TWO-TIERED LAW? NO, THANKS

Does Anne McLellan, the Justice Minister, really think that by tossing the
phrase "the rule of law" into some draft legislation she can make civil
libertarians smile benignly at a flagrant assault on justice?

Last month, in a paper tabled in the Senate, she proposed to grant police
officers immunity from prosecution for crimes they commit during a criminal
investigation. The draft bill says it will assist public officers to
"effectively carry out their law enforcement duties in accordance with the
rule of law."

Anyone familiar with the phrase "the rule of law" knows that one of its
hallmarks is the principle that no one should be above the law -- that the
same rules should govern all citizens, from the highest to the lowest,
without privilege or exception. This principle was a hard-won victory for
our ancestors and has rightfully become one of our most revered legal
doctrines.

Just as a rose by any other name would smell as sweet, a privilege trying
to pass itself off as being in accordance with the rule of law still
stinks. Criminal immunity for cops would undermine the rule of law, not
promote it. The Minister's attempt to obfuscate this issue is an insult to
our intelligence.

The impetus behind this proposal arises from a "reverse sting" operation
undertaken by the RCMP in 1991. Hoping to catch high-level drug dealers,
undercover officers posed as suppliers themselves. They offered to sell
hashish with a street value of almost $1-million to Ontario drug kingpins,
and even brought samples of the drug to negotiating sessions. After the
deal was made, the buyers were charged with trafficking. At their trial,
they pointed out that the police themselves had been trafficking in illegal
drugs. They argued that evidence obtained in this discreditable manner
should not be used to convict them.

The Supreme Court of Canada agreed. (The case was called R. v. Campbell.)
In response, Parliament in 1997 passed the Controlled Drugs and Substances
Act, which legalized what would otherwise be the criminal activities of
police officers in drug entrapment cases such as Campbell.

Now, however, the Justice Minister wants to go further, legalizing
additional forms of police misconduct in order to combat not just drug
trafficking but other perceived evils -- prostitution, illegal gambling,
alcohol smuggling and money laundering.

In an age when allegations of police corruption and excessive use of force
have become increasingly frequent, it is hard to imagine why anyone would
want to change the rules in a way that could only make the problem worse.
Power corrupts, and police officers are no exception. Why place temptation
in their way when there is ample cause for concern over abuse of the power
they currently wield?

Even if concerns over the behaviour of individual officers could be
dismissed as rare or trivial, Canadians must question the cumulative affect
of this legalized misconduct on our institutions. When agents of the state
start emulating the behaviour of the criminals they are supposedly trying
to combat, the state risks being transformed from an instrument of justice
into merely another rival gang in the world of organized crime.

And let's not kid ourselves --there's plenty of motivation for police
departments and their political masters to lie, cheat and steal. In fact,
it's exactly the same motivation that drives underworld crime
organizations: money.

When cash, cars and real estate are forfeited by suspects under
proceeds-of-crime legislation, the money gets divvied up between the
federal government and the provincial government where the seizure was
made. The governments acquire a vested interest in the continued existence
of crime. It's a source of revenue. Why be too fastidious about how the
busts are made, or even whether the suspects are guilty? After all, they're
probably just sleazeballs anyway.

The white paper tries to lull us into complacency by pointing out that
there are already precedents in Canadian law for police immunity --
specifically, the Controlled Drugs and Substances Act passed following the
R. v. Campbell case. The Minister doesn't seem to realize that this
technique of building on precedent is precisely what worries critics of her
proposal.

Perhaps the most frightening aspect of this proposal is that the evils it
targets are creations of the state in the first place. It is not the drug
trade, but rather the state's prohibition on drug trading, that has created
the vast smuggling networks, the wealthy drug lords, the money laundering,
the gang turf wars and the drive-by shootings. The murder rate soared
during the Prohibition era, but dropped off sharply as soon as the sale of
alcohol was legalized. It did not return to its former high levels until
the state ratcheted up the war on drugs. Likewise, prostitution and
gambling are crimes only because the state says so. As far as the
participants are concerned, these activities are voluntary exchanges of
money and services.

Before we make equality under the law just another casualty of the
unwinnable war on vice, perhaps we should consider the alternative of
declaring peace.

The paper invites comments from the public by Sept. 15. If you share my
concerns, write to Law Enforcement Criminal Liability Consultation,
Department of Justice, 284 Wellington Street, 5th Floor, Ottawa K1A 0H8.