Annual Report on the RCMP's Use of the Law Enforcement Justification Provisions (2003-2004)

I. Introduction

Sections 25.1-25.4 of the Criminal Code provide a limited justification at law for acts and omissions that would otherwise be offences when committed by designated law enforcement officers (and those acting under their direction) while investigating an offence under federal law, enforcing a federal law, or investigating criminal activity. The law enforcement justification provisions are subject to a legal requirement of reasonableness and proportionality.

The law enforcement justification provisions also establish a system of accountability that includes a requirement^{Footnote 1} under which the competent authority - the Solicitor General of Canada, ^{Footnote 2} in the case of members of the Royal Canadian Mounted Police (RCMP)-must make public an annual report on the use of specific portions of the law enforcement justification provisions by members of the RCMP.

In particular, the Solicitor General must report:

• how many times a senior official made temporary designations under the provisions; ^{Footnote 3}
• how many times a senior official authorized a public officer to commit an act or omission that would otherwise constitute an offence, and that is likely to result in loss of or serious damage to property, or directed an agent to commit an act or omission that would otherwise constitute an offence; ^{Footnote 4}
• how many times a public officer proceeded without such an authorization from a senior official, due to exigent circumstances; ^{Footnote 5}
• the nature of the conduct being investigated in these instances; ^{Footnote 6} and
• the types of justified acts or omissions, which would otherwise constitute offences, that were committed in these instances. ^{Footnote 7}

The first annual report on the RCMP's use of specific portions of the law enforcement justification provisions was tabled in Parliament on June 13, 2003.

This report addresses only the RCMP's use of specific portions of the law enforcement justification provisions from February 1, 2003 - January 31, 2004.

II. Overview of the law enforcement justification regime

In April 1999, the Supreme Court of Canada's judgment in R. v. Campbell and Shirose declared that under the common law, police were not immune from criminal liability for criminal acts they committed during an investigation. The Court also stated that, "if some form of public interest immunity is to be extended to the police…it should be left to Parliament to delineate the nature and scope of the immunity and the circumstances in which it is available." ^{Footnote 8}

On December 18, 2001, Bill C-24, An Act to Amend the Criminal Code (Organized Crime and Law Enforcement), received Royal Assent. While most portions of Bill C-24 came into force on January 7, 2002, the law enforcement justification provisions, set out in sections 25.1-25.4 of the Criminal Code, were proclaimed on February 1, 2002.

The law enforcement justification provisions respond to the judgment in Campbell and Shirose by providing a limited justification at law for acts or omissions that would otherwise be offences when committed by law enforcement officers (and those acting under their direction) while investigating an offence under federal law, enforcing a federal law, or investigating criminal activity. They also establish a system of accountability.

The law enforcement justification provisions are subject to a legal requirement of reasonableness and proportionality. This legal requirement of reasonableness and proportionality is assessed in the circumstances through consideration of such matters as the nature of the act or omission, the nature of the investigation, and the reasonable availability of other means for carrying out the officer's duties. Certain types of conduct, such as intentionally causing bodily harm, violating the sexual integrity of a person and willfully attempting to obstruct, pervert or defeat the course of justice, are excluded from the justification provisions. ^{Footnote 9}

The law enforcement justification provisions also establish a system of accountability. An essential element of the law enforcement justification provisions is that they apply to designated public officers only. ^{Footnote 10} In the case of RCMP members, the Solicitor General of Canada is the competent authority responsible for making designations. ^{Footnote 11}

The Solicitor General of Canada is also responsible for designating senior officials, who then advise the Solicitor General on public officer designations. ^{Footnote 12} Under ordinary circumstances, only the Solicitor General of Canada may issue public officer designations to RCMP members; however, in exigent circumstances, a senior official may make temporary public officer designations. A senior official may designate a public officer for a period of 48 hours or less if the senior official believes that due to exigent circumstances, it is not feasible for the Solicitor General of Canada to designate a public officer and under the circumstances, the public officer would be justified in committing an act or omission that would otherwise constitute an offence. ^{Footnote 13}

A public officer must receive a written authorization from a senior official for acts or omissions that would otherwise constitute an offence and that would likely result in loss of, or serious damage to, property, or for directing another person to commit an act or omission that would otherwise constitute an offence. ^{Footnote 14}

A public officer may only proceed without a written authorization from a senior official for acts or omissions that would otherwise constitute an offence and that would likely result in loss of or serious damage to property, or for directing another person to commit an act or omission that would otherwise constitute an offence, under very limited circumstances. He or she must believe, on reasonable grounds, that the grounds for obtaining an authorization exist, but it is not feasible under the circumstances to obtain the authorization, and that the act or omission is necessary to:

• preserve the life or safety of a person;
• avoid compromising the identity of a public officer acting in an undercover capacity, a confidential informant, or a person acting covertly under the direction and control of a public officer; or
• prevent the imminent loss or destruction of evidence of an indictable offence. ^{Footnote 15}

III. Statistics

III.I Temporary Designations

From February 1, 2003 to January 31, 2004, the RCMP reports that the senior officials made no temporary designations.

III.II Authorizations for Specific Acts and Omissions

From February 1, 2003 to January 31, 2004, the RCMP reports that six authorizations were granted, for directing another person to commit a justified act or omission that would otherwise constitute an offence.

• In two of these instances, the RCMP was investigating the alleged distribution, fabrication or acquisition of fraudulent passports. Justified acts or omissions that would otherwise constitute Criminal Code offences relating to the possession of a forged passport were committed.
• In two instances, the RCMP was investigating the alleged distribution, sale or smuggling of contraband tobacco. Justified acts or omissions that would otherwise constitute Excise Act offences relating to the possession of improperly-stamped tobacco were committed.
• In one instance, the RCMP was investigating the alleged sale or distribution of counterfeit art and counterfeit documents. Justified acts or omissions that would otherwise constitute Criminal Code offences relating to buying and receiving counterfeit documents and uttering counterfeit documents were committed.
• In one instance, the RCMP was conducting an investigation into a drug distribution network. Justified acts or omissions that would otherwise constitute Criminal Code offences relating to the possession of stolen goods, theft over $5,000 and conspiracy to commit an indictable offence were committed.

From February 1, 2003 - January 31, 2004, the RCMP reports that no authorizations were granted to public officers to commit justified acts or omissions that would otherwise constitute offences and that would likely result in loss of or serious damage to property.

III.III Instances of Public Officers Proceeding Without Senior Official Authorization

From February 1, 2003 to January 31, 2004, the RCMP reports that no public officers proceeded without a senior official's written authorization in these circumstances.

IV. Conclusion

Between February 1, 2003 and January 31, 2004, the second year of operation of sections 25.1 to 25.4 of the Criminal Code, the RCMP has made no temporary designations. ^{Footnote 19} There have been six instances in which a senior official authorized a designated public officer to direct another person to commit a justified act or omission that would otherwise constitute an offence. ^{Footnote 20} There have been no cases in which a designated public officer proceeded without a senior official's authorization in these circumstances. ^{Footnote 21}

The Parliamentary review of sections 25.1 to 25.4 of the Criminal Code and their operation, which is anticipated to take place in 2005, will provide an opportunity to assess the effectiveness of the operation of the law enforcement justification provisions as a whole, and for interested parties to make their views known.

Date modified:

2016-01-19