In Search of Dialogue: The Supreme Court, Police Powers and the Charter
Queen’s Law Journal, Vol. 31, pp. 1-74, 2005
74 Pages Posted: 1 Apr 2010 Last revised: 11 Jan 2012
Date Written: 2005
This paper offers an alternative account of the Supreme Court's role in cases relating to the source, scope and limits of police power. This theory is informed by the Court's early search cases under section 8 of the Charter, in which it stood firm on the principle of legality and refused to create new police powers. A form of dialogue resulted, with Parliament stepping forward to fill the gaps. The legislated search and seizure powers that followed invariably met and often exceeded the constitutional requirements identified by the Court. Resurrecting such dialogue is essential if the goal of the Charter's legal rights guarantees is to be realized. Parliament, not the courts, has the capacity to take the first critical step toward effectively regulating police power by enacting a code which clearly, comprehensively and prospectively delineates police powers, and adds procedural safeguards to check routine and low·level exercises of police discretion.
Suggested Citation: Suggested Citation