Constitutional rights and policing: the Charter and the rule of law

Professor Ray Desjardins begins the winter term by holding up two things: a pocket copy of the Canadian Charter of Rights and Freedoms and his old duty notebook. One of them, he tells the class, is the most important tool an officer carries, and it is not the notebook. Every power the class studied in the fall, from detaining a suspect to searching a car to taking a statement, exists inside the limits set by that small booklet. An officer who knows the criminal law but not the Charter can build a perfect case and watch it collapse in court, because the evidence was gathered in a way the Charter forbids. Worse, the officer can harm a person whose rights the officer swore to protect.

Amara Okafor asks whether the Charter is mostly a problem for prosecutors. Desjardins shakes his head. Judges apply it after the fact, he says, but officers apply it first, in the street, in seconds, without a lawyer at their elbow. That is why this course treats constitutional law as a practical skill: knowing the rule, knowing the reason behind it, and being able to explain on the witness stand exactly why each step was lawful.

The rule of law

The idea that sits beneath every lesson in this course is the rule of law: the principle that everyone, including the government and the police, is subject to the law, and that state power may be used only when the law authorizes it. A police officer cannot act simply because an action seems sensible or because a supervisor approves. The officer needs legal authority, found in a statute, the common law, or the consent of the person affected. When an officer acts without that authority, the officer is, in law, just another person interfering with someone's liberty or property.

Desjardins illustrates with a case from his early years. A sergeant ordered officers to photograph everyone leaving a bar after a fight, on the theory that one of them might be the attacker. Nothing in the law authorized compelling those photographs, and a court later criticized the practice. The sergeant's motive was good. The problem was that good motives are not legal authority. The rule of law protects the public precisely because it does not depend on the good intentions of whoever holds power at the moment.

In Canada, the rule of law is named in the preamble to the Charter, which recognizes that Canada is founded on principles that recognize the supremacy of God and the rule of law. The Supreme Court of Canada has described it as a fundamental postulate of the constitutional structure.

Where the Charter fits in Canadian law

The Constitution of Canada is the supreme law of the country. Section 52 of the Constitution Act, 1982, says that any law inconsistent with the Constitution is, to the extent of the inconsistency, of no force or effect. The Charter of Rights and Freedoms forms Part I of that Act and came into force on April 17, 1982, with the equality rights in section 15 following three years later, in 1985. Before 1982, Canada had the Canadian Bill of Rights of 1960, but it was an ordinary federal statute, it did not bind the provinces and courts used it cautiously. The Charter changed that: it binds every level of government and every police service, and courts can strike down laws and exclude evidence when it is breached.

Below the Constitution sit federal statutes such as the Criminal Code, provincial statutes such as Ontario's Highway Traffic Act and Community Safety and Policing Act, regulations, municipal bylaws and the common law built up by judges. Each of these can give police authority, and each must be consistent with the Charter. A police power that the Criminal Code grants clearly can still be struck down or narrowed if it violates a Charter right and cannot be justified under section 1.

The legal rights in sections 7 to 14

The Charter's legal rights, in sections 7 to 14, are the ones police meet most often. Section 7 protects life, liberty and security of the person and the right not to be deprived of them except in accordance with the principles of fundamental justice. Section 8 protects against unreasonable search or seizure. Section 9 protects against arbitrary detention or imprisonment. Section 10 gives everyone who is arrested or detained the right to be told promptly why, the right to retain and instruct counsel without delay and to be told of that right, and the right to have the lawfulness of the detention determined by habeas corpus. Section 11 lists the rights of a person charged with an offence, including the right to be tried within a reasonable time and to reasonable bail. Sections 12 to 14 protect against cruel and unusual punishment, protect witnesses against having their testimony used to incriminate them, and guarantee an interpreter.

Two other parts of the Charter shape police work too. The fundamental freedoms in section 2, including expression, peaceful assembly and association, govern how police handle protests. The equality rights in section 15 forbid discrimination, which matters for racial profiling and how stops are distributed. Lesson 10 covers both. And section 24 gives the courts their remedies, including the power to exclude evidence, which Lesson 11 examines in detail.

Rights protect everyone, including the guilty

Marco DiSanto raises a common objection. If police find stolen tools in a suspect's backpack, why should it matter how they found them? Desjardins answers with a question of his own: how would the police know, before the search, that this person was guilty and not the next one? Constitutional rules have to be written for the moment before the search, when the officer cannot know what will be found. A rule that protected only innocent people would protect no one, because the officer could always claim to have believed the person guilty. The protections attach to everyone so that they reliably protect the innocent.

There is a second answer. Courts have found again and again that unchecked police power produces errors as well as abuses. Coerced confessions are unreliable. Searches without grounds catch far more innocent people than guilty ones. Detentions based on hunches fall disproportionately on certain neighbourhoods and communities. Constitutional limits push investigations toward methods that work: articulable grounds, corroborated information, judicial authorization and careful questioning. Desjardins tells the class that in his experience the officers who knew the Charter best were also the ones whose cases held up best.

A practical method for every encounter

Throughout this course the class will use the same four questions whenever an officer interacts with a member of the public. First, what is the officer doing: talking, detaining, arresting, searching, seizing or questioning? Second, what right is engaged by that action? Third, where does the officer's authority come from, and what conditions does it carry? Fourth, what duties does the action trigger, such as telling the person the reason or advising them of the right to counsel? Priya Sandhu, a former fraud analyst, points out that the method resembles a compliance checklist. Desjardins agrees and says that is the point: under stress, officers fall back on habits, and a good habit is asking, before each step, what gives me the authority to do this.

Counting constitutional issues in Port Ardent case files

To see how often these questions arise in ordinary work, the class reviews a sample of 60 Port Ardent case files that the Crown attorney's office returned to the police service last year with written concerns. Prosecutor Margaret Liu, who reviews charges for Port Ardent each week, sorted each concern by the right involved. The program below tallies them and shows which issues come up most. The categories use plain labels so that the same code works for both countries.

# Concerns raised by the prosecutor's office in 60 returned Port Ardent case files
concerns = [
    ("search", 19), ("detention", 11), ("counsel", 13),
    ("statement", 7), ("delay", 6), ("other", 4),
]
total = sum(n for _, n in concerns)
print("total concerns:", total)
for issue, n in sorted(concerns, key=lambda c: -c[1]):
    bar = "#" * n
    print(f"{issue:10s} {n:3d}  {n / total:.2f}  {bar}")

top_two = sorted(concerns, key=lambda c: -c[1])[:2]
share = sum(n for _, n in top_two) / total
print("share from the top two issues:", round(share, 2))

total concerns: 60
search      19  0.32  ###################
counsel     13  0.22  #############
detention   11  0.18  ###########
statement    7  0.12  #######
delay        6  0.10  ######
other        4  0.07  ####
share from the top two issues: 0.53

Searches and the right to counsel together account for more than half of the concerns. Liu tells the class that this pattern is typical: most constitutional problems in real files are not dramatic misconduct but routine steps done in the wrong order, such as asking questions before a person has had a chance to call a lawyer, or searching a phone because it was in a pocket at the time of arrest. Those are exactly the habits this course aims to build.

Who decides, and when

Charter questions reach the courts in several ways. Most often, a defence lawyer brings an application at trial asking the judge to find a breach and exclude evidence under section 24(2) or to grant another remedy under section 24(1), such as a stay of proceedings. Sometimes a person challenges a law itself, arguing that the statute is inconsistent with the Charter and should be struck down under section 52. The Supreme Court of Canada has the final word, and its decisions bind every court and police service in the country.

Officers sometimes feel that judges second-guess decisions made in seconds. Desjardins acknowledges the feeling but tells the class that courts generally judge officers by what they knew and could reasonably believe at the time, not by hindsight. What courts will not accept is an officer who cannot explain the grounds for an action, or who explains them differently in court than in the notes. That is why LES-104's lessons on notes and reports connect directly to this course: the constitutional analysis a judge performs months later depends almost entirely on what the officer wrote down at the time.

Rights and responsibilities in Indigenous communities

Jesse Morningstar asks how the Charter applies to policing in his community. Desjardins explains that the core rights apply to everyone, everywhere, including on reserve lands. But Indigenous rights have their own constitutional protection in section 35 of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal and treaty rights, and section 25 of the Charter says Charter rights must not be read to diminish those rights. First Nations police services and the officers who work with them operate within this framework, and the courts have repeatedly said that the honour of the Crown shapes how governments deal with Indigenous peoples. Later courses in the program return to this topic in detail.