Pubdate: Tue, 6 Oct 1998 Source: Vancouver Sun (Canada) Contact: http://www.vancouversun.com/ Author: Chad Skelton, Vancouver Sun 'REVERSE STING' LAW SLIPPED IN TO AID POLICE With little fanfare or debate, the federal government has given police the right to sell marijuana, cocaine and heroin. In regulations passed in May 1997, the federal cabinet exempted police officers across the country from most drug laws -- allowing them to grow, manufacture, traffic and sell illegal drugs in the course of a criminal investigation. Recently, RCMP in Vancouver used the new rules to charge three men with conspiracy to traffic in drugs. Police seized $1.2 million after officers posed as drug traffickers with 50 kilograms of cocaine for sale. Last April, police in Montreal charged five men with conspiracy to traffic after a similar operation. The regulations that made it possible are the kind of expansion of police powers that usually has civil liberties groups and defence lawyers up in arms -- raising concerns about entrapment, fairness and the rule of law. But the regulations, published only twice in a government circular and passed by cabinet without even a press release, were the subject of no such debate. Now, some are wondering whether the rules few knew even existed give too much power to police, who say they need these new tools to fight the war on drugs. "This is a fundamental change in the law," said Ian Donaldson, a spokesman for the B.C. Trial Lawyers' Association. "The idea that police are now above the law . . . is something I would have thought would be [worthy of] public debate as opposed to being snuck through by regulation." Regulations are a necessary but poorly understood part of the legislative process. It would be next to impossible for Parliament to debate exactly how each new law should be implemented and enforced. So laws usually set out the broad explanation of what is and is not permitted in the country, and delegate the fine-tuning of those rules -- by means of regulations -- to government departments. While new laws are usually the subject of fierce parliamentary debate and press coverage, regulations are passed quietly every day in Ottawa with few taking notice. Before the new regulations were passed, "reverse stings" -- in which police pose as drug sellers instead of drug buyers -- were often ruled illegal by the courts. Last June, several charges were stayed against Frederick Crewswell, an admitted marijuana dealer in Vancouver. The charges were stayed because the RCMP operated an illegal money-laundering scheme to catch him and others suspected of drug trafficking, before the new regulations came into force. In the Crewswell case, Justice Mary Humphries said the good intentions of police, or their goal of investigating serious crimes, were not "enough to justify taking the decision as to what is illegal in this country out of Parliament's hands and putting it into the hands of the officers of the RCMP." Police argue that the new regulations allow them to target high-level organized crime figures. Since those selling drugs on the street are on the lowest rung of any crime organization, stings in which police posed as drug purchasers did little to destabilize the drug flow. But drug bosses take a greater interest in multi-million dollar drug deals, so posing as traffickers lets police reach higher up the food chain. Michel Perron, a senior adviser to the federal solicitor-general, is the bureaucrat who shepherded the regulations through the approval process. Perron also wrote an analysis that explains in laymen's terms what powers they give to police. The analysis notes that the regulations "provide explicit authority for police to engage in conduct that might otherwise be illegal in the context of a drug investigation" if officers receive appropriate permission from senior officers and the law is broken in pursuit of a specific, legitimate investigation. Under extreme circumstances, however, police are not even required to gain permission before breaking the law. Perron used the example of an undercover officer being in a car with someone who was smuggling drugs from the U.S. into Canada. In that situation, he said, trying to stop at a phone to call head office for permission to import illegal drugs could put the officer's life at risk -- so he is allowed to proceed, gaining permission from a senior officer after the fact. During the three-year process that led to the new rules, the office of the solicitor-general let the public know about it only once -- in a brief press release in March 1994 that said the minister was considering new rules to allow reverse stings. The government sent out no further announcements informing the public about how police powers were changing. This from an office that, according to its web site, sends out about five to 10 announcements a month on everything from parole board appointments to educational CD-ROMs. Perron defends the level of information given the public, noting the same procedures used to pass dozens of regulations every year were used in this case. "They were published on two occasions in the Canada Gazette for public comment," he said. The Gazette, a government publication with only 9,000 subscribers, is thick with dozens of proposed regulations on everything from agriculture to aviation. It is rarely read outside legal circles and few members of the public have ever seen it. "Lawyers wouldn't even read it on a regular basis," said John McIntyre, director of the B.C. Civil Liberties Association.. The first copy of the regulations, published in the Gazette in May 1994, did not include the plain-English explanation that Perron later wrote. Perron conceded the regulations are in "legalese" and "not the easiest read." When the regulations were next published -- along with the explanation -- it was in the May 1997 version of the Gazette, the same month they took effect. However, Perron insists the public were given enough information, because no new crimes were created. "There was no requirement, per se, to tell people," he said. "Everybody knows you're not allowed to traffic drugs -- regardless of whether you're trafficking it to a police officer or a bad guy. . . . It doesn't create any new infractions or new penalties, and as a result there was no requirement to publicize it." However, the solicitor-general's office did make a determined effort to solicit the input of the Canadian Association of Chiefs of Police, provincial governments and Crown prosectors for their thoughts and suggestions, Perron said. McIntyre said the government appeared to make no similar effort to solicit the opinions of civil liberties groups or defence lawyers. Dan Brien, communications assistant to Solicitor-General Andy Scott, said there was an adequate level of public disclosure about the regulations. While there may not have been formal announcements about the changes, he said, the solicitor-general at the time, Herb Gray, discussed the measures in speeches. Those speeches included one reference in a longer House of Commons debate in February 1994 about changes to the Controlled Drug and Substances Act. In addition, a discussion paper on enforcement of the Act was given given to members of Parliament that same year. "It's been out there for a while. It hasn't been a secret," Brien said. However McIntyre, for one, said he wasn't aware police had the power to engage in reverse stings until he read stories about the RCMP bust. David J. Martin, a constitutional lawyer in Vancouver, said the solicitor-general may have had another motivation for keeping the regulations under wraps. Before the new rules were introduced, police officers were not allowed to sell drugs, only buy them, and so criminals could be reasonably confident that anyone who was selling them narcotics could be trusted. In other words, the department probably didn't want criminals to know this situation had changed. "There's been a lot of discussion of the fact that this regulation wasn't publicized," Martin said. "It may well be that one of the considerations that the [government] and police took into account was that publication of the regulation may reduce the effectiveness of the technique." The new rules have been justified because they will assist large police forces investigating high-level drug bosses. But the regulations make no restriction on the size of the investigation. Even the bust in Montreal was on a much smaller scale, with officers offering five kilograms of cocaine for sale and seizing $140,000, compared to the RCMP bust in Vancouver in which officers offered 50 kilograms and seized $1.2 million And the new powers can be given to any police force a provincial attorney-general designates. In B.C., along with the RCMP, Vancouver and Victoria police departments, the power to break drug laws has been given to the police forces of Abbotsford, Port Moody, Delta, Nelson, New Westminster, Central Saanich, Oak Bay, West Vancouver and Esquimalt. In all, 65 police forces across Canada have been given the new powers. Only the RCMP has operated a reverse sting in this province so far, but other forces are eager to try out the new powers. However, there are those outside law enforcement who are concerned the regulations allow police to dance dangerously close to entrapment. "That's the major problem," McIntyre said. "They would be testing the willingness . . . of an individual to engage in criminal conduct they might not otherwise do. I can certainly see that entrapment could become a problem with the police engaging in this kind of conduct. And you might see more and more [legal] defences raised on that basis." Perron said fears of entrapment are exaggerated. Police can only run reverse stings if approved for a specific drug investigation, he said. You can't just go offering drugs to anyone and hope someone buys some." However, asked whether the new rules could be used to investigate an individual suspected of using marijuana, Perron said: "There is no distinction in the regulation to the amount or the type of drug." McIntyre said the regulations could also be challenged as unconstitutional for violating the principles of "fundamental justice" guaranteed in Section 7 of the Charter of Rights and Freedoms, although he said he doubted such an argument would be successful. However, Martin, who edits a monthly legal newsletter on the Charter, said the constitutionality of the regulations could be successfully challenged because of the lack of "prior judicial approval." When police use almost any other serious or invasive investigative technique -- such as wiretapping, search warrants or undercover operations - -- they are required to explain to a judge why they want to use it. The regulations allowing police to sell drugs contain no such restriction. Whether the new regulations will stand up in court will not be known until the first cases begin winding their way through the justice system. Perron, for one, believes they will stand up to scrutiny. And he doesn't think there was anything wrong with the way the regulations were passed. "Those who are in the know and those who had concerns about it provided their comments," he said. THE NEW RULES What powers do these rules give to police? The Police Enforcement Regulations for the Controlled Drug and Substances Act give police an exemption from drug laws when they are conducting a criminal investigation. This allows police to import, manufacture, traffic and sell any illegal drug, including marijuana, cocaine and heroin, without it being considered a crime. How were the regulations passed? The idea of giving police the power to engage in so-called reverse stings (in which police pose as drug dealers rather than drug buyers) was first proposed in 1994 by Solicitor-General Herb Gray during a wider Parliamentary debate about the Drug Act. But regulations were not actually passed until May 1997 after a period of consultation with police, Crown prosecutors and provincial governments. Defence lawyers' associations and civil liberties groups were not actively consulted and only one announcement was released on the new rules, in 1994. Why are the regulations needed? Police argue that posing as traffickers with millions of dollars worth of drugs for sale allows them to target high-level members of organized crime, while posing as individual drug buyers only hits the lowest foot soldiers. Critics argue the new rules allow police to entrap recreational drug users as well. Who has these new powers? Provincial attorneys-general can designate any police force they want to have the right to engage in reverse stings. Across the country, about 65 police forces have been designated. In B.C., that includes the RCMP and police forces in Vancouver, Victoria, Abbotsford, Port Moody, Delta, Nelson, New Westminster, Central Saanich, Oak Bay, West Vancouver and Esquimalt. How many times have the new rules been used? Twice: Last April, in Montreal, five men were charged with conspiracy to traffic after police offered five kilograms of cocaine for sale. Last week, RCMP in Vancouver arrested three alleged outlaw motorcycle gang members after offering 50 kilograms of cocaine. The Montreal police seized $140,000 while the RCMP seized $1.2 million. Are the new rules legal? Lawyers and constitutional experts disagree about whether allowing police to break drug laws violates the Charter of Rights and Freedoms guarantee of "fundamental justice." No charges laid under the new rules have gone to court as yet, so the regulations have not yet been challenged as unconstitutional. - ---