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.1 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 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.2

In particular, the Minister must report:

The first annual report on the RCMP’s use of specific portions of the law enforcement justification provisions was prepared for 2002 and 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, 2010 to December 31, 2010, and only includes information the disclosure of which would not comprise or hinder an ongoing investigation of an offence under an Act of Parliament.8

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 are not immune from criminal liability for criminal acts they commit during an investigation.9 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”10.

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. The provisions also establish a system of accountability.

The law enforcement justification provisions are subject to a legal requirement of reasonableness and proportionality.11 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.12

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.13 In the case of RCMP members, the Minister is the competent authority responsible for designating these public officers.14

The Minister is also responsible for designating senior officials, who then advise the Minister on public officer designations.15 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 and under the circumstances, the public officer would be justified in committing an act or omission that would otherwise constitute an offence.16

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.17 In these cases, the senior official believes that committing the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances.

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:

III. Statistics

III.I Temporary Designations

Paragraphs 25.3(1)(a), (d) and (e) of the Criminal Code require the following information to be made public:

From January 1, 2010 to December 31, 2010, the RCMP reports that the senior officials made no temporary designations for investigations that have been concluded.

III.II Authorizations for Specific Acts and Omissions

Paragraphs 25.3(1)(b), (d) and (e) of the Criminal Code require the following information to be made public:

From January 1, 2010 to December 31, 2010, 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, 2010 to December 31, 2010, the RCMP reports that four authorizations were granted, each of which authorized a public officer to direct another person to commit a justified act or omission that would otherwise constitute an offence.

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

Paragraphs 25.3(1)(c), (d) and (e) of the Criminal Code require the following information to be made public:

From January 1, 2010 to December 31, 2010, the RCMP reports that no public officers proceeded without a senior official’s written authorization in these circumstances.

IV. Conclusion

Between January 1, 2010 and December 31, 2010, in the ninth year of the operation of sections 25.1 to 25.4 of the Criminal Code, the RCMP made no temporary designations in investigations that have concluded. No authorizations were granted to public officers to commit acts or omissions that would otherwise constitute offences and that would likely result in loss of or serious damage to property. Four authorizations were granted 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. Under one authorization, the acts or omissions authorized were committed. Under another authorization, which authorized six acts or omissions, only two of these acts or omissions were actually committed. Under the last two authorizations, no acts or omissions were committed. There were no cases in which a designated public officer proceeded without a senior official’s authorization in these circumstances.

Footnotes

R.S.C. 1986, c. C-46 [Code].

[1999] 1 S.C.R. 565.

Ibid. subsection 25.1(11).

Ibid. paragraph 25.1(9)(a).

Ibid. subparagraph 25.1(9)(b)(i).

Ibid. subparagraph 25.1(9)(b)(ii).

Ibid. subparagraph 25.1(9)(b)(iii).

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