Search and Seizure in 2004: Dialogue or Dead-End?

This paper explores recent judicial treatment of section 8 of the Charter of Rights and Freedoms and reaches the conclusion that judicial activism and judicial inactivity have created an ineffective incorporation of constitutional norms within Canadian police culture. A proper understanding of activism would dictate that the Supreme Court of Canada should seize the available opportunities to clarify the boundaries of police power and not issue narrow rulings under the guise of allowing the power to evolve incrementally under the common law. It is best to leave the question of police empowerment through new technology for Parliament and if, and when, Parliament determines that it wants to add a particular, invasive technology to the police arsenal, the Court can review the power to determine if it comports with the Constitution. When it comes to the exercise of police discretion on the street, it is unfair to require the police to decipher the relationship between reasonable grounds to detain, reasonable grounds to suspect and reasonable and probable grounds. If the Court cannot provide sufficient guidance in creating new powers for state officials, it should decline to do so and in taking no action it can compel Parliament to address the issue in a comprehensive manner. Creating new police powers without attempting to address the issue in a comprehensive manner is judicial activism gone awry. The police have been vested with enormous discretion and this paper examines the Supreme Court’s approach in providing (or failing to provide) guidance on the parameters of the exercise of this discretion