What does this mean for our Charter rights?
Does the Charter protect against unconstitutional police conduct?
The Canadian Charter of Rights and Freedoms was designed to operate as a constitutional safeguard against unreasonable state interference with our civil liberties. However, the use of the Waterfield test to expand common law police powers complicates our relationship with the Charter. The courts' application of Waterfield is an example of how the Charter has been utilized to provide police with constitutionally protected powers in the exercise of their duties.
How can police conduct be protected by the Charter?
If a judge uses the Waterfield test to excuse questionable police conduct that, on its face, violates a section in the Charter, that decision weakens the protective power of the Charter right that was thought to be violated. These common law police powers essentially become Charter-proof once they are generated and deployed. In other words, police conduct that passes the Waterfield test becomes constitutionally acceptable police practice.
Since the institutionalization of police departments, legislation has grown to cover many powers and duties of police officers. Legislation is generally imbued with Charter values that reflect constitutional safeguards against state intrusion in our personal and private lives. If a piece of legislation violates the Charter, a complaint can be brought before the court in order to review and scrutinize its effects. This process is meant to allow an impartial adjudicator the chance to decide whether the legislation needs to be reworked in order to align with Charter rights and values.
Has the ruling in Dedman v The Queen impacted the judicial review process?
A judicial review occurs whenever an applicant brings a Charter complaint before a court. A conflict arises in this process when judges, who, according to the Supreme Court of Canada, are "guardians of the constitution" (R v Kang-Brown, at paragraph 7), create laws that narrow the scope of the very constitutional rights they are obligated to protect. Whether the presiding judge will sufficiently balance the applicant's individual liberty against the interest of state security is a deeply concerning issue.
The Charter was designed as a “living tree”, meaning that it is a flexible constitutional document that can adapt to changing social conditions (Re Motor Vehicle Act, at paragraph 53). Jurists and scholars argue that individual liberty and property rights have eroded since the courts adopted Waterfield and many are calling for the Supreme Court of Canada to overturn Waterfield in order to better protect civil liberties.
The Charter came into force in 1982, three years before the Supreme Court's ruling in Dedman v The Queen.
Below you will find a visual depiction of how these police powers interact with the Charter:
Obligated to follow the guidelines set by the Charter and Charter case law. Questionable police conduct may be challenged and brought before a judge
The Charter of Rights and Freedoms
Described as a "living tree" and designed as a flexible constitutional document in order to adapt to changing social demands. The Charter provides individuals with protection against unreasonable state interference with individual liberty and other fundamental rights.
Responsible for reviewing Charter complaints dealing with police conduct that interferes with Charter rights and values
Each time a common law police power is generated by a court, state security interests are prioritized over individual liberty and property rights. The balance between individual interests and state security that the Charter is designed to protect shifts further towards the state.
Everyone has the right to be secure against unreasonable search or seizure.
Everyone has the right not to be arbitrarily detained or imprisoned.
If the police conduct passes the Waterfield test and the police power becomes constitutionally protected. The Charter right that was infringed upon is weakened.
Application of the Waterfield test
EXPANSION OF JUDGE-MADE POLICE POWERS UNDER SECTION 8
Sniffer-dog search at airports, bus depots and schools
Warrantless protective searches at the front door of a home when responding to noise complaints
Warrantless home entry powers in response to a dropped 911 call
Emergency or forcible entry
Evidence searches, including pat-downs, strip searches, penile swabs and cell phone searches
EXPANSION OF JUDGE-MADE POLICE POWERS UNDER SECTION 9
Warrantless roadblock powers in response to a 911 dispatch call near a purported crime scene
Jochelson, Richard, et al., "Generation and Deployment of Common law Police Powers by Canadian Courts and the Double-Edged Charter" Critical Criminology, vol. 28, March 2020, pp. 107-126.
Jochelson, Richard and David Ireland, Privacy in Peril, UBC Press, 2019.
Jochelson, Richard, "Ancillary Issues with Oakes: The Development of the Waterfield Test and the Problem of Fundamental Constitutional Theory." Ottawa Law Review, vol. 43, no. 3, 1996, pp. 357-376.
"Canada's Legal System at 150: Democracy and the Judiciary." Supreme Court of Canada.
"Section 8—Search and Seizure" Department of Justice.
"Section 9—Arbitrary Detention" Department of Justice.