New Threats May Pose a Risk to Individual Rights and Liberties

By Paul E. Kennedy

Friday, October, 2006

1. The public safety threat environment has changed particularly in the past 5 to 10 years.
2. We see the emergence of transnational organized crime and terrorism as well as the increased use of technology such as the Internet to commit either new crimes or old crimes in new ways, e.g. identity theft – worldwide distribution of child pornography – luring of children for sexual exploitation.
3. Police and governments have responded to these new threats in two ways:

Criminals and terrorists do not recognize national borders – other than as a useful barrier to help shelter their criminal activities. In recognition of this challenge, nation states, to protect their citizens, have modified their historic approach to sovereignty. There is a general recognition that a rigid insistence upon sovereignty frequently results in exploitation of sovereignty to the benefit of criminals. Countries that previously refused to extradite nationals are now agreeing to do so.

We see evidence of these changes not only in police practices, but also in laws that have been enacted:

We increasingly see,

1. countries signing Mutual Legal Assistance treaties;
2. agreements dealing with the reciprocal enforcement of forfeiture orders to recoup proceeds of crime
3. agreements to freeze and store certain Internet data to address computer crimes that cross multiple jurisdictions;

We have also noted the collection and storage of DNA from convicted violent offenders for subsequent investigative purposes, and in some jurisdictions, the increased reliance upon closed circuit video cameras to monitor the public in high crime areas.

All of these changes have enlarged and deepened the scope of police activities as they relate to individual privacy rights. They also pose unique challenges to civilian oversight regimes, one of whose duties is to ensure that such powers are not abused.

Many oversight regimes are reliant upon complaints to trigger their mandates.

A traditional complaints model works for street crime, be it minor or serious, such as robbery or murder, e.g. whether the police used excessive force during or after the arrest of an individual.

A complaint-driven model is far less effective when dealing with complex multi-jurisdictional crime or sophisticated crime. For example, in Canada, the mandates of the various oversight agencies mirror the responsibilities of the different levels of government.

My Commission looks at the activities of the RCMP. My provincial counterpart would examine the behaviour of the provincial police, and in some jurisdictions a municipal police service would address complaints concerning the municipal force. When all three levels of police form an integrated unit and are involved in an investigation, who can effectively provide oversight? Each oversight body is restricted to the police force that is specified in its mandate, i.e. federal, provincial or municipal. Furthermore: When police cooperate internationally, who has a mandate to address the actions of police from another country? e.g. a foreign undercover police officer acting in concert with your national police force – Can you compel the foreign officer to attend before you and explain his/her actions? I doubt that you can.

How about criminal activity that takes place in multiple jurisdictions? Individuals may have been subject to surveillance in one country – had documents seized in a second and had their communications intercepted in a third country.

Police may arrange for all accused to be arrested in one of the three jurisdictions – or may secure their attendance to face trial by means of extradition – Where is the individual's recourse for oversight where one has such multi-country cooperation?

Possibly more important than the jurisdictional divide is the fact that investigation of serious and complex crime may unfold over many years.

In Canada, in respect of organized crimes and terrorist crimes, the police may obtain judicial wire tap authorizations for a period of up to one year. They may obtain subsequent renewals of these authorizations to intercept communications. In addition to the use of wire taps, these investigations are frequently accompanied by the use of informants, undercover officers, covert surveillance and possibly covert searches.

It is not unusual for such investigations to unfold over many years. They are generally a root and branch type of investigation as the police follow the investigative trail starting with minor criminals and working their way up to the heads of an organization. The cost and complexity of organized crime trials is such that criminal charges may be brought only against the kingpins. Yet 100 or more people may, without their knowledge, have been subject to various covert police investigative techniques. If they don't know, they can't complain.

The two major challenges to effective and credible civilian oversight of police – which is designed to ensure the appropriate balance between public safety and individual rights – are firstly, integrated policing and joint force operations and, secondly, long term complex police investigations that do not easily lend themselves to a complaint-based civilian oversight regime.

Failure to provide oversight in these areas means there is an absence of true accountability in respect of police investigations of the major public safety threats that the police are currently addressing. This provides for an environment wherein abuse may occur.

The solution however is not to inhibit the development of innovative police practices nor to criticize government legislative efforts – the solution is to modernize civilian oversight regimes, by:

firstly, allowing such oversight bodies to conduct joint investigations and to share information as appropriate. This is clearly more feasible amongst the various oversight bodies within an individual country. Such cooperation amongst oversight bodies in different countries would continue to be unlikely due to sovereignty issues; and

secondly, to provide the oversight body with a general power to review all policing activities so that it may examine ongoing operations, practices and procedures absent a specific complaint.

In my opinion, failure to take such basic steps will mean that a significant and important part of policing activity will remain beyond the reach of effective civilian oversight and may accordingly place individual rights and liberties at risk.