Police Powers after Dicey

Abstract

In a series of cases in the Charter era, the Supreme Court of Canada has broadened police powers – sometimes through resort to the ancillary powers doctrine, sometimes through an expansive interpretation of legislative grants of authority, and sometimes by interpreting legislation that appears to authorize rights infringements in such a way that they survive Charter scrutiny. These lines of authority have been criticized, notably by James Stribopoulos, as incompatible with the rule of law. His argument, which I believe reflects the views of other critics of the Court’s police powers jurisprudence, rests on the premise that we should understand the rule of law in the terms set out by AV Dicey.

In this paper, I argue that Dicey provides an inappropriate lens through which to examine the Court’s approach to police powers. We gain a better understanding of that line of authority, I argue, by abandoning Dicey and instead proceeding on the basis that police officers, as administrative actors, have discretion to determine the extent to which Charter rights should yield to public interest considerations. To a degree, I want to make that point simply by carrying forward the very analysis undertaken by Stribopoulos and others; i.e., by showing that the Supreme Court’s approach to police powers cannot be reconciled with the Diceyan model. Rather than use that analysis to show that the jurisprudence is wrong, however, I use it to support the claim that the Diceyan conception of the rule of law is not as central to the Canadian legal order as the Court’s critics suppose, and that we should scrutinize the cases through an altogether different lens.

Keywords: criminal law, criminal procedure, administrative law, Dicey, policing