This statement of principle could be viewed as a somewhat unusual provision to find in law, but it is really core to what the law enforcement justification is about. Certain references to this justification, especially by critics of these provisions, refer to the police as “breaking the law”, or “being above the law”. From the government's perspective, this is incorrect. The principle underlying the justification is that it is for Parliament to decide what law enforcement officers reasonably and proportionally need to be able to do in order to investigate and enforce the law, and to ensure that these activities are brought within the law.
To conclude my introduction, Michael, Erin, and I were extensively involved in the development and delivery of training on the law enforcement justification as well.
The policy origins of the law enforcement justification arose from a decision of the Supreme Court of Canada in the case of R. v. Campbell and Shirose. In that decision, which was issued in April 1999, the Supreme Court ruled that the police were not immune from liability for unlawful conduct committed in good faith in the course of an investigation. In particular, the Supreme Court ruled that the police do not share in the Crown's immunity when engaged in this function because they have status independent of the Crown when engaged in law enforcement. The Supreme Court also found that police do not have any common-law law enforcement justification. It ruled instead that if immunity were necessary, it was for Parliament to provide for that in statute.
In the Campbell and Shirose case, the police had offered to sell narcotics to suspected drug traffickers during the course of an undercover drug investigation. It was the legality of that conduct that was under consideration by the Supreme Court.
Now, ironically, the fact pattern of Campbell and Shirose had already been addressed--prior to the Supreme Court of Canada ruling, though obviously after the investigation had taken place--through regulations adopted under the Controlled Drugs and Substances Act. Those regulations, the police enforcement regulations, provide exemptions for certain drug offences when engaged in by police officers for the purpose of investigation enforcement. However, due to the breadth of the reasoning adopted by the Supreme Court in Campbell and Shirose, in which general statements of principle were made indicating that no law enforcement justification existed in common law, these regulations did not provide adequate justification for other investigative and enforcement situations.
The result was that the ruling affected law enforcement investigative practices that had been used for many years by law enforcement officers. Enforcement officers sometimes find it crucial to an investigation to operate under cover, posing as criminals in order to most effectively investigate criminals. You can just take facts analogous to those of the Campbell and Shirose case as an example. Police may sometimes pose as purchasers or sellers of contraband commodities, tobacco or alcohol, in order to infiltrate groups who are engaged in such practices. In order to pose convincingly in this way, sometimes they will make an offer to buy or sell the contraband in question. If the sale or purchase of this contraband constitutes a criminal offence, this police enforcement activity would be restricted in the absence of a legal justification.
The law enforcement justification enacted in 2001 in Bill C-24 responded to the need for a statutory foundation for this activity. The introduction of this legislation had been preceded by the development of a white paper tabled in the Senate in June 2000. The government had sought to obtain public comment on a legislative proposal before bringing it in as actual legislation. That legislative proposal set out in the white paper became, with certain modifications, the basis for what is now the law enforcement justification.
That is a basic introduction of where they came from. I now want to take some time to actually go through, a little bit technically in some ways, how this law enforcement justification works. The first thing I want to address is a technical aspect that is actually a statement of principle. It's a statement of principle that's contained in the law itself.
At subsection 25.1(2) it states as follows:
It is in the public interest to ensure that public officers may effectively carry out their law enforcement duties in accordance with the rule of law and, to that end, to expressly recognize in law a justification for public officers and other persons acting at their direction to commit acts or omissions that would otherwise constitute offences.
There are also substantial practical considerations underlying this principle. In particular, it is appropriate for officers who are expected to investigate crime and to act reasonably and proportionately in doing this not to be subject to criminal liability for doing so; otherwise, officers would legitimately refuse to engage in such conduct.
Further, from a practical perspective, the law enforcement justification protects prosecutions from being jeopardized in situations where law enforcement has used such techniques. This was in fact the issue in the Campbell and Shirose case. The defence in that case had made a motion for stay of proceedings on the ground that there had been abuse of process by the police.
I will now address the particular method by which the law enforcement justification operates.
There are three fundamental requirements for a law enforcement officer to be able to employ this justification. First, a public officer, as they are referred to in the statute, must be designated; second, engaged in an investigation or in enforcement; and third, follow a requirement of reasonable and proportional conduct.
Public officers must receive an individual designation in order to do it. When the provisions were first introduced, there was a possibility for group designations. That was part of the statute originally. While it was going through the parliamentary process, this was amended. Group designations were taken out; only individual designations were left. That amendment underlined the importance placed on the designation requirement and on ministerial responsibility for these designations.
One other amendment with respect to designations was made when it was before Parliament. Before a police officer can be designated, subsection 25.1(3.1) requires that there be a public oversight body that can review the public officer's conduct. These public oversight bodies exist for police right across Canada. For the Royal Canadian Mounted Police, it's the Commission for Public Complaints Against the RCMP. This provision puts this requirement directly on a statutory foundation, requiring that designations for police, under this justification, cannot go forward in the absence of an oversight body.
The provisions define the public officers who are eligible for designation. Subsection 25.1(1) states that for the purpose of these provisions a “public officer” means a peace officer, or an officer having the powers of a peace officer. We're effectively talking about law enforcement officers here.
With respect to who can make the designations, for the Royal Canadian Mounted Police it's the Minister of Public Safety Canada. For police under provincial authority, the competent authority is the minister responsible for policing in the province. For other public officers, such as federal customs, fisheries, or environmental officers, the competent authority is the minister responsible for the acts these officers have the power to enforce.
There is also a possibility for emergency designations. Normally, designations have to be made by a competent authority; that is, the minister responsible for the officers. In some limited cases, a senior official responsible for law enforcement may designate a public officer, but the emergency designation can only apply for 48 hours and must be brought to the attention of the competent minister without delay. The senior officials responsible for law enforcement who may use emergency designations and who give special authorizations for certain acts or omissions must also themselves be designated by the competent minister.
That is the basic framework for the designation and who can do it. I'll turn now to the general circumstances under which an individual officer can employ the justification.
In specific terms, the provisions specify that the public officer must be engaged in the investigation of an offence under, or the enforcement of an act of, the Canadian Parliament, or an investigation of criminal activity more generally. That is, they have to be operating within their functions—a fairly common-sense, straightforward requirement, but it's put into law. This includes all offence investigations and enforcement under federal law. The investigation of provincial offences, however, is not included under this justification regime.
I'm really coming now to the core of the entire provision; that is, when you can do it in general when you're engaged in enforcement, but what the particular circumstances are, what the particular test is, under which the law enforcement justification can be employed. That's provided in paragraph 25.1(8)(c), which specifies that the public officer must believe on reasonable grounds that the officer's acts or omissions are reasonable and proportional in the circumstances.
There are also substantial practical considerations underlying this principle. In particular, it is appropriate for officers, who are expected to investigate crime and act reasonably and proportionally in doing this, not to be subject to criminal liability for doing so. Otherwise, officers would legitimately refuse to engage in such conduct.
Further, from a practical perspective, the law enforcement justification protects prosecutions from being jeopardized in situations where law enforcement has used such techniques. This was in fact the issue in the Campbell and Shirose case. The defence in that case had made a motion for a stay of proceedings on the ground that there was an abuse of process by the police.
I will now address the particular method by which the law enforcement justification operates. There are three fundamental requirements for a law enforcement officer to be able to employ this justification. First, the public officer, as they are referred to in the statute, must be designated; second, he must be engaged in an investigation or in enforcement; and, third, he must follow a requirement of reasonable and proportional conduct.
Public officers must receive an individual designation in order to do it. Actually, when the provisions were first introduced, there was a possibility for group designations. That was part of the statute originally. While it was going through the parliamentary process, that was amended and group designations were taken out; only individual designations were left. That amendment underlined the importance placed on the designation requirement and on ministerial responsibility for these designations. One other amendment with respect to designations was made when it was before Parliament.
Before a police officer can be designated, subsection 25.1(3.1) requires that there be a public oversight body to review the public officer's conduct. These public oversight bodies exist for police right across Canada. For the Royal Canadian Mounted Police, it is the Commission for Public Complaints Against the RCMP. This provision puts this requirement directly on a statutory foundation and requires that designations for police under this justification cannot go forward in the absence of an oversight body.
The provisions define the public officers who are eligible for designation. Subsection 25.1(1) states that for the purpose of these provisions:
“public officer” means a peace officer, or a public officer who has the powers of a peace officer under an Act of Parliament.
We're effectively talking about law enforcement officers here.
With regard to the person who can make the designations for the Royal Canadian Mounted Police, it's the Minister of Public Safety. For police under provincial authority, the competent authority is the minister responsible for policing in the province. For other public officers, such as federal customs, fisheries, or environment officers, the competent authority is the minister responsible for the acts these officers have the power to enforce.
There is also a possibility for emergency designations. Normally, designations have to be made by a competent authority, who is the minister responsible for the officers. In limited cases, a senior official responsible for law enforcement may designate a public officer, but the emergency designation can apply for only 48 hours and must be brought to the attention of the competent minister without delay.
The senior officials responsible for law enforcement who may use emergency designations and who give special authorizations for certain acts or omissions must also themselves be designated by the competent minister.
That is the basic framework for the designation and who can do it.
I'll turn now to the general circumstances under which an individual officer can employ the justification. The provisions specify that the public officer must be engaged in the investigation or enforcement of an offence of an act of the Parliament of Canada or, more generally, an investigation of criminal activity. That is, they have to be operating within their functions. It is a fairly common sense, straightforward requirement, but it's put into law.
This includes all offence investigations and enforcement under federal law. It does not, however, include the investigation of provincial offences under this justification regime.
I'm really coming now to the core of the entire provision, which is when you can do it. What are the particular circumstances and what is the particular test under which the law enforcement justification can be employed? That is provided in paragraph 25.1(8)(c), which specifies that the public officer must on reasonable grounds believe that his acts or omissions are reasonable and proportional in the circumstances.
Now, there are three types of conduct that we refer to generally in our training that may be justified under this regime. First, there are types of conduct not justified at all. There's conduct that's justified only with an authorization from a senior official. And there's conduct that's justified without authorization from a senior official.
Now, three factors are set out as relevant in determining reasonableness and proportionality: the nature of the act or omission, the nature of the investigation, and the reasonable availability of other means for carrying out law enforcement duties. Those factors are not necessarily listed as exhaustive under the statute, though.
This reasonable and proportional test is the key provision that describes the essential nature and quality of otherwise illegal acts and omissions that may be justified under the justification regime. It is based both on subjective and objective elements. The officer must himself or herself believe that the act or omission is reasonable and proportional; however, this belief must be based on reasonable grounds. And it is important to emphasize that conduct that falls outside of the reasonable and proportional test, or indeed outside of any of the other requirements of the regime, does not enjoy the legal justification offered by the section and can therefore be subject to the relevant offence provisions provided by law.
Now, this last point is an important point and was one that we strongly emphasized in training courses given across the country on the law enforcement justification. As I've explained and will further explain, the law enforcement justification does not advance a broad, unqualified immunity to law enforcement officers. Rather, it is a justification to which numerous restrictive conditions apply, including the fundamental requirement that for each act or omission the officer consider the reasonableness and proportionality of the act or omission, and further, that the officer's evaluation on those grounds be based on reasonable grounds, thus making it reviewable on that basis.
Now, this is a weighty responsibility and one that has led to considerable caution, and I would say appropriate caution, in the application of this justification. A misevaluation by law enforcement officers on the reasonable and proportional test can mean that their actions, even if undertaken in good faith, will not receive the justification. There are a number of potential consequences for this. It could lead to prosecution of individual officers, public complaints, disciplinary proceedings, and the possibility of civil liability as well. As well, in the case of a failure to comply with any of the central terms of law enforcement justification, the protection offered by the justification regime for investigations and prosecutions will be absent, opening up the possibility of stays of proceeding based on arguments of abuse of process.
Returning to the justification itself, note that subsection 25.1(8) provides not only a justification for the commission of otherwise illegal acts or omissions by designated public officers, but also for a justification for the direction by public officers for others to commit such acts or omissions. Such a direction may occur when an officer is not infiltrating a gang himself or herself, but is instructing a person who has agreed to cooperate with law enforcement--and as a practical matter, that happens in undercover operations.
For the public officer to be justified to give such a direction, however, all the requirements of the justification regime still must be complied with, including the requirement of reasonableness and proportionality. In addition, a public officer making such a direction is subject to a requirement of prior authorization from a senior official responsible for law enforcement.
Now, at subsection 25.1(10), a justification is also extended to the person who acts “at the direction”; otherwise, you'd find that person would equally be subject to the law, and the legal proceedings that may flow from that investigation also may be subject to abuse of process. However, the person receiving that direction does not have to be satisfied himself or herself of the reasonability and proportionality of the conduct.
Now, that may seem strange originally, but you have to understand that in this situation the assessment of reasonableness and proportionality has to be a matter for the public officer who gives that direction, because the person receiving the direction, not being a trained enforcement officer, will not be in a position, in either training or full knowledge of the investigation, to conduct the necessary balancing test underlying the reasonableness and proportionality. Standards, nevertheless, do apply to the person receiving the direction. In particular, the person receiving it must believe on reasonable grounds that the public officer has authority to give that direction, and that the act or omission is for the purpose of assisting the officer with law enforcement duties.
The first of the categories, conduct not justified at all, is set out in subsection 25.1(11), which provides that “Nothing in the section justifies...causing of death or bodily harm to another person”, obstruction of justice in any manner, or “conduct that would violate the sexual integrity of an individual”. That exclusion is absolute regardless of whether the other terms of section 25.1 have been complied with; the law enforcement justification will not extend a justification for those types of conduct.
There are other exclusions in addition to that core exclusion. Subsection 25.1(13) provides that “Nothing in this section relieves a public officer of criminal liability for failing to comply with any other requirements that govern the collection of evidence”. In particular, this is intended to refer to, or prevent, section 25.1 from being an alternative source of authority or a justification for evidence gathering such as wiretaps, searches, or DNA. Basically, where you had to get a warrant before, you still have to get a warrant, as nothing in section 25.1 removes that legal requirement.
Also, on a more technical note, subsection 25.1(14) states that the section does not provide a justification for conduct that would constitute an offence under drug legislation. As I've alluded to earlier, that conduct is covered under a separate regime under the Controlled Drugs and Substances Act.
I mentioned authorization from a senior official. Under paragraph 25.1(9)(a), written authorization from a senior official is required in certain circumstances. Essentially these are two circumstances: one, for conduct that would be likely to result in loss of, or serious damage to, property, and two, where a person other than a designated law enforcement officer is engaged in such conduct and the officer gives a direction for that conduct.
It's important to emphasize that this authorization requirement on the part of a senior official is in addition to all the other requirements of the scheme; it's not in substitution for them. The individual officer must still be satisfied with the reasonableness and proportionality and must still be designated. On top of that, he must receive authorization for those particular types of conduct.
It's also important to note that the senior official who gives that written authorization must also be designated by the competent minister. Now there are certain circumstances where you can proceed in the absence of the authorization requirement normally required. Essentially those are exigent circumstances, or emergency circumstances. In particular, it would not be necessary if there were grounds for getting the authorization but it was not feasible in the circumstances, including where the act of omission was necessary to preserve life or safety, prevent the compromise of the identity of a public officer or of a confidential informant, or prevent the imminent loss or destruction of evidence of an indictable offence. Nevertheless, special reporting requirements apply in those circumstances where you proceed without authorization.
That is the essence of the technical aspect of applying the law enforcement justification itself. I'll now turn to the reporting requirements themselves. These were a notable addition to the law enforcement justification after the white paper was introduced. After that original legislative proposal, there were a number of comments calling for greater accountability under the provisions. The reporting requirements that were added after the white paper but before the legislation was introduced responded to those concerns about accountability.
The first of the requirements is an internal reporting requirement. Officers must, as soon as feasible, file reports describing certain acts or omissions to senior officials responsible for law enforcement. These are the acts or omissions that would have required prior written authorization, and also those that would have required that authorization except for emergency circumstances. As a detail, this applies to conduct that would likely result in loss of or serious damage to property, or situations where the public officer is directing another person to commit otherwise illegal acts or omissions.
The second reporting requirement is that the senior official receiving a report must, as soon as feasible, notify any person whose property was lost or seriously damaged. There was a concern that if police officers were employing the law enforcement justification and sometimes had to cause damage to property or destroy property, third parties who had no connection with the investigation would not know how that damage had taken place and would not be able to seek compensation from the government.
The requirement in section 25.3 responds to this concern.
A competent authority may, however, authorize delay of--not dispense with, but authorize delay of--this notification until the competent authority is of the opinion that the notification would not cause adverse effects, including compromising or hindering an investigation, compromising the identity of an undercover officer, endangering life or safety, or otherwise be contrary to the public interest.
Finally, section 25.3 provides for a public reporting requirement. Competent authorities--that is, ministers--must release a public annual report on the activities of public officers and senior law enforcement officers whom they have designated.
The public annual report must include information about the law enforcement justification in situations in which emergency designations were made, in situations in which prior written authorization was granted, and in situations that would have required special authorization, except for exigent circumstances. Again, the report shall not disclose, however, information that would compromise investigations, reveal sensitive law enforcement identities, endanger life or safety, prejudice a legal proceeding, or otherwise be contrary to the public interest.
That is the essence of the law enforcement justification regime.
After the regime came into force, extensive training was provided to law enforcement officers who may have been in a position to be designated under the justification regime and to others for whom detailed knowledge was essential.
I'll defer discussion of this designation process to the responsible officers of departments responsible for designations, which at the federal level is Public Safety and Emergency Preparedness Canada.
One of the essential requirements imposed on the designation process is that eligibility for designation is dependent on receiving that training. You can't receive a designation until you've been trained. Training was also provided to federal and provincial crown counsel who may have been in a position to advise law enforcement officers on application of the law enforcement justification. All of this was done further to a commitment made by the Department of Justice at the time these provisions were enacted.
That being said, it still must be acknowledged that these provisions were a matter of some concern to Canadians when they were passed. In broad terms, these concerns can go along two separate themes. The first, it was argued by some commentators, was that the law enforcement justification was wrong in principle, as it was putting law enforcement officers above the law, contrary to what some saw as previous legal standards in Canada. Second, it was argued that law enforcement justification opened the way for legalized abusive conduct by police enforcement officers. It can be argued that in neither case are these legitimate concerns borne out by the underlying legal regime that was adopted at the time.
The law enforcement justification does not put law enforcement officers above the law. The purpose and effect of the law enforcement justification was to codify in statute the basis for long-standing and crucially important law enforcement investigative and enforcement practices, to explicitly bring these activities within the law and subject them to explicit legislative standards and accountability mechanisms.
With respect to the potential for abusive conduct, which was the other main theme of concern, it has to be underlined that the fundamental legal requirement of the law enforcement justification is one of reasonableness and proportionality. It may be argued that there is a broad gulf, a large distance, between abusive conduct on the one hand and conduct that is reasonable and proportional on the other. Therefore, in applying this legal standard, the law enforcement justification did not open the door for abusive conduct on the part of enforcement officers. Instead, it recited in law fundamental standards that apply to the conduct of law enforcement.
That is the essence of my presentation. I thank you for your patience during it. I know there are some technical aspects. I would be happy to provide any clarification, as would my colleagues, about these technical aspects, or to answer any other questions you may have.
