Sources of Criminal Procedure

• Author: Steve Coughlan
• Pages: 8-33

8

CHAPTER 2

SOURCES OF CRIMINAL

PRO CED UR E

Broadly speaking, the sources for criminal procedure, as for criminal

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 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 lawlessness. 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: 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 being investi-

gated.

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, 18671as well as

the impact of the Canadian Charter 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 legislatures 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 province. 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 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 Crim-

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

can have additional powers conferred by provincial statutes. Further,

the duties assigned to police by their governing legislation, whether

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

vast majority of occasions, section 91(27) means that it is federal legis-

lation 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 criminal procedure that is inconsistent with the Charter may

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

upon guaranteed rights by reference to section 1.5 Second, the investi-

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 referred to as the Canadian

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

3 See, for example, Alber ta (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 Wate rf‌ield test was met.

The Wate rf‌iel d test is discu ssed in greater detai l at Section A(3)(b), below in this

chapter.

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