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The Ancillary Powers Doctrine and the Necessity of the Legislature - Matt Reimer

It does not take a criminal law expert to know that police and judges must make difficult decisions. They are the ones who have to deal with some of the most inherent wrongs that individuals in society have to offer. In the case of a police officer, sometimes a snap decision must be made to keep people safe, however unfortunate it may appear in hindsight. Sometimes these decisions are challenged in court where judges may have to make unpopular or seemingly counterintuitive decisions. It is through this lens that the ancillary powers doctrine originally appearing in R. v. Waterfield may be best understood. Within it, crimes discovered by law enforcement in a potentially unconstitutional manner can be justified simply because an evil was prevented. Although this may appear to justify the Waterfield test, deciding matters in this way fails to take into account the importance of the legislature and public opinion. As a result, it is prudent for the court to make the uncomfortable decisions and allow the legislatures to do their jobs.

The Waterfield Test and the Ends Justifying a Cloudy Means

As a part of the case of R v Waterfield, the ancillary powers doctrine took shape as a response to the question of whether police officers were operating within their common law duties. The case at hand involved a car owner telling his friend to drive away from a questionable police search. This resulted in an officer having to dive out of the way of the oncoming accelerating vehicle,[1] leading to the laying of a seemingly justifiable assault charge. However, the question that needed to be addressed was, again, whether the officers were acting according to their duties. The response by the court was a two part test:

(a) [Whether] such conduct falls within the general scope of any duty imposed by statute or recognized at common law, and (b) whether such conduct albeit within the general scope of such a duty involved an unjustifiable use of powers associated with the duty.[2]

Ultimately, this line of thinking found the accused liable for an offence.[3] Following this judgement, the test was used in a variety of different matters relating to policing and crime prevention.

In R v Dedmon, for example, the accused was found by police smelling of alcohol while failing to provide a breath sample. The Supreme Court then ruled that the random police stop that led to the interaction was justifiable under the Waterfield test.[4] Similar results occurred in other roadside stoppages cases such as in R v Elias,except this time the accused’s section 9 Charter right to freedom from arbitrary detention and section 10(b) right to be informed about contacting council were infringed. To justify this, the police were said to have had ancillary powers under the context of section 1 of the Charter.[5] The test has also been used in cases regarding domestic violence. In the case of R v Ghoday, a woman called 911 and the police entered the house she was in despite not having a search warrant to enter her abuser’s home. She was ultimately saved, and the police’s actions were determined to be a justifiable infringement of the accused’s section 8 Charter protections due to the Waterfield test.[6] The same went for both a gun possession and a search and seizure case where police were able to confiscate the illegal items and arrest the perpetrators.[7]

It would seem from the variety of applicable cases that police actions appear to be justified despite the lack of a search warrant. After all, the general public and sometimes direct victims were protected. It would therefore be easy to defend police actions and continue to confer on them more common law powers so that they would continue to do their jobs.

With that said, the decisions of the court were not made without their detractors; Justice Dickson being one of them. Within some of the above cases, Justice Dickson found that police often did not possess authority to infringe on Charter rights of the accused.[8] In his opinion, the ends of potentially infringing police actions did not justify the means. In the case of unjustified roadside stops, for example, Dickson acknowledged that a police officer is not entitled to every theoretical means to achieve crime prevention.[9] Even more importantly, Dickson thought that justifying questionable police actions through the Waterfield test was a “gap filling measure.”[10] Although this may appear to have been done with good intent, Justices like Dickson feared that the courts were entering into the sphere of legislatures through the designation of certain police actions as lawful or unlawful.[11]

Public Opinion on Police Powers and the Necessary Role of the Legislature

Given today’s political climate, Dickson may have been ahead of his time. According to a Public Safety Canada report on public attitudes towards police, officers who act within their authority predicate legitimacy within the public. This implies that when officers violate behavioral norms, they lose legitimacy in the public eye.[12] As a result, the courts should be weary as to the police activities that they condone. This is an especially important factor to take into account when one considers the broader public’s opinion on police as whole.

One example is a Statistics Canada 2019 poll of public perceptions of police in Canada’s provinces. Within it, only 41% of Canadians said that they had a “great deal of confidence” in the police. This statistic especially takes a plunge in visible minority and, more specifically, Indigenous communities. In these demographics, confidence sits at 35 and 30 percent respectively.[13] When one takes further account of the widely known fact that visible minorities are a fast-growing population in Canada, it becomes evident that there may be a public interest in the extent of police powers. Such is the reason why the courts should allow legislatures to do their job by leaving their scope at fact and legal based judgments, rather than the creation of new common law police powers that may override Charter rights.

R v Daviault: The Model of the Court/Legislature Relationship

Although the case dealt with different issues, the R v Daviault case shows the approach that the courts should take in their decision making. This case dealt with usage of an intoxication defence for a general intent offence.[14] Previously to the case, intoxication was not a defence to general intent defences. However, the Supreme Court of Canada found this unconstitutional under sections 7 and 11(d) of the Charter of Rights and Freedoms. Under this, the accused was found to be owed presumption innocence. With this taken into account, the required mens rea to commit the offence he was originally charged with was not present. The result from this was the existing common law rules before the case being thrown out.[15]

When looking at the facts of the case, the offence was graphic in that a man sexually assaulted a woman in a wheelchair.[16] Despite this, the Court entitled the offender to his constitutional rights under the law. Afterwards, the decision was criticized and as a result, section 33.1 of the Criminal Code was created by Parliament to disallow self-induced intoxication as a general intent offence.[17]

In this case, a proper relationship between the courts and legislature existed. The Supreme Court of Canada made a decision that upheld an accused’s constitutional rights despite the risk of a potentially disproportionate outcome due to the gravity of the offence. In response, the legislature then responded to a public outcry by exercising their imbued authority by passing a law that limited the court’s decision.

This is what should be followed regarding cases that deal with the ancillary doctrine and police powers. Regardless of how unpopular the decision, an accused’s rights under the Charter should be acknowledged and if the facts point to it, protected. This can then allow an elected parliament to tabulate legislation to create new rules if necessary. Such relationship would allow an opportunity for a more democratic process and public accountability regarding an inherently divisive policy issue.

[1] Richard Jochelson and David Ireland, Privacy in Peril: Hunter v Southam and the Drift from Reasonable Search Protections (Vancouver: UBC Press., 2019) at 74. [2] Ibid at 75. [3] Ibid. [4] Ibid at 77. [5] Ibid at 79. [6] Ibid at 80. [7] Ibid at 83, 86, 92. [8] Ibid at 76. [9] Ibid at 76. [10] Ibid at 79. [11] Ibid at 79. [12] “Measuring Public Attitudes towards the Police” (2018) at 11, online (pdf): Public Safety Canada <>. [13] Dyna Ibrahim, “Public perceptions of the police in Canada’s provinces” (25 November 2020), online: Canadian Centre for Justice and Community Safety Statistics <> [14] Simon N Verdun-Jones, Criminal Law in Canada: Cases, Questions, and the Code, 7th ed (Toronto: Tophatmonocle Corp., 2020) at 292. [15] Ibid at 293. [16] Ibid at 292. [17] Ibid at 294.


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