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.
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 potentially 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 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.
Police powers derive from two main sources: statute and common law. In addition, it is necessary to discuss the extent to which police effectively have powers based on the consent of a person being investigated.
Any discussion of constitutional law in Canada must consider the question 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 1982.2The 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.3Whatever 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 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 governing legislation, whether federal or provincial, can sometimes be relevant.4Nonetheless, 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 Charter. Its importance is twofold. First, any law concerning 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 1.5Second, the investi-
gation and prosecution of crime in each case must be conducted in a manner that is consistent with rights guaranteed by the Charter, and failure to do so may give rise to a remedy under section 24.
The Charter, especially the rights in sections 7-14 under the heading "Legal Rights," affects all aspects of criminal procedure from police conduct through to bail, trial procedure, and sentencing. Sections 8 to 10, dealing with search, detention, and arrest, 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, section 7 may be invoked as a source of "principles of fundamental justice." Although this section has had a greater impact on issues of substantive criminal law than on investigative powers, it has been held to guarantee the right to remain silent, and is a source of constitutional protection against abuse of process.6The Charter has certainly enhanced the protection of civil liberties in Canada 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 expansion when judicial interpretation of a right in the Charter has created a power that did not previously exist in law. This has occurred in the interpretation of section 8, which protects against unreasonable search and seizure, and in the interpretation of section 9, which protects against arbitrary detention.7In essence what has happened is that Charter analysis has dictated that a lawful search will not be an unreasonable one, and a lawful detention will not be an arbitrary one. In some situations in which an accused has been searched or detained in the absence of any statutory authority, courts have been faced with a choice between finding a Charter violation or finding a new common law power authorizing the police action. As will be discussed below, courts have increasingly been inclined toward the latter course of action.8
The Charter has also been an indirect cause of the expansion of police powers when courts have found particular police action objectionable, but have suggested powers that would still be consistent with guaranteed rights. This type of judicial interpretation has sometimes given Parliament guidance for legislative expansion of police powers. This would appear to be most evident in relation to matters of search and seizure.9
The primary source of police powers is the Criminal Code. It creates powers for police to directly enforce the law, as well as a great number of powers aimed at investigating crime, such as search warrants and wiretap provisions.
Sections 494-528 of the Code, for example, create a statutory scheme allowing police officers (and others) to arrest an accused or compel an accused’s appearance in court via a summons or appearance notice.10
Police arrest powers are quite broad, creating a power of arrest in almost every situation a peace officer might encounter; virtually the only circumstance in which there is no arrest power is where the police officer does not find the accused committing the offence and the offence is only a summary conviction one. Sections 25-33 create related powers, allowing the use of force to execute powers authorized by law, to prevent the commission of some offences, or to prevent a breach of the peace. In some circumstances even the use of deadly force is authorized.
Other provisions in the Code create extensive powers for police to search.11Section 487 creates the general search warrant provision in the Code, allowing a justice to issue a warrant authorizing the search of a "building, receptacle or place" and the seizure of evidence found there. Warrants under section 487 are typically issued when a justice is satisfied that the search will produce evidence with respect to the commission of an offence. However, the provision also allows a warrant to be issued where there are reasonable grounds to believe that the search will find i) something in respect of which an offence has been committed; ii) the whereabouts of a person believed to have committed an offence; iii) property intended to be used to commit an offence; or iv) property relating to a criminal organization. Code provisions also authorize the seizure of the material searched for, as well as material in addition to that specified in the warrant.12Further, the Code contains a general power to seize without a warrant any thing that an officer reasonably believes was obtained by the commission of an offence, has been used in the commission of an offence, or will afford evidence in respect of an offence, provided the officer was lawfully present.13
In addition to the general search warrant provision, a great number of individual police investigative powers have also been incorporated into the Code. These include authorizations to
i) use a tracking device to monitor the location of a person or object;14
ii) install number recorders on a telephone;15
iii) perform video surveillance on a location;16
iv) install a wiretap device to monitor telecommunications or private communications;17
v) obtain blood samples;18
vi) obtain handprints, fingerprints, footprints, or impressions of teeth or other parts of the body;19and
vii) obtain DNA samples.20
Some of these provisions, such as the wiretap and DNA sample items, are part of comprehensive schemes set out within the Code, while other powers are defined in a single section.
Beyond these specific warrant provisions, the Code also includes section 487.01, which allows a peace officer to apply for a warrant to "use any device or investigative technique or procedure or do anything" that would be an unreasonable search and seizure if it were not done under a warrant.21Further, section 487.11 of the Code provides that a peace officer may "exercise any of the powers described in subsection 487(1) [search warrants] or 492.1(1) [tracking devices] without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant."
Supporting these various warrant provisions is section 487.1, which allows officers to apply for a warrant to obtain a blood sample or a search warrant by telephone. That provision has also been made applicable in other circumstances; to obtain a search warrant under the Controlled Drugs and Substances Act,22for instance. Other...