D. The Ability to Break the Law: Section 25. 1

• Author: Steve Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 157-163

Page 157

A further set of provisions relating to police that needs to be examined is contained in sections 25.1-25.4 of the Criminal Code, which permit designated police officers to break the law. The sections are not explicitly phrased to create a power. Rather, these sections talk about such an officer being "justified" in doing particular things. That language is normally associated with defences, and the sections are found in the general part, under the heading "Protection of Persons Administering and Enforcing the Law." Nominally, all that these provisions do is protect particular officers from criminal liability in particular situations. Their genesis and the way they are structured, however, make them seem much more like a police power than a defence.

The provisions allow the federal or provincial minister responsible for police to designate certain officers. An officer so designated "is justified in committing an act or omission . . . that would otherwise constitute an offence" if two further conditions are met. The first condition is simply that the officer is investigating an offence or criminal activity. The second condition is that the officer:

(c) believes on reasonable grounds that the commission of the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to 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 public officer’s law enforcement duties.

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In other words, designated officers are permitted to break the law if, in their judgment, that is a reasonable choice.

Designations for this purpose are not made in relation to a particular investigation, but rather with regard to the particular officer.¹⁰⁹The

designation is to be made on the advice of a senior official, and there is provision for civilian oversight.¹¹⁰It is not explicitly stated in the section, but it is clear that this power is intended for officers performing undercover work. It is also possible for other officers to be designated on an emergency basis by a senior official in exigent circumstances, but such a designation expires after a maximum of forty-eight hours.¹¹¹

Somewhat surprisingly, there is a statutory requirement to annually report the number of emergency designations made, but no similar obligation to report the number of "ordinary" designations.¹¹²There are some limits on the ability of designated officers to break the law. Section 25.1(11) states that:

(11) Nothing in this section justifies

(a) the intentional or criminally negligent causing of death or bodily harm to another person;

(b) the wilful attempt in any manner to obstruct, pervert or defeat the course of justice; or

(c) conduct that would violate the sexual integrity of an individual.

There has been disagreement over whether the prohibition on causing "bodily harm" extends to psychological harm, and therefore whether officers who make threats fall outside the ambit of the provisions.¹¹³In addition, section 25.1(9) refers to actions "that would be likely to result in loss of or serious damage to property." Such actions are not forbidden, but alternative, additional conditions are attached to performing them. First, a designated officer can be authorized in writing by a senior official to commit the act. This senior official is to apply

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specified criteria in deciding-the section does not explicitly state "in advance," of the act, but that must be the intention.¹¹⁴That point is clear because the alternative, additional condition is that the officer believes on reasonable grounds that the grounds for obtaining written authorization exist, but the circumstances make it not feasible to obtain the authorization. The only specific circumstances that could justify an officer acting in this way are the need to

(i) preserve the life or safety of any person,

(ii) prevent the compromise of the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer, or

(iii) prevent the imminent loss or destruction of evidence of an indictable...