Ancillary Powers Doctrine

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

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General Principles

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

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. 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.

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.

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”. 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”

Second Stage

The second stage balances "the competing interests of the police duty and of the liberty interests at stake". 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." This will include consideration of:

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

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."

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

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

Police Duties

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

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

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

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.

Justifiable Interference

The justification of police conduct depends on factors such as:

• 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."

Police Conduct

A police officer is expected to act reasonably in the circumstances. 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. The officer can only rely on objective and articulable circumstances, and not on "profile characteristics" that undermine the assessment of the circumstances.

Police are permitted to:

• draw inferences from their observations.
• rely on investigative training and experience

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

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

Examples of Established Intrusions

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

• Investigative detention
• Search incident to investigative detention
• Search incident to arrest;
• safety searches;
• emergency roadblocks;
• search incident to emergency roadblocks;
• random vehicle stops;
• roadside sobriety tests (e.g. RIDE programs);
• sniffer-dog searches;
• warrantless residential entry incident to 911 phone calls

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

Inventory Searches

• Inventory Searches

Regulatory Laws

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

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

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

Criminal Code

Sobriety Tests

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

See Also

• Seizure of Property, Warrantless Seizure Under Section 489