Sources of Criminal Procedure

• Author: Steve Coughlan
• Pages: 7-39

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CHA PTER 2

SOURCES OF

CRIMINALPROCEDURE

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 so ciety in which police have excessive power risks

suppression. However, a society in which police have insufficient 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.

There is a fundamental principle which should be stated at the start

and borne in mind th roughout, which is more generally about the nature

of a liberal democracy than it is about police powers specifically. The

point is this:

Absent a law to the contr ary, individual s are free to do as they please.

By contrast, the police (and more broadly, the state) may act only to

CRIMIN AL PROCEDURE

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the extent that t hey are empowered to do so by law. The vibrancy of

a democracy is apparent by how wisely it navigate s through those

critical junct ures where state action intersects w ith, and threatens to

impinge upon, individua l liberties.1

This means that the term “lawful” has two different senses, depending

upon whether we are speaking of individuals or of state actors. Put sim-

ply, an individual is acting lawfully if there is no law saying they cannot

do what they are doing. In the case of police, however, an action will be

lawful only if the officer can point to some power authorizing them to

act in that particular way.

Police powers generally are created either by a statute or the com-

mon law, though sometimes police effectively have powers based on the

consent of a person being investigated. Those three possible sources

are exhaustive, in the sense that if the police officer, or the state more

generally, is not exercising a power authorized by statute, common law,

or consent, then the action in question is not lawful.

1) Constitution

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

tion of division of powers under the Constitution Act, 18672 as well as

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

as part of the Constitution Act 1982.3 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 w ith 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.4

Whatever the constitutional basis for the existence of a particular

police force, however, those police will rely primarily on rules of cr im-

inal procedure set out in the Criminal Code in enforcing the criminal

law. That matter lies squarely within Parliament’s jurisdiction, thanks

1 R v Mann, 2004 SCC 52 at para 15.

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

3 Being Schedule B to t he 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.

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

Sources of Cri minal Procedure 9

to section 91(27) of the Constitution Act, 1867, which assigns authority

over “the Procedure in Criminal 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 gov-

erning legislation, whether federal or provincial, can sometimes be rel-

evant.5 Nonetheless, in the vast majority of situations, 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 Charter. Its importance is twofold. First, any law con-

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

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

guaranteed rights by reference to section 1.6 Second, the investigation

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

that is consistent with rights guaranteed by the Charter. Failure to do

so will give rise to a remedy under section 24.

The Charter, especially the right s in sections 7 to 14 under the head-

ing “Legal Rights,” affects all a spects of criminal procedure from police

conduct through to bail, trial procedure, and sentencing. Sections 8 to

10, dealing with search, detention, and ar rest, are all directly concerned

with investigative powers, and they will be discussed at much greater

length below. Further, in the absence of more precise guarantees, sec-

tion 7 may be invoked as a source of “principles of funda mental justice.”

Although this section has had a greater impact on issues of substantive

criminal law than on investigative powers, it guarantees the right to

remain silent and the r ight to full answer and defence, and it is a source

of constitutional protection against abuse of process.7

The Ch arter has enhanced the protection of civil liberties in Can-

ada, and the extent of these effects will be reviewed in subsequent

chapters. Paradoxically, the Charter has also been a direct and indirect

cause of the expansion of police powers. It has been a direct cause

of this expan sion when judicial interpretation of a right in the Char-

ter has created a power that did not previously exist in law. This has

occurred in the inter pretation of section 8, which protects against

unreasonable search and seizure, and in the interpretation of section 9,

5 See, for example, R v Godoy, [1999] 1 SCR 311 [Godoy], where the Court looked

to the duties of police as set out in section 42 of the Police Services Act, RSO 1990,

c P.15, in order to help determine whether the Waterfield test was met. The Water-

field test is discussed in greater detail at Section A(3)(b), below in this chapter.

6 Constitution Act, 1982, above note 3, s 52.

7 See, for example, R v O’Conn or, [1995] 4 SCR 411 [O’Connor], or R v Babos, 2014

SCC 16 .