Perfect. Thank you very much.
Good afternoon. I would like to begin by thanking the Committee for giving me this opportunity to speak today and for facilitating my testimony through video-conferencing.
I am a member of the Ontario Bar, and am currently pursuing a Doctorate in Constitutional Law at Oxford University, as mentioned by the Chair. My testimony here today, however, is my own alone. In other words, I do not purport to represent Oxford University or the Trudeau Foundation, of which I am a member.
The crux of my presentation flows from a paper that I wrote which is entitled: Legal Lawlessness and the Rule of Law: A Critique of Section 25.1 of the Criminal Code. This paper examines the constitutionality of the regime set out in clause 25.1 and following, and concludes that this regime raises significant constitutional issues. This study was published in 2005 by the Queen's Law Journal, volume 31, and can be downloaded from the Trudeau Foundation's website under the heading « News ».
With your permission, I would like to give a brief overview of the three points I intend to cover in the 10 to 12 minutes available to me. Following that, I will make detailed comments on each point. Before I do that, though, I wish to point out that in principle, I support the exemption regime currently under review. My comments are really intended to identify specific difficulties with the way this regime is framed and to suggest alternatives.
Let's move now to my first point.
The justification for clauses 25.1 and following of the Criminal Code relies mainly on the need to provide police with new, exceptional powers so that they are in a better position to fight organized crime through undercover operations. However, nowhere in this legislation does it say that these exceptional powers can be used for the sole purpose of fighting organized crime and for undercover operations.
Second, the process for designating a “public officer” within the meaning of the law is inadequate, in that the designation authorizes that person to commit criminal offences subsequently that were not specifically authorized by the minister or by a senior official. Once designated, the public officer relies on his own authority for the purposes of committing criminal offences. In English, we would say he becomes a law onto himself.
Third, two previous points are important not only in themselves, but also from a constitutional standpoint. The Supreme Court ruling in Campbell and Shirose does not seem to lend itself to an interpretation that would support the regime as it is currently framed. In other words, the scope of the regime as it is currently proposed is too broad, and the rules for authorizing criminal offences, too loose to be deemed constitutional, in my opinion.
There is a fourth point that I will not have time to comment on as part of my presentation, but we could perhaps discuss it afterwards, if you're interested. It has to do with ways of increasing protection against abuse of these exceptional powers through changes in civilian oversight and annual reports, as well as through the addition of a more general requirement for disclosure.
I would now like to make more detailed comments with respect to my first point, regarding the justification or the exemption regime and fighting organized crime.
When clause 25.1 and following of the Criminal Code were passed into law in 2001, they were part of Bill C-24, an Act to amend the Criminal Code (organized crime and law enforcement). Today, the title of your study refers to “protection of persons administering and enforcing the law”. The reference to organized crime is no longer there, and that is appropriate, because the legislation under review makes no reference to organized crime. However, in the testimony that you heard, much of the focus was on organized crime, fighting terrorism, and undercover operations. The use of these powers was not mentioned in connection with police investigations that are unrelated to organized crime or undercover operations, with the exception, I believe, of an example dealing with a boat or plane that has to engage in a chase at night with its lights off, in order to avoid detection.
This leads me to my first recommendation for the Committee: to amend the law to limit its application to investigations related to organized crime and undercover operations, as well as a few other targeted areas of police activity. In that way, the scope of the law will be in keeping with its justification.
I move now to my second point: the lack of a procedure for authorizing the unlawful behaviour itself.
There are two regimes set out in the Code for the purposes of authorizing a public officer to commit a criminal offence. The first is the general enforcement regime. It is set out in section 25.1, subsection (8). This provision requires that the public officer be designated by the minister, but it does not require that this designation have attached to it specific conditions, such as the term of the designation or the offences the public officer is authorized to commit. Once designated, the public officer is justified in committing an act if he or she believes, on reasonable grounds, that committing the act is reasonable and proportional. In other words, there is no oversight prior to the commission of the act itself.
However, there is also a second regime. It is under section 25.1, subsection (9), and applies only in cases where an offence is likely to result in loss of or serious damage to property, or if the public officer is directing a third party to commit an offence. In this case, the two criteria associated with the first regime are stated again: the public officer must be designated, and he must believe, on reasonable grounds, that the act is reasonable and proportional. However, there is a third criterion: before committing the offence, he must personally have been given written authorization by a senior official. The senior official must also believe, on reasonable grounds, that the act is reasonable and proportional. There are certain exceptions to the requirements for prior written authorization, namely in emergency situations as laid out in subsection 25.1(9).
I am suggesting that this second regime be the only regime for justifying the commission of criminal offences by a public officer. I am suggesting this on the basis that no individual, not even a public officer, should be able to decide on his own whether he can commit a criminal offence. Before committing such an offence, he must receive specific authorization.
Although my objection is a conceptual one, I was very pleased to hear that the RCMP has in fact established a requirement for prior authorization in the context of its own operations. The Assistant RCMP Commissioner, Mr. Souccar, confirmed in his testimony before the Committee that no public officer can commit a criminal offence without receiving written authorization from a senior RCMP official. In other words, the RCMP has adopted a version of the prior authorization regime for all its operations, even though the Code does not currently require that.
My recommendation is therefore to amend the Criminal Code to require, with the exception of emergency situations, that a public officer obtain written authorization from a senior official before committing a criminal offence.
I have one more point, which I'll address in English.
Having established that the framework for these powers does not limit them to the investigation of organized crime and undercover operations, and having evaluated the scope of the authorization given to public officers to commit acts that would otherwise constitute a crime, I now turn to my third point, which deals with the constitutional question.
You might ask why we should incorporate the changes that I have suggested rather than leaving these matters to the good judgment of the police forces. There are, I think, two answers, neither of which questions the integrity of our police forces. The first is to recognize that the powers granted to our police forces under section 25.1 and following are important--indeed, they are exceptional. And to the extent that we authorize any person to commit acts that would otherwise be criminal, we should strive to provide an adequate framework for its exercise and for the supervision of its exercise. And this framework should be provided for by law. In other words, it must have the force of law, and not merely the force of a guideline internal to a police force.
The second answer is as important. If the framework for these exceptional powers is not sufficiently circumscribed, the constitutionality of the very framework may be in question.
Allow me to read one short passage from the judgment of the Supreme Court of Canada in Campbell and Shirose, which, as you know, is the judgment that largely served as the impetus for this legislation: “General 'law enforcement justification' would run counter to the fundamental constitutional principles.” And here the Supreme Court of Canada was referring to the constitutional principle of the rule of law, the very principle outlined in section 25.1(2) of the sections under study.
The concern with the sections under review is that they indeed constitute the very general law enforcement justification that the Supreme Court of Canada warned against, “general” in the sense that they are not limited to the investigation of organized crime and other targeted criminal activities but rather apply to the investigation of any criminal activity, and “general” also in the sense that in the normal case a public officer need not seek prior authorization before committing an act that would otherwise be criminal.
Hence, I move to my conclusion, mentioning only that there is a fourth point, which I would be happy to discuss in the course of your questions, regarding increased protection against potential abuse.
I thank you for your attention, and I look forward to your questions.
Okay. Thank you very much, Mr. Comartin.
I wanted to speak about certain other recommendations concerning increasing protection against abuse.
Now, the first two recommendations that I made are going to be among the more important: first, let's narrow the scope of the act, so that it speaks only to instances where it is necessary for police work; and second, let's oblige prior authorization by way of a senior police official, a judge, or perhaps by way of another person. Maybe we could think of giving it to a member of another police force that is not as involved in investigating the crime itself, so we would have some form of independence there. Those two would go a long way in protecting against abuse.
A second suggestion I have would perhaps be to prepare, or have the public officer who uses these exceptional powers prepare, a written report every time the powers are used. Currently the law only provides subsection 25.3(2): that there's an obligation to disclose only where exceptional use of these provisions are used, namely damage to property and authorizing a non-police officer to make use of these provisions. Let's extend that to every use, and let's have the public officer outline why he or she thought the use of these provisions was justified as reasonable and proportional, according to the standards set out in the law. So that's point number two.
For point number three, I think there should be a way to increase the responsibilities of the civilian oversight body. Currently under subsection 25.1(3.1), it provides that a civilian oversight body “may review the public officer's conduct” prior to the minister designating that officer. I think your committee could consider extending the powers of the civilian body by obliging it to review—in other words, by making it imperative, rather than permissive, so it would read, “shall review the public officer's conduct” prior to the minister designating that officer.
Finally, I've already touched on my fourth suggestion in response to a question from one your colleagues, which would be to extend the obligations of disclosure under the annual report to all instances of the use of this act, whereas currently it's limited to important damage to property and to authorizing a non-police officer to use these provisions.
So these would be some of my suggestions for increasing protection against abuse.
Thank you for your presentation.
I listened quite intently to what you were saying, and I have to ask the question: do you really understand the involvement of the police, what they go through during these major operations, of finally coming to making an arrest and bringing forward a charge?
I've talked with police officers in the past, and I find that the activities that are involved trying to get to the bottom of whatever they're doing involve a number of events, a whole range of events. It could bring about a cause to immediately react in some way that makes it difficult for the police officers to do such a thing without the proper legislation--which I understand the RCMP are quite happy with and are able to operate under.
But if you look back to the times before there was legislation, these undercover operations took place quite often. There were huge amounts of investigation. The police knew what they were doing, and they got engaged in numerous types of events that led to the arrest and conviction of certain individuals. It was only when the courts intervened on behalf of one complaint, or something, that this whole legislation came about, just a few years ago, but they operated for years before without that.
I'm not accusing you of this, but I get the feeling that some people actually believe the police aren't capable of doing their job without the good guidance of judges and politicians. I disagree with that, point blank.
I think this is a great group of people who know what they're doing. Sure, they're capable of making a mistake, but we'll deal with those things. But we constantly look for more legislation to put into a huge book that already has so much legislation that it's difficult to follow. We want to put more in and possibly tie the hands of these people who are doing a great job of fighting crime and are trying to get to solving a lot of major issues. I think we need to do a whole lot more relying on their abilities and capabilities, and a lot less on input from people such as yourself--I don't mean anything bad about that--or people like ourselves, the politicians. Let the police do their work.
I'm not sure what you mean by should judges get involved. Involved in what? I thought judges were to listen to evidence and make a decision. I didn't know they were supposed to get involved beyond that.
I'm wondering where all this is going. If the police are happy with the legislation the way it is, and they can operate within that and they're comfortable--in fact, they even said they wouldn't like to see it expanded much further--I don't know what it would be that they would do.
When are we, as a group of people in this country, going to start relying on a great force that knows what they're doing, and quit suggesting that, “Well, before they do this, or if they do that, they have to have these written reports and make sure you clear it here and clear it there.”
I'm hearing all kinds of things that almost make me feel that we don't have confidence in the police force. Well, I'm one person who has 100% confidence in them.
You can respond any way you like, sir.
Let me first say that it's great to have some informed public policy feedback from a Canadian-based foundation, such as this one, founded in memory of the late prime minister, former Prime Minister Trudeau.
This particular area of law was enacted because we are a rule-of-law jurisdiction, and the court found that police officers didn't have the right to break the law when they were enforcing the law. I suppose we can all recognize that for centuries police have had to indirectly break the law in order to enforce the law, such as when they speed or go through a stop sign or use an assault to detain someone in an arrest, and we've accepted that. In many other rule-of-law jurisdictions around the world, that's ongoing. I don't believe they've tried to codify this particular area of law.
Mr. Thompson made this point. How much codification are we going to have to do here before we codify ourselves into a library and we forget about law enforcement itself?
One of your suggestions is that these sections apply just to organized crime. Can I suggest to you that it's really difficult to define what organized crime is? I mean, in theory, it's a minimum of two people working together to break the law for the purpose of profit. But given the difficulty of defining organized crime, as you think we might like to consider here, isn't there enough constraint in the use of these sections, buried in the section I'm going to cite here? You'll recognize it; it's 25.1(8)(c). In other words, it says that the means used by police, under these sections, have to be proportional to the nature of the offence or the criminal activity being investigated.
That section is intended to impose constraints on police in the use of these sections. So do you feel that it's too weak? Should this stuff come before a judge for scrutiny at some point in some case, don't you think these sections provide enough constraint?
Thank you for your question.
I should clarify one thing to start off ,and that is that I'm not here as a delegate of the Trudeau Foundation. I am a proud member of the Trudeau Foundation, but I don't pretend to speak for it today. I just wanted to clarify that.
You mention speeding, going though stop signs. You're absolutely right to identify that on a daily basis, more than we'd be willing to recognize on any given day, police do break the law. In fact, they have to do so. If someone is speeding, the only way the police are going to be able to catch them is by speeding themselves.
What concerns me is that if we don't restrain this act to exclude examples like that, in other words to leave that to say it's currently being regulated by the common law, we don't think the Shirose and Campbell judgment goes as far as to exclude those types of instances. What you might have is as follows:
If I'm a criminal defence lawyer, I'm going to say my client has been caught for speeding. The police officer followed him and was speeding and went through a number of red lights. The police officer was not designated under section 25.1. Therefore, not only have the police broken the law in speeding and in running through a red light, but the police have broken the very law that would have authorized them to do so.
So perhaps we're going to be using this law in designating traffic cops, which we might choose to do, but I don't think that's what is currently going on. The testimony of the Department of Justice and the RCMP suggested, in fact, that's not what they're using it for. So my concern is that if we're not going to be limiting the scope of this act, it might be seen as a necessary condition for all sorts of things we wouldn't otherwise think it is meant to apply to. That is one part of my answer to your question.
For the second part, you refer to section 25.1(8)(c). You're absolutely right, that will provide important constraints. My concern is that we're asking the officer himself or herself to make that judgment call. They should, but someone should make that judgment call with them before they're faced with that very situation.
In answer to your colleague's question, I allow that there will be urgent situations in which the police officer will have to make that call by himself or herself. In the absence of those urgent situations, let's look at section at 25.1(9), which requires not only the officer himself or herself committing the acts, but also a senior official to authorize him or her in writing beforehand. That would be setting up a second constraint, which would assist the police officer. The police officer certainly wouldn't have to think of these tests and legalities at the very moment, which we might not want. He'd say, “I've already been authorized. I can go ahead and do this without worrying that after the fact I might be judged to have not been acting on reasonable grounds.”
Indeed, that's a concern. I'm certain the RCMP, in its current operations, has devised certain safeguards in that respect. I won't be able to speak to that, obviously, not having worked for the RCMP, and especially not having worked at the levels where this type of information is available.
I do know, however, in the testimony provided by the RCMP, that there are only three senior officials who have been designated, so already they, themselves, have decided, “There are going to be only three of us, and potentially only three of us who we can mutually trust”. Therefore there's already a restriction there, and I'm sure they've implemented certain safeguards in terms of the collecting and safeguarding of that information.
With respect for your point that the Supreme Court said there's no justification to commit crimes and Parliament must authorize it, it's a fair point. In fact, we'd have to study together the judgment in more detail to say how much exactly do you want it authorized. Do you want us authorizing high-speed chases? If so, I think we have to look at every instance together of where the police would have recourse to breaking the law in order to better enforce it, and identifying those.
My difficulty here is that the provisions say pretty much anything goes as long as you, public officer, or you, police officer, think that it's just and reasonable under the circumstances. I think there'd be a way of not taking away the importance of this act for their operations but at the same time of restraining its scope, at least as it appears on the statute books, to reflect how they're using it in practice.
Part of it is to say, listen, it's not a practical problem, because in practice, the police are using this only when necessary. The other difficulty, I think, from a constitutional perspective, is that when this is going to be challenged, if it is going to be challenged, the courts are going to be more interested in what the law says than in the way it's being applied.
There have been many instances when lawyers stand up before the court and say, “Don't worry, court, I know it looks like it authorizes everything, but we're only using it under these circumstances”, and the court said, “If you're only using it under those circumstances, let that be reflected in the act”.