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Torts - Trespass. R. v. Singer
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 summarizes this search and seizure case [Charter s.8], which focusses on whether there is an 'implied license' to enter onto property for the purpose of communicating with the occupants:[1] Thirty years ago, in R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, this Court 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, per Sopinka J.). Under the implied licence doctrine, a police officer who has lawful business with the occupant of a dwelling may proceed from the street to the door of a house to communicate with the occupant (para. 15). The issue on this appeal is whether the police likewise possess an implied licence to step onto a private driveway to investigate a complaint of impaired driving when they observe, in plain view, a running vehicle matching the description in the complaint.
[2] Two RCMP officers were investigating a recent complaint of impaired driving made against the respondent, Wayne Singer, in a small Saskatchewan First Nations community. After investigating for about an hour, at around midnight, the officers saw a truck matching the description in the complaint in a residential driveway on the community territory. The truck was running with its lights on. The officers stepped onto the driveway to approach the truck and saw a man sleeping or passed out in the driver’s seat. The officers spent a few minutes knocking on the truck window, but the occupant, Mr. Singer, did not respond. When the officers opened the truck door to rouse Mr. Singer, they smelled a strong odour of alcohol coming from his breath. He seemed tired and had bloodshot eyes. At the officers’ request, Mr. Singer provided a roadside breath sample, which registered as a “fail”. He was then arrested and taken into custody, where he refused to provide a further breath sample. He was charged with impaired driving and refusing to comply with a demand to provide a breath sample.
[3] At trial before the Provincial Court of Saskatchewan, the only issue was whether the implied licence authorized the police to enter onto Mr. Singer’s driveway. Mr. Singer argued that the police breached his right to be secure against unreasonable search or seizure under s. 8 of the Canadian Charter of Rights and Freedoms by entering his driveway without permission or a search warrant. In response, the Crown relied on this Court’s decision in Evans to claim that the police had an implied licence to step onto the driveway to investigate the impaired driving complaint. The trial judge agreed with the Crown, found no s. 8 breach, and entered a conviction for refusing to comply with a demand to provide a breath sample.
[4] The Court of Appeal for Saskatchewan set aside the conviction. The court ruled 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” (2023 SKCA 123, 431 C.C.C. (3d) 364, at paras. 43 and 64-66). In the court’s view, the police infringed Mr. Singer’s s. 8 Charter rights and were trespassers from the moment they set foot on the driveway. The court excluded the evidence under s. 24(2) of the Charter and entered an acquittal.
[5] Before this Court, the Crown argued that the police were authorized to enter the driveway and to open Mr. Singer’s truck door under the implied licence doctrine or, alternatively, under a new ancillary police power to protect public safety in the context of an impaired driving investigation.
[6] I would allow the appeal, set aside the judgment of the Court of Appeal, and remit the case to the Court of Appeal to determine the outstanding ground of appeal that it did not address. In my view, the police had an implied licence at common law to step onto Mr. Singer’s driveway, approach his truck, and knock on the truck window. The police were entitled to do so on legitimate business: to investigate a recent impaired driving complaint. This police conduct did not, on its own, constitute a “search” under s. 8 of the Charter. The Court of Appeal’s decision on this point was wrongly decided, and, as noted by the learned authors of Drug Offences in Canada, “the weight of authority [is] to the contrary” (B. A. MacFarlane, R. J. Frater and C. Michaelson, Drug Offences in Canada (4th ed. (loose-leaf)), at § 25:21).
[7] At the same time, the implied licence to enter the driveway and knock ended at the door of the truck. The police intruded onto Mr. Singer’s reasonable expectation of privacy and conducted a search when they opened the truck door.
[8] In this case, there is no need to recognize a new ancillary police power to provide potential authority to open the truck door. This Court’s decision in R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, already recognizes the common law power of the police to conduct a “safety search” when they have reasonable grounds to believe that the search “is reasonably necessary to eliminate an imminent threat to the safety of the public or the police” (para. 40). A safety search “will generally be conducted by the police as a reactionary measure” and “will generally be unplanned”, since it is “carried out in response to dangerous situations created by individuals, to which the police must react ‘on the sudden’” (para. 32).
[9] Here, there arguably were objective grounds to believe that the search was reasonably necessary to protect public safety. During the impaired driving investigation, the police found Mr. Singer asleep and unresponsive late at night in a running truck matching the description in the complaint. A running vehicle associated with an impaired driving complaint is effectively a weapon that can — and all too often does — kill both the impaired driver and innocent members of the public.
[10] However, there was no direct evidence that the officers were subjectively concerned for public safety when they encountered Mr. Singer asleep or passed out in the truck, as this issue was not raised at trial. Because the Crown bears the burden of justifying a warrantless search, and no such evidence was led, in the particular circumstances of this case I would conclude that the police breached s. 8 of the Charter by opening the truck door.
[11] Even so, I would not exclude the evidence under s. 24(2) of the Charter. The Charter-infringing state conduct was not so serious that the Court must dissociate itself from it. Nor did it have more than a moderate impact on Mr. Singer’s Charter-protected interests. In the circumstances, these factors are outweighed by society’s strong interest in prosecuting the serious offence of failing or refusing to comply with a demand to provide a breath sample. . 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). . Harper v. Sauve
In Harper v. Sauve (Div Court, 2022) the Divisional Court allowed an RTA s.210 appeal where the landlord claimed the right to issue a trespass notice against the tenants' guests, apparently in a tenant's 'reasonable enjoyment' RTA s.22 application:[14] In this case, the failure to hear the evidence of the threats or to challenge the landlord’s evidence as to why a trespass notice was issued to S.K. led the member to adopt the false premise that the landlord could exclude a guest of the tenant and limit the purposes for which that guest could attend at the invitation of the tenant by use of a trespass notice. See Cunningham v. Whitby Christian Non-Profit Housing Corp., (1997) 1997 CanLII 12126 (ON SC), 33 OR (3d) 171 (Gen. Div.). This led to the remedy which in the words of the tenant allowed the landlord to police their guests and to inquire into the details of care provided by a personal support worker. It also led to the member giving inadequate consideration to whether an abatement of rent was appropriate or a fine should be imposed or both. . Land v. Dryden Police Services Board
In Land v. Dryden Police Services Board (Ont CA, 2023) the Court of Appeal allowed an appeal from a summary dismissal of a lawsuit by a self-represented indigenous couple who sued the police over events following a report that the woman had attended to pick up children from school while intoxicated. The action was grounded in negligent investigation, negligence, negligent infliction of mental distress, invasion of privacy, trespass, misfeasance in public office and breaches of ss. 7, 8, 9 and 12 of the Charter.
Regarding the trespass tort against the police, which was defended on CFSA grounds, the court stated:[18] Concerning the Dryden Police, the motion judge relied on a finding that Ms. Gardner was entitled, under s. 40 of the Child and Family Services Act, R.S.O. 1990, c. C. 11 (the “CFSA”)[1], to enter the home without a warrant to search for and remove the child and to request the police officers to assist her in doing so to dismiss many of the appellants’ claims against them. ...
....
(2) Did the motion judge err in finding Ms. Gardner was entitled, under s. 40 of the CFSA, to enter the appellants’ home without a warrant and to request the police officers to assist her in so doing?
[30] The motion judge found that Ms. Gardner’s entry into the appellants’ home was lawful for two reasons. First, he accepted that Mr. Land invited Ms. Gardner into the home. Second, he found that Ms. Gardner was entitled to enter the home under s. 40 of the CFSA without a warrant and that she was also entitled under that section to request that the police assist her in so doing.
[31] On appeal, the appellants dispute both findings.
[32] It is unnecessary that I address the first finding. I have found no error in the motion judge’s conclusion that the appellants’ claims against the Society defendants are statute barred. However, the lawfulness of the police entry into the home and of their subsequent actions in arresting the appellants for obstructing the police turn on whether Ms. Gardner was entitled, under s. 40 of the CFSA, to enter the home without a warrant and to invite the police to assist her. The fact that she may have been invited to enter the appellants’ home did not entitle her to invite the police to enter the home without the owners’ permission, or to do so without a warrant and by force, unless she was acting under authority granted by s. 40 of the CFSA.
[33] Before turning to the motion judge’s findings, it will be helpful to understand the relevant provisions of s. 40 of the CFSA.
[34] To make his findings, the motion judge relied on s. 40 of the CFSA, which included provisions (ss. 40(7), (8), and (11)) that authorized a child protection worker, in certain circumstances, to enter premises without a warrant, by force if necessary, to search for and remove a child, and to request the assistance of the police in doing so.
[35] However, ss. 40(1) and 40(2) of the CFSA provided necessary context for the provisions on which the motion judge relied, so I will review those subsections as well.
[36] Section 40(1) permitted a children’s aid society to apply to the court for an order that a child is in need of protection.
[37] Section 40(2) permitted a justice of the peace to issue a warrant authorizing a child protection worker to bring a child to a place of safety if satisfied “on the basis of the child protection worker’s sworn information” that there were reasonable and probable grounds to believe that:. the child is less than 16 years old and is in need of protection; and
. a less restrictive course of action is not available or will not protect the child adequately. [38] As noted above, ss. 40(7), (8), and (11) of the CFSA, authorized a child protection worker, in certain circumstances, to enter premises without a warrant, by force if necessary, to search for and remove a child, and to request the assistance of the police in doing so. The two conditions underpinning the authority provided by these sections included that the child protection worker believe on reasonable and probable grounds (i) that a child is in need of protection, and (ii) that there would be a substantial risk to the child’s health or safety during the time necessary to obtain a warrant under s. 40(2): R. v. Davidson, 2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 39.
[39] The specific provisions on which the motion judge relied, ss. 40(7), (8), and (11), read as follows (with emphasis added):40(7) A child protection worker who believes on reasonable and probable grounds that,
(a) a child is in need of protection;
(a.1) the child is less than 16 years old; and
(b) there would be a substantial risk to the child’s health or safety during the time necessary to bring the matter on for a hearing under subsection 47(1) or obtain warrant under subsection (2),
may without a warrant bring the child to a place of safety.
(8) A child protection worker acting under this section may call for the assistance of a peace officer.
...
(11) A child protection worker who believes on reasonable and probable grounds that a child referred to in subsection (7) is on any premises may without a warrant enter the premises, by force, if necessary, and search for and remove the child. [40] In finding that Ms. Gardner was entitled to enter the appellants’ home under s. 40 of the CFSA, the motion judge made a finding that Ms. Gardner had a subjective belief that the appellants’ child “may have been” in need of protection on the day in question. He said the following (with emphasis added):Section 40(11) of the CFSA states that a child protection worker who believes on reasonable and probable grounds that a child may be in need of protection may without a warrant enter premises to search for and remove a child.
The requirement of reasonable and probable grounds has both a subjective and objective component. …
Ms. Gardner has deposed that she was advised that Ms. Henry picked her child up from school while possibly intoxicated. She felt obliged to check on the welfare of the child at the [appellants’] residence. Once at the residence, she initially encountered Mr. Land, whom she observed to be acting aggressively toward her and who she thought was under the influence of alcohol. Ms. Gardner deposed that Mr. Land attempted to close the door on her after she explained why she was present at his home.
I find that Ms. Gardner, having received a referral that Ms. Henry may have been intoxicated, and having observed Mr. Land to also be possibly intoxicated and aggressive, had a subjective belief that the [appellants’ ] child may have been in need of protection on the day in question. I also find that Ms. Gardner’s belief was objectively reasonable in the circumstances.
As a result, Ms. Gardner’s entry into the [appellants’] home on November 24, 2015 was lawful pursuant to s. 40(11) of the CFSA. [41] In my view, there are several problems with this analysis.
[42] First, while Ms. Gardner gave evidence in her affidavit filed on the motion of the background circumstances the motion judge described and said she had concerns for her safety and the safety of the child, she gave no specific evidence addressing whether she believed, when she entered the residence, that the child met the statutory criterion of being a child in need of protection. Her only evidence that spoke directly to that statutory criterion was that, after the appellants were placed under arrest, she concluded the child was in need of protection primarily because there was no adult caregiver present in the home. Accordingly, to the extent the trial judge made a finding concerning this statutory criterion, he made it without a proper evidentiary foundation.
[43] Second, although s. 40(7) sets out a requirement that to act without a warrant a child protection worker must believe on reasonable and probable grounds that a child is in need of protection, the motion judge described the requirement, and his finding concerning Ms. Gardner’s state of mind, as believing that the child may be in need of protection.
[44] Third, the motion judge made no finding concerning the requirement in s. 40(7)(b) that to act without a warrant, a child protection worker must believe on reasonable and probable grounds that there would be a substantial risk to the child’s health or safety during the time necessary to obtain warrant under s. 40(2).
[45] Fourth, Ms. Gardner gave no evidence in her affidavit concerning her subjective belief about whether there would be a substantial risk to the child’s health or safety during the time necessary to obtain warrant under s. 40(2).
[46] I recognize that in making his findings, the motion judge focused on s. 40(11) of the CFSA which specifically authorizes a child protection worker to enter onto premises without a warrant, by force, if necessary, to search for and remove a child. However, s. 40(11) is premised on s. 40(7), which sets out the two pre‑conditions to its exercise recognized by this court in Davidson, namely, that a child protection worker believe on reasonable and probable grounds: (i) that a child is in need of protection, and (ii) that there would be a substantial risk to the child’s health or safety during the time necessary to obtain a warrant under ss. 40(2).
[47] The Dryden Police rely on R. v. C.(M.), 2007 ONCJ 164, 220 C.C.C. (3d) 398, at para. 42, in support of their position that child protection workers may exercise their powers to enter premises without a warrant to conduct welfare checks, i.e., based on reasonable and probable grounds that a child may be in need of protection.
[48] However, there are conflicting authorities in the courts below concerning whether the position the Dryden Police advance is correct. See, for example, R. v. Ashkewe, 2007 ONCJ 152, 220 C.C.C. (3d) 423, at paras. 27, 30 and 41.
[49] Because of the other issues I have identified, it is unnecessary that I finally decide the question whether reasonable and probable grounds to believe a child may be in need of protection is sufficient to meet the requirements of s. 40(7)(a) of the CFSA in order to dispose of this appeal. Accordingly, I consider that that question is best left to another case in which the issue can be fully argued.
[50] In this case, in addition to the first problem set out above, I conclude that the motion judge’s finding that Ms. Gardner’s entry, and therefore the police entry, was lawful under s. 40 of the CFSA cannot stand because the motion judge made no finding, and there was no evidence before him on which to base a finding, that the requirements of s. 40(7)(b) of the CFSA were satisfied. That is, Ms. Gardner gave no evidence that she subjectively believed there would be a substantial risk to the child’s health or safety during the time necessary to obtain warrant under s. 40(2).
[51] I emphasize that the absence of this evidence and a finding by the motion judge are not technical deficiencies. Sections 40(7), (8) and (11) confer extraordinary powers on child protection workers to enter premises, including a dwelling house, without a warrant, by force if necessary, and with the assistance of police. While the goal of protecting children is undoubtedly of great importance, the extraordinary nature of the powers conferred under these sections requires that the conditions for exercising them be both strictly respected and strictly enforced. While I recognize that child protection workers and the police frequently encounter fluid, and difficult, situations in carrying out their mandate to protect children, even so, they must always turn their minds to the statutory conditions for exercising their extraordinary powers before doing so.
[52] I accordingly conclude that the trial judge’s finding that Ms. Gardner’s entry was lawful under s. 40 of the CFSA must be set aside and his further finding that the police entry was lawful because Ms. Gardner was lawfully entitled to request them to assist her must also be set aside.
[53] During oral argument, the Dryden Police argued that if Ms. Gardner’s evidence did not provide lawful grounds for the warrantless entry by police using force, the evidence of the police officers surely did. However, the Dryden Police failed to identify the evidence that would support that submission.
[54] In the result, I would set aside the summary judgment dismissing the appellants’ claims against the Dryden Police with respect to which the motion judge relied on his finding that the police entry into the appellants’ home based on reasonable and probable grounds was lawful. Those claims are the claims for: negligence, false arrest, false imprisonment, assault and battery, trespass and invasion of privacy and the appellants’ claims under ss. 7 and 9 of the Charter, which must proceed to trial. . Murphy v. Mullen
In Murphy v. Mullen (Ont CA, 2021) the Court of Appeal considered whether foreseeability applied to the quantification of damages, here in a trespass case where the issue was the anticipated future use of the trespassed-upon land. The court seems to support the forseeability conclusion that damages will be assessed where the trespassed-upon owner will use the land “in any reasonable and usual way” [para 25-50].
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