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Police and the Implementation of Public Law

NCJ Number
Canadian Public Administration Volume: 20 Issue: 2 Dated: (Summer 1977) Pages: 291-304
G C Sharman
Date Published
14 pages
Two issues about the role of the Canadian police are addressed: the constitutionally ambiguous position of the police and the question of police discretion in the invocation of criminal law.
The policing process in Canada is strongly influenced by the governmental process at the Provincial and local level. Since the British North America Act has little to say about the allocation of responsibilities for the administration of public law (the only references to public law state that the Provinces are responsible for the administration of justice), the meaning of administration is undefined. Consequently, a complex net of executive accommodations has evolved in default of clarity as to the constitutional roles of Provincial and Federal Governments. Since both levels of Government have constitutional responsibilities with regard to policing, they have complicated some areas of police activity. Some instances of governmental clases are cited, most notably that between the National Government and the Government of Newfoundland which was precipitated by the Newfoundland loggers' strike of 1959. Such conflicts can be resolved in two ways. The first way involves framing a dispute in justiciable terms, inviting or initiating legal challenge and then using the courts to provide an authoritative statement on the boundaries and roles of the policing powers of both levels of Government. The second way is to attempt to renegotiate the existing balance of influence to accommodate a greater provincial presence in the control of the disputed aspects of policing policy. The most significant fact is that the level of Government which is responsible for the implementation of the bulk of criminal law is not the same as the level that creates it. The traditional feedback cycle is broken in spite of attempts to harmonize conflicting governmental priorities. Although the pressures for diversity are checked somewhat during the administration of justice, policing as a governmental function has been subject to centrifugal tendencies that are characteristic of other institutions in Canada. Footnotes are provided.