Ancillary issues with Oakes: the development of the Waterfield test and the problem of fundamental constitutional theory.

Author:Jochelson, Richard
Position:Canada - The Oakes Test: A Historical Perspective

This article reviews the development of the ancillary powers test in the Canadian criminal law context. The test bears striking Similarities to the analytical framework postulated by the Supreme Court of Canada in the famous R v Oakes case. The ancillary powers test has British roots and its insertion into Canadian law has proven troubling for some members of the Court. This article addresses these concerns by demonstrating that, despite the analytical similarities of the two tests (the ancillary powers test and Oakes), the ancillary powers test creates unique problems in constitutional theory that raise serious issues about its legitimacy and appropriateness. This article also considers some of the socio legal implications of the proliferation of the ancillary powers test. Finally, it concludes by agreeing with the dissenters at the Supreme Court of Canada who have argued that future cases should move away from using the test.

Dans cet article, on examine l'evolution du critere des pouvoirs accessoires dans le contexte du droit criminel canadien. Ce critere presente de frappantes similitudes avec le cadre analytique etabli par la Cour supreme du Canada dans le celebre arret R c Oakes. Le critere des pouvoirs accessoires a des origines bri tanniques et son integration au droit canadien a pose quelques difficultes a certains membres de la Cour. L'article aborde ces questions en faisant la demonstration que, malgre les similitudes d'ordre analytique entre les deux criteres (critere des pouvoirs accessoires et celui etabli dans Oakes), le critere des pouvoirs accessoires entraine, pour la theorie constitutinnnelle, des problemes qui remettent en cause sa legitimite et son bien-fonde. Cet article examine en outre les repercussions sociojuridiques de la proliferation du critere des pouvoirs accessoires. Il conclut son analyse en abondant dans le sens des juges dissidents a la Cour supreme du Canada, soit qu'il vaudrait mieux a l'avenir eviter de recourir a ce critere.


The section 1 test (the Oakes test), first delineated by Chief Justice Dickson in R v Oakes, (1) utilizes a type of harm test that excuses governmental infringements of protected civil rights when the quantum of societal harm to be remediated is high enough and if certain legal contexts are met. This calculus is used to examine whether governmental infringement of protected constitutional rights is a justifiable encroachment in Canadian society. This paper will demonstrate that this same calculus has been duplicated in the ancillary powers approach to police powers (also known as the Waterfield test). (2) The ancillary powers test is an innovation of the Supreme Court of Canada (the Supreme Court or the Court) that allows for the justification of new police powers based on a nexus between current police conduct and common law police duties. This paper will demonstrate that the test has a justificatory component that borrows heavily from the Oakes calculus.

The Oakes approach has become the format by which otherwise inexcusable state conduct is countenanced, and its elasticity has allowed profound changes in criminal procedure law in the last ten years. This paper will explore whether the justificatory reasoning embedded in Oakes is a legitimate analytic to be imported into a legal test that creates new police powers (the ancillary powers test).

If one considers the legacy of Oakes, beyond its reach as a balancing test in judicial review of legislative impingement of guaranteed rights, and considers its impact on other criminal law balancing tests, such as the ancillary powers test, the impact of Oakes might be read more equivocally. On the one hand, Oakes has been a mainstay of virtually all cases that have resulted in hard fought Canadian Charter of Rights and Freedoms (3) victories. However, in the ancillary powers context one could argue its legacy is a security calculus that has been embraced by the Supreme Court and that raises questions about the legitimacy of judicial action. Oakes was, of course, a judicial creation that grew from the wording of section 1 of the Charter, and its use has become prolific-almost routine-in the Charter era. (4) This paper queries whether the duplication of Oakes-style reasoning in criminal procedure law through ancillary powers may cross the line from interpretive tool into improper legislative impetus by an adjudicating body (for example, one could question the ability of a court, rather than Parliament, to countenance ad hoc police powers).

This paper is divided into three parts. In part II, it explores the development of the ancillary powers test in Canada and traces it through to its current state in Canadian law. In part III, it will attempt to demonstrate how the test, as it was crafted by the Court, came to borrow some pivotal elements from the Oakes analysis. Lastly, in part IV, it will demonstrate some analytical pitfalls in the use of the ancillary powers analysis that render its use more problematic than the Oakes test and raise serious questions about the legitimacy of ancillary powers as a judicial tool.


    The Waterfield test developed from an English Court of Appeal case of the same name in 1963. (5) The test has come to be understood as a means by which a court places limits on police authority to interfere with the liberty or property of individuals. The case dealt with very limited contextual circumstances. The police were investigating a dangerous driving incident in which a car had crashed into a wall. The car, though owned by Eli Waterfield, had been purportedly operated by a friend of his, Geoffrey Lynn. The police could not make arrests without clarifying information as to the actual driver.

    After the crash, Lynn was occupying the automobile while the car was parked, and two officers approached him with intent to search the car. Waterfield arrived at the scene, instructed the police that they could not impound the car and asked Lynn to drive away. While the officers blocked Lynn, he drove forward at Waterfield's behest, forcing an officer to move out of the way. This action resulted in assault charges against Waterfield and Lynn. In particular, it raised the issue of whether the two had assaulted an officer in the execution of his duties.

    The test that the Court of Appeal created was very limited in scope. It was intended to determine whether the assaults occurred in the context of an officer carrying out a common law police power that in some way connected to common law duties. The test developed was not intended to create ad hoc police power outside of this context.

    In his oral decision, Justice Ashworth (speaking for Chief Justice Lord Parker and Justice Hinchcliffe) quashed the conviction for assault. In doing so, Justice Ashworth outlined what would become known as the Waterfield test in Canada:

    [I]t would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person's liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty. Thus, while it is no doubt right to say in general terms that police constables have a duty to prevent crime and a duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves interference with the person or property of a private person, the powers of constables are not unlimited. (6) Thus, the Court of Appeal was not using the test as a means of developing new police powers. Rather, it was using the test as a means of determining whether an assault occurred in the context of police acting in a professional manner (i.e. within the scope of the office) in order to substantiate an assault against an officer in the course of executing his duties. The Court of Appeal decided that since "neither of the appellants had been charged or was under arrest ... the two police constables were not acting in the due execution of their duty at common law when they detained the car." (7) On this reasoning, the conviction for assault was quashed.

    Prior to the Charter, the Waterfield test gained some traction in Canadian jurisprudence. For example, in Knowlton v R, (8) the Supreme Court had to consider a similar problem as in the British case--whether Knowlton unlawfully obstructed a peace officer in the execution of his duty. The police had cordoned off an area to the entrance of a hotel where the Premier of the USSR was visiting. Knowlton indicated to two constables that he wished to proceed past the cordoned off area to take pictures of the dignitary. When informed by the constables that such action would result in an arrest, Knowlton refused to take notice and tried to push past the constables. He was then arrested.

    Chief Justice Fauteux repeated the Waterfield test for the Court:

    The police having interfered with the liberty of the appellant, or more precisely, with his right to circulate freely on a public street, the questions to be determined are, as formulated by the Court of Criminal Appeals in Regina v. Waterfield ... (i) whether such conduct of the police falls within the general scope of any duty imposed by statute or...

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