Community Standards bylaw gives Brandon Police extraordinary powers

Opinion

Hey there, time traveller!
This article was published 21/10/2023 (716 days ago), so information in it may no longer be current.

A new “community standards” bylaw (no. 7282) was enacted by Brandon City Council in July. Council approved the bylaw by a wide margin of 9-1.

There are numerous issues with the bylaw spotlighted in news reports, like vague definitions of panhandling and loitering, and concerns over snow removal, but there were other matters that received much less attention. The most notable of which is that the bylaw was co-authored and presented to city council by the then-serving Brandon chief of police, Wayne Balcaen.

In other words, a serving police officer wrote the bylaw that the Brandon Police Service is now tasked with upholding. Mr. Balcaen has not exactly been coy about his reasoning for updating sections of the bylaw, telling the Brandon Sun in June, “People who are living with poverty, mental health, or addictions issues. It gives [police] another avenue to do some enforcement.”

Having since retired from the Brandon Police Service, Mr. Balcaen was elected earlier this month to the Legislative Assembly of Manitoba and currently represents Brandon West.

Mr. Balcaen has declined to comment on his direct involvement co-authoring the bylaw, as did the Brandon Police Service. As a serving police chief, Mr. Balcaen had no business writing Brandon’s bylaw. Suggesting that Mr. Balcaen had a conflict of interest is to put it mildly.

Common sense dictates that police should never write the law that they are sworn to enforce.

Police enforcing their own laws is vulgar authoritarianism that is incongruent with a democratic society like Canada. This is why we do not let police amend the Criminal Code of Canada.

Instead, and for good reason, amending the Criminal Code remains an important responsibility of the Canadian Parliament, whose members are elected to represent and act on behalf of the citizenry. For their part, the police are sworn to then uphold the law on behalf of the citizenry.

So, what is the big deal for the otherwise law-abiding citizens of Brandon, Manitoba? The bylaw is so ambiguous in some sections that it can put anyone into arbitrary contact with police.

Consider changes to the bylaw concerning the definition of noise.

In the previous bylaw, “noise” was defined as “any loud or harsh sound.” The bylaw now defines noise in the vaguest terms possible as “any sound.” This could include a ringing cell phone, crying baby, or coughing.

It is no secret that noise complaints are among the most common calls to police for service, something that Mr. Balcaen was obviously very aware of when drafting the new bylaw.

The powers of police street-level enforcement in Brandon are now boundless.

“Any sound” is left up to the determination of an officer, thus dramatically emboldening police discretionary powers. Police discretion is imprecise and is largely left uncontrolled. Further, there is no political agreement over how police discretion should be controlled.

Police spend most of their time patrolling. While on patrol, police discretion equips officers with latitude to make decisions regarding who to stop, when and how, what questions to ask, and the amount of force to use in any given encounter, as the officer sees it.

The threat of violence is precisely what gives police their authority, and should an encounter not go as anticipated by a police officer, use of force remains an ever-looming possibility. The opaqueness of the community standards bylaw regarding noise can put an officer into contact with anyone at any time, and in almost any public space within the city of Brandon.

As the public learned during the COVID-19 pandemic restrictions, maintaining limits on police powers is important. During the restrictions some police agencies in Canada were granted temporary, and in a few exceptional cases, extraordinary powers to enforce stay-at-home restrictions. Expanded police powers were not without controversy and were short-lived.

In Ontario, for instance, the provincial government announced in April 2021 that police could randomly stop anyone per the mandated stay-at-home orders. Immediate public outcry ensued, and the Ontario government promptly abandoned some of the unrestricted police powers with Ontario Premier Doug Ford acknowledging that he was “wrong” and “made a mistake.”

The very act of living produces noise, whether it be talking, walking, sneezing, and so on. The highly discretionary police enforcement of noise as “any sound” per the Brandon community standards bylaw thus essentially empowers police to legally and arbitrary stop anyone.

If history has taught us anything, it is that when police exercise unfettered discretion to intervene in public spaces, it is most often at the expense of those who are most vulnerable in our communities — the unhoused, the mentally ill, racialized and Indigenous people, and vulnerable youth.

There are some questions that deserve some answers, beginning with why the serving chief of police co-authored the community standards bylaw to so grossly expand police powers.

Perhaps the newly elected representative of Brandon West could provide some answers.

» Christopher J. Schneider is Professor of Sociology at Brandon University and author of Policing and Social Media: Social Control in an Era of New Media (Lexington Books, 2016).