Assessing the Impact of the Ancillary Powers Doctrine on Three Decades of Charter Jurisprudence

This paper seeks to better understand the factors that may have led the Supreme Court of Canada to assume a role in articulating new police powers since the advent of the Charter in 1982. It also attempts to situate the Court’s ancillary powers cases within the context of a larger jurisprudential trend of balancing individual rights against “societal interests” outside of section 1 that has emerged in the Charter case law. The paper suggests that courts may be disposed to create new common law police powers because in some cases, the police have infringed the Charter rights of suspects in a manner that the court finds reasonable or justifiable, but the constitutional machinery upon which it normally relies to give effect to such arguments — that is, section 1 — is functionally unavailable, since the police conduct is not prescribed by law. The court is the refore unable to consider arguments that go to justification unless it identifies a common law source of authority for the police’s actions and/or considers such arguments at some other stage of the analysis. The articulation of new common law police powers has thus emerged as one option for solving the “problem” created by the functional unavailability of section 1. This explanation for the amplification of police powers since the entrenchment of the Charter is tested by examining some of the Supreme Court’s leading police powers decisions