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Submission regarding White Paper on proposed amendments to section 25

Executive summary

In the submission that follows we argue that discussion on expanding the scope of criminal immunity for police officers must be informed not only by considerations of the difficulties which are associated with effective policing, but also by the rule of law and the constitutional standards which guide the balance that is to be struck between providing the tools required for effective policing and maintaining the rule of law. Thus, while recognizing that there is a significant need for effective policing measures, we also contend that this need must be tempered by concern for principles that must necessarily guide a democratic nation. In particular, we stress the importance of the rule of law as a first principle.

In the discussion section that follows our analysis of the rule of law and its applicability, the Oakes test is applied as a means of demonstrating that the proposed amendments: a) are not of ‘sufficient import’ to merit their enactment and any possibly infringements of liberties which might result, and; b) are not reasonable or demonstrably justified. In relation to the first prong of this test, we note that bold assertions as to need are not sufficient, and in the absence of evidence as to need, the need cannot be established or accepted. The White Paper contains no evidence to support the need for the proposed amendments and this first criterion has, therefore, not been satisfied on the information as presented. In relation to the proportionality of the means selected, it is noted that other exemptions from criminal liability, such as the provisions for the interception of private communications or the granting of warrants to search, incorporate provisions for prior judicial authorization, and thus provide a safeguard against the wanton abridgement of citizen rights.

Introduction

This past June, the Minister of Justice and the Solicitor-General began circulating a White Paper that contains proposed legislation which would broaden the number of offences for which a police officer can be exempted from criminal liability. The legislation, if enacted, would not only permit the police to engage in a wide range of activities that are presently illegal, but moreover contains no provisions requiring prior judicial authorization for their acts, thus allowing the police sole discretion in deciding on the commission of offences for which they would be exempted from liability.

The extension of immunity raises serious concerns about possible infringements of individual rights and liberties. As evidence in support of this fear, we need only look to the examples of Los Angeles and New Orleans where police officers, with the knowledge, and in some cases the consent of police management, were allowed to engage in criminal conduct with impunity. In New Orleans, corruption in the department has been found to be systemic; indeed, the police had, in effect, become a law unto themselves. In Los Angeles, police misconduct was similarly not limited to petty rule breaking or minor thefts, but rather consisted of the physical abuse of alleged members of gangs that amounted in many cases to torture, and serious infringements of due process and other constitutionally guaranteed rights. There have been many other high profile cases of police abuse of powers, incidents of law-breaking, abuse of citizens, and abridgement of rights, to sufficiently demonstrate that placing the police in a position whereby they may pose a significant threat to the rule of law is not in Canada’s best interests.

Context

This discussion on extending police powers arose as the result of the 1999 decision of R. v. Campbell and Shirose (1999) 133 CCC (3d) 257, where the Supreme Court of Canada held that the investigative techniques employed by the police were illegal. In that case, the police engaged in a “reverse sting” money laundering scheme with a view to gaining evidence against persons who were suspected of being involved in the trafficking of narcotics. Effective as the technique was in that particular case, the finding of illegality meant that investigative method was no longer available for use by the police. And while the Court rejected any notion of a “general law enforcement justification” for flouting the law (Campbell and Shirose, at.283-284), the Court at the same time recognized that law enforcement is difficult and that in order to be effective, “the ingenuity of criminals must be matched by that of the police” (at 522).

In response to this case, the government enacted regulations to specifically permit the police to engage in conduct which is otherwise criminal by exempting the police, in these circumstances, from the application of specified provisions of law. In particular, the Controlled Drugs and Substances Act (Police Enforcement) Regulations exempt police officers from the application of various sections of the Controlled Drugs and Substances Act. For the more serious activities of trafficking and making controlled deliveries, an officer will be exempt if (1) he or she has been issued a certificate, (2) the officer is an active member of the police force, and (3) the officer “is acting in the course of the member’s responsibilities for the purposes of a particular investigation.”

In order to help ensure accountability, the regulations require that a detailed annual report be filed to the Solicitor General of Canada and to the Minister.

The White Paper

In a White Paper entitled “Law Enforcement and Criminal Liability” released in June 2000, the government initiated discussion with respect to proposed amendments to the Criminal Code which would permit the police to engage in a far reaching range of activity which is presently illegal.

In the paper, it is stated that “the Government believes it is in the public interest to create a limited exemption from criminal liability for law enforcement officers so they may carry on their duties in accordance with the rule of law.” The proposed amendment would create this exemption. The exemption is described as being “especially [important] in the fight against organized crime” as organized crime “has profound social and economic impacts”, which are “insidious and pervasive” and affect “the lives of all Canadians”. In the Paper it is argued that “it is essential to provide law enforcement officers with the tools they need to combat local, national, and global crime and protect Canadian interests and Canadians themselves. Effective law enforcement may require officers to avail themselves of any number of tactics:

it may be necessary for the officers or their agents to involve themselves in activities that would otherwise be illegal, in ordinary circumstances. For example, undercover officers or agents may be required to traffic in drugs or other contraband in order to “play along” with their criminal targets to maintain their cover. Similarly, as part of criminal probes, they may be required to communicate for the purpose of prostitution, knowingly give a false name, or place illegal bets in gaming houses (at 2).

Therefore, what is being proposed generally is an extension of the exemptions which are set out in the (Police Enforcement) Regulations.

Overview of the proposed amendments

Generally, the proposed amendments distinguish between acts or omissions which “would be likely to cause bodily harm to a person or result in serious loss of or damage to property” and those that would not. With respect to the latter, it is suggested that an officer who is engaged in an investigation may be justified in committing the act or omission when the officer believes:

(a)on reasonable grounds, that;
(b)the act or omission, as compared to the offence being investigated;
(c)is reasonable and proportional in the circumstances having regard to “such matters as” the act being contemplated, the nature of the investigation and “the reasonable availability of other means for carrying out the public officer’s law enforcement duties.”

Acts of bodily harm, or those involving serious loss or damage to property may be permissible where: (1) they have been authorized by a senior official; (2) where it is not feasible to obtain prior authorization, or; (3) where the officer has reasonable grounds to believe that the act is necessary to:

(a)preserve the life or safety of any person;
(b)to prevent compromising of the identity of an undercover officer or confidential informant;
(c)or to prevent the imminent loss or destruction of evidence in an indictable offence.

Prior authorization requires:
(a) that the officer who is conducting the investigation and is contemplating the act, must believe that the act is reasonable and proportional in the circumstances, having regard to “such matters as” the act being contemplated, the nature of the investigation and “the reasonable availability of other means for carrying out the public officer’s law enforcement duties.”
(b) that the act be “authorized by a senior official” who is also satisfied that these same criteria have been satisfied.

Background considerations

Any response to these proposed amendments must be informed by considerations of the difficulties associated with effective policing, the rule of law, and constitutional standards whichguide the balance struck between providing the tools which are required for effective policing and maintaining the rule of law.

The need for effective policing

It has long been recognized that in order to be effective, the methods of investigation which the police have at their disposal must not remain stagnant. As those who are intent upon evading the law devise new ways in which to succeed in their objectives, the police must respond with equal ingenuity.

This was recognized in the following well known passage from Mack v. The Queen (1988) 44 CCC (3d) 513 (SCC):

One need not be referred to evidence to acknowledge the ubiquitous nature of criminal activity in our society. If the struggle against crime is to be won, the ingenuity of criminals must be matched by that of the police; as crimes become more sophisticated so too must be the methods employed to detect their commission. In addition, some crimes are more difficult to detect.

As Chief Justice Laskin in R. v. Kirzner (1977), 38 C.C.C. (2d) 131, 81 D.L.R. (3d) 229, [1978] 2 S.C.R. 487 (S.C.C.), explained (at 135 CCC, 492- SCR):

Methods of detection of offences and suspected offences and offenders necessarily differ according to the class of crime. Where, for example, violence or breaking, entering and theft are concerned, there will generally be external evidence of an offence upon which the police can act in tracking down the offenders; the victim or his family or the property owner, as the case may be, may be expected to call in the police and provide some clues for the police to pursue. When “consensual” crimes are committed, involving willing persons, as is the case in prostitution, illegal gambling and drug offences, ordinary methods of detection will not generally do. The participants, be they deemed victims or not, do not usually complain or seek police aid; that is what they wish to avoid. The police, if they are to respond to the public disapprobation of such offences as reflected in existing law, must take some initiatives.

For such reasons, the police must be given considerable latitude in the effort to enforce the standards of behaviour established in the criminal law. This has long been recognized by the common law: see Donnelly R., “Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs”, 60 Yale L.J. 1091, 1091-2 (1951). Chief Justice Laskin, in Kirzner, supra, noted that with respect to consensual crimes, the police employ a number of people and techniques (at .135-6 C.C.C., at 493 S.C.R.):

They may, for example, use a spy, either a policeman or another person, to obtain information about a consensual offence by infiltration; they may make arrangements with informers who may be parties to offences on which they report to the police to enable the other parties to be apprehended; or the police may use decoys or themselves act under cover to provide others with the opportunity to commit a consensual offence or to encourage its commission. Going one step farther, the police may use members of their force or other persons to instigate the commission of an offence, planning and designing it ab initio to ensnare others.

Similar expression is found in the more recent case of R. v. Bond (1993), 135 A.R. 329 (Alta. C.A.):

…situational police illegality happens. Police involve themselves in high speed chases, travelling beyond posted speed limits. Police pose as prostitutes and communicate for that purpose in order to gather evidence. Police buy, possess, and transport illegal drugs on a daily basis during undercover operations. In a perfect world this would not be necessary but, patently, illegal drug commerce is neither successfully investigated, nor resisted, by uniformed police peering through hotel room transoms and keyholes or waiting patiently at police headquarters to receive the confessions of penitent drug-traffickers (at 276).

The general intent of these passages has not been detracted from; however, it does not follow from this that the “considerable latitude” which must be given to the police is not without limits.

Nor does it follow from the fact that police might engage in illegal conduct on a daily basis, that such practices are permissible or ought to be condoned. Indeed, limits upon police conduct are an essential defining aspect of Canadian democracy and any exemptions that the police might receive from the general application of law must be recognized as being contrary to, or at least having the effect of straining at the fabric of the rule of law.

The rule of law

In Mack supra, the Court considered the issue of entrapment as a law enforcement technique. In refusing to accept or endorse “policy strategy that amounts to entrapment” (at 541), the Court affirmed that the criminal justice system must have as its foundation principles and values that cannot be detracted from. To the extent that a policy strategy conflicts with, or undermines those principles and values, the policy strategy must be rejected. Thus, it was stated that “[t]he concern is rather with law enforcement techniques that involve conduct that the citizenry cannot tolerate” (Mack at 523).

Further,

central to our judicial system is the belief that the integrity of the court must be maintained. This is a basic principle upon which many other principles and rules depend. If the court is unable to preserve its own dignity by upholding values that our society views as essential, we will not long have a legal system which can pride itself on its commitment to justice and truth and which commands the respect of the community it serves. It is a deeply ingrained value in our democratic system that the ends do not justify the means. In particular, evidence or convictions may, at times, be obtained at too high a price. This proposition explains why as a society we insist on respect for individual rights and procedural guarantees in the criminal justice system. (Supra at 539) (Emphasis added)

Finally, it was observed that in identifying why entrapment is not acceptable by Canadian standards, it was stated that :

[t]here is perhaps a sense that the police should not themselves commit crimes or engage in unlawful activity solely for the purpose of entrapping others, as this seems to militate against the principle of the rule of law. Ultimately we may be saying that there are inherent limits on the power of the state to manipulate people and events for the purpose of attaining the specific objective of oobtaining convictions.

The competing social interest is in the repression of criminal actvity. Further, our dependence on the police to actively protect us from the immense social and personal cost of crime must be acknowledged. There will be differing views as to the appropriate balance between the concepts of fairness and justice and the need for protection from crime but it is my opinion that it is universally recognized that some balance is absolutely essential to our conception of civilized society. In deciding where the balance lies in any given case it is necessary to recall the key elements of our model of fairness and justice, as this is the only manner in which we can judge the legitimacy of a particular law enforcement technique.

It must be stressed, however, that the central issue is not the power of a court to discipline police or prosecutorial conduct but, as stated by Estey J. in Amato, supra (at p. 73 C.C.C., at. 461 S.C.R.): “the avoidance of the improper invocation by the State of the judicial process and its powers”. In the entrapment context, the court’s sense of justice is offended by the spectacle of an accused being convicted of an offence which is the work of the state (Amato, supra, at 62 C.C.C., at 447 S.C.R.). The court is, in effect, saying it cannot condone or be seen to lend a stamp of approval to behaviour which transcends what our society perceives to be acceptable on the part of the state. The stay of the prosecution of the accused is the manifestation of the court’s disapproval of the state’s conduct. The issuance of the stay obviously benefits the accused but the court is primarily concerned with a larger issue: the maintenance of the public confidence in the legal and judicial process. In this way, the benefit to the accused is really a derivative one. We should affirm the decision of Estey J., in Amato, supra, that the basis upon which entrapment is recognized lies in the need to preserve the purity of administration of justice (Supra at 541-542) (Italics added).

Similar expression is also found in the Alberta Court of Appeal decision of R. v. Matthiessen (1999) 133 CCC (3d) 93 (Alta. C.A.) in which the court considered whether a reverse sting money laundering operation, which was operated by the R.C.M.P., constituted an abuse of process:

As in most matters of this nature, the tension between the goal of eradicating crime and preserving fundamental liberties is apparent. The police are expected to adhere to certain standards of conduct consistent with the norms and values that the community asks them to protect. Police misconduct is not tolerated precisely for the same reasons that we do not tolerate the conduct of those who commit crimes. It is a principled approach that commends itself for its consistency. Were it otherwise, and were we to endorse police illegality in the name of law and order, we would soon succumb to the temptation of “the means justifying the ends”; illegality would be a legitimate tool in the eradication of illegality. Wisely, Canadian courts have rejected that approach. Nonetheless, the Supreme Court of Canada has declined to lay down an absolute rule prohibiting the involvement of the State in illegal conduct (Supra, at 98) (Emphasis added).

The need for courts to dissociate themselves from illegal police conduct is a theme found in the jurisprudence relating to s. 24(2) of the Charter. This theme is seen, for example, in the following cases:

Collins v. The Queen (1987) 33 CCC (3d) 1 (SCC)

[T]he administration of justice would be brought into greater disrepute, at least in my respectful view, if this court did not exclude the evidence and dissociate itself from the conduct of the police in this case” (at 22-23).

R. v. Greffe (1990) 55 CCC (3d) 161 (SCC)

[T]he administration of justice would be brought into greater disrepute if the court did not dissociate itself from the conduct of the police by excluding the evidence” (at 182).

It must be recalled, however, that in addition to the consideration of a fair trial, the court must also consider whether by admitting the evidence it would be condoning unacceptable conduct by the police (at 193).

I conclude that the integrity of our criminal justice system and the respect owed our Charter are more important than the conviction of this offender (at 195).

R. v. Kokesch (1990) 61 CCC (3d) 207 (SCC)

The court refuses to condone, and dissociate itself from, egregious police conduct (at 226).

This court must not be seen to condone deliberate unlawful conduct designed to subvert both the legal and constitutional limits of police power to intrude on individual privacy (at 232).

While the cases which consider s.24(2) of the Charter pertain, admittedly, to a subject matter which is different from a statutory exemption from criminal liability, they are nonetheless of assistance for they illustrate the fact that the courts must consider police conduct, and measure that conduct against the “constitutional limits of police power”. And, where conduct falls outside of the constitutional limits, the courts will act as censures of the conduct.

Phrases such as “the purity of the administration of justice” do not always admit of precise definition or common understanding. Nonetheless, it is apparent from the passages in which these phrases are contained, that a means-ends justification for a particular policy strategy is, without more, an insufficient justification for the adoption of the strategy. The approval process must invoke values and considerations beyond whether the particular strategy will result in more effective law enforcement as in the collection of more evidence and, or the attaining of a greater number of convictions. As stated above, evidence and convictions may come at too high a price, and that price is the erosion of individual rights and the rule of law. Against this however, and as noted in the passage above from Matthiessen, there is, apparently, no absolute rule against some form of a law enforcement exemption. The issue is therefore how to strike the precise balance between competing values, and the answer might be found in a further understanding of the rule of law.

In Campbell and Shirose, supra (at 274), the rule of law was described as “one of the proud accomplishments of the common law” and “one of the fundamental and organizing principles of the Constitution.” It is a rule that “everybody is subject to the ordinary law of the land regardless of public prominence or governmental status” (at 274). There is “one law for all”. It is always a triumph for the law to show that it is applied equally to all without fear or favour. That is what we mean when we say that all are equal before the law. This principle was noted with approval in Attorney General of Canada v. Lavell, [1974] SCR 1349 at 1366:

It means equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary courts (at 274).

In relation to the facts before the court in Campbell and Shirose, it was noted that “the seeming paradox of breaking the law in order to better enforce it has important ramifications for the rule of law” (at p.275). On this basis it was found that “[t]he allegation that the police have put themselves above the law is very serious, with constitutional ramifications beyond the boundaries of criminal law” (Campbell and Shihrose, at 283).

It does not follow from this, however, that specific law enforcement exemptions may not be made.

The Criminal Code and related statutes are replete with provisions that immunize from criminal sanction police conduct that would otherwise be illegal. Enactments of that kind reflect policy decisions of the Parliament of Canada which, in turn, are deemed to mirror the community’s values. Such statutory declarations provide a yardstick by which other acts may be measured in assessing whether the public conscience has been offended. It is clear that the parliamentary choice has not been to countenance unfettered police discretion “to fight fire with fire”. On the other hand, it cannot be said that Parliament has been blind to the ultimate needs of law enforcement to be free of unnecessary constraints when targeting certain kinds of crime. The legislative choice has clearly rejected the proposition that the police are to be handcuffed (Matthiessen supra, at 98).

Laws that permit the interception of private communications, or the entry into premises for the purpose of installing listening devices or to execute a search warrant, are some examples of laws that immunize police conduct from criminal sanction. Therefore, and as was stated in Campbell and Shirose, if an exemption is to exist at all, “it should be left to Parliament to delineate the nature and scope of the immunity and the circumstances in which it is available” (at 284). The rule of law dictates that if an exemption is to exist, that it must exist through the will of Parliament rather than through a subjective determination of need by an individual police officer or law enforcement agency.

Discussion

If a justification for an exemption from criminal liability exists at all, it is likely to be found in some form of utilitarian reasoning wherein the ends are used to justify the means. In other words, those who favour the proposed amendments will likely argue that the benefits that attach to more effective law enforcement outweigh any disadvantage that might flow from distinguishing the police from the rest of the citizenry in relation to the application of criminal law.

Section 1 of the Charter provides a useful framework within which to analyze the proposal. It provides that:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out therein it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The leading case of R. v. Oakes (1986) 24 CCC (3d) 321 (SCC) sets out the rigorous test used to justify limits upon rights. In Oakes, the court recognized that rights are not absolute and may be limited where it is necessary to do so, having regard to the importance of societal or collective goals. “The rights and freedoms guaranteed by the Charter are not absolute. It may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance” (Oakes at 346). “Collective goals” must be understood within the context of the words “free and democratic society” and the rights and freedoms as are guaranteed by the Charter are “the ultimate standard against which a limit on a right or freedom must be shown” (Supra, at 346).

To justify a limit upon a right or freedom, it is essential that two criteria be satisfied:

First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be “of sufficient importance to warrant overriding a constitutionally protected right or freedom”: R. v. Big M Drug Mart Ltd., supra, at 430 C.C.C., p. 366 D.L.R., at 352 S.C.R. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

Secondly, once a sufficiently significant objective is recognized, the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves “a form of proportionality test”: R. v. Big M Drug Mart Ltd., supra. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Secondly, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question: R. v. Big M Drug Mart Ltd., supra. Thirdly, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”(at 349) (Emphasis added).

If this test is to be used as a framework against which to measure the proposed amendments, then it follows that those who suggest the need for the amendments must demonstrate the importance of the need on the basis of credible and convincing evidence. Bold assertions as to need are not sufficient and in the absence of evidence as to need, the need cannot be established or accepted. Further to this, the implicit claim made that the enactment of such a law is justifiable, through reference to the schemes of other legal jurisdictions in an analysis which is cursory at best, is also neither sufficient nor compelling. Particularly, as many non-democratic countries with appalling human rights records permit their police to engage in criminal conduct with impunity and without judicial oversight, as this legislation proposes. In short, the White Paper contains no evidence to support the need for the proposed amendments and this first criterion has, therefore, not been satisfied on the information as presented.

Even if evidence existed to establish that the amendments are of sufficient import to satisfy the first criterion, then it must still be established that the measures proposed have been “carefully designed to achieve the objective in question”. In this regard, it is significant that other exemptions from criminal liability, such as the provisions for the interception of private communications or the granting of warrants to search, incorporate provisions for prior judicial authorization. Within the context of the guarantees against unreasonable search and seizure, as are contained within s.8 of the Charter, prior judicial authorization serves as protection against unreasonable search and seizure.

In Hunter at al. v. Southam Inc. (1984) 14 CCC (3d) 97 (SCC), the Court recognized that the right to be secure against unreasonable search and seizure requires that an assessment be made prior to a search being authorized:

[A]n assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement. The question that remains, and the one upon which the present appeal hinges, is how this assessment is to be made. When is it to be made, by whom and on what basis? Here again, I think the proper approach is a purposive one (at 108-109).

In the result, it was held that in order to protect the interests that are at stake, a search is valid when it is based upon prior authorization made by an independent person capable of acting judicially.

The purpose of a requirement of prior authorization is to provide an opportunity, before the event, for the conflicting interests of the State and the individual to be assessed, so that the individual’s right to privacy will be breached only where the appropriate standard has been met, and the interests of the State are thus demonstrably superior. For such an authorization procedure to be meaningful it is necessary for the person authorizing the search to be able to assess the evidence as to whether that standard has been met, in an entirely neutral and impartial manner (Supra, at 110).

On this basis, it was held that the members of the commission which was being considered by the Court, and who were vested with an investigatory function, could not act in a judicial capacity for the purpose of authorizing a search. “[T]he administrative nature of the commission’s investigatory duties ill accords with the neutrality and detachment necessary to assess whether the evidence reveals that the point has been reached where the interests of the individual must constitutionally give way to those of the State” (Supra, at 112).

This applies with equal force to the proposed amendments to s.25 of the Code. If a circumstantial exemption is to exist at all, the decision cannot be left to the investigative body that has a vested interest in the outcome of the decision being made.

The outcome of this discussion is of great importance for it may signify a significant shift in police power. More importantly, perhaps, if the recommendations within the White Paper are accepted, then the law will come to recognize and legitimize a profound distinction between police officers and other citizens of Canada. Police officers will, in the course of the execution of their duties, be permitted to engage in conduct that would otherwise be “criminal” in its nature. Thus, the law will reflect a schism that is inconsistent with the rule of law.

Recommendations

On the basis of the foregoing, the Association puts forward the following recommendations:

  1. That there is no credible basis upon which to justify a pressing and substantial need for the amendments and the proposal should be rejected in its entirety.
  2. That if the amendments are to be accepted in any form, that no exemption from criminal liability should exist in the absence of judicial authorization, based upon an affidavit in support of the authorization, and which must be reviewed in a court of law.
  3. That if the amendments are to be accepted in any form, that there should be included a requirement for an annual report, which would be available to the public, and which would detail, at minimum, the number of occasions upon which the powers as set out in the amendment have been exercised.
  4. That if the amendments are to be accepted in any form, that the amendments should not contain any power which would permit the intentional causing of bodily harm or significant damage to property.
  5. That if the amendments are to be accepted in any form, that the amendments should include a provision which provides that no exemption shall be granted unless it has been established that other investigative procedures have tried and failed.