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A 30 Year Analysis of

Police Service Delivery and Costing:

“E’ Division

Research Summary Report:

A 30 Year Analysis of Police Service Delivery and Costing

The Impact of the Evolving Legal Context of Policing

The patterns and requirements of police work are defined by law and are continually redefined by new judicial decisions, new legislation, and new government policy initiatives.  Since the Canadian Charter of Rights and Freedoms was entrenched in 1982, the Supreme Court of Canada has moved to redefine substantive, procedural, and evidentiary law in line with its requirements. As a consequence, demands on police operations have increased dramatically without a proportional increase in budget or person-power.  In turn, these demands have had a significant workload affect on police organizations and their ability to serve the public.  

Using the Charter as the starting point, there were four key steps taken in identifying some of the most significant judicial decisions, legislative changes and policy initiatives impacting on current police capabilities:

• Step one was a review of criminal law literature to identify the most frequently cited cases dealing with matters of criminal procedure and evidence (cross referenced to legislation and policy.

• The second step was to hold focus groups with a cross section of officers from the Royal Canadian Mounted Police (RCMP), where they were asked to identify the most significant judicial decisions, legislative changes, and policy initiatives that have affected police operations (especially in British Columbia) in the last thirty years. 

• The third step was to consult experts in the field of law and policing, including experienced police officers with law degrees (and/or who practiced law), Crown prosecutors, and lawyers in private practice.  

• The fourth step involved establishment of a consensus list (based on steps one through three) of the judicial decisions, legislative changes and policy of greatest impact on police operations.  

There was absolute agreement that the Charter has had the greatest effect on police operations and investigative practice in the history of Canadian policing.^[1]  Among judicial decisions, there was similar concurrence that judicially prescribed disclosure rules (see R. v. Stinchcombe^[2]) have probably had the most profound effect on policing in terms of workload and economic cost.

Case Law and Legislation Timeline

This study process identified eleven cases of major importance for their direct impact on police workload and costs:

Hunter v. Southam inc., [1984] 2 S.C.R. 145, focuses on search and seizure. The police must obtain search warrants in numerous situations where it had traditionally been considered unnecessary.

R. v. Therens, [1985] 1 S.C.R. 613, defined “detention” and the right to counsel under s. 10 of the Charter with reference to impaired driving. Detention was defined liberally (e.g., psychological detention), imposing correlative Charter duties (informing of right to counsel, access, etc.) on the police in circumstances that are frequently ill defined, often causing great confusion.  

R. v. Collins, [1987] 1 S.C.R. 265,  in which the Supreme Court adopted a liberal approach to the exclusion of evidence as a judicial remedy for a Charter breach, pursuant to s. 24.  The Court stopped short of creating a presumptive exclusionary rule.  Collins rejected the idea that the administration of justice could be brought into disrepute by public opinion or community shock, but rather it was to be assessed by “the reasonable man, dispassionate and fully apprised of the circumstances of the case”.  With the exclusion of evidence an issue in almost every criminal trial, the police must to try to avoid even the slightest and most technical Charter breach. Increase in case time handling has been significant.

R. v. Brydges, [1990] 1 S.C.R. 190, in which the Supreme Court expanded the informational duties of the police under s. 10(b) of the Charter, requiring police to advise detained and arrested persons of the availability of legal aid and duty counsel under an existing legal aid scheme.  This has had substantial impact on police case handling time. For instance, since Therens, impaired driving investigations have become more and more complex and often procedurally less certain.  Notably, accused persons have the right to consult with legal counsel “without delay”, which means before providing a breath sample as required by the Criminal Code.  Frequently, impaired driving investigations occur at night, when lawyer’s offices are closed.  As a result, there are lengthy delays while the accused attempts to contact legal counsel (keeping all police officers involved waiting and preventing them from attending other duties).  Historically, the police were required to obtain two breath samples, 20 minutes apart, within two hours of the “demand”, but in 1999 Parliament expanded the window to three hours (rf. s. 254 (3)).  The result is that accused persons can now delay the investigation by up to three hours.  This is important in light of this study’s finding that the length of impaired driving investigations has increased considerably over the last 30 years (see below).

R. v. Hebert, [1990] 2 S.C.R. 151, in which the Supreme Court decided that s. 7 of the Charter (life, liberty, and security) guarantees the right to silence at the pre-trial detention or investigative stage.  In an example of moving the goalposts, by overruling itself in R. v. Rothman, [1981] 1 S.C.R. 640 (decided just before the enactment of the Charter), the Court extended its interpretation of s. 7 to mean that an accused person who is in custody and who exercises his or her right to silence cannot be engaged in conversation to “actively elicit” information by an undercover police officer (e.g., cell plant), as this would be a “police trick” that would deprive the accused of his choice to not provide a statement.  Previously, the voluntary confessions rule applied to whether or not accused persons believed that they were talking to a “person in authority”.  That information cannot be elicited from detained individuals through such “tricks” was subsequently extended to other prisoners or persons if they are acting on behalf of the police (R. v. Broyles, [1991] 3 S.C.R. 595).  The effect has been that police must utilize other investigative techniques that may be less effective and more costly in terms of police officer time. 

R. v. Duarte, [1990] 1 S.C.R. 30, in which the Supreme Court decided that the police cannot rely upon the consent of one party to a conversation to record the communication of another party in that conversation without her or his consent.  As a result, Parliament enacted amendments to the Criminal Code sections dealing with the electronic interception of communications.  In addition to adding legislative requirements to utilize one party consents (i.e., by now obtaining judicial authorization) and the requirements for full scale interceptions, new provisions requiring “tracking warrants” (s. 492.1 of the Criminal Code) and dialed “number recorder warrants” (s. 492.2 of the Criminal Code) were also established.  As a result, the time required for police to complete investigations and write affidavits to obtain judicial authorizations has increased significantly.  Moreover, where supporting affidavits were historically once less than 50 pages, they have now increased to hundreds of pages.  As a result, combined with disclosure issues, the economic effect on police operations is significant.

In a series of cases highlighted by R. v. Garofoli, [1990] 2 S.C.R. 1421, the Supreme Court has steadily increased the evidentiary burden required to support electronic interception applications, and scope of subsequent review of affidavits at trial.  Evidence of an informer’s tip by itself, for instance, is no longer sufficient to establish reasonable grounds for a warrant or wiretap and, although affidavits must be extremely detailed, they must not reveal an informer’s identity since indefinite sealing is no longer possible.  The result is affiants must be prepared to draft and defend wiretaps and warrants in court based on exhaustive detailing.  It now often requires police officers weeks just to draft an affidavit or information to obtain and affiants are often cross-examined in court for days, even weeks. The economic effect of this series of decisions on police operations is substantial:  conducting intercepts, even in murder cases, is now sometimes considered cost prohibitive.  

Even without an economic analysis, there is unanimous agreement that R. v. Stinchcombe, [1991] 3 S.C.R. 326 has had the most profound, and in some instances debilitating, effect on police resources. In Stinchcombe, the Supreme Court decided that the accused has a constitutional right to full and complete disclosure of the police investigation and the Crown’s case.  Disclosure has continued to evolve so that in R. v. Duguay, [2003] 3 S.C.R. 307, the Supreme Court stated that “little information will be exempt from the duty that is imposed on the prosecution to disclose evidence”.  As a result, the administrative time and cost for police to prepare copies of all information and evidence (whether relied upon or not) of all investigations has increased significantly.  

Police are now required to submit transcriptions (validated by the original investigator) of:

• all audio and video tapes, 

• notebook entries from all officers, 

• reports, 

• all source debriefings, 

• all tips (and outcomes of tips), 

• all connected cases, 

• all affiant material, 

• all wiretap information, 

• all operational plans, 

• all surveillance notes, 

• medical records, 

• all analyses of phone records or other documents, 

• undercover operation information, 

• information relating investigative techniques considered whether used or not, 

• Investigative team minutes of meetings or debriefings, etc. 

In communication intercepts, a complete transcript is required for every recorded communication, relevant or not (e.g., one week of interception will result in one or two months of disclosure time for an officer). 

This duty often falls to investigative officers and cannot be done by support staff, increasing investigative time and expense substantially.  The cost (in terms of time and expense) of disclosure is becoming prohibitive, criminal investigative capacity is being imperiled. For example, the cost associated with disclosure for even one large-scale fraud can easily reach into the tens of thousands of dollars and sap the entire operational budget of an investigative unit or department, limiting its capacity to conduct other investigations.

R. v. B (K.G.), [1993] 1 S.C.R. 740 in which the Supreme Court ruled that for statements of witnesses or victims who recant at trial to be admissible, it is generally necessary that the police take such statements under oath and that they be videotaped.  Although a mechanism now exists for previously inadmissible statements to be admitted as an exception to the hearsay, the effect on police procedures is that rather than taking a simple written statement, the statement must be taken under oath and video-recorded.  This puts a significantly higher demand on police resources.  For example, even in the digital age, for every hour of audio time, transcription time alone is two to three hours, which in turn must be validated word for word by the original investigator.

 The Supreme Court held in R. v. Feeney, [1997] 2 S.C.R.13 that even though police have reasonable grounds to believe that a suspect is inside a specific dwelling and even if they have a valid warrant for arrest, absent exigent circumstances the police must obtain a separate special warrant authorizing entry in order to arrest the suspect.  The result is that where one or two officers would make an arrest in less than 30 minutes (1 person hour), a “Feeney” warrant will require at least four or more person hours (4 or more times the resources)  as in practice it generally takes three to five hours to obtain the entry warrant.  The inability of the police to disengage from a residence while awaiting judicial authorization to enter in order to pursue the arrest can seriously tax limited resources. A correlative effect is that when resources are not available, absent a substantial risk to public safety, police may abandon the opportunity to effect the arrest.  

Finally, in R. v. Campbell and Shirose, [1999] 1 S.C.R. 565, the Supreme Court ruled that police involvement in a “reverse sting operation” conducted in the course of a drug investigation was illegal and not authorized at common law.  The principles of this case apply to any police investigation, and most importantly,  they apply to police officers committing illegal acts while engaged in undercover operations.  The result has been development of a complex legislative scheme (s. 25.1 of the Criminal Code providing that in the absence of exigent circumstances, a “competent authority” (e.g., the Solicitor General of Canada in the case of the Royal Canadian Mounted Police) must designate a “senior official” who designates a “public officer” to commit an offence (under rigorously delineated conditions and reporting requirements) in aid of an on-going undercover operation.

This set of prominent cases has changed the policing environment.  Increasing the number of Charter safeguards for suspects and accused persons has the often unacknowledged effect of reducing overall policing capacity to deal with crime as each police officer must commit more time to accomplishing policing tasks properly. The additional time spent on meeting evolving Charter requirements take time away from the police’s ability to respond to the next call for service, and the one after that.

Task Timing for Specific Crimes

In seeking to understand the time-activity cost of changes in police work over time, the project constructed detailed step-by-step flow charts of the handling of five kinds of crimes, from the time they come to the attention of the police until the time they are handed off to Crown Counsel in the form of a recommendation for charge. The objective of creating the flow charts is to produce a visual ‘walk through’ of an investigation in order to attach a range or estimate of timing associated with each step.  The charts also indicate the evolution of the policing function by making it easy to see the addition or subtraction of steps over the course of time. The project examined detailed flow charts of the handling of homicides, break and enters, domestic assaults, driving under the influence cases, and drug trafficking cases 30 years ago, 20 years ago, 10 years ago, and at the present time.   The flow charts were constructed during the Expert Focus Groups (EFG) through contributions from the senior members in attendance.  These flow charts represent the entire catalog of steps and outcome categories that may be taken during an investigation of the five offence types in question.  Exact flows may vary depending on the specifics of individual cases, but the general trend line for all five crime types has been a steady increase in the number of different steps and categories that must be taken to handle it from discovery to charge recommendation.

Note that the number of procedural steps and outcome categories needed to handle a case increased for all five crimes, though for break and enters the increase was about 22% and for homicide about 25% over the 30-year period. The number of steps needed to handle a DUI case increased 45%. The number of steps needed to handle a domestic assault increased 61% with the big shift coming between 10 and 20 years ago. The complexity of drug trafficking cases has increased at a stunning pace, expanding 722% over the 30 years.

To illustrate the expansion we include the Drug Trafficking flow chart from 30 years ago and the current Drug Trafficking flow chart below. Charts for intervening years and for the other offences are included in the full technical report.

These flow charts formed the basis for estimating the time budgets, that is, the quantity of an officer’s work time, in minutes and hours that would be necessary to handle a typical case in each crime category 30 years ago, 20 years ago, 10 years ago and at the current time.  These time estimates are for members’ time only. They do not include time estimates for other parts of the system or for technical or administrative support.

We were able to estimate handling times for three of the crime types under study – break and enters, domestic assaults and DUI’s -- through discussions in the Expert Focus Groups and Regional Focus Groups and through examination of some other documentary resources. When CAD/CIIDS data become available we may be able to expand our time estimates to cover homicide and drug trafficking as well.

*Rounded estimates

It is clear from this table that the amount of time it takes a police officer to handle one of these cases has expanded in all three crime types: about 40 percent at the upper end in the case of break and enter cases; five fold in the case of DUI’s; between ten and twelve fold in the case of domestic assaults. Note also, that these are estimates for a single police officer attending. In the case of domestic assaults it is now typical for multiple officers to be on scene and involved in handling the case

Conclusion

Policing has experienced a significant increase in demand for services over the last 30 years. The demand has far outstripped increases in the number of police – increases that more closely follow increases in population. At the same time British Columbia consistently falls behind the other Provinces in its ratio of police to population.

The divergence between the quantity of police resources in British Columbia and amount of crime to be policed is exacerbated when police capacity is considered. The amount of time needed to handle a case from call for service to acceptance by Crown has increased from a low of around 60% for B&E’s to a high of almost 1,000% for domestic assault. There are clear legal rulings and legislative changes that are forcing much of this increase (without providing for increased resources), but there appear to be other increases in administrative work as well. 

Of particular interest is the major increase in the time to prepare a case for Crown and to work with Crown towards actually laying charges. This time has increased substantially and is worth additional research to separate the legal, from the administrative and communication issues involved. 

Similarly, it would be of particular importance to explore in more detail the decrease in offences cleared by charge to directly assess whether this is tied to reduced police capacity. 

Notes

1] The reason being that the Charter gives the judiciary power to judicially review legislation and essentially rewrite criminal procedure.  

[2] [1991] 3 S.C.R. 326.

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