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.
