Ancillary Powers Doctrine: Difference between revisions

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[[fr:Doctrine_des_pouvoirs_auxiliaires]]
{{Currency2|January|2018}}
{{LevelZero}}{{HeaderWarrantless}}
{{LevelZero}}{{HeaderWarrantless}}
==General Principles==
==General Principles==
{{seealso|Statutory Warrantless Search Powers}}
{{seealso|Statutory Warrantless Search Powers|Role of Law Enforcement}}
While the law imposes "broad general duties" on police. There are only limited powers to execute these duties.<ref>
{{CanLIIRP|Simpson|1npnx|1993 CanLII 3379 (ON CA)|12 OR (3d) 182}}{{perONCA-H|Doherty JA}}{{atp|194}} ("The law imposes broad general duties on the police but it provides them with only limited powers to perform those duties. Police duties and their authority to act in the performance of those duties are not co-extensive. Police conduct is not rendered lawful merely because it assisted in the performance of the duties assigned to the police. Where police conduct interferes with the liberty or freedom of the individual, that conduct will be lawful only if it is authorized by law.")
</ref>
Where conduct interferes with the liberty of an individual, the conduct must be "authorized by law."<ref>
{{ibid1|Simpson}}
</ref>
 
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):<ref>
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):<ref>
''R v Waterfield'', [1963] 3 All ER 659<br>
{{UKCase|Waterfield|, [1963] 3 All ER 659}}<br>
''R v Stenning'', [http://canlii.ca/t/1twq9 1970 CanLII 12] (SCC), [1970] SCR 631{{perSCC|Martland J}}, pp. 636-637 - first application of waterfield in Canada<br>
{{CanLIIRP|Stenning|1twq9|1970 CanLII 12 (SCC)|[1970] SCR 631}}{{perSCC-H|Martland J}}, pp. 636-637 - first application of waterfield in Canada<br>
Brown v Regional Municipality of Durham Police Service Board, [http://canlii.ca/t/6gkq 1998 CanLII 7198] (ON CA){{perONCA|Doherty JA}}<br>
{{CanLIIRPC|Brown v Regional Municipality of Durham Police Service Board|6gkq|1998 CanLII 7198 (ON CA)|131 CCC (3d) 1}}{{perONCA-H|Doherty JA}}<br>
Dedman v The Queen, [http://canlii.ca/t/1ftwf 1985 CanLII 41] (SCC), [1985] 2 SCR 2{{perSCC|Le Dain J}}<br>
{{CanLIIRPC|Dedman v The Queen|1ftwf|1985 CanLII 41 (SCC)|[1985] 2 SCR 2}}{{perSCC|Le Dain J}}<br>
{{supra1|Waterfield}} ("..was the officer acting within the course of his duties and was the conduct in question a justifiable use of police powers associated with that duty.")
{{supra1|Waterfield}} ("..was the officer acting within the course of his duties and was the conduct in question a justifiable use of police powers associated with that duty.")
</ref>
</ref>
# the police are acting in the execution of their duties under common law or statute; and  
# the police are acting in the execution of their duties under common law or statute; and  
# conduct constitutes a justifiable interference with individual liberty or privacy.
# conduct constitutes a justifiable interference with individual liberty or privacy.
This doctrine has never been so expansive as to justify conduct in execution of policing duties.<ref>
{{supra1|Brown}}{{atp|250}} (“[t]he common law ancillary power doctrine has never equated the scope of the police duties with the brea[dth] of the police powers to interfere with individual liberty in the performance of those duties”)
</ref>
The test is contextual and focuses on the degree to which there is a connection between the anticipated or actual crime and the individual whose rights are affected.<ref>
{{CanLIIRPC|Figueiras v Toronto (Police Services Board)|ggwxd|2015 ONCA 208 (CanLII)|320 CCC (3d) 437}}{{atL|ggwxd|47}} ("The Waterfield analysis is contextual, and one of the most important elements of context is the degree to which the police can link an individual whose rights are affected by police conduct to an actual or anticipated crime.")
</ref>


; First Stage
; First Stage
Under the first stage, " police powers are recognized as deriving from the nature and scope of police duties", including, “the preservation of the peace, the prevention of crime, and the protection of life and property”.
Under the first stage, "police powers are recognized as deriving from the nature and scope of police duties", including, “the preservation of the peace, the prevention of crime, and the protection of life and property”.
<ref>
<ref>
''R v Mann'', [2004] 3 SCR 59, [http://canlii.ca/t/1hmp1 2004 SCC 52] (CanLII){{perSCC|Iacobucci J}}{{at|26}}<br>
{{CanLIIRP|Mann|1hmp1|2004 SCC 52 (CanLII)|[2004] 3 SCR 59}}{{perSCC|Iacobucci J}}{{atL|1hmp1|26}}<br>
{{supra1|Dedman}} at p. 32
{{supra1|Dedman}}{{atp|32}}
</ref>  
</ref>  
In other words, this stage asks "whether the action falls within the general scope of a police duty imposed by statute or recognized at common law”<ref>
{{CanLIIRP|MacDonald|g2ng9|2014 SCC 3 (CanLII)|[2014] 1 SCR 37}}{{perSCC|Lebel J}}{{atL|g2ng9|35}}<br>
</ref>


; Second Stage
; Second Stage
The second stage balances "the competing interests of the police duty and of the liberty interests at stake".  
The second stage balances "the competing interests of the police duty and of the liberty interests at stake".  
<ref>
<ref>
{{supra1|Mann}}{{at|26}}<br>
{{supra1|Mann}}{{atL|1hmp1|26}}<br>
</ref>This aspect includes:
</ref>This aspect includes:
#"whether an invasion of individual rights is necessary in order for the peace officers to perform their duty", and  
#"whether an invasion of individual rights is necessary in order for the peace officers to perform their duty", and  
#"whether such invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals."
#"whether such invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals."


The police action must be "reasonably necessary" for the carrying out of the duty "in light of all the circumstances".<ref>
The police action must be "reasonably necessary" for the carrying out of the duty "in light of all the circumstances."<ref>
''R v MacDonald'', [http://canlii.ca/t/g2ng9 2014 SCC 3] (CanLII){{perSCC|Lebel J}}{{at|36}}<br>
{{supra1|MacDonald}}{{atL|g2ng9|36}} (the police conduct must be "reasonably necessary for the carrying out of the particular duty in light of all the circumstances")<br>
{{supra1|Mann}}{{at|39}}<br>
{{supra1|Mann}}{{atL|1hmp1|39}}<br>
{{supra1|Clayton}} at paras 21 and 29<br>
{{CanLIIRP|Clayton|1kt5v|2005 CanLII 16569 (ON CA)|194 CCC (3d) 289}}{{perONCA-H|Doherty JA}}{{atsL|1kt5v|21|}} and atsL-np|1kt5v|29|}}<br>
{{supra1|Figueiras}}{{atL|ggwxd|85}}<br>
</ref>
</ref>
This will include consideration of:<ref>
This will include consideration of:<ref>
Mac{{supra1|Donald}}{{at|37}}<br>
{{supra1|MacDonald}}{{atL|g2ng9|37}}<br>
</ref>
</ref>
# the importance of the performance of the duty to the public good<ref>{{supra1|Mann}}{{at|39}}<br></ref>
# the importance of the performance of the duty to the public good<ref>
# the necessity of the interference with individual liberty for the performance of the duty<ref>{{supra1|Dedman}}, at p. 35<br> {{supra1|Clayton}}, at paras. 21, 26 and 31<br></ref>; and
{{supra1|Mann}}{{atL|1hmp1|39}}<br></ref>
# the extent of the interference with individual liberty<ref>Dedman, at p. 35<br></ref>
# the necessity of the interference with individual liberty for the performance of the duty<ref>
{{supra1|Dedman}}{{atp|35}}<br>  
{{supra1|Clayton}}{{atsL|1kt5v|21|, 26 and {{atsL-np|atsL|1kt5v|31|}}<br></ref>; and
# the extent of the interference with individual liberty<ref>Dedman{{atp|35}}<br></ref>


If these "factors, when weighed together, lead to the conclusion that the police action was reasonably necessary, then the action in question will not constitute" an "unjustifiable use of... police powers".<ref>
If these "factors, when weighed together, lead to the conclusion that the police action was reasonably necessary, then the action in question will not constitute" an "unjustifiable use of... police powers."<ref>
Mac{{supra1|Donald}}{{at|37}}<br>
{{supra1|MacDonald}}{{atL|g2ng9|37}}<br>
</ref>
</ref>


'''Interpretation of Ancillary Powers'''<br>
; Interpretation of Ancillary Powers
This common law test is to be interpreted with s. 31 of the Interpretation Act in mind.
This common law test is to be interpreted with s. 31 of the Interpretation Act in mind.
{{quotation|
{{quotation2|
31. <br>...<br>
31<br>
'''Ancillary powers'''<br>
{{removed|(1)}}
; 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.
(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.
<br>
<br>
'''Powers to be exercised as required'''<br>
; 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.
(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.
<br>
<br>
...<br>
{{removed|(4)}}
R.S., 1985, c. I-21, s. 31; R.S., 1985, c. 27 (1st Supp.), s. 203.
R.S., 1985, c. I-21, s. 31; R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 203.
|[http://canlii.ca/t/hzp3 IA]
|[{{IASec|31}} IA]
|{{NoteUpIA|31|2|3}}
}}
}}


There is always a balance between police powers and individual liberties. There are no bright-line rules and each will turn on the facts.<ref>
There is always a balance between police powers and individual liberties. There are no bright-line rules and each will turn on the facts.<ref>
Brown v Regional Municipality of Durham Police Service {{supra1|Board}}{{at|62}}</ref>
{{supra1|Brown v Regional Municipality of Durham Police Service Board}}{{atL|6gkq|62}}</ref>


{{Reflist|2}}
{{Reflist|2}}
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==Police Duties==
==Police Duties==
Police have a common law duty to preserve peace, prevent crime, and protect life and property.<ref>
Police have a common law duty to preserve peace, prevent crime, and protect life and property.<ref>
''R v Mann'', [http://canlii.ca/t/1hmp1 2004 SCC 52] (CanLII), [2004] 3 SCR 59{{perSCC|Iacobucci J}}{{at|26}}<br>
{{CanLIIRP|Mann|1hmp1|2004 SCC 52 (CanLII)|[2004] 3 SCR 59}}{{perSCC|Iacobucci J}}{{atL|1hmp1|26}}<br>
</ref>
There is also the power to "control access" to certain "areas" relevant to their duties.
This includes "establishing a perimeter" around to protect:<ref>
{{CanLIIRPC|Figueiras v Toronto Police Services Board|ggwxd|2015 ONCA 208 (CanLII)|320 CCC (3d) 437}}{{perONCA|Rouleau JA}}{{atL|ggwxd|59}}
</ref>
* an officer affecting an arrest <ref>
{{CanLIIRx|Wutzke|1k6hz|2005 ABPC 89 (CanLII)}}{{perABPC|McDonald J}}{{atsL|1k6hz|60| to 66}}<br>
</ref>
* an officer questioning a witness or suspect<ref>
{{CanLIIRP|Dubien|1t90l|2000 CanLII 21536] (QC CM)|[2000] Q.J. No 250}} ''per'' Gravel J{{atsL|1t901|14| to 26}} (C.M.)<br>
</ref>
* protecting a crime scene to preserve evidence<ref>
{{CanLIIRP|Edwards|1gbht|2004 ABPC 14 (CanLII)|25 Alta LR (4th) 165}}{{perABPC|Allen J}}{{AtsL|1gbht|4| to 6}}, {{AtsL-np|1gbht|24| to 48}}, and {{AtsL-np|1gbht|66|}}
</ref>
* a hazardous area to preserve public safety, such as those created by fires, floods, or car crash sites.<ref>
{{CanLIIRPC|R c Rousseau|gczt9|1983 CanLII 2665 (QC CQ)|[1982] C.S. 461}}, ''per'' Cuddihy J, at pp. 461-62, 463-64 (Qc.)<br>
{{supra1|Figuerias}}{{atL|ggwxd|60}}
</ref>
* a potential target of violent crime in order to ensure the target’s protection<ref>
{{CanLIIRP|Knowlton|1xtz2|1973 CanLII 148 (SCC)|[1974] SCR 443}}{{perSCC-H|Fauteux CJ}}{{Atps|447-48}}<br>
</ref>
 
This perimeter authority  may not be used against protestors' common law right to travel unimpeded on a public highway.<ref>
{{supra1|Figuerias}}
</ref>
</ref>


Line 82: Line 131:


The justification of police conduct depends on factors such as:<ref>
The justification of police conduct depends on factors such as:<ref>
Godoy at para 18<br>
{{CanLIIRP|Godoy|1fqpk|1999 CanLII 709 (SCC)|[1999] 1 SCR 311}}{{perSCC|Lamer CJ}}{{atL|1fqpk|18}}<br>
R v MacDonald [http://canlii.ca/t/g2ng9 2014 SCC 3] (CanLII){{perSCC|Lebel J}} at paras 37, 39<br>
{{CanLIIRP|MacDonald|g2ng9|2014 SCC 3 (CanLII)|[2014] 1 SCR 37}}{{perSCC|Lebel J}}{{AtsL|g2ng9|37|, 39}}<br>
''R v Simon'', [http://canlii.ca/t/1npnx 1993 CanLII 3379] (ON CA), 79 CCC (3d) 482 (ONCA){{perONCA|Doherty JA}} at p. 499<br>
{{CanLIIRP|Simon|1npnx|1993 CanLII 3379 (ON CA)|79 CCC (3d) 482}}{{perONCA-H|Doherty JA}}{{atp|499}}<br>
''R v Wilhelm'', [http://canlii.ca/t/g656v 2014 ONSC 1637] (CanLII){{perONCA|Hill J}} at para 111<br>
{{CanLIIRP|Wilhelm|g656v|2014 ONSC 1637 (CanLII)|OJ No 1176}}{{perONCA|Hill J}}{{atL|g656v|111}}<br>
</ref>
</ref>
* the duty being performed;
* the duty being performed;
Line 93: Line 142:
* nature and extent of the interference.
* 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".<ref>
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."<ref>
Wilhelm{{ibid}} at para 112<br>
{{ibid1|Wilhelm}}{{atL|g656v|112}}<br>
</ref>
</ref>


Line 102: Line 151:


A police officer is expected to act reasonably in the circumstances.<ref>
A police officer is expected to act reasonably in the circumstances.<ref>
Hill v Hamilton-Wentworth Regional Police, [http://canlii.ca/t/1t3lv 2007 SCC 41] (CanLII){{perSCC|McLachlin CJ}}{{at|58}}<br>
{{CanLIIRPC|Hill v Hamilton-Wentworth Regional Police|1t3lv|2007 SCC 41 (CanLII)|[2007] 3 SCR 129}}{{perSCC-H|McLachlin CJ}}{{atL|1t3lv|58}}<br>
</ref> 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.<ref>
</ref>
''R v Wilhelm'', [http://canlii.ca/t/g656v 2014 ONSC 1637] (CanLII){{perONSC|Hill J}} at para 113<br>
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.<ref>
</ref> The officer can only rely on objective and articulable circumstances, and ''not'' on "profile characteristics" that undermine the assessment of the circumstances.<ref>
{{CanLIIRP|Wilhelm|g656v|2014 ONSC 1637 (CanLII)|OJ No 1176}}{{perONSC|Hill J}}{{atL|g656v|113}}<br>
Wilhelm at para 113<br>
</ref>
''R v Chehil'', [http://canlii.ca/t/g0qbs 2013 SCC 49] (CanLII){{perSCC|Karakatsanis J}}{{at|40}}<br>
The officer can only rely on objective and articulable circumstances, and ''not'' on "profile characteristics" that undermine the assessment of the circumstances.<ref>
{{supra1|Wilhelm}}{{atL|g656v|113}}<br>
{{CanLIIRP|Chehil|g0qbs|2013 SCC 49 (CanLII)|[2013] 3 SCR 220}}{{perSCC|Karakatsanis J}}{{atL|g0qbs|40}}<br>
</ref>
</ref>


Police are permitted to:
Police are permitted to:
* draw inferences from their observations.<ref>
* draw inferences from their observations.<ref>
{{supra1|Wilhelm}} at para 114<br>
{{supra1|Wilhelm}}{{atL|g656v|114}}<br>
{{supra1|Cornell}}{{at|35}}<br>
{{CanLIIRP|Cornell|2bttk|2010 SCC 31 (CanLII)|[2010] 2 SCR 142}}{{perSCC|Cromwell J}}{{atL|2bttk|35}}<br>
</ref>
</ref>
* rely on investigative training and experience<ref>
* rely on investigative training and experience<ref>
Mac{{supra1|Kenzie}} at para 15, 16, 62 to 64<br>
{{CanLIIRP|MacKenzie|g0qbv|2013 SCC 50 (CanLII)|[2013] 3 SCR 250}}{{perSCC-H|Moldaver J}}{{atsL|g0qbv|15|, 16}}, {{atsL-np|g0qbv|62| to 64}}<br>
</ref>
</ref>


Police should be given "latitude" when exercising discretion and judgement in difficult or fluid circumstances.<ref>
Police should be given "latitude" when exercising discretion and judgement in difficult or fluid circumstances.<ref>
{{supra1|Cornell}} at para 24 <br>
{{supra1|Cornell}}{{atL|2bttk|24}}<br>
{{supra1|Jones}}{{at|42}}<br>
{{CanLIIRP|Kelsy|fn5w7|2011 ONCA 605 (CanLII)|280 CCC (3d) 456}}{{perONCA| Rosenberg JA}}{{atsL|fn5w7|56|, 57}}<br>
''R v Kelsy'', [http://canlii.ca/t/fn5w7 2011 ONCA 605] (CanLII){{perONCA| Rosenberg JA}} at para 56, 57<br>
{{CanLIIRP|Kephart|2dn5p|1988 ABCA 325 (CanLII)|44 CCC (3d) 97}}{{perABCA|McClung JA}}{{atL|2dn5p|10}}<br>
{{supra1|Kephart}}{{at|10}}<br>
</ref>
</ref>


Their conduct must be reasonable given what they "should reasonably have been known to them at the time".<ref>
Their conduct must be reasonable given what they "should reasonably have been known to them at the time."<ref>
{{supra1|Cornell}}{{at|23}}<br>
{{supra1|Cornell}}{{atL|2bttk|23}}<br>
''R v Burke'', [http://canlii.ca/t/fzcl2 2013 ONCA 424] (CanLII){{perONCA|Weiler JA}} at para 44, 45<br>
{{CanLIIRP|Burke|fzcl2|2013 ONCA 424 (CanLII)|285 CRR (2d) 6}}{{perONCA|Weiler JA}}{{atsL|fzcl2|44|, 45}}<br>
</ref>
</ref>
Police ''cannot'' rely upon ''ex post facto'' justification of their conduct.<ref>
Police ''cannot'' rely upon ''ex post facto'' justification of their conduct.<ref>
{{supra1|Wilhelm}} at para 115<br>
{{supra1|Wilhelm}}{{atL|g656v|115}}<br>
</ref>
</ref>


Line 138: Line 188:
==Examples of Established Intrusions==
==Examples of Established Intrusions==
There are several established situations that have warranted intrusions of police:<ref>
There are several established situations that have warranted intrusions of police:<ref>
''R v McLachlan'', [http://canlii.ca/t/h07jb 2017 ONSC 1471] (CanLII){{perONSC|Labrosse J}} at para 27 - lists some of these<br>
{{CanLIIRx|McLachlan|h07jb|2017 ONSC 1471 (CanLII)}}{{perONSC|Labrosse J}}{{atL|h07jb|27}} - lists some of these<br>
</ref>
* [[Investigative Detention|Investigative detention]]<ref>
{{CanLIIRP|Mann|1hmp1|2004 SCC 52 (CanLII)|[2004] 3 SCR 59}}{{perSCC|Iacobucci J}}
</ref>
</ref>
* [[Investigative Detention|Investigative detention]]
* [[Search Incident to Investigative Detention|Search incident to investigative detention]]
* [[Search Incident to Investigative Detention|Search incident to investigative detention]]
* [[Search Incident to Arrest|Search incident to arrest]];
* [[Search Incident to Arrest|Search incident to arrest]];<ref>
* random vehicle stops;
{{CanLIIRPC|Cloutier v Langlois|1ft0h|1990 CanLII 122 (SCC)|[1990] 1 SCR 158}}{{perSCC|L'Heureux-Dubé J}}
</ref>
* safety searches; <ref>
{{CanLIIRP|MacDonald|g2ng9|2014 SCC 3 (CanLII)|[2014] 1 SCR 37}}{{perSCC|LeBel J}}
</ref>
* emergency roadblocks;
* emergency roadblocks;
* search incident to emergency roadblocks;
* search incident to emergency roadblocks;
* roadside sobriety tests;
* random vehicle stops;
* sniffer-dog searches;
* roadside sobriety tests (e.g. RIDE programs);<Ref>
* residential search incident to 911 phone calls
{{CanLIIRP|Dedman|1ftwf|1985 CanLII 41 (SCC)|[1985] 2 SCR 2}}{{perSCC|Le Dain J}}
</ref>
* sniffer-dog searches;<ref>
{{CanLIIRP|Kang-Brown|1wnbc|2008 SCC 18 (CanLII)|[2008] 1 SCR 456}}{{perSCC|LeBel J}}
</ref>
* warrantless residential entry incident to 911 phone calls<Ref>
{{CanLIIRP|Godoy|1fqpk|1999 CanLII 709 (SCC)|[1999] 1 SCR 311}}{{perSCC|Lamer CJ}}
</ref>


An officer may seize a cell phone incident to detention the purpose of officer safety or the potential loss of evidence.<ref>
An officer may seize a cell phone incident to detention the purpose of officer safety or the potential loss of evidence.<ref>
see ''R v White'', [http://canlii.ca/t/1r9gm 2007 ONCA 318] (CanLII){{perONCA|Moldaver JA}} at para 47
see {{CanLIIRP|White|1r9gm|2007 ONCA 318 (CanLII)|47 CR (6th) 271}}{{perONCA|Moldaver JA}}{{atL|1r9gm|47}}
</ref>
</ref>


Line 161: Line 224:
Regulatory and provincial laws can diminish or eliminate any reasonable expectation of privacy.<ref>
Regulatory and provincial laws can diminish or eliminate any reasonable expectation of privacy.<ref>
e.g. provincial Highway Traffic Acts of each province<br>
e.g. provincial Highway Traffic Acts of each province<br>
and ''R v Nolet'', [2010] 1 SCR 851, [http://canlii.ca/t/2b8jp 2010 SCC 24] (CanLII){{perSCC|Binnie J}}<br>
and {{CanLIIRP|Nolet|2b8jp|2010 SCC 24 (CanLII)|[2010] 1 SCR 851}}{{perSCC-H|Binnie J}}<br>
</ref>
</ref>


Provincial regulatory Acts that authorize police to inspect vehicles will reduce the expectation of privacy.<ref>
Provincial regulatory Acts that authorize police to inspect vehicles will reduce the expectation of privacy.<ref>
Nolet{{ibid}}{{at|31}}<br>
{{ibid1|Nolet}}{{atL|2b8jp|31}}<br>
</ref>
</ref>


The police have a common law power to impound vehicles when enforcing the Ontario highway traffic act. <ref>
The police have a common law power to impound vehicles when enforcing the Ontario highway traffic act. <ref>
''R v Waugh'', [http://canlii.ca/t/27tk3 2010 ONCA 100] (CanLII){{perONCA|Blair JA}}
{{CanLIIRP|Waugh|27tk3|2010 ONCA 100 (CanLII)|251 CCC (3d) 139}}{{perONCA|Blair JA}}
</ref>
</ref>


Line 178: Line 241:
; Sobriety Tests
; Sobriety Tests


[http://canlii.ca/t/7vf2#sec254 Section 254(2)] authorizes police to demand that the accused participate in a field sobriety test.<ref>
[{{CCCSec|254}} Section 254(2)] authorizes police to demand that the accused participate in a field sobriety test.<ref>
see [[Proof of Impairment by Drugs]] and [[Proof of Impairment by Alcohol]]
see [[Proof of Impairment by Drugs]] and [[Proof of Impairment by Alcohol]]
</ref>
</ref>

Latest revision as of 14:20, 14 July 2024

This page was last substantively updated or reviewed January 2018. (Rev. # 95218)

General Principles

See also: Statutory Warrantless Search Powers and Role of Law Enforcement

While the law imposes "broad general duties" on police. There are only limited powers to execute these duties.[1] Where conduct interferes with the liberty of an individual, the conduct must be "authorized by law."[2]

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):[3]

  1. the police are 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 doctrine has never been so expansive as to justify conduct in execution of policing duties.[4]

The test is contextual and focuses on the degree to which there is a connection between the anticipated or actual crime and the individual whose rights are affected.[5]

First Stage

Under the first stage, "police powers are recognized as deriving from the nature and scope of police duties", including, “the preservation of the peace, the prevention of crime, and the protection of life and property”. [6] In other words, this stage asks "whether the action falls within the general scope of a police duty imposed by statute or recognized at common law”[7]

Second Stage

The second stage balances "the competing interests of the police duty and of the liberty interests at stake". [8]This aspect includes:

  1. "whether an invasion of individual rights is necessary in order for the peace officers to perform their duty", and
  2. "whether such invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals."

The police action must be "reasonably necessary" for the carrying out of the duty "in light of all the circumstances."[9] This will include consideration of:[10]

  1. the importance of the performance of the duty to the public good[11]
  2. the necessity of the interference with individual liberty for the performance of the duty[12]; and
  3. the extent of the interference with individual liberty[13]

If these "factors, when weighed together, lead to the conclusion that the police action was reasonably necessary, then the action in question will not constitute" an "unjustifiable use of... police powers."[14]

Interpretation of Ancillary Powers

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

31
[omitted (1)]

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.
[omitted (4)]
R.S., 1985, c. I-21, s. 31; R.S., 1985, c. 27 (1st Supp.), s. 203.

– IA

Note up: 31(2) and (3)

There is always a balance between police powers and individual liberties. There are no bright-line rules and each will turn on the facts.[15]

  1. ↑ R v Simpson, 1993 CanLII 3379 (ON CA), 12 OR (3d) 182, per Doherty JA, at p. 194 ("The law imposes broad general duties on the police but it provides them with only limited powers to perform those duties. Police duties and their authority to act in the performance of those duties are not co-extensive. Police conduct is not rendered lawful merely because it assisted in the performance of the duties assigned to the police. Where police conduct interferes with the liberty or freedom of the individual, that conduct will be lawful only if it is authorized by law.")
  2. ↑ Simpson, ibid.
  3. ↑ Waterfield , [1963] 3 All ER 659 (UK)
    R v Stenning, 1970 CanLII 12 (SCC), [1970] SCR 631, per Martland J, pp. 636-637 - first application of waterfield in Canada
    Brown v Regional Municipality of Durham Police Service Board, 1998 CanLII 7198 (ON CA), 131 CCC (3d) 1, per Doherty JA
    Dedman v The Queen, 1985 CanLII 41 (SCC), [1985] 2 SCR 2, per Le Dain J
    Waterfield, supra ("..was the officer acting within the course of his duties and was the conduct in question a justifiable use of police powers associated with that duty.")
  4. ↑ Brown, supra, at p. 250 (“[t]he common law ancillary power doctrine has never equated the scope of the police duties with the brea[dth] of the police powers to interfere with individual liberty in the performance of those duties”)
  5. ↑ Figueiras v Toronto (Police Services Board), 2015 ONCA 208 (CanLII), 320 CCC (3d) 437, at para 47 ("The Waterfield analysis is contextual, and one of the most important elements of context is the degree to which the police can link an individual whose rights are affected by police conduct to an actual or anticipated crime.")
  6. ↑ R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59, per Iacobucci J, at para 26
    Dedman, supra, at p. 32
  7. ↑ R v MacDonald, 2014 SCC 3 (CanLII), [2014] 1 SCR 37, per Lebel J, at para 35
  8. ↑ Mann, supra, at para 26
  9. ↑ MacDonald, supra, at para 36 (the police conduct must be "reasonably necessary for the carrying out of the particular duty in light of all the circumstances")
    Mann, supra, at para 39
    R v Clayton, 2005 CanLII 16569 (ON CA), 194 CCC (3d) 289, per Doherty JA, at paras 21 and atsL-np|1kt5v|29|}}
    Figueiras, supra, at para 85
  10. ↑ MacDonald, supra, at para 37
  11. ↑ Mann, supra, at para 39
  12. ↑ Dedman, supra, at p. 35
    Clayton, supra{{atsL|1kt5v|21|, 26 and 1kt5v31
  13. ↑ Dedman, at p. 35
  14. ↑ MacDonald, supra, at para 37
  15. ↑ Brown v Regional Municipality of Durham Police Service Board, supra, at para 62

Police Duties

Police have a common law duty to preserve peace, prevent crime, and protect life and property.[1] There is also the power to "control access" to certain "areas" relevant to their duties. This includes "establishing a perimeter" around to protect:[2]

  • an officer affecting an arrest [3]
  • an officer questioning a witness or suspect[4]
  • protecting a crime scene to preserve evidence[5]
  • a hazardous area to preserve public safety, such as those created by fires, floods, or car crash sites.[6]
  • a potential target of violent crime in order to ensure the target’s protection[7]

This perimeter authority may not be used against protestors' common law right to travel unimpeded on a public highway.[8]

Provincially constituted police forces are created by an act of provincial legislatures. Within these Acts there will be some outline of basic duties as a peace officer.[9]

  1. ↑ R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59, per Iacobucci J, at para 26
  2. ↑ Figueiras v Toronto Police Services Board, 2015 ONCA 208 (CanLII), 320 CCC (3d) 437, per Rouleau JA, at para 59
  3. ↑ R v Wutzke, 2005 ABPC 89 (CanLII), per McDonald J, at paras 60 to 66
  4. ↑ R v Dubien, 2000 CanLII 21536 (QC CM)], [2000] Q.J. No 250 per Gravel J, at paras 14 to 26 (C.M.)
  5. ↑ R v Edwards, 2004 ABPC 14 (CanLII), 25 Alta LR (4th) 165, per Allen J, at paras 4 to 6, 24 to 48, and 66
  6. ↑ R c Rousseau, 1983 CanLII 2665 (QC CQ), [1982] C.S. 461, per Cuddihy J, at pp. 461-62, 463-64 (Qc.)
    Figuerias, supra, at para 60
  7. ↑ R v Knowlton, 1973 CanLII 148 (SCC), [1974] SCR 443, per Fauteux CJ, at pp. 447-48
  8. ↑ Figuerias, supra
  9. ↑ see:
    NLD: Royal Newfoundland Constabulary Act, 1992, SNL 1992, c R-17
    NS: Police Act, SNS 2004, c 31 at s. 30
    ON: Police Services Act, RSO 1990, c P.15 at s. 42
    MB: The Police Services Act, CCSM c P94.5

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. ↑ R v Godoy, 1999 CanLII 709 (SCC), [1999] 1 SCR 311, per Lamer CJ, at para 18
    R v MacDonald, 2014 SCC 3 (CanLII), [2014] 1 SCR 37, per Lebel J, at paras 37, 39
    R v Simon, 1993 CanLII 3379 (ON CA), 79 CCC (3d) 482, per Doherty JA, at p. 499
    R v Wilhelm, 2014 ONSC 1637 (CanLII), OJ No 1176, per Hill J, at para 111
  2. ↑ Wilhelm, ibid., 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), [2007] 3 SCR 129, per McLachlin CJ, at para 58
  2. ↑ R v Wilhelm, 2014 ONSC 1637 (CanLII), OJ No 1176, per Hill J, at para 113
  3. ↑ Wilhelm, supra, at para 113
    R v Chehil, 2013 SCC 49 (CanLII), [2013] 3 SCR 220, per Karakatsanis J, at para 40
  4. ↑ Wilhelm, supra, at para 114
    R v Cornell, 2010 SCC 31 (CanLII), [2010] 2 SCR 142, per Cromwell J, at para 35
  5. ↑ R v MacKenzie, 2013 SCC 50 (CanLII), [2013] 3 SCR 250, per Moldaver J, at paras 15, 16, 62 to 64
  6. ↑ Cornell, supra, at para 24
    R v Kelsy, 2011 ONCA 605 (CanLII), 280 CCC (3d) 456, per Rosenberg JA, at paras 56, 57
    R v Kephart, 1988 ABCA 325 (CanLII), 44 CCC (3d) 97, per McClung JA, at para 10
  7. ↑ Cornell, supra, at para 23
    R v Burke, 2013 ONCA 424 (CanLII), 285 CRR (2d) 6, per Weiler JA, at paras 44, 45
  8. ↑ Wilhelm, supra, 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.[8]

  1. ↑ R v McLachlan, 2017 ONSC 1471 (CanLII), per Labrosse J, at para 27 - lists some of these
  2. ↑ R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59, per Iacobucci J
  3. ↑ Cloutier v Langlois, 1990 CanLII 122 (SCC), [1990] 1 SCR 158, per L'Heureux-Dubé J
  4. ↑ R v MacDonald, 2014 SCC 3 (CanLII), [2014] 1 SCR 37, per LeBel J
  5. ↑ R v Dedman, 1985 CanLII 41 (SCC), [1985] 2 SCR 2, per Le Dain J
  6. ↑ R v Kang-Brown, 2008 SCC 18 (CanLII), [2008] 1 SCR 456, per LeBel J
  7. ↑ R v Godoy, 1999 CanLII 709 (SCC), [1999] 1 SCR 311, per Lamer CJ
  8. ↑ see R v White, 2007 ONCA 318 (CanLII), 47 CR (6th) 271, per Moldaver JA, 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 SCC 24 (CanLII), [2010] 1 SCR 851, per Binnie J
  2. ↑ Nolet, ibid., at para 31
  3. ↑ R v Waugh, 2010 ONCA 100 (CanLII), 251 CCC (3d) 139, per Blair JA

Criminal Code

Sobriety Tests

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

  1. ↑ see Proof of Impairment by Drugs and Proof of Impairment by Alcohol

See Also

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