Common Law Police Powers and Exclusion of Evidence: The Renaissance of Good Faith

Canadian courts have become far more willing in recent years to rely on the common law as a source of new police powers. Where once the test from R. v. Waterfield was an exception and an afterthought to what was otherwise the general rule of insistence upon statutory sources for police powers, more recently that test seems to be in the forefront of judges\u27 minds as they decide cases. That 1963 British decision has been cited by Canadian courts roughly as often in the last eight years as in the first 35 years after it was decided. Since 1999 the Supreme Court of Canada has relied on Waterfield to create three new common law powers: in R. v. Godoy with regard to entering an apartment to investigate a disconnected 911 call, and twice in R. v. Mann, first to authorize investigative detentions, and secondly to authorize a limited power to search during an investigative detention. This article will not focus on whether greater reliance on common law police powers is in itself a good or bad thing, though that is certainly a real debate. Rather, the focus of this article will be on the corresponding impact of this greater reliance on the issue of the exclusion of evidence following a Charter violation. In particular, it will be argued here that the increase in the use of common law police powers creates a reciprocal obligation to supervise the use of those powers after the fact. This in turn requires a subtle shift in the understanding of good faith in the s. 24(2) analysis, a shift which can be seen to be starting