Ancillary Powers Doctrine

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2018. (Rev. # 92220)

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.

[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.


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]

See Also