2009 Annual Report On The RCMP's Use Of The Law Enforcement Justification Provisions

1. 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.Note 1The 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 under which the competent authority - the Minister of Public Safety and Emergency Preparedness (Minister), 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.Note 2

In particular, the Minister must report:

• how many times a senior official made temporary designations under subsection 25.1(6);Note 3
• how many times a senior official authorized a public officer under paragraph 25.1(9)(a) 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;Note 4
• how many times a public officer proceeded without an authorization from a senior official due to exigent circumstances under paragraph 25.1(9)(b);Note 5
• the nature of the conduct being investigated in these instances;Note 6 and
• the types of justified acts or omissions, which would otherwise constitute offences, that were committed in these instances.Note 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 the RCMP's use of specific portions of the law enforcement justification provisions from January 1, 2009 to December 31, 2009.

II. Overview Of The Law Enforcement Justification Regime

In April 1999, the Supreme Court of Canada's judgment in R. v. Campbell declared that under the common law, police were not immune from criminal liability for criminal acts they committed during an investigation.Note 8 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”Note 9.

In response, Parliament enacted the law enforcement justification provisions, set out in sections 25.1-25.4 of the Criminal Code, which were proclaimed on February 1, 2002. The provisions provide 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.Note 10 This legal requirement 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.Note 11

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.Note 12 In the case of RCMP members, the Minister is the competent authority responsible for making designations.Note 13

The Minister is also responsible for designating senior officials, who then advise the Minister on public officer designations.Note 14 Under ordinary circumstances, only the Minister 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 Minister to designate a public officer andunder the circumstances, the public officer would be justified in committing an act or omission that would otherwise constitute an offence.Note 15

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.Note 16

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;Note 17
• 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;Note 18 or
• prevent the imminent loss or destruction of evidence of an indictable offence.Note 19

III. Statistics

III.I Temporary Designations

From January 1, 2009 to December 31, 2009, the RCMP reports that the senior officials made no temporary designations.

III.II Authorizations for Specific Acts and Omissions

From January 1, 2009 to December 31, 2009, 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.

From January 1, 2009 to December 31, 2009, the RCMP reports that nine authorizations were granted, for directing another person to commit an act or omission that would otherwise constitute an offence.

• Six authorizations were granted for an RCMP investigation of activities related to contraband tobacco products. 
  • In four instances, justified acts or omissions that would otherwise constitute Criminal Code offences were committed and related to purchasing or receiving unstamped tobacco products, possession and sale of unstamped tobacco products and possession of goods unlawfully imported.  
  • In one instance, where authorization was sought, no justified acts or omissions that would otherwise constitute an offence were committed.
  • In one instance, authorization was given for two separate justified acts or omissions that would otherwise constitute Criminal Code offences. The first related to the purchasing or receiving unstamped tobacco products, possession and sale of unstamped tobacco products and possession of goods unlawfully imported.  For the second, no acts or omissions were committed that would otherwise constitute an offence.
• Three authorizations were granted for an RCMP investigation to disrupt and dismantle a criminal organization. 
  • In all three instances, acts or omissions that would otherwise constitute Criminal Code offences were committed and related to the participation in and contribution to the activities of an organized crime group.  

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

From January 1, 2009 to December 31, 2009, the RCMP reports that no public officers proceeded without a senior official's written authorization in these circumstances.

IV. Conclusion

Between January 1, 2009 and December 31, 2009, in the eighth year of the operation of sections 25.1 to 25.4 of the Criminal Code, the RCMP has made no temporary designations. There have been nine instances in which a senior official authorized a designated public officer to direct another person to commit an act or omission that would otherwise constitute an offence.  Included in these nine authorizations is one authorization where no acts or omissions that would constitute an offence were committed. Also included is one authorization to commit two acts or omissions that would constitute an offence, although only one such act or omission was committed. There were no cases in which a designated public officer proceeded without a senior official's authorization in these circumstances.

Date modified:

2016-01-19