When these provisions were first considered by this committee prior to adoption, our organization had an opportunity to appear and in general terms opposed the introduction of this law enforcement justification regime on the basis that it was not necessary, that it was overly broad, and that the general effect of these provisions was to place police officers above the law. It remains the position of our organization that these provisions create that very risk.
Obviously the provisions themselves are legal provisions, so in a technical sense police officers acting under these provisions are acting under a legal regime, but our position is that the police are above the law under this regime, in the sense that as they themselves are the ones who determine when the state's law enforcement interest outweighs the rights and entitlements of other individuals in society, they are placed outside of the general provisions of the concept we have of the rule of law.
One of the fundamental notions of our system of law is that it is the courts and not individuals that determine the balance to be struck between competing rights and interests. Where the state seeks to interfere with somebody's rights or with somebody's property, the preferable scheme under our system is a system of prior judicial authorization, and where prior authorization is not feasible due to exigent circumstances, subsequent judicial oversight of the conduct.
What is troubling with these provisions is that the police, whether it's done by a public officer or a senior officer under the scheme, make the determination of what appropriate conduct should be undertaken, and they make that determination from their own perspective, caught up in an investigation, without oversight from an independent body and without an appropriate, in our view, system of review.
In our view, there's an absence of an appropriate system of review to ensure that the balance being struck by the police under this regime is an appropriate one, and one that is ultimately in the public interest.
Just to compare the difference between the most standard system of prior judicial authorization—the search warrant provisions under section 47 of the Criminal Code—and the law enforcement justification power, search warrants require prior authorization from an independent judicial officer. Under the law enforcement justification, the police make the determination, and there's no prior recording of it in general terms, except under certain exceptional circumstances where a senior officer has to give written authorization in advance; rather, there is an after-the-fact reporting system.
The justification under the search warrant regime is based upon information on oath. The justification for the acts is disclosed in advance. The extent to which the state seeks to be interfering with the rights of individuals is particularized in advance, and clear limits are set upon the conduct of the state, which reflects the balance that an independent officer sees as being justified.
After a search warrant is executed, the courts maintain jurisdiction and supervision over the search. There's a system in place where reports have to be made promptly after a search, where property seized must be reported to a judicial officer, and where the courts maintain control.
In the law enforcement justification scheme, the justification is not set out in advance. Indeed, under the reporting provision in section 25.2, the public officer who commits an act or omission that would otherwise be an offence has to file a report with a senior officer describing the act or omission but is not required to describe the justification for that act or omission. In terms of the creation of a record as to why the state interfered with individuals, the law enforcement justification regime provides very minimal reporting requirements.
One of the most important differences in accountability between the search warrant regime and the law enforcement justification regime is that search warrants ultimately become public documents. The information sworn in support of a search warrant is a public document. There may be sealing orders, and there may be editing of information to protect an ongoing investigation or to protect the identity of confidential informants, but the general rule is that this information will become public when those interests no longer need to be protected or where certain information can be edited out.
Under the law enforcement justification regime, there is minimal public scrutiny. The press will generally not have any access to the information, unless it is somehow disclosed in the course of a criminal prosecution and becomes the subject of evidence at a criminal trial, perhaps years down the road.
An individual affected by a search warrant receives notice in some form that the state is interfering with their rights. Generally, people are entitled to see a copy of a warrant before the police enter their premises. In the case of interception of private communications, individuals will receive notification at some period of time after the interceptions have ceased.
Under the law enforcement justification regime, the only case where there's notification of individuals affected is where there's a loss of or serious damage to property. If the police assault an individual in the course of an investigation or commit other offences, the individual—an innocent third party, a member of the public—may never know that it was the state that committed that offence against them.
All of the protections that I've outlined in relation to search warrants are in place to protect a very limited category of rights—property rights and privacy. In my view, what is disturbing with respect to the law enforcement justifications is that there is an incredibly broad range of conduct that may be justified under these provisions.
The limitations on the justification scheme are set out in subsection 25.1(11), which says:
||Nothing in this section justifies
||(a) the intentional or criminally negligent causing of death or bodily harm to another person;
||(b) the wilful attempt in any manner to obstruct, pervert or defeat the course of justice; or
||(c) conduct that would violate the sexual integrity of an individual.
What would be permitted if those are the only exceptions? Robbery would be permitted. Extortion, uttering death threats, kidnapping, or forcible confinement could be permitted. The infliction of pain short of intentional bodily harm could be permitted, and notwithstanding paragraph 25.1(11)(a) prohibiting the intentional or criminally negligent causing of death or bodily harm, conduct that results in death or bodily harm could be justified. The offence of assault causing bodily harm and the offence of aggravated assault do not require that the consequences be the result of intentional action. So if the police engage in conduct where there is objective foresight of the risk of bodily harm, or indeed death, that could be justified under these provisions, as long as the police were not criminally negligent in the sense of wantonly and recklessly disregarding the risk to the public.
In preparing for today, I didn't have the benefit of reviewing the evidence of the witnesses who testified on Tuesday. Hopefully, the committee has received some information from those witnesses with respect to the actual functioning of these provisions on a day-to-day basis.
What I have been able to review, and what's publicly available—at least online—are certain reports from the federal government in relation to the RCMP's recourse to these provisions and the British Columbia reports from certain years. From reviewing at least those reports, it appears that there has been limited recourse to these provisions, which provides some comfort in light of the concerns that had been raised about the import and over-breadth of these provisions. But at the same time, questions are raised with respect to what had been the purported necessity of these provisions. In 2002 and 2004, for example, British Columbia reports no recourse to these provisions.
With respect to the RCMP, what is reported for 2003 are five instances in investigations involving the Immigration and Refugee Protection Act, where what was authorized was the possession and/or purchase of identification documents; in other instances, violations of the Customs Act relating to the purchasing, possessing, or making of false customs declarations were authorized; and in one instance, the possession of a firearm that otherwise would have been an offence under the Criminal Code was authorized.
I pause to note that one of the concerns that had been raised before this bill was adopted was that such a broad justification power was not necessary, and that in response to the Campbell and Shirose decision of the Supreme Court of Canada, for example, regulations had already been promulgated under the Controlled Drugs and Substances Act that would authorize reverse sting situations, and that narrower justification provisions could be created that wouldn't allow such over-broad resort to otherwise criminal conduct.
What is interesting and somewhat comforting with respect to the 2002 report in relation to the RCMP is that the conduct that has been justified and authorized really, in a general sense, relates to victimless crimes, where law enforcement officers have been authorized to possess things in the course of an investigation that were never being possessed for an improper purpose.
So for the purchasing of identification documents, the possession of false identification, the possession by agents of the state of contraband liquor or tobacco products, there are no citizens who are actually victims of those offences. The making of a false customs declaration form is the state lying to itself, which in my view is a victimless crime.
Similarly, in the 2003 report, in relation to the RCMP, there were two instances of justification of possessing forged passports; two instances of offences under the Excise Act, relating to the possession of improperly stamped tobacco; one instance of buying and receiving counterfeit documents and uttering counterfeit documents; then one case of possession of stolen goods, a theft over $5,000—there may have been a victim of the theft who might be a member of the public, but it's not clear from the report; and conspiracy to commit an indictable offence, although the indictable offence is not identified in the report.
From the information I had that I've been able to review prior to today, it's not clear how much the other provinces are resorting to these provisions and whether the limited resort available or reflected in the RCMP report is something that has also been carried out across the country.
To answer the second question first, I'm not aware of any instances of complaint.
Perhaps this will be the concluding portion of my initial comments. One of the real concerns is that the way in which these provisions are structured—the way in which authorization is granted and the limited way in which reports from public offices are made and the annual reports created—shields the conduct of the police from real scrutiny.
Individuals who may have been the subject of police-justified “crimes” may never know that they should be complaining about police conduct. If someone has been assaulted or threatened under these provisions, they may feel that they were the victim of a true criminal, rather than a justified criminal.
The press cannot scrutinize the conduct of the police in any meaningful way. Indeed, based upon the type of information that the annual reports contain—the limited information that is statutorily required—in my view, those reports do not provide sufficient information to Parliament to meaningfully review the necessity of these provisions, to determine whether resort to these provisions is being undertaken in an appropriate manner, or to determine the effect of these justified crimes upon members of the public.
In this sense, it remains the view of our organization that these provisions unacceptably place the police outside of the usual scheme of the rule of law.
If I understand you correctly, you're opposed to these provisions on principle, since you admit that no specific cases of abuse have been brought to your attention. No court of law has ruled on the unconstitutionality of provisions of this nature. I can understand that as far as criminal lawyers are concerned, any justification regime that would allow people to commit a recognized criminal act is unacceptable.
However, when we met with senior officials from organizations responsible for law enforcement, they made it very clear to us that this justification regime had mainly been employed in conjunction with investigations involving infiltration techniques, specifically but not exclusively in fighting organized crime.
Basically, a parallel can be drawn with the situation of informers. They can pose a problem, democratically and even ethically and also from the standpoint of the healthy administration of justice. However, without informers or a justification regime, certain police investigations would never have produced any concrete results.
Would you go so far as to recommend that these provisions not be extended, or are you prepared to reconcile yourself to the fact that, even though you likely view them as a necessary evil, these provisions can prove be useful in connection with the conduct of investigations?
Going by the RCMP's experience in 2002-03, there would have been some false passports that weren't investigated, some tobacco-type and alcohol smuggling offences that weren't properly investigated, and some counterfeit documents that weren't properly investigated. Given the limited recourse that has been made to these provisions, at least by the RCMP, it's difficult in my view to see the pressing need these provisions were meant to fill.
Campbell and Shirose, the Supreme Court of Canada decision, presented a very narrow problem for the police in relation to reverse sting operations in drug cases. In part, it turns upon the very expansive definition in the Controlled Drugs and Substances Act of the offence of trafficking, because it's an offence not simply to sell drugs but to offer to sell drugs. Before these provisions were introduced into the Criminal Code, that's a problem that had been rectified by regulations under the Controlled Drugs and Substances Act.
It appears that, at least from the RCMP's conduct, the types of investigations justification is relied upon for are those where there really are victimless crimes, where it's a question of possessing contraband or a question of creating false documentation that's being uttered to the government, rather than crimes that generally have an effect upon third parties, like most of the other offences under the Criminal Code.
So I question the pressing need for these provisions. Given the manner in which they've been resorted to, it's difficult to see that they are a necessity at this time.
Thank you, Mr. Chair, and thank you, Mr. Copeland, for appearing here as a witness.
From the testimony we've heard on some of the restrictions, I know sometimes people say this is a licence to break the law, but as you rightly said, these officers who are acting under this provision are in fact acting within the law that we as parliamentarians set out. We've provided these enabling sections of the Criminal Code to allow them to do their job.
From some of what you've provided on the RCMP study, I take that as a bit of a two-edged sword. On the one hand, most of the items you've listed are, as you describe them, victimless--improper labelling of tobacco and passport offences perhaps. My thought is if you use that, perhaps there's a reason why this section shouldn't exist, and I look at that perhaps as a reason why we should consider maintaining the section, because with respect to those types of crimes that are being targeted, if the offence is truly victimless, then I don't see the problem. On the other hand, what comes to mind when I read the act is this isn't a 007-licence-to-kill type of thing. There are limits dealing with inflicting bodily harm or interfering with the sexual integrity of another person. When we look at some of the investigations and the evidence we've heard when it comes to child pornography, human trafficking, biker gangs, organized crime--those types of offences--it's easy to contemplate situations where someone would be in a situation that they would need the recourse, and perhaps the timely recourse, of this section.
I know you've touched on this. But if there were a narrowing of this provision, what do you envision? As Mr. Thompson said, we do talk of balance at times, and there is the real interest of seeing these investigations in some of these very serious areas carried out. What would you propose?
Good day, Mr. Copeland.
You're suggesting that sections 25.1 to 25.4 are different. Sections 25(1)(a) and 25(1)(c) refer to a private person assisting a police officer, not just to police officers. You consistently bring the conversation around to police officers. Yet, sections 25(1)(a) and 25(1)(c) clearly refer to someone authorized to do something, and I quote:
|(c) in aid of a peace officer [...]
Therefore, sections 25.1 to 25.4 could apply to me, a private person. Sections 25.1 to 25.4 protect the average citizen who has an obligation at all times to prevent the commission of a criminal act. For instance, if someone breaks into my home and I'm forced to get into a fight with that person, I could potentially hit him with a baseball bat. Under the circumstances, I'd like to be protected by the legislation. That's my first point.
Secondly, have you given any thought to following Quebec's lead? In that province, when someone is dissatisfied with the behaviour of a law enforcement officer, that person can file an ethical conduct complaint against him. This goes much further than the provisions of sections 25.1 to 25.4. The problem is addressed by invoking Quebec's code of ethical conduct which has been in place for at least 20 years. There is no need even to invoke the provisions of the Criminal Code. This approach is direct, easy and quick and the rulings are far more interesting than those handed down under the Criminal Code, for some rather unusual reason.
Are you calling for an amendment strictly because of law enforcement officers or because you want to prevent anyone who may have witnessed a criminal act from benefiting from sections 25.1 to 25.4?
Thank you, Mr. Copeland.
The time is now up for this witness. We appreciate very much your point of view in this review. It's interesting to hear a criminal lawyer's position. Of course, we have listened to police officers, and we'll be listening to more of both over the next couple of meetings.
I guess in the context in which we talk about this, such as organized crime—and I know that questions have come up about it—these sections really, really assist in those types of investigations more than any other type. Even though you may see what is on your reports there, that's just a little part of a bigger scheme. We've been advised that's the way it works. It doesn't necessarily reflect the whole picture, but it does reflect a portion of the picture, and a very essential part of it.
As has been pointed out to us, police officers have utilized this particular activity in the past by justifying it through common law and precedent. It was acceptable until the most recent court case, and now it's in legislation, which is basically where we're at.
That's what's been before our committee at this point. So we're looking at it not only from the point of view of the Criminal Lawyers' Association or of a criminal lawyer, who may also be somewhat narrow in their examination of what's happening, but as a committee we have also received a much broader scope for this application.
I want to thank you. It's been a very interesting discussion here this afternoon.