Pubdate: Tue, 08 May 2001
Source: Globe and Mail (Canada)
Copyright: 2001, The Globe and Mail Company
Contact:  http://www.globeandmail.ca/
Details: http://www.mapinc.org/media/168
Author: Alan Borovoy

DON'T GIVE THE POLICE CARTE BLANCHE

In the 1970s, Canadians were scandalized to learn that, in order to carry 
out one of their intelligence investigations, the RCMP had burned down a 
barn in Quebec. The Mounties also acknowledged committing a host of other 
offences, including burglary, theft and mail-opening. Although they 
insisted that much of this illegality was necessary, the 1981 report of the 
McDonald Commission rebuked them for it, and counselled against the 
creation of any general law-breaking power for the police.

Twenty years later, the federal government has decided to reject this 
advice. Bill C-24 goes to a parliamentary committee today. The bill 
proposes sweeping new powers for certain police officers (and, in some 
circumstances, even civilians acting at their direction) to break the law 
in order to improve their investigative efficiency. So long as such 
officers believe "on reasonable grounds" that an offence they seek to 
commit, as compared with one they are investigating, is "reasonable and 
proportional" their power will be enormous. They won't even need a warrant 
from a judge.

The power is so wide that it could victimize totally innocent people. 
Granted, there would be some limits. There would be no permission, for 
example, to commit crimes causing death or bodily harm. But what if such 
harm were simply threatened? Suppose certain officers felt impelled to do 
something outrageous to win the trust of the suspected criminals they were 
spying on? How about, for example, a kidnapping at gunpoint? Couldn't it be 
committed without causing "bodily harm"? Such a repugnant deed should not 
even be arguably permissible.

Bill C-24 would explicitly authorize in certain circumstances the 
commission of offences resulting in "loss of or serious damage to 
property." This could happen even if the property owner were innocent. 
Tomorrow, therefore, a barn-burning might be legal.

Ottawa says it needs this unprecedented power to fight organized crime. The 
spectre of organized crime conjures images of corruption and 
assassinations; recent actions of biker gangs have exacerbated this perception.

But none of this explains why the bill covers territory having nothing to 
do with organized crime. In any event, merely saying that something is 
needed does not make it so. Indeed, on this score, the government has 
damaged its credibility. Ottawa has largely based its claim on a recent 
Supreme Court case in which the police had posed as vendors of illicit 
drugs to obtain evidence against certain drug dealers. The Court held that 
the police could not rely on any general immunity to break the law for such 
purposes. In consequence, the government says that many investigations have 
been hobbled.

But, as the McDonald Commission made clear, the police in Canada never had 
such power. The Supreme Court ruling broke no new ground; it simply 
reaffirmed what had always been the law. Besides, our narcotics legislation 
has been amended so that the police may now assume the role of drug vendors 
during such investigations. But there is a difference between a limited 
power to break the law in certain carefully circumscribed situations and 
the general power contained in Bill C-24.

Even if there were an argument for creating this kind of additional police 
power, it would require more safeguards than are currently contemplated. To 
be authorized, such illegality should be seen as necessary, not simply as 
"reasonable and proportional." Apart from what the law now permits, acts 
and threats of physical violence should be forbidden and, as for 
non-violent illegalities, there should be no permission to instigate them.

In any event, unless a cogent explanation is forthcoming, such powers 
should never see the light of day. Alan Borovoy is general counsel to the 
Canadian Civil Liberties Association.
- ---
MAP posted-by: GD