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I attended a round table hosted by the Department of Justice on October 5, 2000 on the government’s White Paper on Criminal Liability and Law Enforcement, along with a number of other academics and legal activists.
The White Paper proposes legislation that would allow “designated” officers to commit offences during the course of investigations, where they believe on reasonable grounds that the crime is for the purpose of assisting the officer in law enforcement. This class of “designated” officers would potentially include any police and law enforcement agents who enforce federal schemes, such as the Criminal Code, the Controlled Drugs and Substances Act, the Fisheries Act and the Immigration Act. “Designated” officers could commit offences during investigations or in course of executing their law enforcement duties without prior approval or authorization, if the officer “reasonably believes that it is reasonable and proportionate to the criminal activity being investigated”. The legislation would, however, require prior approval from a senior law enforcement official in some cases, but only for offences likely to cause serious bodily harm or serious loss or damage to property.
Prior approval to inflict force likely to cause bodily harm would be granted if the officer and supervisor believed on reasonable grounds that it was necessary to preserve the life or safety of another, to prevent the compromise of the identity of an undercover officer, a confidential informant or a person acting covertly under an officer’s direction, or to prevent the loss or destruction of evidence of an indictable offence (this will include all hybrid offences, because they are deemed indictable until the prosecutor elects to proceed by way of summary conviction). The White Paper contemplates that in emergency circumstances prior approval will not be necessary if it is not “feasible”.
The only offences excluded from the proposed immunity from criminal law are intentional or reckless causing of death or grievous bodily harm and sexual assault. Thus, even some forms of manslaughter are not clearly excluded from the proposed immunity for police.
A flavour of what has motivated this law was provided by RCMP Inspector Raf Souccar who presented first at the round table. He asserted that the Supreme Court of Canada decision of R. v. Campbell and Shirose, 1 S.C.R. 565 “changed the law” and “took away” police powers to break the law in order to investigate crime. He presented statistics on RCMP investigations to support his contention that police had dramatically curbed their undercover operations because they now felt vulnerable to criminal charges. He suggested that the new judge-made law impeded Canada’s police from being cooperative partners in fighting international”organized crime.” He also used anecdotes about undercover experiences to illustrate the criminality of the people they are policing and how imperative it is to give undercover officers all the tools they need. Representatives from Canada Customs, Fisheries and the Environment gave brief presentations to explain why their law enforcement officials also need immunity from criminal prosecution. One example provided was of fisheries officers who are trying to enforce the law in Burnt Church, New Brunswick sitting in fishing boats without lights in order to catch Aboriginal lobster fishers.
We spent the rest of the day arguing with the Department of Justice and law enforcement people about whether we “need” new legislation and whether that contemplated by the White Paper could withstand legal and policy-based scrutiny. Below are “twelve reasons” we opposed, and I think all Canadians should oppose, this proposed legislation to immunize police and other federal law enforcement officers when they commit criminal offences.
1. No crisis
Our preliminary objection to the legislation is that it is unnecessary. Campbell and Shirose didn’t “change” the law; we have known at least since the McDonald Commission reported on the activities of the RCMP in1981 that police are subject to the criminal law, that there is no residual common law authority or defence to exempt them and that to determine otherwise would amount to a serious abrogation of the “rule of law”. One wonders what the possible basis in law the Department of Justice had for apparently advising the RCMP in Campbell and Shirose that their criminal actions of selling drugs were above the law.
In other words, it is not a development in the law that has created the “crisis”. The real crisis may perhaps be for the Department of Justice, since they seem to have provided the police with questionable legal advice in Campbell and Shirose. The Ontario Court of Appeal stated that if they had indeed advised the RCMP that their actions were legal, then this advice would amount to “an aggravating factor” in the abuse of process argument, because the “full might of the Crown resources were set upon the task of illegal conduct.”
Law enforcement itself also seems to be generating a crisis in response to Campbell and Shirose: it was suggested that officers are loathe to continue undercover operations unless they receive carte blanche immunity from criminal prosecution.
2. No negative effects of Campbell and Shirose
Second, there is no evidence of any actual negative effects of Campbell and Shirose. Police and prosecutors continue to exercise their discretion such that only egregious police criminality is prosecuted. The Department has no evidence to suggest any surge in criminal charges against police. The law enforcement representatives acknowledged that they have not experienced an increase in charging of police after Campbell and Shirose.
Moreover, Campbell and Shirose has not resulted in any increase in the rate at which stays of proceedings are granted on the basis of abuse of process. In fact, the Supreme Court in Campbell and Shirose said simply that crimes committed by police during an operation were only one factor, not a determinative factor, to be considered when deciding whether the prosecution should be stayed on the basis of abuse of process.
3. Democratic principles
Third, we oppose the law proposed by the White Paper because it contemplates a serious derogation of the”rule of law”. It thus strikes a blow against democratic principles of separation of executive and police powers, the notion that no one is above the law, and the requirement that democratic institutions operate openly, publicly, and be accountable to the electorate. It is further disconcerting in the extreme that the proposed legislation states its purpose as to ensure that “public officers may effectively carry out their law enforcement duties in accordance with the rule of law” [italics added].
This proposal represents the biggest threat to the civil liberties of Canadians since the invocation of the War Measures Act in 1970. Unlike that measure, however, this suspension of democratic principles will not bea temporary but rather an indefinite expansion of police powers in Canada.
4. Charter violations
Fourth, the Department of Justice acknowledged that the proposed legislation raises significant s. 7 Charter concerns in that it would permit the violation by police of individuals’ rights to security of the person and to privacy. Beyond these violations, it will also permit violations of the Charter rights to be protected against unreasonable search and seizure (s. 8), the right to be protected against arbitrary detentions (s. 9), and the right to equality before and under the law (s. 15). The Department proposes that s. 1 can be invoked to justify any breaches. Whether s. 1 can be successfully invoked for such broad legislation, without elaborating upon each specific law enforcement context that requires such drastic legal measures, is, at best, a dubious legal proposition. It is certainly untenable in policy terms to justify serious violations of constitutional principles by reference to law enforcement’s resistance to a Supreme Court ruling.
5. Breadth of the proposed legislation
Fifth, we opposed the proposed legislation on the basis of its astonishing breadth, which we believe to b eunequaled in any non-police state. We are unaware of any jurisdiction that has adopted a sweeping law that covers all manner (except intentional or reckless causing of death or grievous bodily harm or sexual assault) of crime by police in the enforcement of any and all legislation. The proposed legislation will ensure that nearly all criminal acts by police will be hidden from public scrutiny, even more so than is already the case, and that there is no mechanism to ensure record-keeping or reports to Parliament when police commit offences. Thus, we will not even know how much and what forms of police criminality are being shielded by the law.
6. Scope exceeds its purpose
Sixth, although the proponents of the White Paper continually focused on the crisis of “organized crime” and the dangers and need for “undercover operations”, they admitted, when pressed, that the proposed law is far broader than the policy basis presented. The very broad language of the proposed law should worry all Canadians who are concerned about police brutality in the exercise of law enforcement. We have only recently seen the first homicide conviction for an on-duty shooting of a person from a racial minority group. (Deane,who was convicted in 1998 of criminal negligence causing death to Dudley George in the Ipperwash stand-off). Meanwhile, police are involved in intense and political struggles against special investigations units mandated to inquire into police violence and homicides related to killings of African-Canadian men. The proposed immunity will, arguably, shield the excessive use of force even by officers in uniform, if they work in designated units.
7. No judicial prior authorization required
Seventh, the law makes no provision for a neutral party such as a judge to determine when it is reasonable and proportionate for law enforcement officers to break the law, and thus does not even provide the most basic safeguards for Canadians. The determination is left to individual officers and occasionally senior law enforcement officials, in spite of the fact that these crimes may violate important Charter rights of innocent third parties or persons who police believed to be engaged in crime. As mentioned, the right to security of the person, freedom from arbitrary detention, and equality before and under the law, are all at risk under the proposal. For other serious invasions of Charter-protected interests such as search and seizures, we insist that police first obtain search warrants through a process of prior authorization by a party capable of acting judicially, using a standard of probability.
8. Negative effects on police and increased crime
Eighth, we know, based upon ample criminological literature, that undercover work is damaging to police as individuals. There is a predictable rate at which undercover officers cross over and become “rogue cops”, and many suffer the personal fallout of their immersion in a criminal world. This proposal will increase the scope of undercover operations because it grants such a wide immunity, and it may thereby increase the opportunities for police to “cross over”. For example, the work of Mark Carter investigates the factors that produce police corruption in the enforcement of drug laws, and one such significant influence is the “invulnerability factor”. There is nothing in the proposal that recognizes the personal risks to undercover officers nor the real risk that creation of a vast criminal immunity may well work to generate more crime.
9. Unequal impact on marginalized communities
Ninth, the dramatic expansion of police powers contemplated here will have an unequal impact on marginalized communities. Data on policing and prosecutions already identifies systemic racism in the exercise of discretion at almost every turn. African- Canadian and Aboriginal communities as well as women who work in prostitution, are already the subject of questionable undercover investigations in specific contexts such as drug trafficking, smuggling, hunting and fishing enforcement, and prostitution, and we should worry about whether these communities will be even more severely affected by an expanded police immunity. The Department of Justice has not apparently undertaken a s. 15 Charter impact analysis of the proposed law. That in itself is worrisome.
10. Increased wrongful convictions
Tenth, there is a documented link between increased police powers and immunities and the rate at which criminal justice systems produce wrongful convictions. We have already unearthed several significant wrongful conviction cases in Canada -namely those of Donald Marshall Jr., Wilson Nepoose, and Guy Paul Morin, among others- where the convictions were at least partly the result of reliance on the evidence of police informants. The U.S. evidence also suggests that increased reliance upon the evidence of informants increases the risk of erroneous conviction. By granting criminal law immunity to informants the proposal will further increase the unreliability and dangerousness of informant evidence.
As well, the U.S. experience indicates that “noble cause corruption”, whereby police commit crimes of obstructing justice, perjury, and falsification of evidence in order to convict those they believe to be “guilty”,is at the heart of most wrongful convictions. This law reform proposal in fact exempts these very crimes from criminal responsibility. Further, it will clearly bolster the ideology of “noble cause corruption” and it is not speculative to state that it will increase the incidence of police misconduct.
11. No redress for victims of police wrongs
Eleventh, the proposal provides no redress whatsoever to the inevitable victims of police criminality–third parties who are injured themselves or whose property is damaged, innocent persons who police mistakenly believe to be involved in crime, and even “criminals” whose rights are compromised or who are seriously injured in the name of law enforcement. Not only does this law immunize the officers from criminal responsibility, but also it declares that no crime is thereby committed, dis-entitling victims to provincial criminal injuries compensation. While the proposal does not purport to remove tort or civil responsibility, there is no guarantee that a private law remedy will be available for those who suffer the consequences of police criminality.
12. No proportionality
Twelfth, the law will authorize police to commit very serious crimes out of all proportion to the purpose for committing those crimes. For example, offences causing grievous bodily harm and perhaps even death (as long as not intended) could be committed to prevent the mere loss or destruction of evidence of a wide range of offences.
Law enforcement representatives at the round table were adamantly opposed to lowering the bar to exclude from criminal law immunity other serious offences beyond those currently exempted in the proposal. In fact, their position was even more frightening: they want no offences to be excluded from the new criminal law immunities. They argued that the exclusion of sexual assault, for example, will raise the bar for loyalty tests such that the excluded offence will become the new loyalty test for gang membership.
It is likely that the Government will move quickly to introduce legislation in this area when the new Parliament is convened. To oppose this frightening law reform, communicate your views to the Minister of Justice, c/o House of Commons, Ottawa, Ontario
Liz Sheehy teaches law at the University of Ottawa Faculty of Law and is currently a Visiting Professor at Osgoode Hall Law School.