Abstract
R. v. Zacharias is a complex, and on one important issue inconclusive, decision about the extent of police powers and the balance between individual rights and societal interests. The case decided that the “reasonable grounds” justifying a warrantless arrest could not include any information which had been obtained unlawfully. This rule had been long-established with regard to search warrants but had been the subject of conflicting decisions in lower courts in the case of arrests. Zacharias leaves no doubt that arrests which occur due to prior Charter breaches will be a further breach — a “consequential” breach — of the Charter. Where the decision is inconclusive is on the issue what to do about such consequential breaches: specifically, whether consequential breaches should be taken to increase the “seriousness of the breach” in an exclusion analysis. Should we conclude that it is not more serious because the police did not do anything additional which was improper, or that it is more serious because the accused’s rights were violated several times, not just once? Because of the way the case was decided, only four judges pronounce clearly on that issue, and they divide two-to-two. This paper argues that, in attempting to find the proper balance between individual rights and societal interests, it will always make a difference whether a court’s reasoning starts from one perspective — “what can we reasonably ask of the police” — or the other — “what rights can individuals reasonably expect to have protected?” It also argues that guidance about which starting perspective to adopt can be found in looking at the underlying purpose of the law in question. Since, in the context of Zacharias, the law in question is the remedies provision in the Charter and its underlying purpose is the protection of individual rights, consequential breaches should be found to increase the seriousness of the breach.
Citation Information
Coughlan, Steve.
"Perspective, and Perspectives, on Police Powers."
The Supreme Court Law Review, Third Series: Osgoode's Annual Constitutional Cases Conference
5.
(2026).
DOI: https://doi.org/10.60082/2563-8505.1006
https://digitalcommons.osgoode.yorku.ca/sclr-third-series/vol5/iss1/7
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This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.
References
1 R. v. Zacharias, [2023] S.C.J. No. 30, 2023 SCC 30 (S.C.C.) [hereinafter "Zacharias"].
2 R. v. Mills, [1999] S.C.J. No. 68, [1999] 3 S.C.R. 668, at para. 59 (S.C.C.).
3 I do not mean to suggest that starting from the police perspective or from the individual's perspective is the only potentially relevant factor entering into this balance. We are likely to be comfortable with a more intrusive search power in the case of a missing child than a missing $5 bill, for example. But I do suggest that making this largely unconscious question of perspective a conscious and deliberate one is a valuable exercise.
4 R. v. Biron, [1976] 2 S.C.R. 56 (S.C.C.) [hereinafter "Biron"].
5 Biron, at 59-61 (S.C.C.).
6 More accurately, one officer arrested Biron and handed him over to a second officer, and it was the second officer that Biron resisted. That is of no importance to the issue of principle being discussed here.
7 Biron, at 76 (S.C.C.).
8 Biron, at 75 (S.C.C.).
9 Biron, at 65 (S.C.C.).
10 Biron, at 65 (S.C.C.).
11 R. v. Tim, [2020] A.J. No. 1426, 2020 ABCA 469 (Alta. C.A.) [hereinafter "Tim (Alta. C.A.)"].
12 R. v. Tim, [2022] S.C.J. No. 12, 2022 SCC 12 (S.C.C.) [hereinafter "Tim (S.C.C.)"].
13 Tim, at para. 2 (S.C.C.).
14 There is a little ambiguity as to exactly why the Alberta Court of Appeal found the arrest to be lawful. As reported by the Supreme Court, the trial judge found that there were reasonable grounds to believe the accused had committed the offence, which would make the arrest lawful under s. 495(1)(a) of the Code. The Alberta Court of Appeal begins its reasoning by saying that the officer found the accused to be "apparently" committing the crime of possession of a controlled substance, and therefore at first relies on Biron to uphold the arrest: this would mean the arrest was lawful under s. 495(1)(b). However, the decision then turns to whether reasonable grounds existed - a s. 495(1)(a) issue - and the majority of the decision on this point is about why that standard is met. In the Supreme Court, the issue is only whether the "reasonable grounds" standard is met, and that is the issue which, in this decision, raises the "perspective" point.
15 Tim, at para. 39 (Alta. C.A.).
16 Tim, at para. 40 (Alta. C.A.).
17 Tim, at para. 30 (S.C.C.) [emphasis added].
18 Kosoian v. Société de transport de Montréal, [2019] S.C.J. No. 59, 2019 SCC 59, at para. 6 (S.C.C.).
19 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 [hereinafter the "Charter"].
20 Zacharias, at para. 2 (S.C.C.).
21 Zacharias, at paras. 4-9 (S.C.C.).
22 In fact, the trial judge had only considered the section 8 breach, but the majority in the Alberta Court of Appeal concluded that her failure to consider the section 9 breach made no difference to her analysis (see Zacharias, at para. 15 (S.C.C.)).
23 R. v. Zacharias, [2022] A.J. No. 400, 2022 ABCA 112, at para. 5 (Alta. C.A.).
24 See Zacharias, at paras. 21-25 (S.C.C.).
25 Zacharias, at para. 76 (S.C.C.).
26 Zacharias, at para. 20 (S.C.C.).
27 Justice Côté says in passing that "I substantially agree" with Rowe and O'Bonsawin JJ.'s s. 24(2) analysis, though her few sentences seems to show that she means she agrees with their result rather than taking a position on the legal issues. (see Zacharias, at para. 114 (S.C.C.)).
28 Zacharias, at para. 98 (S.C.C.).
29 For example, she argues that unlawfully-obtained information can be used in a warrantless arrest because R. v. Tim said that "[t]he objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest" (emphasis added by Côté J.) (See Zacharias, at para. 92 (S.C.C.)). If the decision is based on "the totality" of the information, she argues, this must include unlawfully-obtained information. One might note in response that the Court routinely says, in talking about warrant applications, that an affiant must make full and frank disclosure of all material information (see for example R. v. Araujo, [2000] S.C.J. No. 65, [2000] 2 S.C.R. 992 (S.C.C.), or R. v. Morelli, [2010] S.C.J. No. 8, 2010 SCC 8 (S.C.C.)) but it is nonetheless clear that unlawfully-obtained information cannot be used in that context.
30 R. v. Golub, [1997] O.J. No. 3097, 34 O.R. (3d) 743, at 750 (Ont. C.A.). As Côté J. points out, a portion of this passage had been cited by the majority of the Supreme Court in R. v. Beaver, [2022] S.C.J. No. 54, 2022 SCC 54, at para. 72 (S.C.C.). (See Zacharias, at para. 79 (S.C.C.)).
31 Zacharias, at para. 93 (S.C.C.).
32 Zacharias, at paras. 27- 28 (S.C.C.).
33 Zacharias, at para. 27 (S.C.C.).
34 Zacharias, at para. 32 (S.C.C.).
35 Zacharias, at paras. 32-34 (S.C.C.).
36 Zacharias, at para. 41 (S.C.C.).
37 Zacharias, at paras. 42-43 (S.C.C.).
38 Biron, at 65-66 (S.C.C.).
39 Zacharias, at paras. 51-55 (S.C.C.).
40 Justices Martin and Kasirer say: "We agree with our colleagues that the presence of additional, consequential breaches will 'necessarily' result in more significant impacts on the Charter-protected interests of an accused" (Zacharias, at para. 114 (S.C.C.)).
41 Zacharias, at para. 52 (S.C.C.).
42 Zacharias, at para. 53 (S.C.C.) [emphasis added].
43 Zacharias, at para. 54 (S.C.C.).
44 Zacharias, at para. 115 (S.C.C.) [emphasis in original].
45 Zacharias, at para. 123 (S.C.C.).
46 Zacharias, at para. 122 (S.C.C.).
47 Zacharias, at para. 123 (S.C.C.).
48 Zacharias, at paras. 118-119 (S.C.C.).
49 Wiltshire v. Barrett, [1965] 2 All E.R. 271 (U.K. C.A.).
50 Biron, at 63 (S.C.C.).
51 Biron, at 62 (S.C.C.).
52 R. v. Cornell, [2010] S.C.J. No. 31, 2010 SCC 31 (S.C.C.) [hereinafter "Cornell"].
53 See for example Cornell, at para. 101 (S.C.C.): "The argument that a 'dynamic' entry was necessary to protect the safety of the officers is entirely unsupported by the record. They smashed their way into the appellant's home without any inquiry at all regarding the appellant or any of its other occupants. Mr. Cornell, I repeat, had neither a history of violence nor a criminal record of any sort. There was no suspicion that he was a member of any gang: reasons of O'Brien J.A., at para. 88. No other member of the household was thought ever to have committed any crime at all. The police had no reason to believe that there were firearms or any other weapons on the premises".
54 Cornell, at para. 27 (S.C.C.) [emphasis added].
55 Cornell, at para. 33 (S.C.C.).
56 Cornell, at para. 20 (S.C.C.).
57 See Binnie J. in R. v. Clayton, [2007] S.C.J. No. 32, 2007 SCC 32, at para. 75 (S.C.C.): "I agree with the critics that Waterfield is an odd godfather for common law police powers." I describe Binnie J. as an advocate because of his position in R. v. Kang-Brown, [2008] S.C.J. No. 18, 2008 SCC 18, at para. 22 (S.C.C.): " . . . In fairness to litigants, the Court ought not, in my respectful view, to waver unpredictably between the willingness of the Court to explore adjustments in the common law of detention or search and seizure based on reasonable suspicion . . . and the 'hands off' or 'leave it to Parliament' attitude my colleague advocates in this case . . . We have crossed the Rubicon."
58 See Fleming v. Ontario, [2019] S.C.J. No. 2019 SCC 45, at para. 43 (S.C.C.).
59 See for example the dispute between the majority and dissent in R. v. Dedman, [1985] S.C.J. No. 45, [1985] 2 S.C.R. 2 (S.C.C.), the debate over whether the Court was using that option too frequently in R. v. Kang-Brown, [2008] S.C.J. No. 18, 2008 SCC 18 (S.C.C.), and the Court's most recent and more measured response to the possibility in Fleming v. Ontario, [2019] S.C.J. No. 2019 SCC 45 (S.C.C.).
60 An incomplete list of articles critical of the use of the Waterfield test includes: Glen Luther, "Police Power and the Charter of Rights and Freedoms: Creation or Control" (1986) 51:2 Sask. L. Rev. 217; James Stribopoulos, "A Failed Experiment - Investigative Detention: Ten Years Later" (2003) 41:2 Alta. L. Rev. 335 https://doi.org/10.29173/alr1328; Tim Quigley, "Brief Investigatory Detentions: A Critique of R. v. Simpson" (2004) 41:4 Alta. L. Rev. 935 https://doi.org/10.29173/alr1314; Joseph R. Marin, "R. v. Mann: Further down the Slippery Slope" (2005) 42:4 Alta. L. Rev. 1123 https://doi.org/10.29173/alr1279; Patrick Healy, "Investigative Detention in Canada", (2005) Crim. L.R. 98; Steve Coughlan, "Common Law Police Powers and the Rule of Law" (2007) 47 C.R. (6th) 266; Richard Jochelson, "Crossing the Rubicon: Of Sniffer Dogs, Justifications, and Preemptive Deference" (2008) 13:2 Rev. Const. Stud. 209; Vanessa MacDonnell, "Assessing the Impact of the Ancillary Powers Doctrine on Three Decades of Charter Jurisprudence" (2012) 58 S.C.L.R. (2d) 225 https://doi.org/10.60082/2563-8505.1238; Richard Jochelson, "Ancillary Issues with Oakes: The Development of the Waterfield Test and the Problem of Fundamental Constitutional Theory" (2012) 43:3 Ottawa L. Rev. 355; Steve Coughlan "The Need for Clarity in Creating Common Law Police Powers" (2014) 7 C.R. (7th) 263; Richard Jochelson et al., "Generation and Deployment of Common Law Police Powers by Canadian Courts and the Double-Edged Charter" (2020) 28:1 Crit. Criminol 107 https://doi.org/10.1007/s10612-020-09491-8; Terry Skolnik & Vanessa MacDonnell, "Policing Arbitrariness: Fleming v. Ontario and the Ancillary Powers Doctrine" (2021) 100 S.C.L.R. (2d) 187 https://doi.org/10.60082/2563-8505.1417; Terry Skolnik, "Racial Profiling and the Perils of Ancillary Police Powers" (2021) 99:2 Can. B. Rev. 429. https://doi.org/10.2139/ssrn.3721754
61 R. v. Waterfield, [1963] 3 W.L.R. 946, [1963] 3 All E.R. 659 (U.K. C.A.).
62 To be perfectly accurate, Waterfield owned the car, but at the relevant time his friend Lynn was driving, and drove away at Waterfield's direction.
63 Dedman had arguably already settled the Zacharias issue about the use of unlawfully obtained information as the basis for reasonable grounds. The issue was whether a breathalyzer demand could be made based on reasonable grounds obtained during an unlawful stop and "therefore involves consideration of the legal foundation of police action, where the issue is the effect of an allegedly unlawful act on the validity of subsequent action and where there has been compliance with the allegedly unlawful act" (See in R. v. Dedman, [1985] S.C.J. No. 45, [1985] 2 S.C.R. 2, at para. 59 (S.C.C.)). If such information could be used despite the original illegality, there would have been no need for the Dedman decision, finding a power to exist, at all!
64 in R. v. Dedman, [1985] S.C.J. No. 45, [1985] 2 S.C.R. 2, at para. 71 (S.C.C.).
65 Justice Dickson says, for example: "The public interest in law enforcement cannot be allowed to override the fundamental principle that all public officials, including the police, are subject to the rule of law"; that "[t]o conclude that this action of the police was authorized would run contrary to the long-standing protection accorded individual liberty by the common law and erode the individual's fundamental right to be free from arbitrary interference"; and that "[i]ndividual freedom from interference by the state, no matter how laudable the motive of the police, must be guarded zealously against intrusion. Ultimately, this freedom is the measure of everyone's liberty and one of the cornerstones of the quality of life in our democratic society" (in R. v. Dedman, [1985] S.C.J. No. 45, [1985] 2 S.C.R. 2, at paras. 27, 31 & 37 (S.C.C.)).
66 R. v. Collins, [1987] S.C.J. No. 15, [1987] 1 S.C.R. 265, at para. 31 (S.C.C.) [emphasis in original].
67 R. v. Grant, [2009] S.C.J. No. 32, 2009 SCC 32, at para. 70 (S.C.C.). https://doi.org/10.1007/s00287-008-0314-5
68 They hold that "In the absence of additional state misconduct, the focal point for evaluating seriousness is likely to remain the initial breach" (Zacharias, at para. 52 (S.C.C.)) and "where the police honestly believe that they have not committed any initial breach, actions taken on the basis of that initial breach are, to their mind, lawful, and do not demonstrate any heightened disregard for Charter rights or the law" (Zacharias, at para. 54 (S.C.C.)).
69 R. v. Grant, [2009] S.C.J. No. 32, 2009 SCC 32, at paras. 72-73 (S.C.C.). https://doi.org/10.1111/j.1753-4887.1974.tb06276.x
70 R. v. Le, [2019] S.C.J. No. 34, 2019 SCC 34, at paras. 141 & 142 (S.C.C.). https://doi.org/10.1177/0268355519829703
71 R. v. Beaver, [2022] S.C.J. No. 54, 2022 SCC 54, at para. 134 (S.C.C.), quoting R. v. Lafrance, [2022] S.C.J. No. 32, 2022 SCC 32, at para. 90 (S.C.C.).
72 Zacharias, at para. 117 (S.C.C.).