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.
