PRIMAUTÉ DU DROIT ET POUVOIRS POLICIERS

UN MARIAGE IMPOSSIBLE?

Abstract

In an era when the ideology of security weakens the foundations of the criminal justice system, questions have arisen as to whether policing can be conducted in accordance with the rule of law. Essentially, the requirements of the rule of law should yield to the flexibility state agents need to ensure effective law enforcement. In light of such discourse, arguments based on this principle are often met with skepticism, making it difficult for the rule of law to prevail. This study aims primarily to challenge this skepticism, which prevents serious consideration of whether the importance and complexity of law enforcement’s mission can be reconciled with a legal framework that meets the requirements of the rule of law. It argues that taking the rule of law seriously makes it possible to uphold that very principle without compromising public safety.

To demonstrate that skepticism towards the rule of law is unwarranted and that respecting the rule of law in the governance of police work is both desirable, possible and necessary, the author first analyzes the relevant literature and case law to clarify the significance and scope of the principle in Canadian law. More specifically, this analysis identifies the seven key requirements stemming from this principle with respect to oversight of policing. By comparing the current state of the law to these principles, the author identifies a significant decline in the rule of law in the oversight of policing in Canada and traces its source to a failure to respect the respective roles of courts and lawmakers. However, this decline does not mean that the importance and complexity of law enforcement cannot be reconciled with a legal framework that meets the requirements of the rule of law. The author concludes that such reconciliation is not only possible but can be achieved primarily by lawmakers and the courts diligently performing their respective duties, without encroachment.