful organization with potential for misuse for promoting partisan policies at the expense of the common good. Policing can also take on a sense of moral authority resulting in a sense of self-appointed moral rectitude.

For these reasons, democratic systems institute safeguards to ensure police impartiality and accountability, often with multiple and overlapping forms of oversight. Police accountability ensures that police services remain impartial, non-partisan, and free from corrupt practices.   

Police services boards are just one of the multiple and overlapping forms of oversight responsible for ensuring that community needs and values are reflected in the policing priorities, objectives, programs, and strategies, and delivered in a manner consistent with community needs, values and expectations.  

Boards also provide an alternative to direct governance of municipal police forces by municipal council, imparting a level of separation between the executive and police for ensuring against the partisan use of police powers.  

The degree of separation between the executive and the police has also, however, been a matter of contentious discussions.  

While some experts argue that an apolitical and autonomous model that balances the need for political input while countering inappropriate political interference is the best-suited model for the dynamics of policing in a constitutional democracy such as Canada, others argue in favour of more direct control by the executive.1 

Opponents of the autonomy argue that a fear of partisan governments, in Canada and elsewhere, has led to the development of policing that has become remarkably unaccountable. A view based on an argument that democratic governance should be based on control by and answerable to the democratically elected executive, and that police services must be accountable to the executive directly.2  

The earlier view arises from a fear that partisan politics can lead to the potential misuse of policing for promoting party policies at the expense of the common good, and so police must only be answerable to the law. On the other hand, the latter view holds that police taking direction from the law is problematic because laws are seldom clear and unambiguous.

Canada has taken what I consider a middle path, by incorporating police services boards as intermediary authorities, insulating the police from elected political bodies, while ensuring accountability; a model that is neither perfect nor imperfect.

Boards are responsible for ensuring civilian governance respecting the enforcement of law, the maintenance of the public peace and the prevention of crime; and the administrative direction required to provide an adequate and effective police service in a municipality. In 2018, there were 141 stand-alone municipal police services and 36 First Nations self-administered services across Canada.3 

Boards are responsible for the control of police budgets; collective bargaining; promulgation of rules and regulations governing the organization, structure, and procedures of the police force; recruitment and hiring and general policy direction. 

Every municipality that operates a police service must establish and maintain a board in accordance with its provincial Police Services Act. Boards appoint the chief and deputy chiefs of their municipal police service as well as eligible persons to serve as police officers either directly or by delegating that power to the police chief.

Police chiefs are accountable to their board for carrying out the responsibilities set out by the board, including managing, administering and operating the police service in accordance with the priorities, objectives and policies established by the board.

Boards ensure that chiefs establish programs and strategies to implement the priorities and objectives established by the board, ensure that community needs and values are reflected in the policing priorities, objectives, programs, and strategies of the service.  Boards also ensure that police services are delivered in a manner consistent with community needs, values, and expectations; and act as a liaison between the community and the police service.

While boards may give orders and directions to the police chief, neither the board nor any individual member of the board may give an order or direction to any police officer.

Board also cannot give orders or direction on specific operational decisions, individual investigations, or the day-to-day operation of the police service, nor does a board have the right to sensitive information, information about individual investigations or intelligence files.

Boards, in turn, are accountable to their municipal councils and responsible for providing the council with an estimate of the cost required to operate the police service. Councils have final responsibility for budgets, however, the board is responsible for allocating the funds that are provided to the police service under the municipal budget.

Boards, therefore, serve two major functions – insulation against political interference and oversight on compliance of police services with the expectations and standards of the communities they serve.

In terms of oversight, until recently, boards have had to deal with fairly routine policing policymaking. Even issues related to the management of information – data retention policies, recording of race-based data, or carding, although highly contentious, have been issues which most board members as representatives of the community could understand and govern based on normative and empirical evidence.  

There have, however, been significant developments over the past two decades that challenge the ability of the board to understand and oversee 21st century policing. The emergence of widespread surveillance systems, facial and voice recognition technologies, and sources of widely available data on publicly held platforms like Google, Apple, and Amazon pose new challenges for police boards.

Boards are today handicapped and unprepared for the technological innovations being assimilated into mainstream policing, often without their prior knowledge or approval; an emerging reality that may lend to those who feel that policing is becoming remarkably unaccountable.  

A lack of technological expertise and understanding of surveillance technology on police services boards has contributed to a widening gap between oversight and policing.  Chiefs have incorporated training and technologies in areas of surveillance and records management, as routine analytical investments, that are changing the very nature and course of future surveillance and policing. Changes that impact human rights, privacy laws, and constitutional freedoms.

An article by Alok Mukherjee, the previous Toronto Police Services Board Chair, now a professor at Ryerson University has raised alarms about the Toronto Police Service using technologies that fundamentally alter surveillance and privacy without the prior knowledge of the service’s board. 

As Mr. Mukherjee notes, Clearview AI, a controversial facial recognition system that uses public data, is not the only technology used by the Toronto Police Service to surreptitiously record and identify potential suspects and intercept cell phone communications without requiring a warrant. Toronto police also use a device known as StingRay, which allows police to track people’s whereabouts and communications through their phones.4

By public accounts, in this instance even the chief of Canada’s largest municipal police service was not aware that his officers were using Clearview AI for surveillance on the Toronto’s citizens. How the Toronto Police Services Board inquires into this failure of the Chief’s awareness of the use of Clearview AI, a significant breach of privacy, remains to be seen.5  

According to a report in the New York Times, more than 600 law enforcement agencies have started using Clearview in the past year without any public scrutiny.6

Practices like carding, which have been decried widely and legislated against in many jurisdictions, are quietly and quickly being replaced with even more invasive, harder to monitor, and widespread technologies for public surveillance and data retention.  

There has also been a lack of consistency in how police services across Canada view and implement technology. While Calgary has been using facial recognition since 2014,7 Vancouver has said it had never used the software and had no intention of doing so. The Ontario Provincial Police have acknowledged that they use facial recognition technology while the RCMP would not say what tools they use.8

Technological advances like those of Clearview AI and StingRay, artificial intelligence, automation, and other emerging systems for surveillance and records management have relegated boards to rubber-stamping budgets and complaints. In effect, boards are threatened with becoming relics of the 20th century without meaningful capacity for post-modern oversight.

Boards must not leave policy decisions to the courts, but instead work with legislators, civil rights experts, and courts to consider policies and controls for the accessing and use of a range of emerging sources of intrusive and pervasive surveillance by their services.  It is the fiduciary duty of every board to ensure that they institute policies on the use of emerging technologies.

Most police services already rely on accessing data from a range of technologies ranging from doorbell cameras to in-home voice assistants like Alexa and Google Mini, and yet it is unlikely that most boards have the expertise or information to grasp the scope and implication of such policing practices. The introduction and adoption of such technologies and analytics by police services has far outpaced the capacity of boards to constrain the unintended consequences of the collection of massive amounts of data on citizens who were never subject to a formal investigation, the unintended and mostly unaware citizens.  

It seems odd that boards approve changes in the use of police equipment, uniforms, and even the colour and graphics of patrol cars but remain unaware of technologies for the surveillance and retention of information of the public.  

The most striking example of the next approach to profiling is the application of artificial intelligence towards predictive policing or, as law enforcement agencies like to call it, PredPol. The analysis of existing data to predict locations, times, and types of crimes expected to be committed; and even predicting the individual who is expected to commit the crime at a designated time and place. Facial recognition technology, traffic cameras, closed-circuit surveillance cameras, police worn body cameras, in-car cameras, and drone surveillance are just a few of the new tools for collecting intelligence.

Most of us will never know how surveillance data is used, where it is retained, for how long, if and how it is shared with other agencies or jurisdictions, or how it impacts our security assessment; and most importantly, who determines the relevance of the data collected. We must rely on the ability and veracity with which boards provide oversight on our behalf.

Understanding and safeguarding personal freedom and civil rights is today more critical than ever. The pace at which artificial intelligence is being developed and incorporated is far outpacing the regulatory and ethical frameworks required to control their unintended and deliberate intrusion and erosion of hard-fought-for civil liberties.  

We are now in the era of predictive policing, geo-profiling, and crime prevention – carding 2.0 — and need to ask the tough questions about what that means.

Boards must become more engaged and involved in the day-to-day implications of policy decisions and services related to emerging technologies. Monthly meetings and special sessions are at best, risk management sessions for police executives, far from the oversight that is required in an environment of fast-paced emerging technological advances. Boards need to implement special committees on the oversight of technology, supported by adequate funding and expertise.

The gap between board oversight and police practices has widened dangerously. Police associations, and police organizations such as the Canadian Chiefs of Police have become influential lobbyists for pro-police policies and support. Armed with increasingly complex and integrated reports, these organizations are able to influence board and municipal council which lack the depth of understanding or integrated critical view to counter the lobbying.

The current state of oversight is contributing to the development of policing that is becoming remarkably unaccountable.  

As a first and critical step, police boards should require chiefs to provide detailed accounts of the training (formal and informal) engaged by their members and justification of how that training coincides with the policies set forth by the board. Boards must take control of training budgets and hold chiefs accountable for all training initiatives. Control of training provides the only sure means of ensuring that boards understand the intentions, implications, and direction of their services. 

Boards must also be suitably incentivized to encourage greater engagement. The current rate of remuneration does not reflect the importance of the oversight, nor the expertise and engagement required of effective boards. This too has contributed to the growing gap between policing and civilian oversight, undermined public trust, and in the process, threatens to erode civil and constitutional rights. 

Police boards and municipal council should be alarmed by the growing gap between executive-police. It is incumbent on municipal councils to support police boards in responding to the implications of emerging technologies, to mandate controls and compliance for the incorporation of new technologies by police services, and mitigate the widening oversight gap.  

 

Anil Anand is a Research Associate with the Frontier Centre for Public Policy. Anil served as a police officer for 29 years; during his career, some of his assignments included divisional officer, undercover narcotics officer, and intelligence officer. He has worked in Professional Standards, Business Intelligence, Corporate Communications, the Ipperwash Inquiry (judicial public inquiry), and Interpol.

 

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Endnotes:

  1. Sossin, Lorne. “The oversight of executive police relations in Canada: The Constitution, the courts, administrative processes and democratic governance.” Ipperwash Inquiry (2004).
  2. Shearing, Clifford. “Police deviance and accountability.” A.S. Eds. Policing the Conflict in South Africa. (1991): 105-113. Accessed: February 21, 2020 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2805356,
  3. Conor, Patricia; Robson, Jodi  and Marcellus,Sharon .“Police resources in Canada, 2018”. Canadian Centre for Justice Statistics, October 3, 2019. Accessed: February 19, 2020 https://www150.statcan.gc.ca/n1/pub/85-002-x/2019001/article/00015-eng.htm
  4. Mukherjee, Alok. “Public being kept out of the loop on facial recognition technology”

Now Magazine, February 15, 2020, Accessed: February 20, 2020 https://nowtoronto.com/news/toronto-police-surveillance-racial-profiling-facial-recognition-technology-carding/ Accessed: February 20, 2020

  1. CBC. “Toronto police admit using secretive facial recognition technology Clearview AI”, Feb 13, 2020. Accessed: February 20, 2020: https://www.cbc.ca/news/canada/toronto/toronto-police-clearview-ai-1.5462785
  2. Hill, Kashmir. “The Secretive Company That Might End Privacy as We Know It”. Jan. 18, 2020. Accessed: February 21, 2020.  
  3. Omstead, Jordan. “Caution urged as Edmonton police explore facial recognition technology” CBC News, Feb 05, 2020. Accessed: February 20, 2020:  https://www.cbc.ca/news/canada/edmonton/caution-urged-as-edmonton-police-explore-facial-recognition-technology-1.5451823

8. CBC. “Toronto police admit using secretive facial recognition technology Clearview AI”, Feb 13, 2020. Accessed: February 20, 2020: https://www.cbc.ca/news/canada/toronto/toronto-police-clearview-ai-1.5462785

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