Sources of Criminal Procedure

• Author: Stephen Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 8-32

Cha pter 2

SOURCES OF

CRIMINAL PROCEDURE

Broadly spe aking, the source s for crimina l procedure, as for crimin al

law more generally, are der ived from the constitution, statutes, and

common l aw. However, it is useful to discuss e ach of those areas in

more depth, and to do so it is convenient to distinguish b etween t he

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

of the rules of pre-trial a nd 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 t he most obvious and poten-

tially most intrusive means by which government interferes with 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 risks lawles sness. Both

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

with scope for reasonable disagreement over exactly where the right

balance lies.

Police powers derive from two main sources: st atute and common

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

tively have powers based on the consent of a person being investigated.

8

Sources of Cri minal Procedure 9

1) Constitution

Any discussion of constitutional law in Canada must consider the ques-

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

the impact of t he Canadian Char ter of Rights and Freedoms, introduced

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

tle direct impact on the question of police powers. Both Parliament and

the provincial leg islatures have the jurisdiction to create police forces,

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

provinces have contracted with the Royal Canadian Mounted Police

(RCMP), the federal police force, to provide policing services within

the provi nce. Even in such cas es, however, t he 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 provin-

cial police complaints board.3

Whatever the constitutional basis for thei r existence, however, the

police will rely primari ly on rules of crimina l procedure set out in the

Criminal Code in enforcing the criminal 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 Cr imi-

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

have additional powers confer red by provincial st atutes. Fur ther, the

duties assigned to police by t heir 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 legislation

that will determine the extent of police investigative powers.

A much more relevant constitutional law question in this context

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

cerning criminal procedure that is inconsi stent with the Charter may

be struck down unless it can be justif‌ied as a reasonable limitation

upon gua ranteed rights by reference to section 1.5 Second, the inves-

1 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5. [Constitution

Act, 1867].

2 Being Schedule B t o the Canada Act 1982 (U.K.), 1982, c. 11 [Constitution Act,

1982]. Sections 1– 44 of the Constitution Act, 1982 are refer red to as the Canadian

Charter of Rights and Freed oms or, more commonly, as the Charter.

3 See, for example, Albe rta (Attorney General) v. Putnam , [1981] 2 S.C.R. 267.

4 See, for example, R. v. Godoy, [1999] 1 S.C.R. 311 [Godoy], where the Court

looked to the duties of pol ice as set out in s. 42 of the Police Services Act, R.S.O.

1990, c. P.15, in order to help determi ne whether the Waterf‌ield test was met .

The Waterf‌ield test is d iscussed in greate r detail at Section A(3)(b), below in this

chapter.

5 Constitution Ac t, 1982, above note 2, s. 52.