Canada Police powers after Dicey -- suggests that transparency more important than ever

[Dwight Hines]

Full article attached, can be downloaded for free from

http://ssrn.com/abstract=2212295

Implications for increased discretion are that data need to be examined for profiling and severe biases.

Dwight

abstract

Police Powers After Dicey

Michael Plaxton*

In recent years, the Supreme Court of Canada has expanded police powers and has upheld those powers against Charter challenges. This trend has been criticized, most notably by James Stribopoulos, who has argued that the expansion of police powers is at odds with AV Dicey’s conception of the rule of law, particularly with the doctrine of strict construction. Stribopoulos claims that recognizing novel police powers, despite the absence of any express legislative grant, creates uncertainty for citizens, especially in the context of obstruction offences which carry serious penal consequences.

The author argues that Stribopoulos overstates the centrality of the “Diceyan model” to Canadian law. In several pre-Charter obstruction cases, the Court effectively adopted a thin ice principle—the idea that citizens skate on thin ice when they engage in conduct which has arguably been prohibited by the legislature, so they should not complain if they are ultimately prosecuted and convicted. The author agrees that the thin ice principle is in tension with the Diceyan model, so he proposes an alternative: an administrative model. This model is based on the premise that police officers ought to have discretion, similar to that of other administrative actors, to determine the extent to which Charter rights should yield to public interest considerations. Without claiming that this administrative model is categorically superior to the Diceyan model, the author notes it has distinct advantages. 

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