Thank you.
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.