Ancillary Powers Doctrine

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General Principles

The common law ancillary powers doctrine permits a police officer to interfere with a person's liberty or privacy during the lawful execution of their duty as long at the actions satisfy the following (The Waterfield test):[1]

  1. the police be acting in the execution of their duties under common law or statute; and
  2. conduct constitutes a justifiable interference with individual liberty or privacy.

This common law test is to be interpreted with s. 31 of the Interpretation Act in mind.

Ancillary powers
(2) Where power is given to a person, officer or functionary to do or enforce the doing of any act or thing, all such powers as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing are deemed to be also given.
Powers to be exercised as required
(3) Where a power is conferred or a duty imposed, the power may be exercised and the duty shall be performed from time to time as occasion requires.
R.S., 1985, c. I-21, s. 31; R.S., 1985, c. 27 (1st Supp.), s. 203.


There is always a balance between police powers and individual liberties. There are no bright line rules and each each will turn on the facts.[2]

  1. R v Waterfield, [1963] 3 All ER 659
    R v Stenning, 1970 CanLII 12 (SCC), [1970] SCR 631, pp. 636-637 - first application of waterfield in Canada
    Brown v Regional Municipality of Durham Police Service Board, 1998 CanLII 7198 (ON CA)
    Dedman v The Queen, 1985 CanLII 41 (SCC), [1985] 2 SCR 2
  2. Brown v Regional Municipality of Durham Police Service Board at para 62

Police Duties

Police have a common law duty to preserve peace, prevent crime, and protect life and property.[1]

  1. R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59 at para 26

Justifiable Interference

The justification of police conduct depends on factors such as:[1]

  • the duty being performed;
  • the extent to which interference of liberty is necessary to perform duty;
  • importance of the duty to the public good;
  • the liberty interfered with; and
  • nature and extent of the interference.

These considerations must be balanced in the context of all available information, "the existence of any less intrusive alternative, and the strength of the police belief relating to the exigency or danger said to justify an extraordinary intrusion and a necessitous departure from conventional investigative measures".[2]

  1. Godoy at para 18
    MacDonald 2014 SCC 3 (CanLII) at paras 37, 39
    R v Simon, 1993 CanLII 3379 (ON CA), 79 CCC (3d) 482 (ONCA) at p. 499
    R v Wilhelm, 2014 ONSC 1637 (CanLII) at para 111
  2. Wilhelm at para 112

Police Conduct

See also: Reasonable and Probable Grounds and Reasonable Suspicion

A police officer is expected to act reasonably in the circumstances.[1] The officer must evaluate the "totality of circumstances" when deciding to act. This includes changes in their circumstances which must be re-evaluated over time. New information cannot be ignored.[2] The officer can only rely on objective and articulable circumstances, and not on "profile characteristics" that undermine the assessment of the circumstances.[3]

Police are permitted to:

  • draw inferences from their observations.[4]
  • rely on investigative training and experience[5]

Police should be given "latitude" when exercising discretion and judgement in difficult or fluid circumstances.[6]

Their conduct must be reasonable given what they "should reasonably have been known to them at the time".[7] Police cannot rely upon ex post facto justification of their conduct.[8]

  1. Hill v Hamilton-Wentworth Regional Police, 2007 SCC 41 (CanLII) at para 58
  2. R v Wilhelm, 2014 ONSC 1637 (CanLII) at para 113
  3. Wilhelm at para 113
    R v Chehil, 2013 SCC 49 (CanLII) at para 40
  4. Wilhelm at para 114
    Cornell at para 35
  5. MacKenzie at para 15, 16, 62 to 64
  6. Cornell at para 24
    Jones at para 42
    R v Kelsy, 2011 ONCA 605 (CanLII) at para 56, 57
    Kephart at para 10
  7. Cornell at para 23
    R v Burke, 2013 ONCA 424 (CanLII) at para 44, 45
  8. Wilhelm at para 115

Examples of Established Intrusions

There are several established situations that have warranted intrusions of police:[1]

An officer may seize a cell phone incident to detention the purpose of officer safety or the potential loss of evidence.[2]

  1. R v McLachlan, 2017 ONSC 1471 (CanLII) at para 27 - lists some of these
  2. see R v White, 2007 ONCA 318 (CanLII) at para 47

Inventory Searches

Regulatory Laws

Regulatory and provincial laws can diminish or eliminate any reasonable expectation of privacy.[1]

Provincial regulatory Acts that authorize police to inspect vehicles will reduce the expectation of privacy.[2]

The police have a common law power to impound vehicles when enforcing the Ontario highway traffic act. [3]

  1. e.g. provincial Highway Traffic Acts of each province
    and R v Nolet, [2010] 1 SCR 851, 2010 SCC 24 (CanLII)
  2. Nolet at para 31
  3. R v Waugh, 2010 ONCA 100 (CanLII)

Criminal Code

Sobriety Tests

Section 254(2) authorizes police to demand that the accused participate in a field sobriety test.[1]

See Also