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.”