Pursuant to section 25.3 of the Criminal Code of Canada
February 1, 2018 to January 31, 2019
Prepared by the Ontario Ministry of Community Safety and Correctional Services

Introduction

Sections 25.1-25.4 of the Criminal Code of Canada provide a limited justification for acts or omission that would otherwise constitute an offence 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.

The law enforcement justification provisions also establishes a system of accountability under which the competent authority, i.e. the Minister of Community Safety and Correctional Services, is required to make public an annual report on the use of specific portions of the law enforcement justification provisions by police services in Ontario.

In particular, in accordance with paragraphs 25.3(1) (a) (b) (c) (d) and (e) of the Criminal Code the minister must report:

  • 25.3(1)(a) The number of emergency public officer designations made by senior officials pursuant to section 25.1(6) Criminal Code.
  • 25.3(1)(b) The number of authorizations made under paragraph 25.1(9) (a) of the Criminal Code by the senior officials.
  • 25.3(1)(c) The number of times that acts and omissions were committed in accordance with paragraph 25.1(9)(b) by the public officers.
  • 25.3(1)(d) The nature of the conduct being investigated when the designations referred to in paragraph (a) or the authorizations referred to in paragraph (b) were made or when the acts or omissions referred to in paragraph (c) were committed.
  • 25.3(1)(e) The nature of the acts or omissions committed under the designations referred to in paragraph (a), under the authorizations referred to in paragraph (b) and in the manner described in paragraph (c).

Overview of the law enforcement justification scheme

In April 1999, the Supreme Court of Canada's judgment in R. v. Campbell and Shirose declared that under the common law, police were not immune from criminal liability for criminal acts they committed during an investigation.  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."

On December 18, 2001, Bill C-24, An Act to Amend the Criminal Code (Organized Crime and Law Enforcement), received Royal Assent. While most portions of Bill C-24 came into force on January 7, 2002, the law enforcement justification provisions, set out in sections 25.1-25.4 of the Criminal Code, were proclaimed on February 1, 2002, to allow time for the training and preparation of law enforcement personnel.

The law enforcement justification initiative provides a circumscribed justification for acts or omissions that would otherwise constitute an offence committed by designated law enforcement officers (and others acting under their direction) in the course of investigating an offence under federal law, enforcing a federal law, or investigating criminal activity. The initiative also establishes a system of accountability.

The law enforcement justification provisions provide a designated public officer with a defence in law to the extent that his or her conduct is reasonable and proportional under the circumstances. Certain types of conduct, such as intentional causing of bodily harm, violation of the sexual integrity of a person and wilful attempt to obstruct, pervert or defeat the course of justice, are excluded from the justification provisions.

The minister is responsible for designating senior officialsfootnote 1 who, in turn, advise the minister on public officer designations. Under ordinary circumstances, only the minister may issue public officer designations to members of Ontario police services; however, in exigent circumstances, senior officials may make emergency public officer designations.  Emergency designations are valid for a period of 48 hours or less and are made only 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.

In most cases, 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.

A public officer may 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, only 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:

  • Preserve the life or safety of a person
  • Avoid compromising the identity of a Public Officer acting in an undercover capacity, a confidential informant, or a person acting covertly under the direction and control of a Public Officer
  • Prevent the imminent loss or destruction of evidence of an indictable offence.

Statistics

A: Emergency designations

RE: 25.3(1)(a) the number of emergency public officer designations made by a senior official pursuant to section 25.1(6) of the Criminal Code.

  • From February 1, 2018 to January 31, 2019, police services in Ontario reported zero emergency designations of a public officer.

B: Authorizations for specific acts and omissions

RE: the number of cases in which senior officials authorized a public officer to commit an act or omission that would otherwise constitute an offence that would likely result in loss of or serious damage to property; pursuant to section 25.1(9)(a) of the Criminal Code.

  • For the period February 1, 2018 to January 31, 2019, police services in Ontario reported two cases in which a senior official authorized a public officer to commit an act or omission that would otherwise constitute an offence and that would likely result in loss of or serious damage to property.

RE: the number of cases in which senior officials authorized a public officer to direct another person to commit an act or omission that would otherwise constitute an offence; pursuant to section 25.1(9)(a) of the Criminal Code.

  • For the period February 1, 2018 to January 31, 2019, police services in Ontario reported three cases in which a senior official authorized a public officer to direct another person to commit an act or omission that would otherwise constitute an offence.  
    • The nature of the conduct being investigated in these cases pertained to organized crime Criminal Code offences and controlled drugs and substances offences.
    • No justified acts or omissions, which would otherwise constitute offences, were actually committed in these investigations.

C: Instances of public officers proceeding without senior official authorization

RE: 25.3(1)(c) The number of times that acts and omissions were committed in accordance with paragraph 25.1(9)(b) by the public officers.

RE: The number of times that a public officer proceeded without a senior official's authorization, based on reasonable grounds to believe that the grounds for obtaining an authorization existed and that the justified act or omission that would otherwise constitute an offence was necessary due to exigent circumstances.

  • For the period February 1, 2018 to January 31, 2019 police services in Ontario reported that the number of times an act or omission was committed by a public officer without a senior official’s written authorization was zero.

Conclusion

The Ministry of Community Safety and Correctional Services reports that for the period February 1, 2018 to January 31, 2019:

A: Zero emergency public officer designations pursuant to s. 25.1(6) of the Criminal Code were reported by police services in Ontario.

B: Two cases were reported in which a senior official authorized a public officer to commit a justified act or omission that would otherwise constitute an offence and that would likely result in loss of or serious damage to property.

Three cases were reported in which a senior official authorized a public officer to direct another person to commit a justified act or omission that would otherwise constitute an offence pursuant to 25.1(9)(a).

C: Zero cases were reported in which a public officer proceeded without a senior official's authorization, based on reasonable grounds to believe that the grounds for obtaining an authorization existed and that the justified act or omission that would otherwise constitute an offence was necessary due to exigent circumstances pursuant to s 25.1(9)(b) of the Criminal Code.