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. This trend seemed to reach its zenith in Saeed, in which a majority of the Court recognized a common law power to conduct a warrantless penile swab incident to arrest — by force if necessary — to preserve evidence of a possible sexual assault.
Skolnik, Terry and MacDonnell, Vanessa.
"Policing Arbitrariness: Fleming v. Ontario and the Ancillary Powers Doctrine."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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