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Need tighter restrictions on lawbreaking cops

|Written By Mark Bourrie

OTTAWA -- The Canadian Bar Association wants Parliament to tighten the law that allows police, and people who are designated by them, to break the law when they''re involved in criminal investigations.

Earlier this month, Vancouver lawyer Greg DelBigio, chairman of the Canadian Bar Association's criminal law section, told the House of Commons justice committee that the system flouts the rule of law and is open to abuse.

"We told Parliament before they passed this law [in 2002] that it was an affront to the rule of law to let public officers and their agents break the law. The bill [C-24] was amended to include safeguards and reporting requirements, but the reports are so vague that they're useless," DelBigio said.

In the newest RCMP report on the use of C-24 provisions (from January 2004 until February 2005), police reported seven cases where they broke the law in the course of an investigation:

-    When the RCMP was investigating the alleged distribution/sale of contraband and jewellery and immigration offences, it broke the Immigration Refugee Protection Act and Customs Act and committed Criminal Code offences relating to the possession of a forged passport.

-    During an RCMP investigation of the alleged sale of stolen property, police committed Criminal Code offences relating to the unlawful possession of a firearm, possession of stolen goods, and theft over $5,000.

-    In an investigation of immigration offences, police broke the Immigration Refugee Protection Act and committed Criminal Code offences relating to personation with intent, buying and receiving counterfeit goods, and uttering counterfeit documents.

-    In two of these instances, the RCMP was conducting an investigation into improperly stamped tobacco products. They committed Excise Act offences relating to improperly stamped tobacco products.

-    While investigating the production and distribution of counterfeit currency, police committed Criminal Code offences relating to buying and receiving counterfeit goods.

-    When the RCMP was investigating the alleged unlawful sale of a congressional award, police committed Criminal Code offences relating to the unlawful possession of a firearm.

 "That list is vague," DelBigio said. "We don't know if charges were laid or if there was a conviction. And we don't know if these were serious organized crimes or just two or three people involved."

London, Ont.-based lawyer Jeanine LeRoy, representing the Canadian Council of Defence Lawyers, told the justice committee that her organization considers the reporting requirements inadequate.

"I think it's important to say somewhere in the legislation that it has to be reported whether or not charges are laid. It's that simple? (The report) shows you nothing of value.

"I was very concerned to learn of the lateness of the reporting, the delay in the reporting. That has got to be addressed," she said.

In April 1999 in R. v. Campbell and Shirose, the Supreme Court of Canada found that under the common law, police were not immune from criminal liability for criminal acts they committed during an investigation.

The court also ruled that, "if some form of public interest immunity is to be extended to the police . . . it should be left to Parliament to delineate the nature and scope of the immunity and the circumstances in which it is available."

On Feb. 1, 2002, Bill C-24, the law enforcement justification provisions set out in ss. 25.1-25.4 of the Criminal Code, was proclaimed. Parliament is conducting an overdue review of the law.

"But what we really need is a court case on this," said DelBigio. "The courts, I think, would be able to tell if this law really is an affront to the rule of law or if it gives too much discretionary power to police officials.

"Unfortunately, we haven't had a case like that come up yet."

Peter Copeland of Greenspan Humphrey Lavine, representing the Criminal Lawyers' Association, said there needs to be much more judicial scrutiny of the workings of the 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," he told the committee.

"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," he said.

DelBigio said the CBA has the same concerns about the law as it had nearly five years ago, when Parliament debated C-24.

"It doesn't just circumvent the rule of law, it undermines the integrity of the administration of justice because it condones intentional violations of the law by agents of the state."

The law also gives police the power to exempt their information sources from the law. DelBigio said many police informers are people who have criminal records and who already tread a fine line between criminality and honest behaviour.

The CBA wants ss. 25.1 to 25.4 of the Criminal Code repealed.

"If these sections are not repealed, we recommend that their protection should be dependent upon prior judicial authorization of the proposed act or omission under 25.1. Further, more detailed reporting and record-keeping should be mandatory, and the operation of the sections should be subject to ongoing Parliamentary review," he said.

"At a minimum, the exemption from criminal liability they offer should be restricted to public officers, and should not extend to the commission of acts or omissions by other persons," DelBigio said in a letter to the Commons justice committee.

"If these sections are not repealed, we recommend that their protection should be dependent upon prior judicial authorization of the proposed act or omission under 25.1. Further, more detailed reporting and record-keeping should be mandatory, and the operation of the sections should be subject to ongoing Parliamentary review," he said.

As well, the CBA wants decisions on police lawbreaking to be made by judges, rather than police officers.

"If section 25.1 is not repealed, then it should be amended to require prior judicial authorization, based on information under oath, that state interests prevail over the interests of the individual, and that the state interest in the investigation must prevail over the competing state interest in maintaining the rule of law," the CBA brief to the committee said.

The Commons committee is expected to make recommendations on the fate of the law in the fall.

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