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Photo by Jennifer Gauthier/Reuters

To repeat, the police have discretion as to the particular investigations they will undertake or the specific arrests they will make. But they are duty-bound to uphold the law more generally. Should they refuse to do so, democratic governments must be able to rein them in and ensure that legislation and court orders are brought into effect. If, for example, the police commissioner refused, on some policy ground, to investigate any allegation of insider trading, the government would be entirely justified in directing that person to do so, and, failing that, removing him or her from office.

Police independence can be compared in some respects to prosecutorial independence, which came into the limelight last year during the SNC-Lavalin scandal. Neither concept is absolute and both deal with discretion in individual cases. Both seek to prevent a process that ought to be neutral from being corrupted by partisan politics. But there is one significant difference between the two principles: overzealous prosecutors who are not subject to oversight can certainly cause harm to individuals, but an armed police force that is answerable to no one can terrorize an entire population. Police independence is an important concept, but it must be interpreted relatively narrowly, as an exception to the default rule that police are answerable to the government.

Photo by Frank Gunn/The Canadian Press

It is ironic, to say the least, that the same government that last year ran roughshod over a well-established understanding of prosecutorial independence would now hang its hat on an expansive version of police independence that finds no support in our law or good sense. It is true that the federal and provincial governments should not direct the police with respect to the precise details of the operation — how to proceed, whom to arrest, etc. — but they absolutely have the jurisdiction to effect policy more generally by ordering the police to bring an end to illegal blockades.