Ancillary Powers Doctrine: Difference between revisions
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{{seealso|Statutory Warrantless Search Powers}} | {{seealso|Statutory Warrantless Search Powers}} | ||
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> | ''R v 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> | ''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> | ||
Brown v Regional Municipality of Durham Police Service Board, [http://canlii.ca/t/6gkq 1998 CanLII 7198] (ON CA){{perONCA|Doherty JA}}<br> | Brown v Regional Municipality of Durham Police Service Board, [http://canlii.ca/t/6gkq 1998 CanLII 7198] (ON CA){{perONCA|Doherty JA}}<br> | ||
Dedman v The Queen, [http://canlii.ca/t/1ftwf 1985 CanLII 41] (SCC), [1985] 2 SCR 2{{perSCC|Le Dain J}} | Dedman v The Queen, [http://canlii.ca/t/1ftwf 1985 CanLII 41] (SCC), [1985] 2 SCR 2{{perSCC|Le Dain J}} | ||
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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 para 26<br> | ''R v Mann'', [2004] 3 SCR 59, [http://canlii.ca/t/1hmp1 2004 SCC 52] (CanLII){{perSCC|Iacobucci J}}, at para 26<br> | ||
Dedman{{supra}} at p. 32 | Dedman{{supra}} at p. 32 | ||
</ref> | </ref> | ||
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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 para 26<br> | ''R v Mann'', [http://canlii.ca/t/1hmp1 2004 SCC 52] (CanLII), [2004] 3 SCR 59{{perSCC|Iacobucci J}} at para 26<br> | ||
</ref> | </ref> | ||
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Godoy at para 18<br> | Godoy at para 18<br> | ||
R v MacDonald [http://canlii.ca/t/g2ng9 2014 SCC 3] (CanLII){{perSCC|Lebel J}} at paras 37, 39<Br> | R v MacDonald [http://canlii.ca/t/g2ng9 2014 SCC 3] (CanLII){{perSCC|Lebel J}} at paras 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> | ''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> | ||
R v Wilhelm, [http://canlii.ca/t/g656v 2014 ONSC 1637] (CanLII){{perONCA|Hill J}} at para 111<br> | ''R v Wilhelm'', [http://canlii.ca/t/g656v 2014 ONSC 1637] (CanLII){{perONCA|Hill J}} at para 111<br> | ||
</ref> | </ref> | ||
* the duty being performed; | * the duty being performed; | ||
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Hill v Hamilton-Wentworth Regional Police, [http://canlii.ca/t/1t3lv 2007 SCC 41] (CanLII){{perSCC|McLachlin CJ}} at para 58<br> | Hill v Hamilton-Wentworth Regional Police, [http://canlii.ca/t/1t3lv 2007 SCC 41] (CanLII){{perSCC|McLachlin CJ}} at para 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> 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> | ||
R v Wilhelm, [http://canlii.ca/t/g656v 2014 ONSC 1637] (CanLII){{perONSC|Hill J}} at para 113<br> | ''R v Wilhelm'', [http://canlii.ca/t/g656v 2014 ONSC 1637] (CanLII){{perONSC|Hill J}} at para 113<br> | ||
</ref> The officer can only rely on objective and articulable circumstances, and ''not'' on "profile characteristics" that undermine the assessment of the circumstances.<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> | ||
Wilhelm at para 113<br> | Wilhelm at para 113<br> | ||
R v Chehil, [http://canlii.ca/t/g0qbs 2013 SCC 49] (CanLII){{perSCC|Karakatsanis J}} at para 40<br> | ''R v Chehil'', [http://canlii.ca/t/g0qbs 2013 SCC 49] (CanLII){{perSCC|Karakatsanis J}} at para 40<br> | ||
</ref> | </ref> | ||
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Cornell{{supra}} at para 24 <br> | Cornell{{supra}} at para 24 <br> | ||
Jones{{supra}} at para 42<br> | Jones{{supra}} at para 42<br> | ||
R v Kelsy, [http://canlii.ca/t/fn5w7 2011 ONCA 605] (CanLII){{perONCA| Rosenberg JA}} at para 56, 57<br> | ''R v Kelsy'', [http://canlii.ca/t/fn5w7 2011 ONCA 605] (CanLII){{perONCA| Rosenberg JA}} at para 56, 57<br> | ||
Kephart{{supra}} at para 10<br> | Kephart{{supra}} at para 10<br> | ||
</ref> | </ref> | ||
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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> | ||
Cornell{{supra}} at para 23<br> | Cornell{{supra}} at para 23<br> | ||
R v Burke, [http://canlii.ca/t/fzcl2 2013 ONCA 424] (CanLII){{perONCA|Weiler JA}} at para 44, 45<br> | ''R v Burke'', [http://canlii.ca/t/fzcl2 2013 ONCA 424] (CanLII){{perONCA|Weiler JA}} at para 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> | ||
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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 ''R v White'', [http://canlii.ca/t/1r9gm 2007 ONCA 318] (CanLII){{perONCA|Moldaver JA}} at para 47 | ||
</ref> | </ref> | ||
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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 ''R v Nolet'', [2010] 1 SCR 851, [http://canlii.ca/t/2b8jp 2010 SCC 24] (CanLII){{perSCC|Binnie J}}<br> | ||
</ref> | </ref> | ||
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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}} | ''R v Waugh'', [http://canlii.ca/t/27tk3 2010 ONCA 100] (CanLII){{perONCA|Blair JA}} | ||
</ref> | </ref> | ||
Revision as of 20:16, 12 January 2019
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]
- 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.
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”.
[2]
Second Stage
The second stage balances "the competing interests of the police duty and of the liberty interests at stake".
[3]This aspect includes:
- "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."
The police action must be "reasonably necessary" for the carrying out of the duty "in light of all the circumstances".[4] This will include consideration of:[5]
- the importance of the performance of the duty to the public good[6]
- the necessity of the interference with individual liberty for the performance of the duty[7]; and
- the extent of the interference with individual liberty[8]
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".[9]
Interpretation of Ancillary Powers
This common law test is to be interpreted with s. 31 of the Interpretation Act in mind.
31.
...
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.
– IA
There is always a balance between police powers and individual liberties. There are no bright-line rules and each will turn on the facts.[10]
- ↑
R v Waterfield, [1963] 3 All ER 659
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), per Doherty JA
Dedman v The Queen, 1985 CanLII 41 (SCC), [1985] 2 SCR 2, per Le Dain J - ↑
R v Mann, [2004] 3 SCR 59, 2004 SCC 52 (CanLII), per Iacobucci J, at para 26
Dedman, supra at p. 32 - ↑
Mann, supra at para 26
- ↑
R v MacDonald, 2014 SCC 3 (CanLII), per Lebel J at para 36
Mann, supra at para 39
Clayton, supra at paras 21 and 29
- ↑
MacDonald, supra at para 37
- ↑ Mann, supra at para 39
- ↑ Dedman, supra, at p. 35
Clayton, supra, at paras. 21, 26 and 31
- ↑ Dedman, at p. 35
- ↑
MacDonald, supra at para 37
- ↑ 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]
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.[2]
- ↑
R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59, per Iacobucci J at para 26
- ↑
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]
- ↑
Godoy at para 18
R v MacDonald 2014 SCC 3 (CanLII), per Lebel J at paras 37, 39
R v Simon, 1993 CanLII 3379 (ON CA), 79 CCC (3d) 482 (ONCA), per Doherty JA at p. 499
R v Wilhelm, 2014 ONSC 1637 (CanLII), per Hill J at para 111
- ↑
Wilhelm, ibid. at para 112
Police Conduct
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:
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]
- ↑
Hill v Hamilton-Wentworth Regional Police, 2007 SCC 41 (CanLII), per McLachlin CJ at para 58
- ↑
R v Wilhelm, 2014 ONSC 1637 (CanLII), per Hill J at para 113
- ↑
Wilhelm at para 113
R v Chehil, 2013 SCC 49 (CanLII), per Karakatsanis J at para 40
- ↑
Wilhelm, supra at para 114
Cornell, supra at para 35
- ↑
MacKenzie, supra at para 15, 16, 62 to 64
- ↑
Cornell, supra at para 24
Jones, supra at para 42
R v Kelsy, 2011 ONCA 605 (CanLII), per Rosenberg JA at para 56, 57
Kephart, supra at para 10
- ↑
Cornell, supra at para 23
R v Burke, 2013 ONCA 424 (CanLII), per Weiler JA at para 44, 45
- ↑
Wilhelm, supra at para 115
Examples of Established Intrusions
There are several established situations that have warranted intrusions of police:[1]
- Investigative detention
- Search incident to investigative detention
- Search incident to arrest;
- random vehicle stops;
- emergency roadblocks;
- search incident to emergency roadblocks;
- roadside sobriety tests;
- sniffer-dog searches;
- residential search 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.[2]
- ↑
R v McLachlan, 2017 ONSC 1471 (CanLII), per Labrosse J at para 27 - lists some of these
- ↑ see R v White, 2007 ONCA 318 (CanLII), 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]
- ↑
e.g. provincial Highway Traffic Acts of each province
and R v Nolet, [2010] 1 SCR 851, 2010 SCC 24 (CanLII), per Binnie J
- ↑
Nolet, ibid. at para 31
- ↑ R v Waugh, 2010 ONCA 100 (CanLII), per Blair JA
Criminal Code
Sobriety Tests
Section 254(2) authorizes police to demand that the accused participate in a field sobriety test.[1]