Simon's Megalomaniacal Legal Resources

Charter - s.8 - 'Reasonable Expectation of Privacy' (4)

. R. v. Singer ['implied license' to enter onto real property]

In R. v. Singer (SCC, 2026) the Supreme Court of Canada allowed a Crown appeal, this brought against a Saskatchewan CA decision which "acquitted him of failing or refusing to comply with a demand to provide a breath sample".

Here the court considers "whether any of the police conduct of stepping onto the driveway, knocking on the truck window, or opening the truck door constituted a “search” under s. 8", examining the doctrine of 'implied license' to enter onto real property to communicate with the occupants:

(1) The Police Did Not Conduct a Search by Stepping Onto Mr. Singer’s Driveway and Knocking on the Truck Window

(a) There Is an Implied Licence to Approach the Door of a Residence and Knock

[40] In Evans [SS: R. v. Evans (SCC, 1996)], Sopinka J. affirmed that “the common law has long recognized an implied licence for all members of the public, including police, to approach the door of a residence and knock” (para. 13). He cited in support the Court of Appeal for Ontario’s statement in R. v. Tricker (1995), 1995 CanLII 1268 (ON CA), 21 O.R. (3d) 575, that “[t]he law is clear that the occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property. The implied licence ends at the door of the dwelling” (p. 579, citing Robson v. Hallett, [1967] 2 All E.R. 407 (Q.B.)). The implied licence can be “rebutted by a clear expression of intent” on the part of the occupant (Evans, at para. 13), such as by “installing a locked gate at the entrance to the property, or posting signs to that effect” (para. 42, per Major J., dissenting, but not on this point).

[41] The implied licence doctrine originated in basic social norms and customs embedded in common law property principles relating to the law of trespass (see Robson, at pp. 412 and 414; Tricker, at p. 579; R. v. Bushman (1968), 1968 CanLII 802 (BC CA), 4 C.R.N.S. 13 (B.C.C.A.), at p. 19). It has since been incorporated into the analysis conducted under s. 8 of the Charter (Evans; MacDonald). The occupier “effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling” and “is deemed to grant the public permission to approach the door and knock” (Evans, at para. 13).

[42] The effective waiver of the resident’s privacy interest is limited by the purpose of the implied invitation, which is “to permit convenient communication with the occupant of the dwelling” and “those activities that are reasonably associated with the purpose of communicating with the occupant” (Evans, at para. 15). Sopinka J. quoted approvingly (at para. 15) the British Columbia Court of Appeal’s reasons in Bushman, at p. 19:

The purpose of the implied leave and licence to proceed from the street to the door of a house possessed by a police officer who has lawful business with the occupant of the house is to enable the police officer to reach a point in relation to the house where he can conveniently and in a normal manner communicate with the occupant.

[43] Sopinka J. highlighted that the intention of the police is relevant in determining whether their activity is a “search”. If the intention of the police were not a relevant factor, “the police would then be authorized to rely on the ‘implied licence to knock’ for the purpose of randomly checking homes for evidence of criminal activity” (Evans, at para. 20). They could conduct “surprise ‘spot-checks’ of the private homes of unsuspecting citizens, surreptitiously relying on the implied licence to approach the door and knock” (para. 20). This “Orwellian vision of police authority [would be] beyond the pale of any ‘implied invitation’” (para. 20). The implied licence to approach and knock applies to all members of the public, including the police, but it is not a police power per se (para. 13).

[44] Sopinka J. summarized the essential elements of the implied licence doctrine as follows:

In my view, the implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. The “waiver” of privacy rights embodied in the implied invitation extends no further than is required to effect this purpose. As a result, only those activities that are reasonably associated with the purpose of communicating with the occupant are authorized by the “implied licence to knock”. Where the conduct of the police (or any member of the public) goes beyond that which is permitted by the implied licence to knock, the implied “conditions” of that licence have effectively been breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder.

(Evans, at para. 15)

[45] Almost 20 years later, in MacDonald, this Court unanimously affirmed Sopinka J.’s statement of the law and confirmed that police action exceeding the conditions of the implied licence to approach and knock “constitutes a ‘search’” (para. 26, per LeBel J. for the majority, and at para. 66, per Moldaver and Wagner JJ., concurring on this point and in the result; see also R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 125-27, per Brown and Martin JJ., and at para. 210, per Moldaver J., dissenting, but not on this point).

[46] In the aftermath of Evans, courts of different provinces have disagreed about the reach of the implied licence doctrine. The Court of Appeal for Saskatchewan and several other courts have concluded that Evans holds that the police exceed the scope of the implied licence and conduct a search under s. 8 of the Charter whenever they approach a home to investigate and secure evidence against the occupant (see, e.g., R. v. Rogers, 2016 SKCA 105, 341 C.C.C. (3d) 502, at paras. 28-29 and 50, leave to appeal refused, [2017] 1 S.C.R. xvi, Moldaver and Côté JJ. dissenting; R. v. Moyles, 2019 SKCA 72, [2019] 12 W.W.R. 416, at paras. 50-54; R. v. Peequaquat, 2020 SKQB 2, 55 M.V.R. (7th) 21, at para. 26; R. v. Babich, 2017 SKQB 304, rev’d on other grounds 2020 SKCA 139, 398 C.C.C. (3d) 457; R. v. Klevin, 2017 SKPC 4, 375 C.R.R. (2d) 1, at paras. 18-26; R. v. Parr, 2016 BCCA 99, 334 C.C.C. (3d) 131, at paras. 3 and 36; R. v. Crowley, 2020 ONCJ 271, 464 C.R.R. (2d) 50, at paras. 39-44; R. v. Thibodeau, 2023 ONCJ 308, at paras. 75-77; R. v. Michaud, 2018 QCCM 104, at paras. 37-46).

[47] An example of this line of authority is the Saskatchewan Court of Appeal’s decision in Rogers. In that case, a police officer received a complaint that an impaired driver had backed into a parked vehicle. The officer went to the driver’s apartment and knocked on the door. The accused opened the door and slurred his words as he spoke to the officer. He offered to show the officer the damage to his car, stumbling and staggering as he walked. The police arrested the accused, whose blood alcohol reading significantly exceeded the legal limit. Relying on Evans, the Court of Appeal held that the officer conducted a search within the meaning of s. 8 by knocking on the accused’s apartment door “for the purpose of securing evidence against the occupant” (para. 29 (emphasis in original)). As the court ruled, “[t]his principle applies equally to drinking and driving offences as well as to other offences where observing the person opening the door will give visual, auditory and olfactory clues about the person’s participation in the crime under investigation” (para. 29).

[48] In the case under appeal, the Court of Appeal followed its earlier decision in Rogers and stated that there is no implied licence to enter a driveway “for the purpose of conversing with and observing the occupant to gather evidence that they are impaired” (para. 43; see also paras. 64-66).

[49] By contrast, other courts have interpreted Evans as accepting that the police act within the scope of the implied licence if their purpose is to communicate with the occupant, even if the police are investigating the occupant for an offence or if they secure evidence as a result. On this view, the police exceed the scope of the implied licence if they had no communicative purpose, were on a fishing expedition, or intended to conduct a search (see, e.g., R. v. Lotozky (2006), 2006 CanLII 21041 (ON CA), 81 O.R. (3d) 335 (C.A.), at paras. 18-19; R. v. Atkinson, 2012 ONCA 380, 110 O.R. (3d) 721, at paras. 72-75; Mulligan, at paras. 27-28, 31 and 34; R. v. Van Wyk (1999), 6 M.V.R. (4th) 248 (Ont. S.C.J.), at paras. 29-31 and 33-35; R. v. Dhindsa, 2013 ONCJ 32, at paras. 36-44; R. v. de Medeiros Arruda, 2016 ONCJ 654, at paras. 17-28; Tremblay v. R., 2020 QCCA 1131, 67 C.R. (7th) 72, at para. 25, fn. 21, and at paras. 26-28; R. v. Contant, 2008 QCCA 2514, 253 C.C.C. (3d) 259, at paras. 33-36; Joseph v. R., 2008 QCCA 2515, at paras. 32-34; Hallé v. R., 2010 QCCA 2229, at paras. 24-32; Cotnoir v. R., [2000] R.J.Q. 2488 (C.A), at para. 26; R. v. Lafortune, 2023 QCCM 48, at para. 9; R. v. Vu, 2004 BCCA 381, 201 B.C.A.C. 293, at paras. 24-26; R. v. Roy, 2010 BCCA 448, 261 C.C.C. (3d) 62, at paras. 30-33; R. v. Petri, 2003 MBCA 1, 171 C.C.C. (3d) 553, at paras. 21-23 and 27; R. v. LeClaire, 2005 NSCA 165, 208 C.C.C. (3d) 559, at paras. 13-20; R. v. Fowler, 2006 NBCA 90, 304 N.B.R. (2d) 106, at paras. 31-33; R. v. Silverfox, 2022 YKSC 14, at paras. 54-59; R. v. Neugebauer, 2009 NUCJ 28, at paras. 23-33).

[50] An example of this line of authority is the Ontario Court of Appeal’s decision in Lotozky. In that case, the court held that police officers were entitled to walk onto a private driveway to investigate a suspected impaired driver. The police tapped on the window of the accused’s car. When the driver exited the vehicle, they asked him to provide his driver’s licence, ownership, and insurance. The accused showed signs of impairment when he spoke to the police. He had difficulty maintaining his balance, he looked disheveled, his eyes seemed watery, and there was a smell of alcohol on his breath. The Court of Appeal rejected the conclusion of the trial judge and summary conviction appeal court that the police were not entitled to walk onto the accused’s driveway to further their investigation. As Rosenberg J.A. stated:

... merely walking on to a driveway, even with an intent to conduct an investigation involving the owner, does not, in my view, constitute a sufficient intrusion to be considered a search. There must be something more, as in the perimeter search cases, peering in windows of the home and trying to detect odours from within. [para. 18]

[51] The trial judge in the case under appeal applied the reasoning in Lotozky (A.R., vol. II, at p. 167). However, the Saskatchewan Court of Appeal interpreted Lotozky narrowly, as applying only when the police already have reasonable grounds to suspect that the motorist is impaired (para. 57, citing R. v. McColman, 2021 ONCA 382, 407 C.C.C. (3d) 341, at para. 41, rev’d on other grounds 2023 SCC 8, [2023] 1 S.C.R. 309). It concluded that the police in this case only acquired such grounds after they opened the truck door (para. 57).

[52] I respectfully disagree with the Saskatchewan Court of Appeal’s narrow reading of Lotozky. Although the presence of reasonable grounds to suspect impairment may show that the police are on the accused’s property on legitimate business, such grounds are not required to enter property under an implied licence. In my view, Rogers and Lotozky present inconsistent interpretations of Evans. The present case requires this Court to resolve this inconsistency. Because the legitimate business of the police often involves investigative activity, defining the implied licence too narrowly could significantly hamper the police in performing their duty to investigate and prevent crime and protect the public. At the same time, the implied licence must not be applied so broadly as to give the police effectively unconstrained investigative authority.

[53] I will first consider in greater detail how this Court applied the implied licence doctrine in Evans, along with the authorities that the Court cited approvingly in that decision. I will then consider several of this Court’s subsequent s. 8 rulings. As I will explain, in my respectful view, the court below erred in defining the scope of the implied licence to approach and knock based on an untenable distinction between “investigating” a potential criminal offence (which it said is permissible) and “securing evidence” against the home’s occupant (which it said is impermissible).

At paras 54-78 the court continues to expand on this issue, summarizing:

(iii) Summary

[79] The main principles regarding the common law implied licence doctrine may be summarized as follows:

1. The common law recognizes an implied licence for all members of the public, including police, on legitimate business to approach the door of a dwelling and knock (Evans, at para. 13; MacDonald, at para. 26; Le, at paras. 125 and 210). The implied licence ends at the door of the dwelling (Evans, at para. 13; MacDonald, at para. 27).

2. Under the implied licence, the occupier effectively waives the privacy interest that they might otherwise have in the approach to the door of their dwelling and is deemed to grant the public permission to approach the door and knock (Evans, at paras. 13-14).

3. The purpose of the implied licence is to permit convenient communication with the occupant of the dwelling and those activities reasonably associated with that purpose (Evans, at para. 15; MacDonald, at para. 26; Le, at paras. 125 and 210).

4. Conduct falling within the scope of the implied licence is not a “search” under s. 8 of the Charter. Activities that go beyond the purpose of facilitating effective communication with the occupant of the dwelling breach the implied conditions of the licence. The person conducting the unauthorized activity approaches the dwelling as an intruder. In such circumstances, police action constitutes a “search” (Evans, at para. 15; MacDonald, at para. 26).

5. The intention of the police is relevant in determining whether the police activity falls within the communicative purpose of the implied licence or whether it constitutes a “search”. For example, police are not authorized to: (a) randomly check dwellings for evidence of criminal activity by conducting “spot-checks” of unsuspecting citizens (Evans, at para. 20); or (b) conduct a speculative criminal investigation or “fishing expedition”, where the police have no information potentially linking any of the occupants to any criminal conduct or suspected criminal conduct (Le, at para. 127). In addition, (c) where the police approach for the purpose of “securing evidence against the accused” through a “knock-on” search, “the police [will] have exceeded the authority conferred by the implied licence to knock” (Evans, at para. 20; see also paras. 13, 16 and 18-21; Le, at para. 127). Where evidence clearly establishes that the police have specifically adverted to the possibility of securing evidence against the occupant by knocking on the door, the police have exceeded the terms of the implied licence to knock (Evans, at paras. 16 and 20).

6. However, a conversation with the occupier of a dwelling, without more, is not a “search” (Evans, at para. 18). There is no general prohibition against the police approaching a dwelling in order to question the occupier for the purpose of furthering a lawful investigation (Le, at para. 212). So long as the police officer is lawfully present, the use of any of their senses of sight, hearing, or smell is not a search (Hogg and Wright, at § 48:14).

7. The implied licence can be rebutted or revoked at any time by a clear expression of intent (Evans, at paras. 13 and 42).