Civil rights the Federal Minister of Justice, Irwin Cotler, was well known as a human rights champion before entering public life. But there seems to be little room for champions of freedom in a government obsessed with security.
Most of Cotler's law reform initiatives in his tenure as the chief law officer of this country relate to the expansion of state power. These include proposals to expand the DNA data bank, facilitate the seizure of assets presumed to be proceeds of crime and bolster police powers of surveillance over the Internet.
The minister had one opportunity to strike a blow for freedom with the proposal to decriminalize marijuana, but the promise to liberate millions of Canadian pot-smokers from the clutches of the criminal law became too controversial for a government preoccupied with building a Great Wall of surveillance to keep tabs on subversives, terrorists and home-grown criminals.
When the proposal to decriminalize marijuana still seemed to be alive and well earlier this year, the minister was asked whether his three daughters smoked pot. He responded by saying that the policy at his home was "Don't ask, don't tell." "Just say no" has been replaced by "Just say nothing."
Saying nothing is not a sound policy for the protection of freedom and human rights, but it is a wonderful tool for tyranny. As our federal government prepares to grant police greater powers of surveillance, it has also exercised the right to remain silent with respect to its controversial law reform initiative in 2002 to authorize designated police officers to break the law in pursuit of the public good.
The government made a legislative commitment to conduct an official review of this law after the first three years of operation. Last week, the Canadian Bar Association announced that it plans to question Minister Cotler as to why the compulsory review has not yet taken place.
Under the 2002 amendment, police officers can receive official designation to commit crimes other than homicide, sexual assault and obstruct justice in the course of their official duties. This designation to steal, kidnap or commit arson is not even granted by a judge but, rather, by cabinet ministers and senior police officials.
We have always suspected the police will break the law here and there, believing that the end justifies the means. In fact, in the late 1970s the McDonald Commission was appointed to inquire into allegations of rampant RCMP wrongdoings in its quest to fight radical Quebec separatism. The commission warned that concerns for national security did not justify police illegality, and it unequivocally affirmed that police have only limited powers that are specifically granted by law.
Nonetheless, Canadian police have continued to operate on the premise that they can break the law if absolutely necessary to discharge their investigative duties. More often than not, police illegalities continue to occur in the context of drug law enforcement. In 1991, the RCMP transported a ton of hash into a commercial warehouse in Mississauga. This was the start of a "reverse sting" operation in which the cops would pose as big-time traffickers looking for distributors with deep pockets. I wonder how many muggings and assaults were not being properly investigated while the police were moving this giant load of resinous contraband.
Eventually, the RCMP arranged to sell 50 kilos of hash for $270,000 to John Campbell and his associates, who, when they showed up with the money, were arrested. Campbell was sentenced to nine years in prison for conspiring to traffic hashish supplied by the cops. Police reliance on prankster ingenuity came to an end in 1999 when the Supreme Court of Canada ruled that reverse sting operations are not authorized by law. This ruling became the catalyst for the enactment of section 25.3 of the Criminal Code, the provision to authorize a wide assortment of official illegalities. When this proposal was first introduced in 2000, there was strong opposition, but the bill was eventually passed in the wake of 9/11.
The requirement of a compulsory three-year review placated opponents at the time. It is appalling for a government to forge ahead blindly with proposals to keep expanding state powers when it cannot even find the time to discharge its legal obligation to review the controversial section 25.3.
The scant information currently available on the operation of the legislation does not suggest that our police are exploiting this new authority like a military junta. The police powers have only been invoked a handful of times, and the offences committed have been rather tame: possession of stolen property, possession of forged passports and uttering counterfeit documents.
Nonetheless, the committee review is a critical political safeguard. Just as a gun yearns to be fired, power yearns to be exercised, and without constant public oversight we may end up blurring the line between cops and robbers beyond recognition or redemption.