Pubdate: Mon, 03 Jul 2000
Source: National Post (Canada)
Copyright: 2000 Southam Inc.
Contact:  300 - 1450 Don Mills Road, Don Mills, Ontario M3B 3R5
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Author: Karen Selick

TWO-TIERED LAW? NO, THANKS

Does Anne McLellan, the Justice Minister, really think that by tossing the 
phrase "the rule of law" into some draft legislation she can make civil 
libertarians smile benignly at a flagrant assault on justice?

Last month, in a paper tabled in the Senate, she proposed to grant police 
officers immunity from prosecution for crimes they commit during a criminal 
investigation. The draft bill says it will assist public officers to 
"effectively carry out their law enforcement duties in accordance with the 
rule of law."

Anyone familiar with the phrase "the rule of law" knows that one of its 
hallmarks is the principle that no one should be above the law -- that the 
same rules should govern all citizens, from the highest to the lowest, 
without privilege or exception. This principle was a hard-won victory for 
our ancestors and has rightfully become one of our most revered legal 
doctrines.

Just as a rose by any other name would smell as sweet, a privilege trying 
to pass itself off as being in accordance with the rule of law still 
stinks. Criminal immunity for cops would undermine the rule of law, not 
promote it. The Minister's attempt to obfuscate this issue is an insult to 
our intelligence.

The impetus behind this proposal arises from a "reverse sting" operation 
undertaken by the RCMP in 1991. Hoping to catch high-level drug dealers, 
undercover officers posed as suppliers themselves. They offered to sell 
hashish with a street value of almost $1-million to Ontario drug kingpins, 
and even brought samples of the drug to negotiating sessions.  After the 
deal was made, the buyers were charged with trafficking. At their trial, 
they pointed out that the police themselves had been trafficking in illegal 
drugs. They argued that evidence obtained in this discreditable manner 
should not be used to convict them.

The Supreme Court of Canada agreed. (The case was called R. v. Campbell.) 
In response, Parliament in 1997 passed the Controlled Drugs and Substances 
Act, which legalized what would otherwise be the criminal activities of 
police officers in drug entrapment cases such as Campbell.

Now, however, the Justice Minister wants to go further, legalizing 
additional forms of police misconduct in order to combat not just drug 
trafficking but other perceived evils -- prostitution, illegal gambling, 
alcohol smuggling and money laundering.

In an age when allegations of police corruption and excessive use of force 
have become increasingly frequent, it is hard to imagine why anyone would 
want to change the rules in a way that could only make the problem worse. 
Power corrupts, and police officers are no exception. Why place temptation 
in their way when there is ample cause for concern over abuse of the power 
they currently wield?

Even if concerns over the behaviour of individual officers could be 
dismissed as rare or trivial, Canadians must question the cumulative affect 
of this legalized misconduct on our institutions. When agents of the state 
start emulating the behaviour of the criminals they are supposedly trying 
to combat, the state risks being transformed from an instrument of justice 
into merely another rival gang in the world of organized crime.

And let's not kid ourselves --there's plenty of motivation for police 
departments and their political masters to lie, cheat and steal. In fact, 
it's exactly the same motivation that drives underworld crime 
organizations: money.

When cash, cars and real estate are forfeited by suspects under 
proceeds-of-crime legislation, the money gets divvied up between the 
federal government and the provincial government where the seizure was 
made. The governments acquire a vested interest in the continued existence 
of crime. It's a source of revenue. Why be too fastidious about how the 
busts are made, or even whether the suspects are guilty? After all, they're 
probably just sleazeballs anyway.

The white paper tries to lull us into complacency by pointing out that 
there are already precedents in Canadian law for police immunity -- 
specifically, the Controlled Drugs and Substances Act passed following the 
R. v. Campbell case. The Minister doesn't seem to realize that this 
technique of building on precedent is precisely what worries critics of her 
proposal.

Perhaps the most frightening aspect of this proposal is that the evils it 
targets are creations of the state in the first place. It is not the drug 
trade, but rather the state's prohibition on drug trading, that has created 
the vast smuggling networks, the wealthy drug lords, the money laundering, 
the gang turf wars and the drive-by shootings. The murder rate soared 
during the Prohibition era, but dropped off sharply as soon as the sale of 
alcohol was legalized. It did not return to its former high levels until 
the state ratcheted up the war on drugs. Likewise, prostitution and 
gambling are crimes only because the state says so. As far as the 
participants are concerned, these activities are voluntary exchanges of 
money and services.

Before we make equality under the law just another casualty of the 
unwinnable war on vice, perhaps we should consider the alternative of 
declaring peace.

The paper invites comments from the public by Sept. 15. If you share my 
concerns, write to Law Enforcement Criminal Liability Consultation, 
Department of Justice, 284 Wellington Street, 5th Floor, Ottawa K1A 0H8.
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