Criminal Law Notebook

Ancillary Powers Doctrine

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General Principles

See also: 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):[1]

  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.

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:

  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".[4] This will include consideration of:[5]

  1. the importance of the performance of the duty to the public good[6]
  2. the necessity of the interference with individual liberty for the performance of the duty[7]; and
  3. 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]

  1. ↑ 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
  2. ↑ R v Mann, [2004] 3 SCR 59, 2004 SCC 52 (CanLII), per Iacobucci J, at para 26
    Dedman, supra at p. 32
  3. ↑ Mann, supra at para 26
  4. ↑ 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
  5. ↑ MacDonald, supra at para 37
  6. ↑ Mann, supra at para 39
  7. ↑ Dedman, supra, at p. 35
    Clayton, supra, at paras. 21, 26 and 31
  8. ↑ Dedman, at p. 35
  9. ↑ MacDonald, supra at para 37
  10. ↑ 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]

  1. ↑ R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59, per Iacobucci J at para 26
  2. ↑ 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. ↑ 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
  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), per McLachlin CJ at para 58
  2. ↑ R v Wilhelm, 2014 ONSC 1637 (CanLII), per Hill J at para 113
  3. ↑ Wilhelm at para 113
    R v Chehil, 2013 SCC 49 (CanLII), per Karakatsanis J at para 40
  4. ↑ Wilhelm, supra at para 114
    Cornell, supra at para 35
  5. ↑ MacKenzie, supra at para 15, 16, 62 to 64
  6. ↑ 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
  7. ↑ Cornell, supra at para 23
    R v Burke, 2013 ONCA 424 (CanLII), per Weiler JA 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]

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

See Also

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