Preface

• Author: Steve Coughlan/Alex Gorlewski
• Pages: 1-3

1Preface

Preface

Criminal law is perhaps the most powerful and invasive legal tool in Canadian

society. The law of criminal procedure, through the activities of the police, the

courts, and various administrative boards and agencies, determines such

weighty questions as who gets detained and who goes free; who receives bail

and who remains incarcerated; whose privacy is protected by publication

bans; when and to what extent the police can search a person’s home, oce,

car, computer, mobile phone, or body; and so on. Criminal law is, as the courts

have often noted, the “blunt instrument” of the Canadian state.1 Its procedural

rules should at least be clear: unfortunately, often, they are not.

A major obstacle to understanding the rules of criminal procedure is the

fact that the relevant sections are sometimes separated from one another in

the Co de.2 A simple example is found in the rules around alternate and ad-

ditional jurors. That it is possible to select alternate jurors is mentioned in s

631(2.1), and that it is possible to select additional jurors is mentioned along

with that in s 631(2.2). Nothing in that section, however, hints as to what “al-

ternate” or “additional” jurors are, or how they dier from one another. To de-

termine that, one must look to s 642.1 in the case of alternate jurors, and to s

652.1 in the case of additional jurors, though nothing in the Code provides any

hint about those connections, and indeed s 652.1 does not even use the term

“additional juror.” It’s the sort of thing that you only know if you know it, and

there’s no obvious way to nd it out.

Similar problems exist around common law rules, particularly those relat-

ing to police investigative powers. Sometimes an entire analytical framework

for a power will be set out in a single case, but more often that power is de-

veloped over time, through a series of cases. This has several disadvantages.

First, this can make it dicult to determine the law in the rst place, since it

is hard to be sure that one has consulted all the relevant cases. If one read only

the 2004 decision in R v Mann, one would nd the Supreme Court saying that

it was not appropriate for the Court to “recognize a general power of detention

1 R v Hutchinson, 2014 SCC 19 at para 18.

2 Criminal Code, RSC 1985, c C-46 [Code].