If you have issues viewing or accessing this file contact us at NCJRS.gov. ------~----------~----------------------------------------- . = legal status of thA police -'--------~--------~- '-'''''=- ,,' '-'''':::::'=~''7''"--,-~==,-"""""="""",=-=:;",,,,~=__ ,,_,~=,",_,;;::::,,':.'::':'l-'~ I,f ... ,\" ':'<t' ~ '. l -,~ . ':l-,--,or'.1 _. '! ,~ LEGAL STAT'US t~ '. OF THE POLICE Criminal Law Series A Study Paper prepared for the It~ ,~ I, I l , Law Reform Commission of Canada I I ! 1 I, ,\ J by ~ t Philip C. Stenning July 1981 U.S. Department ofJustice 88899 National Institute of Justice This document has been reproduced exactly as received from the person or organization originating it. Points of view or opinions stated in this document are those of the authors and do not necessarily represent the official position or policies of the National Instilute of Justice. ' Permission to reproduce this copyrighted material has been granted by Law Reform Commission of canada to the National Criminal Justice Reference Service (NCJRS). Further reproduction outside of the NCJRS system requires permis­ sion of the copyright owner. ,. ,.~ -.--------.. ~~,~- .--,. Table of Contents 1 . ~ :- ! /. < ' i ,. APR lR 1983 \ ,i ;' ACf"'loUI ACKNOWLEDGMENTS , ..... j' ••••.•••~ •• , S 9·T·~·O N S· .. ;.i .... , INTRODUCTION ................................................ 3 ,'-;: CHAPTER ONE: ENGLISH ORIGINS OF THE OFFICE : .1.:.\ OF CONSTABLE ............................... 7 A. "Police", "Constables" and "Peace Officers" .................... 8 B. Pre-Norman Systems of "Police" in England ................... 13 C. "Constables" and "Justices of the Peace" ...................... 18 D. The Dual Nature of the Office ................................ 28 CHAPTER TWO: POLICE IN EARLY CANADA .... : ........... 35 A. Early Federal and Provincial Police Forces ................... 40 B. Nineteenth-Century Municipal Policing ....................... ; 49 CHAPTER THREE: THE CURRENT LEGAL STATUS f OF THE POLICE IN CANADA ............. 57 A. The Reform of Police Legislation, 1946-1977 .................. 57 B. The Current Demography of the Police in Canada ............. 60 C. Status, Jurisdiction, Duties and Powers ....................... 61 D. Legislative Provisions"for the Legal Status ~l , of the Police ............................................... 65 ~< t . - " . , 1. Police Legislation ...................................... 65 (a) The R.C.M.P .................................... , .. 66 (b) R.C.M.P. When und.er Contract ..................... 69 .:.( (c) Provincial Police Forces ............................ 78 (d) Municipal Police Forces ...... : ...................... 81 (i) British Columbia .............................. 81 .. (ii) Alberta ...................................... 82 £t - (iii) Saskatchewan ................................ 82 \: o (iv} Manitoba .................................... .~3 i (v) Ontario ...................................... 84 / (vi) Quebec ...................................... 86 (vii) New Brunswick ............................... o 87 .~. '. '\ (viii) Nova Scotia .............................. , ... 88 l~\, \ (ix) Prince Edward Island ......................... 90 ,. " \ (x) Newfoundland ................................ 90 .'1' , .. -< , - .~ .,.iT P '. ~" " o . , .. ' ; ---~---~--------------~. ~. ': .~ (e) Chiefs of Police, Commissioners, and Other Heads of Police Forces . .. .. 90 2. The Criminal Code ........ ;............................. 95 3. Other--Legislation ........................................ 99 AcknowledgI11ents E. The Common Law ....................... :.................. 99 CHAPTER FOUR: SOME IMPLICATIONS OF THE MODERN LEGAL STATUS OF THE POLICE ........................... 101 ~ ~.. Il :.' .. l' ~ .'..: • Many people have rendered assistance to the author in the prep<\[ation of A. The Cdndeot of Police Indege.rydence ......................... 10 1 this Study Paper, some very' wittingly and others hardly aware' of their ~ \, / 13 B. Conclusions ...............": ............•................... 0 contribution. The author wishes to acknowledge with special gratitude the invaluable help and encouragement offered with such characteristic generos- 0 APPENDIX .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ~ . .. .. .. .. .. .. .. 133 ity by two long-time friends and colleagues, John Edwards and Clifford Shearing. To Geoffrey:Marsha!l, John Beattie, Tony Doob and Bill BIBLIOGRAPHY ............................................. 135 Shimmin, who have each assisted in their own special ways, the author also expresses his gratitude and appreciation. For his support and generous assist­ ENDNOTES ................................................... 143 ance throughout the project, the author also wishes to thank Calvin A. Becker, of the Law Reform Commission of Canada. TABLE OF CASES ............................................................. 15] Philip C. Stenning TABLE OF STATUTES ........................... ":~' ......... 157 U" '.. · - - ---- - - ~------ --- ....•. ;. .f,..• . , ;11 r " Introduction In this Province, the office of constable is created by statute alone; but the officer no doubt is the same person, and possesses the same powers and authori­ ties which the constable in England possesses, for it was one of the di~tinctive features in all our legislation to assimilate our laws and institutions to thi(pattern which we had before us in the laws and institutions of England; and, in copying them, we did not fail to introduce the constable as the type of peace and order in social life. Adam Wilson, The Constable's Guide (1859: 16) [TRANSLATION] Our system for the administration ofjustice is entirely different, and both the role and status of the police withjn this system are clear and well defined by legislative provisions. Mr. Justice Turgeon, in Bisaillon v. Keable and Attorney General of Quebec (1980), 17 C.R. (3d) 193 at 204 (Que. C.A.) Until very recently, and despite some very explh::it amendments of pro­ vincial legislation respecting the police, Canadjan c6urts, on the few occa­ sions on which they have been called upon to consider the matter at all, have relied heavily on English jurisprudence in delineating the status of the police in this country. However, recent events ~n Canada have raised both implicit and explicit challenges to define the legal status of the police in uniquely Canadian terms. In the context of this debate, the recent judgment of the Quebec Court of Appeal in Bisaillon v. Keable and Attorney General of Quebec is one of the more explicit calls for a definition of the legal status ofthe .. police that does not rely on the assumption that the principles governing the Canadian police system are the same as those of the English system from which it has derived. The principal issue on which discussion of the legal status of the police I) " centres is that of the accountability of the police. In this respect, the legal .... '~-...... status of the police is of importance in terms of its implications for internal as , well as external accounTability. As Bayley has pointed out, even a cursory \ review of structures for the control of the police in a variety of countries \, reveals that "it is not possible to say that democratic government requires a I particular mode of control" (1979: 131). In a country such as Canada, which ,I has such fragmented and diversified arrangements for the organization of policing, one would not necessarily expect to find that the police share a ~I ' uniform status regardless of the jurisdiction in which they serve. Since con­ stitutional authority to define this stC;itus resides in at least eleven legislative \ . bodies in this country, differences can be expected. t \ 3 Preceding page blank ,. r This Study Paper examines the legal status of the police in Canada at the present time, and considers its implications for the government of the police Historical examination ofthe origins of our present system, however, quickly and the exercise of police authority. Because the current legal status of the challenges such assumptions, and helps us to understand that legal principles police is so often legislatively expressed with reference to the traditional need not be cast in stone; that change is as essential as stability to healthy offices of "constable" and "peace officer", the paper also examines the survival. historical origins and evolution of these offices. Because much of the historical material on the police is inaccessible to A narrow interpretation has been adopted in defining "police" for the most readers, the author has included extensive quotations in the text of this purposes of this paper. The paper is limited in its scope to those persons who paper; although not, it is hoped, to the point of making it less readable. serve, usually full-time, as members of public police forces established under provincial police legislation, city charters or the federal Royal Canadian The day-to-day status of a policeman is not essentially, or even primarily, Mounted Police Act (hereinafter referred to as the R.C.M.P. Act). In particu­ a legal phenomenon. In confining itself to the legal aspects of that status, this lar, the following "special status" police are not separately considered in this paper touches but one aspect of an enormously complex and controversial paper: special constables, police cadets, auxiliary or reserve members of subject. To many, however, the police, more than any other group, embody police forces, by-law enforcement