Can Section 7 of The Criminal Code of Canada be used to support a claim for damages under the paramountcy doctrine?

Saskatchewan, Canada


The following excerpt is from Scowby v. Glendinning, 1983 CanLII 4731 (SK CA):

The subject matter of Section 7 of the Code is arbitrary arrest and detention – a matter which not only involves human rights but a potential claim for damages in the civil law context: vide Chartier v. The Attorney General of the Province of Quebec, 1979 CanLII 17 (SCC), [1979] 2 S.C.R. 474. On the other hand, the subject matter of Sections 450–454, 457 and 459 of The Criminal Code of Canada is lawful arrest and matters ancillary thereto. I see no conflict with these provisions on which to invoke the paramountcy doctrine. Indeed, claims for false arrest, assault, false imprisonment and malicious prosecution against police officers, whether R.C.M.P. o[r] otherwise, have co-existed with the provisions of The Criminal Code for decades. A police officer who carries out his duties according to law has a defence to any civil claim or criminal charge. However, If he oversteps the bounds of his authority, he cannot erect his position as an absolute shield against civil or criminal liability. He cannot, under the guise of carrying out police duties, commit a tort. In both our civil and criminal law, the power of arrest and the use of force is circumscribed by definite rules which place limits on the power of police officers. The authorities cited persuade me that the impugned legislation can exist in harmony with the above provisions of The Criminal Code.

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