Reequilibrer le role de la Cour supreme du Canada en procedure criminelle

During the last two decades, the Supreme Court of Canada created and authorized new police powers that are exercised routinely. For example, the Court authorized police officers to stop motor vehicles at random, detain individuals for investigative purposes, and carry out preventive frisk searches on people. The Court stated that judges can use the "ancillary powers doctrine" to create new police powers that fill legislative gaps. The judicial creation of police powers is problematic in several respects. The ancillary powers doctrine is inconsistent with the separation of powers and undermines the rule of law. The exercise of ancillary powers results in racial and social profiling as well as discrimination. Although the judiciary broadened the scope of ancillary police powers, judges did not concurrently expand the scope of civil remedies related to police misconduct. How should the Supreme Court redefine its role within criminal procedure to better safeguard the separation of powers, promote the rule of law, and protect individuals’ fundamental rights and freedoms? This article demonstrates how the ancillary powers doctrine transformed the Supreme Court’s role within criminal procedure. The Court has shifted away from its core function as guardian of fundamental rights and instead creates police powers that undermine these rights. The article explains how the Supreme Court could rebalance the three branches of government’s respective roles within criminal procedure and redirect judges towards their primary function: protecting fundamental rights. The last part of the article offers four solutions to fulfil these objectives, and ultimately, better respect the separation of power, the rule of law, and individuals’ fundamental rights and freedoms.