Racial Profiling and the Perils of Ancillary Police Powers

Abstract

Historically, Parliament created most police powers in Canada. Several decades ago, courts developed the ancillary powers doctrine; a judicially created doctrine that allows judges to devise new police powers that Parliament has not expressly authorized by statute. Since the ancillary powers doctrine’s inception, the judiciary has recognized an array of novel police powers that officers routinely exercise, such as random vehicle stops, frisk-searches, and investigative detentions. Scholars critique common law police powers on the grounds that they undermine the rule of law, are inconsistent with the separation of powers, and are disproportionately enforced against racialized and Indigenous persons. Building on these critiques, this article argues that judicially created police powers can erode public confidence in the police and in the justice system. Courts justify ancillary powers as a necessary and reasonable means for the police to achieve certain law enforcement objectives, namely, preventing and solving crimes. Yet in addition to demeaning dignity and equality, racial and social profiling fosters distrust in law enforcement and in public institution, and disincentivizes individuals from cooperating with the police and with courts. This distrust undermines the very collaboration between the police and the community that is required for an effective criminal justice system. This article advances three core arguments. First, the ancillary powers doctrine largely overlooks how racial and social profiling decreases the public’s trust in the police and in the justice system. Second, this distrust stems partly from the judiciary’s failure to impose adequate oversight mechanisms for police powers, which results in two major democratic deficits: lack of transparency and lack of accountability. Third, when assessing the legitimacy of a purported police power, the ancillary powers framework does not incorporate a rigorous proportionality analysis that properly evaluates the harms of systemic discrimination, racial profiling, and their effects on the public’s confidence in the justice system. This article concludes by advancing three approaches to reforming the ancillary powers doctrine in Canadian law and the powers it has created. It argues that the Supreme Court of Canada should adopt the third approach: abandon the Waterfield test and send a strong signal to Parliament that police powers are constitutionally suspect where they lack adequate accountability mechanisms that prevent and combat racial profiling.