Breaking New Ground: The (Largely Unexplored) Power to Make Ancillary Orders Under the Criminal Code

Abstract

Due to our ever-increasing reliance on criminal law to solve difficult social problems, Canadian courts have become the recipients of numerous additional statutory powers. These powers are only loosely related – and in that sense may be regarded as “ancillary” – to the core functions of a criminal justice system. This paper discusses two such developments: the power to make orders respecting offence-related property; and the power to appoint counsel on appeal. Because ancillary orders can have serious consequences for an individual, it is necessary when interpreting them to respect legislative intent while maintaining fidelity to essential principles of criminal justice. This paper offers one such framework for interpretation.