'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.