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.