The rise of Waterfield in Canada reflects an uncommon development of the common law.
This “Candianization,”148 and co-opting of the original test that we find within APD jurisprudence has dramatically impacted the law governing exercises of coercive power by Canadian police forces. Whereas there was “minimal precedential value in the post hoc determination of whether [or not] the police acted”149 reasonably under the original Waterfield test, cases decided under the reconstituted “Waterfield/Dedman”150 test, in contradistinction, are of considerable jurisprudential importance. This is true in the narrow sense that any powers generated by the Supreme Court are themselves applicable in future cases and serve as the platform to then broaden existing common law ancillary powers. It is also true in a broader
146 Kang-Brown, supra note 7 at para 22 [emphasis added].
147 Supra note 5.
148 Marin, “Slippery Slope”, supra note 139 at 1130.
149 Young, “Watchtower”, supra note 82 at 394.
150 Kang-Brown, supra note 7 at paras 50-52, 56 and 62.
sense, in that, the spawning of novel powers by the SCC tends to propel the further judicial expansion of police powers at every court level, which, in turn, helps to reify the practice under Waterfield. The reformation of Waterfield has been the catalyst emboldening the Court to undertake farther-reaching exercises of judicial lawmaking, whilst wading deeper into the waters of policymaking where it does not belong. To the extent that the Court has enlarged the ambit of its common law lawmaking authority under Waterfield/Dedman, the growth of state power has expanded in lockstep where the APD has been dispatched in Canadian criminal law. This development is inessential for the government if its goal is to achieve such results and secure greater police powers for its investigative agents; and, for its part, the Court, insofar as it accrues a greater role in the formation of criminal law and procedure through the APD, so too, does it depart from its role as the safekeeper of constitutional rights for Canadians. While this
phenomenon can be untangled and these institutions can return to their proper quarters, the Court cannot simultaneously decouple itself from the stinging charges of judicial activism and maintain the APD.
Chapter Three: Police Powers and the Limitations of Judge-Made Law 3.0 Overview
Following the Supreme Court of Canada’s (SCC) announcement in R v Kang-Brown1 that “We have crossed the Rubicon,”2 it becomes necessary for us to probe deeper into this statement and try to determine what it entails for the continued litigation of police powers. As a preliminary observation, the “we” that is referred to in this declaration has at least two meanings and is aimed at an equal number of subjects. First, when read as a personal pronoun, the “royal we” is addressed to the justices of the Supreme Court. Importantly, it is also asserted on their behalf to indicate that the Court, as an institution, has embarked upon a new path and is committed to a particular
jurisprudential philosophy. Although open to the obvious challenge that Mr. Justice Binnie was not speaking for a unanimous Court, he was speaking for a dominant plurality of it and did express the prevailing view in the case. Moreover, the force of these words remains undiminished by any subsequent decision of the high court. This position has endured even as the composition of the Court has changed over time. Second, it was the express intention of Binnie J. to signal to everyone—lawmakers, lower courts, legal counsel, the police and citizens-cum-litigants alike—that collectively, we, are all standing on new legal terrain. Where it was once considered to be anomalous,3 or, thought
inappropriate for the Court to expand coercive state power at common law in criminal cases,4 the ruling in Kang-Brown makes it clear that when questions arise about the scope or existence of police powers, the ancillary powers doctrine (APD) will now ordinarily be applied by the Supreme Court.
1 2008 SCC 18, [2008] 1 SCR 456 [Kang-Brown].
2 Ibid at para 22.
3 James Stribopoulos, “Sniffing Out the Ancillary Powers Implications of the Dog Sniff Cases” (2009) 47 SCLR (2d) 35 at 36 [Stribopoulos, “Sniffing Out”]. See also Don Stuart, “Godoy: The Supreme Reverts to the Ancillary Powers Doctrine to Fill a Gap in Police Power” (1999) 21 CR (5th) 225 [Stuart, “Godoy”.]
4 For example, it was by a unanimous Court in R v Wong, [1990] 3 SCR 36 at para 35, 60 CCC (3d) 460 [Wong] that, “[I]t does not sit well for the courts, as the protectors of our fundamental rights, to widen the possibility of encroachments on these personal liberties.
It falls to Parliament to make incursions on fundamental rights if it is of the view that they are needed for the protection of the public in a properly balanced system of criminal justice.”
In championing the APD, the Court professed a concern for predictability and fairness to those engaged in criminal litigation.5 Indeed, these dual concerns formed the basis of the Court’s justification for staking its claim on the other side of the adjudicative Rubicon. By asserting these objectives the Court has given us both the criteria and the benchmarks against which we can measure the utility of the APD as a lawmaking tool.
In light of the Supreme Court’s self-expressed transition into “‘can do’ mode,”6 it is prudent to explore the efficacy of the Court’s rationale and assess whether the
“Waterfield/Dedman test”7 is capable of delivering on the twin promises that have been made on its behalf. Using the metrics of predictability and fairness, I will isolate problems associated with judge-made law generally, before delving into particular troubles arising from the Supreme Court’s application of the APD. As I proceed to interrogate these terms, allow me to state at the outset what I mean by them.
Predictability is easily defined. It is met when the law delivers clarity about what the expectations or demands are upon those subject to a given rule. When the law is predictable it is capable of providing guidance to individuals when determining their actions and alerting them in advance of the potential repercussions arising from a chosen course of conduct. Fairness is, at first blush, a more elusive concept. It can mean
different things in different contexts and it is inherently more subjective in nature, particularly when considering it in substantive terms. There the beauty (or blight) is in the eye of the beholder. However, that is not how I shall be conceptualizing it. Rather, I will be evaluating “fairness” in terms of process and procedural regularity whilst
maintaining an agnostic view of the actual content of the powers created by the Court.
In this respect the APD is quite different from the Parliamentary process and, as I will show, far less fair.
For its part, the SCC offers little assistance, functionally speaking, in unpacking the contents of this taxonomy and the presented division of terms. Accordingly, there is some difficulty apparent in trying to untangle where a concern rooted in predictability ends and where a fairness-based concern begins. There is simply too much overlap for
5 Kang-Brown, supra note 1 at para 22.
6 Ibid.
7 Ibid at paras 50-51.
them to be easily (or artificially) severed. That said, in organizing this critique, we can divide our concerns broadly into two main areas: first, those concerning the efficacy of the doctrine and its capacity to specify clearly-defined limits for the exercise of state power during criminal investigations; and second, the more fundamental and principle-based challenges that surround the APD and the legitimacy of common law police powers within the constitutional framework.
Accordingly, I will contest the capability of ancillary powers doctrine
jurisprudence to provide the sort of predictability and certainty in the law that is desirable for all stakeholders. There are a number of procedural impediments and constraints built into the court structure and adjudicative processes that detract from the ability of judges to fulfill this objective. These deficiencies relate primarily to the ad hoc, fact-specific nature of criminal proceedings. There are, however, further collateral problems that emerge whenever the APD is engaged and these too will be illuminated. The troubles here are traceable to the design and mandate that is given to courts. Additionally, I will separately challenge the fairness-based prong of the Court’s justification. In particular, I will argue that this concern has been fundamentally mischaracterized given that the state invariably stands as one of the litigants in criminal cases. In this task, I will explore how the government is uniquely situated in its ability to enact, enforce and prosecute the criminal law; and why it is thus inappropriate—and equally unnecessary—for the state to seek to broaden its powers in the context of a criminal trial or a subsequent appeal. In this chapter attention will be devoted to recent Supreme Court decisions where the APD has been utilized, including R v Mann,8 R v Clayton,9 Kang-Brown10 and its companion case R v AM.11
3.1 Predictability-Based Concerns