Authorizations to Commit Illegal Acts

This page was last substantively updated or reviewed January 2019. (Rev. # 95703)

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General Principles

It is a constitutional requirement that everyone, including all public officers, are subject to the ordinary laws of the country.

Unless permitted by statute, a peace officer is not permitted to break the law in order to execute his or her duties.

Definitions

25.1 (1) The following definitions apply in this section and sections 25.2 to 25.4 [public officer to file annual report].
"competent authority" means, with respect to a public officer or a senior official,

(a) in the case of a member of the Royal Canadian Mounted Police, the Minister of Public Safety and Emergency Preparedness, personally;

(b) in the case of a member of a police service constituted under the laws of a province, the Minister responsible for policing in the province, personally; and

(c) in the case of any other public officer or senior official, the Minister who has responsibility for the Act of Parliament that the officer or official has the power to enforce, personally.

"public officer" means a peace officer, or a public officer who has the powers of a peace officer under an Act of Parliament.
"senior official" means a senior official who is responsible for law enforcement and who is designated under subsection (5) [power to designate senior officials].

Principle

(2) It is in the public interest to ensure that public officers may effectively carry out their law enforcement duties in accordance with the rule of law and, to that end, to expressly recognize in law a justification for public officers and other persons acting at their direction to commit acts or omissions that would otherwise constitute offences.

Designation of public officers

(3) A competent authority may designate public officers for the purposes of this section and sections 25.2 to 25.4 [public officer to file annual report].

Condition — civilian oversight

(3.1) A competent authority referred to in paragraph (a) or (b) of the definition of that term in subsection (1) [protection of law enforcement – definitions] may not designate any public officer under subsection (3) [power to designate a public officers] unless there is a public authority composed of persons who are not peace officers that may review the public officer’s conduct.

Declaration as evidence

(3.2) The Governor in Council or the lieutenant governor in council of a province, as the case may be, may designate a person or body as a public authority for the purposes of subsection (3.1), and that designation is conclusive evidence that the person or body is a public authority described in that subsection.

Considerations

(4) The competent authority shall make designations under subsection (3) [power to designate a public officers] on the advice of a senior official and shall consider the nature of the duties performed by the public officer in relation to law enforcement generally, rather than in relation to any particular investigation or enforcement activity.

Designation of senior officials

(5) A competent authority may designate senior officials for the purposes of this section and sections 25.2 to 25.4 [public officer to file annual report].

Emergency designation

(6) A senior official may designate a public officer for the purposes of this section and sections 25.2 to 25.4 [public officer to file annual report] for a period of not more than 48 hours if the senior official is of the opinion that

(a) by reason of exigent circumstances, it is not feasible for the competent authority to designate a public officer under subsection (3) [power to designate a public officers]; and

(b) in the circumstances of the case, the public officer would be justified in committing an act or omission that would otherwise constitute an offence.

The senior official shall without delay notify the competent authority of the designation.

Conditions

(7) A designation under subsection (3) [power to designate a public officers] or (6) [protection of law enforcement – emergency designation] may be made subject to conditions, including conditions limiting

(a) the duration of the designation;

(b) the nature of the conduct in the investigation of which a public officer may be justified in committing, or directing another person to commit, acts or omissions that would otherwise constitute an offence; and

(c) the acts or omissions that would otherwise constitute an offence and that a public officer may be justified in committing or directing another person to commit.

Justification for acts or omissions

(8) A public officer is justified in committing an act or omission — or in directing the commission of an act or omission under subsection (10) [persons acting at direction of public officer] — that would otherwise constitute an offence if the public officer

(a) is engaged in the investigation of an offence under, or the enforcement of, an Act of Parliament or in the investigation of criminal activity;

(b) is designated under subsection (3) [power to designate a public officers] or (6) [protection of law enforcement – emergency designation]; and

(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.

Requirements for certain acts

(9) No public officer is justified in committing an act or omission that would otherwise constitute an offence and that would be likely to result in loss of or serious damage to property, or in directing the commission of an act or omission under subsection (10) [persons acting at direction of public officer], unless, in addition to meeting the conditions set out in paragraphs (8)(a) to (c) [requirements for public officer immunity from criminal offences], he or she

(a) is personally authorized in writing to commit the act or omission — or direct its commission — by a senior official who believes on reasonable grounds that committing 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; or

(b) believes on reasonable grounds that the grounds for obtaining an authorization under paragraph (a) exist but it is not feasible in the circumstances to obtain the authorization and that the act or omission is necessary 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 offence.

Person acting at direction of public officer

(10) A person who commits an act or omission that would otherwise constitute an offence is justified in committing it if

(a) a public officer directs him or her to commit that act or omission and the person believes on reasonable grounds that the public officer has the authority to give that direction; and

(b) he or she believes on reasonable grounds that the commission of that act or omission is for the purpose of assisting the public officer in the public officer’s law enforcement duties.

Limitation

(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.

Protection, defences and immunities unaffected

(12) Nothing in this section affects the protection, defences and immunities of peace officers and other persons recognized under the law of Canada.

Compliance with requirements

(13) Nothing in this section relieves a public officer of criminal liability for failing to comply with any other requirements that govern the collection of evidence.

Exception — Controlled Drugs and Substances Act and Cannabis Act

(14) Nothing in this section justifies a public officer or a person acting at his or her direction in committing an act or omission — or a public officer in directing the commission of an act or omission — that constitutes an offence under a provision of Part I of the Controlled Drugs and Substances Act or of the regulations made under it or a provision of Division 1 of Part 1 of the Cannabis Act.

2001, c. 32, s. 2; 2005, c. 10, s. 34; 2018, c. 16, s. 207.
[annotation(s) added]

– [http://canlii.ca/t/7vf2#sec25

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Public officer to file report

25.2 Every public officer who commits an act or omission — or directs the commission by another person of an act or omission — under paragraph 25.1(9)(a) [offence by public officers permitted – written authority] or (b) [offence by public officers permitted – exigent circumstances] shall, as soon as is feasible after the commission of the act or omission, file a written report with the appropriate senior official describing the act or omission.
2001, c. 32, s. 2.
[annotation(s) added]

– [http://canlii.ca/t/7vf2#sec25.2

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Annual report

25.3 (1) Every competent authority shall publish or otherwise make available to the public an annual report for the previous year that includes, in respect of public officers and senior officials designated by the competent authority,

(a) the number of designations made under subsection 25.1(6) [protection of law enforcement – emergency designation] by the senior officials;

(b) the number of authorizations made under paragraph 25.1(9)(a) [offence by public officers permitted – written authority] by the senior officials;

(c) the number of times that acts and omissions were committed in accordance with paragraph 25.1(9)(b) [offence by public officers permitted – exigent circumstances] by the public officers;

(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; and

(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) .

Limitation

(2) The annual report shall not contain any information the disclosure of which would

(a) compromise or hinder an ongoing investigation of an offence under an Act of Parliament;

(b) compromise 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;

(c) endanger the life or safety of any person;

(d) prejudice a legal proceeding; or

(e) otherwise be contrary to the public interest.

2001, c. 32, s. 2.
[annotation(s) added]

– [http://canlii.ca/t/7vf2#sec25.3

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Written notification to be given

25.4 (1) When a public officer commits an act or omission — or directs the commission by another person of an act or omission — under paragraph 25.1(9)(a) [offence by public officers permitted – written authority] or (b) [offence by public officers permitted – exigent circumstances], the senior official with whom the public officer files a written report under section 25.2 [public officer to file annual report] shall, as soon as is feasible after the report is filed, and no later than one year after the commission of the act or omission, notify in writing any person whose property was lost or seriously damaged as a result of the act or omission.

Limitation

(2) The competent authority may authorize the senior official not to notify the person under subsection (1) [written notification to be given] until the competent authority is of the opinion that notification would not

(a) compromise or hinder an ongoing investigation of an offence under an Act of Parliament;

(b) compromise 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;

(c) endanger the life or safety of any person;

(d) prejudice a legal proceeding; or

(e) otherwise be contrary to the public interest.

2001, c. 32, s. 2.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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A civilian can be authorized to commit a criminal act or omission when directed by a public officer or otherwise acting as an agent.