Sources of Criminal Procedure

• Author: Steve Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 7-34

77

CHA PTER 2

SOURCES OF

CRIMINALPROCEDURE

Broadly speaking, t he sources for criminal procedure, as for cri minal

law more generally, are derived from the constitution, statutes, and

common law. However, it is useful to discuss each of those areas in

more depth, and to do so it is convenient to distinguish between the

sources of police investigative powers on the one hand and the sources

of the rules of pre-trial and trial procedure on the other.

A. SOURCES OF POLICE POWER

Deciding the amount of power to be granted to police in a society is a

diff‌icult challenge. Police power is one of the most obvious and poten-

tially most intr usive means by which government interferes w ith the

lives of individuals. A society in which police have excessive power

risks suppression. However, a society in which police have insuff‌i-

cient ability to investigate and prevent crime r isks lawlessness. Both

extremes are to be avoided, but there is a broad range bet ween them,

with scope for reasonable disagreement over exactly where the right

balance lies.

Police powers derive from two main sources: statute and common

law. In addition, it is necessary to discuss the extent to which police ef-

fectively have powers based on the consent of a person bei ng investigated.

CRIMIN AL PROCEDURE8

1) Constitution

Any discussion of constit utional law in Canad a must consider the ques-

tion of division of powers under the Constitution Act, 18671 as well as

the impact of the Canadian Charte r of Rights and Freedoms, introduced

as part of the Constitution Act 1982.2 The former issue has relatively

little direct impact on the question of police powers. Both Parliament

and the provincial legi slatures have the juris diction to create police

forces, and both levels of government have done so. In addition, though,

many provinces have contracted w ith the Royal Canadian Mounted

Police (RCMP), the federal police force, to provide policing serv ices

within the provi nce. Even in such cases, however, the RCMP remains

under federal legislative jurisdiction, so that, for example, a complaint

would have to be brought to the appropriate federal body rather than a

provincial police complaints board.3

Whatever the constitutional basis for their existence, however, the

police will rely primarily on rules of criminal procedure set out in the

Criminal Code in enforcing the cr iminal law. That matter lies squarely

within Parliament’s jurisdiction, thanks to section 91(27) of the Consti-

tution Act, 1867, which assigns authority over “the Procedure in Crimi-

nal Matters,” to the federal government. Police in various provinces ca n

have additional powers conferred by provi ncial statutes. Further, the

duties assigned to police by their governing legislation, whether fed-

eral or provincial, can sometimes be relevant.4 Nonetheless, in the vast

majority of occasions, section 91(27) means that it is federal legi slation

that will determine the extent of police investigative powers.

A much more relevant constitutional law question in this context

is the role of the Charter. Its importance is twofold. First, any law con-

cerning cri minal procedure that is inconsistent wit h the Charter can be

struck down unles s it can be justif‌ied as a reasonable limitation upon

guaranteed rights by reference to section 1.5 Second, the investigation

and prosecution of crime in each ca se must be conducted in a manner

1 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5.

2 Being Schedule B t o the Canada Act 1982 (UK), 1982, c 11. Sections 1–44 of

the Constitution Act, 1982 are referred to a s the Canadian Charter of Rights an d

Freedom s or, more commonly, as the Charter.

3 See, for example, Alber ta (Attorney General) v Putn am, [1981] 2 SCR 267.

4 See, for example, R v God oy, [1999] 1 SCR 311 [Godoy], where the Court looked to

the duties of police a s set out in s 42 of the Police Services Act, RSO 1990, c P.15, in

order to help determi ne whether the Wate rf‌ield test was met. The Wate rf‌iel d test is

discus sed in greater detail at Se ction A(3)(b), below in thi s chapter.

5 Constitution Act, 1982, above note 2, s 52.