Pre-Charter, in principle the police had limited powers. However, in practical terms it was not possible for a private citizen to object to all police action that fell outside those powers: realistically it was only if the police action were egregious enough to rise to the level of a tort or an offence that there was a mechanism for review. That is, there was a lot of grey area in between the things the police clearly were allowed to do and those they clearly were not allowed to do. The Charter changed that. By making “lawfulness” the standard for deciding whether there was an unreasonable search or an arbitrary detention, the Supreme Court in the ory banished the grey area, making it possible to review any action falling outside the strict limits of police powers. However, experience led to the conclusion that those “strict limits” might in fact be too strict, and so paradoxically the restraint mechanism of the Charter has led in some instances to the expansion of police power. Further, the particular approach taken to expanding police powers amounts to potentially declaring all of the previous grey area to fall within the powers of the police. This paper argues that that is an undesirable strand in Charter jurisprudence, and that it could be avoided by dealing with grey area issues at the remedy stage, as section 24(2) anticipates, rather than at the stage of deciding what powers police have.
"Charter Protection against Unlawful Police Action: Less Black and White Than It Seems."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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