Monday, January 25, 2010


*** The RCMP has a serious problem with effective oversight, a foundation-stone of modern policing. Why? MS ***


OTTAWA -- The outgoing RCMP watchdog says there should be a major review of a little-known police power to break the law when trying to catch lawbreakers, which he describes as an authorization to "burn the barn" with immunity.

Paul Kennedy, the commissioner for public complaints against the RCMP, said that it would have been one of his top priorities during his tenure, but that he lacked the legislative power to get relevant information from the Mounties to conduct a probe.

"If I had an ability to do a general review, that is the first one I would put on the table to look at," said Mr. Kennedy, whose four-year stint ends on Dec. 31. "It's an unusual power, so you want to make sure it is being used appropriately."

Mr. Kennedy noted that the 2002 enabling legislation called for a parliamentary review three years after the law was passed, but "that still hasn't happened."

While the Mounties are required to report to Parliament annually on their law-breaking, Mr. Kennedy said the reports are "threadbare and uninformative" because the RCMP does not reveal any information about its informants or ongoing investigations.

"If I had access to all the information, we could look at that program, and be able to articulate publicly in a document without disclosing any great secrets, that this is a credible program," he said.

Despite Mr. Kennedy's top-secret clearance, the RCMP does not have to hand over information to him involving ongoing investigations or techniques, he said.

Mr. Kennedy has called repeatedly for Parliament to enhance the commissioner's powers to enable independent investigations into the national police force, including the ability to subpoena RCMP records. Also, investigations involving national security are shielded from public scrutiny.

The 2008 annual report on law-breaking activity, tabled recently in Parliament, indicated that the RCMP scaled back last year, revealing only two instances in which the Mounties authorized agents to break the law during criminal investigations.

One case involved bribery of a police officer and another was an investigation into human trafficking and prostitution. Both cases were carried out by civilian agents of the police, who are typically undercover informants, rather than the police themselves.

Authorizations were at their lowest since the RCMP acquired the power in 2002 to be shielded from prosecution in certain circumstances.

In one case, while an agent was authorized to commit a crime, it did not happen, said the report, tabled recently in theHouse of Commons.

While there were no reports of crimes committed by police themselves, that does not mean they did not happen. The law only requires them to report activity that would likely result in loss or serious damage to property.

The power has been contentious, opposed by such organizations as the Canadian Bar Association and the Canadian Civil Liberties Association, which have said that no one should be above the law.

RCMP authorizations for law breaking peaked in 2006, when police made 16 approvals, during investigations into alleged terrorism, counterfeiting, credit card fraud and passport forgery.

The legislation was passed almost eight years ago following a Supreme Court of Canada ruling that said police did not have carte blanche to break the law in the line of duty, but left it open to Parliament to spell out some powers.

A mandatory review began in 2006, but the House of Commons justice committee concluded that further study was needed before making any recommendations.

During brief public hearings, there was no evidence the power was being abused, but the civil liberties association called for the law to be repealed, in part because of its vulnerability to abuse.

The law requires that RCMP justification for law breaking is subject to "reasonableness and proportionality" when compared to the crimes being investigated.

Certain types of conduct, such as intentionally causing bodily harm, violating the sexual integrity of a person and wilfully attempting to obstruct justice are excluded from the law-breaking powers.

The Canadian Bar Association has called in the past for police to go before a judge to obtain authorization, just as they would have to obtain a search warrant or permission for wiretapping.

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