Policing Arbitrariness: Fleming v. Ontario and the Ancillary Powers Doctrine

Abstract

In 2019, the Supreme Court of Canada released its decision in Fleming v. Ontario. The case is significant because it is one of the very few police powers cases in the past three decades in which the Supreme Court has declined to recognize a new power. Since the pivotal case of Dedman, police powers jurisprudence has been characterized by the recognition of increasingly more intrusive common law powers to detain, investigate, and search. It is therefore notable that in Fleming, the Supreme Court refused to recognize a new common law police power to preventatively arrest a law-abiding individual in order to protect them from harm by third parties. As we explain, however, it is unlikely that Fleming represents a turning point in the jurisprudence. The weight of authority continues to favour the recognition of police powers. Moreover, the real problem with the power sought in the case was not that it failed to satisfy Waterfield’s demand of reasonable necessity. The issue was that it would have permitted the police to arrest a person not suspected of wrongdoing. We argue that preventative arrests of law-abiding individuals should be considered “arbitrary” within the meaning of section 9 of the Canadian Charter of Rights and Freedoms because they are not based on reasonable grounds to believe that a person committed, is committing, or will commit a crime. We also contend that the constitutional prohibition against arbitrariness explains why the Court should decline to recognize new common law police powers where Parliament appears to have exhaustively set out a power’s scope, as it has in the arrest context. The prospective delineation of arrest powers promotes rule of law values and decreases the risk of the exercise of arbitrary police power.

Keywords: criminal law, police powers, common law police powers, arrest, detention, arbitrariness, rule of law, Waterfield test, ancillary powers doctrine