The Disappearance of Criminal Law: Police Powers and the Supreme Court by Richard Jochelson and Kristen Kramar, with Mark Doerksen (review)

Many law scholars do research in law and society to escape the often narrow and insular focus of doctrinal scholarship. The Disappearance of Criminal Law does the opposite. It examines recent Supreme Court of Canada cases in the area of police powers as part of a broader socio-legal inquiry. It aims to shed light on the role of the judiciary in the criminal-law policy shift away from the policing of actual harm and toward the management of more abstract fears and concerns. The authors engage with three areas of law and society scholarship—studies by Markus Dubber, Lucia Zedner, and David Garland on the embrace of preventative policing or a “culture of control”¹; research in surveillance studies by Kevin Haggerty and Richard Erikson, among others, on the “convergence of what were once discrete surveillance systems” into a “surveillant assemblage” (p. 10)²; and, finally, “govern-mentality” studies by Mitchell Dean, Mark Neocleous, and others.³

The authors of the book contend that the Court’s recent expansion of police discretion and powers of surveillance have yielded “a distinct body of juridical knowledge about good government or a governmentality of population security” (p. 20). In the process, the line between the Court and the police has become blurred: “We view the deployment of police powers by the Supreme Court as the ‘central manifestation of police power,’ thus reversing the conventional view that it is the police who apply the criminal law.” Courts have thus become “the vehicle through which the management of crime and social order … is justified and administered into the future” (p. 21). Gaining a clearer understanding of how this knowledge is produced helps to elucidate a facet of the judiciary that is often overlooked in critical security studies, criminology, and conventional doctrinal study itself.

The general thrust of the Court’s work in this area has involved the erosion of clear boundaries and limits of police powers:

Aspects of criminal law that were once jealously guarded by our Supreme Court have been reconstituted into abstractions and delegated into objective tests that must be weighed by police officers and lower courts. The disappearance of bright lines that restrict police powers become liminal spaces that future adjudicators and actors are required to navigate in order to understand if police have overstepped boundaries.

By “reanimating” older protections of rights, or “abstracting” and “delegating” their adjudication to police, the protections have—to a significant extent—“disappeared” from the purview of the courts (p. 22). The process has unfolded in the Supreme Court’s recent expansion of police powers in a range of areas, including search and seizure, arrest and detention, the right to silence and to counsel, and the admission of evidence obtained in violation of Charter rights.

A good example of the authors’ approach can be found in the chapter on unreasonable search. Recent cases exhibit a tension between the Court’s commitment to privacy and a belief in the need for greater surveillance powers in various areas that impinge on private life. Cases that allow police to carry out warrantless searches of heat signals from the home, garbage at the curb, or odors emanating from bags and lockers make limited sense given the view of the Court’s primary mandate as the protector of personal privacy and liberty. They make more sense when the Court is seen as a crucial means of facilitating surveillance and “administering its limits” (p. 35).

In other cases, the Supreme Court’s work points to the total suspension of limits. Under the “ancillary powers” doctrine, judges have recognized new powers—for example, investigative detention, search incidental thereto—by retroactively reading into police conduct power or discretion they did not possess at the time. The malleability of “ancillary powers” doctrine gives rise to the possibility that “new types and modes of searches are always imminent” (p. 43). Rights to...