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