By Benjamin J. Goold  

Discretion is central to policing in Canada. Every day, the police make thousands of decisions that affect the lives of Canadians across the country, determining when the law should (or should not) be enforced, how public complaints and crimes are investigated, and what happens to those suspected of breaking the law. In many cases, these decisions are made by police officers in direct contact with members of the public and play a crucial role in shaping the relationship between those individuals and the state. While public officials in many capacities have discretion to make decisions in the ordinary course of their work, the decisions made by police officers are underpinned by their unique ability to use force in the execution of their duties, accompanied by extensive powers with respect to arrest, detention, search and seizure, and the gathering of evidence. This report aims to shed light on several key aspects of police discretion and decision-making, beginning with the fundamental issue of the relationship between discretion, law, and the legal duties of the police. The report is not a comprehensive overview of the extensive literature on police discretion in Canada and elsewhere but instead looks to provide a foundation for broader discussions about the scope of police discretion, the factors that influence its exercise, and whether it needs to be subject to more extensive and effective limitations. Fundamentally, the report considers whether the role of the police as a public institution and the demands placed on police officers as individuals are compatible with the notion of discretion as traditionally conceived. Given the many challenges facing the police in Canada today, there is a pressing need for a serious and structured discussion about the nature and scope of their discretion and whether it should continue to be regarded as an inescapable aspect of modern policing.  

Halifax, NS: The Joint Federal/Provincial Commission into the April 2020 Nova Scotia Mass Casualty, 2022., 65p.