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Charter - s.8 - Ancillary Powers. R. v. Singer
In R. v. Singer (SCC, 2026) the Supreme Court of Canada allowed a Crown appeal, this brought against a Saskatchewan CA decision which "acquitted him of failing or refusing to comply with a demand to provide a breath sample".
Here the court extensively considers the common law 'ancillary powers' doctrine, which can bear on police search and other powers:(1) The Ancillary Powers Doctrine
[88] In a free and democratic society, the police “are sometimes required to interfere with the liberty of individuals” in order to carry out their duties as law enforcement officers of the state (Fleming v. Ontario, 2019 SCC 45, [2019] 3 S.C.R. 519, at para. 38). Even so, it is “a fundamental tenet of the rule of law” that any interference should be limited “to the extent authorized by law” (para. 38, citing Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, at pp. 10-11).
[89] The ancillary powers doctrine addresses whether a particular police power that prima facie interferes with individual liberty is authorized at common law. The preliminary step in the analysis requires the court to define the police power being asserted and the liberty interests at stake. The analysis then proceeds in two stages: first, the court asks whether the police action at issue falls within the general scope of a statutory or common law police duty; second, the court asks whether the police action involves a justifiable exercise of police powers associated with that duty (Fleming, at para. 46; MacDonald, at paras. 35-36; R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 78).
[90] At the second stage, the court asks whether the police action is reasonably necessary to fulfill the police duty (Fleming, at para. 47, citing MacDonald, at para. 36; Dedman, at p. 35). Three factors must be weighed: (1) the importance of the performance of the duty to the public good; (2) the necessity of the interference with individual liberty for the performance of the duty; and (3) the extent of the interference with individual liberty (Fleming, at para. 47, citing MacDonald, at para. 37).
[91] This Court applied the ancillary powers doctrine in Dedman to recognize police authority to randomly stop vehicles in a spot check program to detect and deter impaired driving. Since then, this Court has recognized several ancillary police powers, including the power to search an individual incident to arrest (Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158); to enter a dwelling house without a warrant to investigate a 9‑1‑1 call (Godoy); to strip-search an individual incident to arrest (R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679); to detain an individual for investigative purposes (R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59); to set up a roadblock (R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725); to use sniffer-dogs (R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456); to conduct a safety search (MacDonald); and to search a cellphone incident to arrest (R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621).
[92] In Fleming, this Court highlighted a tension underlying the ancillary powers doctrine. On the one hand, “[e]stablishing and restricting police powers is something that is well within the authority of legislatures. Accordingly, the courts should tread lightly when considering proposed common law police powers” (para. 41). On the other hand, “the courts cannot abdicate their role of incrementally adapting common law rules where legislative gaps exist” (para. 42).
[93] I pause to reiterate that the ancillary powers doctrine was not raised at trial. The only basis of Mr. Singer’s Charter challenge was that the police could not step foot onto his driveway under the implied licence doctrine, and thus the parties adduced evidence and made argument before the trial judge on that basis. Mr. Singer did not separately argue that the police could not open the truck door.
[94] Before the Court of Appeal, however, the Crown expressly relied on the ancillary powers doctrine and argued that “the police were faced with exigent circumstances, as there was a potential threat to public safety, and that they accordingly did the only thing they could to protect the community” (para. 68). The Court of Appeal recognized that the Crown’s argument was “based on the ancillary police powers doctrine”, but did not address this argument further because it saw “no evidence that the police were concerned with public safety or that they thought these were exigent circumstances when they entered the driveway, or, for that matter, when they opened the door of the truck” (para. 69).
[95] On further appeal, the Crown now asks this Court to recognize an ancillary police power that applies in impaired driving investigations. The Crown says that the police should have “[t]he power to enter private property with the intent to speak to the occupant and observe signs of impairment . . . where they have reasonable grounds to suspect that individual is connected to a recent or ongoing criminal offence” (A.F., at paras. 83 and 86; see also I.F., Attorney General of Ontario, at para. 24). The Crown claims that such a power is reasonably necessary for the police to fulfill their duty to protect life and safety and prevent crime.
[96] At the first stage of the test, the Crown says that the police action of entering private property to speak to the occupant and observe signs of impairment falls within the general scope of the statutory and common law duty of the police to prevent crime and protect life and public safety (see A.F., at paras. 82-83, citing Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, s. 18; Dedman, at p. 11; Godoy, at para. 15; MacDonald, at para. 31).
[97] At the second stage of the test, the Crown says that such action is a justifiable exercise of police powers associated with the police duty. The Crown and several interveners claim that the police need this power to protect public safety. They say that the police should not have to “wait to pursue the vehicle when it re-enters public roads and puts everyone in danger” (A.F., at para. 85), emphasizing the “trail of death, injury, heartbreak and destruction” caused by impaired driving (I.F., Attorney General of British Columbia, at para. 26, citing R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, at para. 16). In the Crown’s view, such an ancillary police power would authorize the police to enter private property and conduct a search by opening a car door whenever they are investigating impaired driving.
[98] Although I agree that impaired driving investigations raise significant public safety concerns, I see no need to recognize a new ancillary police power in this case because an existing ancillary power was arguably already available. The ancillary powers doctrine allows the courts to incrementally adapt common law rules “where legislative gaps exist” (Fleming, at para. 42). But if there is no gap in the relevant legal rules, a court should “tread softly” before enlarging the powers of the police (Mann, at para. 17; see also Kang-Brown, at para. 6). As Binnie J. cautioned in Clayton, at para. 80, in determining whether the police possess an ancillary power at common law, a court should start by “look[ing] at the existing jurisprudence”.
[99] As I explain below, in this case, the police arguably had the necessary authority to open the door to Mr. Singer’s truck under the established ancillary power to conduct a safety search. At the same time, because the issue of ancillary powers was not argued at trial, the trial judge made no express finding as to whether the police were subjectively motivated by a concern for safety in opening the truck door. Given the Crown’s burden to justify a warrantless search, in the absence of such an express finding, I would find that the police breached s. 8 of the Charter by opening the truck door.
(2) The Ancillary Police Power to Conduct a Safety Search
[100] In MacDonald, this Court recognized that police have a common law ancillary power to conduct a safety search where such a search is “reasonably necessary to eliminate an imminent threat to the safety of the public or the police” (para. 40). A safety search will be authorized by law if the police officer has reasonable grounds to believe that the safety of the public or the police is at stake and that, as a result, it is necessary to conduct a search (para. 41).
[101] In the context of a safety search to protect public safety, the “public” necessarily includes the individual targeted by the safety search, who may pose a threat to themselves or others. Often, it may be unclear whether the threat of harm is to the subject of the investigation, a third party, or both. When an impaired individual is behind the wheel of a car, both the impaired driver and other members of the public face a realistic risk of serious injury (Bernshaw, at para. 17; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 3). In 2019 — the year Mr. Singer was found asleep in his running truck — impaired driving killed as many as 155 people in Canada, including 88 impaired drivers and 67 other road users (Statistics Canada, Impaired driving in Canada, 2019 (July 2021), at p. 4).
[102] At the same time, whether the police are confronted with an imminent safety threat justifying a safety search must be evaluated in each case, not based on a general sense that impaired driving is dangerous. A safety search “cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on ‘reasonable and specific inferences drawn from the known facts of the situation’” (MacDonald, at para. 41, quoting Mann, at para. 41). The Crown bears the burden of showing subjective and objective grounds for the safety search on a balance of probabilities (MacDonald, at paras. 29 and 41; see also R. v. Beaver, 2022 SCC 54, [2022] 3 S.C.R. 718, at para. 72, cited in Campbell, at para. 114).
[103] At the hearing before this Court, the Crown argued that the police faced an “extraordinary” situation that had evolved into “some sort of an exigency” and demanded police intervention (transcript, at pp. 5 and 8). The Crown submitted that when the police had found an individual sleeping or passed out behind the wheel of a running truck matching the description in the impaired driving complaint, they could not simply walk away (p. 5).
[104] I agree with the Crown’s submission that there were objective grounds for the police to believe that the circumstances presented a public safety risk. Indisputably, “[i]mpaired driving is a major public safety issue in Canada” (Statistics Canada, at p. 4). “There is a compelling public interest in detecting impaired drivers, and in preventing persons from driving while impaired” (R. v. Soal (2005), 2005 CanLII 2323 (ON SC), 14 M.V.R. (5th) 256 (Ont. S.C.J.), at para. 33, aff’d (2005), 19 M.V.R. (5th) 176 (Ont. C.A.)).
[105] As this Court has noted, an impaired person in the care or control of a motor vehicle poses “a realistic risk of danger in at least three ways”:First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.
(R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157, at para. 42) [106] Impaired drivers can be just as dangerous to members of the public in a parked car as on a public street or highway (see, e.g., R. v. Ndaye, 2019 ONSC 4967, 56 M.V.R. (7th) 137, at para. 70). Parliament recognized this by treating the offence of operating a motor vehicle while impaired as including both “driv[ing]” and having “care or control” of the vehicle (Criminal Code, R.S.C. 1985, c. C-46, ss. 320.11 “operate” and 320.14(1)). This risk is heightened where the vehicle is running. An impaired driver behind the wheel of a running truck in a private driveway could easily re-enter a public road, intentionally or accidentally, and pose a serious danger to the public and themselves. In addition, in this case, the impaired driving complaint came from someone who knew Mr. Singer personally in a small community.
[107] As a result, with respect, I cannot agree with the Court of Appeal’s assertion that there was “no evidence that the police were concerned with public safety” (para. 69). At the same time, I recognize that the trial judge made no specific finding as to whether there were grounds for a safety search because this point was not raised at trial.
[108] Whether a safety search is necessary must be assessed on the particular facts of each case. Because the findings of fact needed to justify a safety search were not made at trial, I would conclude, in the circumstances of this case, that the Crown did not discharge its persuasive burden of proving that the search was authorized. As a result, I conclude that the police breached s. 8 of the Charter by opening the truck door. I will therefore proceed to consider whether the evidence obtained should be excluded under s. 24(2) of the Charter.
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