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How does judge-made law impact the criminal justice system?

Courts have generated and deployed new common law police powers over the past 35 years and, as a result, have provided police with expansive powers in the execution of their duties. (read about how courts generate and deploy ancillary common law police powers here)


Common law police powers are judge-made powers that are not beholden to the robust legislative process that precedes the enactment of legislation. Unlike legislators, courts are not in the best position to identify how a newly generated power will impact the criminal justice system. 

Typically, before legislation is enacted, it must be considered by policy analysts, go through multiple drafts and readings, receive legislative scrutiny by way of public debate and have provisions that do not reflect the needs and desires of Canadian society amended.

The judicial branch of government does not have the same resources at their disposal as the legislative branch and arguably cannot foresee the long-term consequences of newly generated common law police powers. When expanding these powers, courts generally rely on the facts of the case and prior case law. Further, the judiciary is not positioned to create oversight committees to maintain transparency and accountability of police conduct in relation to these expanded powers.

How does the Waterfield test condone police conduct retroactively?

When questionable police conduct passes the Waterfield test (as explained here), it has a retroactive effect. An individual cannot readily ascertain what the law is during a police encounter if the Waterfield test justifies the police conduct after the conduct has taken place. This legal uncertainty that arises from the retroactive application of Waterfield could generate distrust in the criminal justice system. 



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Image by Bill Oxford

Fleming v Ontario, (2018)

Fleming v Ontario is a recent Supreme Court ruling where the Court decided against recognizing a new common law police power to "arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace" (Fleming v Ontario, at paragraph 6).

First Nations protestors and supporters were seeking to have decades-long land claims recognized (at paragraph 9). Fleming was a counter-protestor that was attending a flag rally. There were prior altercations between protestors and counter-protestors (at paragraph 10). On the day of Fleming's arrest, The O.P.P. attempted to keep the protestors and counter-protestors separate (at paragraph 10). Fleming attempted to by-pass a blockade and was told to back away. He was not aware that the police were speaking with him (at paragraph 16). He was subsequently arrested and suffered injuries in the process (at paragraph 18). Charges were later dropped (at paragraph 20). Fleming sued the police in civil court for damages. The Court assessed the police conduct in Fleming's lawsuit and found that the conduct was unlawful and unsupported by precedent.

Although the Court clearly limited the scope of police powers in relation to the arrest of law-abiding citizens (at paragraph 95), it did not address the problem of the Waterfield test and its retroactive approach to questionable police conduct. Nor did it seek to limit judicial overreach in this area of the law.

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