Police Powers at Common Law (the Ancillary Powers Doctrine)

Police Powers and the Rule of Law

Police duties and their authority to do things in the performance of those duties are not co-extensive. Police conduct is not rendered lawful merely because it helped the police perform their assigned duties. Where that conduct interferes with the liberty or freedom of an individual, it will be lawful only if and to the extent it is authorized by law.

R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.), at p. 493.

The Ancillary Powers Doctrine

Absent statutory authority to legitimize police conduct, the common law, under the ancillary powers doctrine, may provide a place of refuge. Precedents supports a two-step analysis where police conduct interferes with an individual’s liberty. (FN1)

1.       Interference arises from a duty--The first inquiry or step requires a determination of whether the police conduct that gives rise to the interference falls within the general scope of any duty imposed upon an officer by state or at common law. [FN1]

2.       Interference is reasonably necessary--Where this threshold has been met, the second step or stage requires a determination of whether the conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty:  See Mann, at para. 24.

The second step or stage involves and requires a balancing of the competing interests of the police duty and the liberty interests at stake. This entails consideration of whether an invasion of individual rights is necessary for the police to perform their duty, and whether the invasion is reasonable, in light of the public purposes served by effective control of criminal conduct, on the one hand, and respect for the liberty and fundamental dignity of individuals, on the other: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 , at para. 26.

Several factors exert an influence in applying this second test, the justifiability assessment:

  • the duty being performed;
  • the extent to which some interference with individual liberty is necessary to perform that duty;
  • the importance to the public good of the performance of that duty;
  • the liberty intruded upon;
  • the nature and extent of the intrusion; and
  • the context in which the police/citizen confrontation took place.

See R. v. Mann, at para. 26; Simpson, at pp. 499-500.

Investigative Detention

On this test our courts have held that where a person is detained by police in the course of efforts to determine whether that person is involved in a criminal activity being investigated, that detention can only be justified if the detaining officer has some articulable cause, or said in another way, reasonable grounds to suspect, the person is involved in the investigated activity. This standard includes both objective and subjective components:

                Mann, at paras. 27 and 33; Simpson, at p. 500.

  R. v. Gonzales, 2017 ONCA 543.

[FN1]: For instance, the police have a duty to investigate and prevent crime.  See  Police Services Act, s. 42(1)(b).

[FN2]: This is the Waterfield test, first expressed by the English Court of Criminal Appeal, and adopted, refined and incrementally applied by Canadian courts:  Mann, at para. 25. See also R. v. Waterfield, [1964] 1 Q.B. 164 (C.A.).



Stuart O’Connell, O’Connell Law Group, leadersinlaw.ca


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