Does Justice Minister Anne McLellan 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 week, in a white paper tabled in the Senate, she proposed to grant police officers and certain other public officials 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 much 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 already 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 effect of this legalized misconduct on our institutions.  When agents of the state start emulating the behaviour of the very criminals they are supposedly trying to combat, the state itself 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 acquires 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 Justice Minister doesn’t seem to realize that this technique of building on precedent is precisely what worries critics of her proposal.   "Well, we granted the police immunity before, it must be okay to do it again.  And again.  And again.  By the way, stop us--won’t you?--before we get to a complete police state."

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