Police Entering Driveway Under Implied Licence Doctrine Upheld in 5:4 Decision

Background

On March 20, 2019, at around 11:00 pm, police received a report that the accused, Mr. Singer, was speeding in a white truck while intoxicated in a small First Nations community in Saskatchewan. Two officers were dispatched to investigate. About an hour later, an officer located a vehicle matching the description provided by the caller, parked on the driveway of a private residence and running with its lights on.

The officers could not see anyone in the truck from the public road. They stepped onto the driveway, approached the truck, and saw a man sleeping or passed out in the driver’s seat. The officers spent a few minutes knocking on the window, but the occupant did not respond. An officer then opened the driver’s side door and smelled a strong odour of alcohol coming from the truck. She identified the man as Mr. Singer, having dealt with him before. The other officer then opened the passenger’s side door and, as Mr. Singer remained unresponsive, shook him awake. A strong odour of alcohol emanated from Mr. Singer’s breath, his eyes were bloodshot, and he seemed sleepy. At no point did Mr. Singer ask the officers to leave the property.

Mr. Singer was detained and failed a breath sample test from an approved screening device. He was arrested for having care and control of a motor vehicle with an excessive blood alcohol limit. An officer then made a breath demand in the prescribed form, testifying that she would not have had the grounds to make the demand without the initial “fail” reading on the approved screening device. After he was taken back to the police station, Mr. Singer refused to provide a breath sample and was charged with refusing to comply with a demand to provide a breath sample and impaired driving.

Decisions Below

At trial, Mr. Singer argued that police breached his section 8 Charter rights by stepping onto his driveway, where he had a reasonable expectation of privacy, without permission. The trial judge ruled that the police entry onto his driveway was justified by the implied licence doctrine, which grants the public, including police officers on legitimate business, authority to enter onto private property. The judge found that the officers entered the property on legitimate police business and any interference with Mr. Singer’s property rights was fleeting, convicting Mr. Singer of failing or refusing to comply with a demand to provide a breath sample.

The Court of Appeal quashed the conviction, holding that the police breached Mr. Singer’s section 8 rights by stepping onto his driveway and opening the truck door to investigate the impaired driving complaint. The Court ruled that Mr. Singer had a reasonable expectation of privacy while sleeping in his running truck in his driveway, and that the officers could not rely on the implied licence doctrine because there was no evidence that police entered the property for the purpose of knocking on the door of the residence or the window of the vehicle, as they could not see him in the truck from the road.

The Implied Licence Doctrine

Section 8 of the Charter protects individuals from unjustified state intrusion upon their property. A police investigatory technique is only a “search” under section 8 if it intrudes upon a person’s reasonable expectation of privacy, based on an examination of the “totality of the circumstances”.

In R. v. Evans, 1996 CanLII 248 (SCC), the Court recognized an implied licence for all members of the public, including police, to approach the door of a residence and knock. In Singer, the Court clarified and summarized the main principles regarding the common law implied licence doctrine, which are that:

1. there is a common law implied licence for all members of the public, including police, on legitimate business to approach the door of a dwelling and knock. The implied licence ends at the door of the dwelling;
2. the implied licence can be rebutted or revoked by a clear expression of intent, including signs and installing a locked gate;
3. under the implied licence, the occupier waives the privacy interest they may 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, for the purpose of permitting convenient communication with the occupant of the dwelling and those activities reasonably associated with that purpose;
4. conduct under the scope of the implied licence is not a search under section 8 of the Charter, but activities that go beyond the purpose of facilitating effective communication will breach the implied conditions of the licence and will be considered a “search” for Charter purposes;
5. the intention of police is relevant to determining whether police activity falls within the scope of the implied licence or is a search. Where evidence clearly establishes that police have specifically adverted to the possibility of securing evidence against the occupant by knocking on the door, they have exceeded the terms of the implied licence; and
6. a conversation with an occupier of a dwelling, without more, is not a search and there is no general prohibition against the police approaching a dwelling to question the occupier for the purpose of furthering a lawful investigation. As long as the officer is lawfully present, the use of their senses is not a search.

More specifically, the Court noted that police cannot justify “spot-checks”, speculative criminal investigation where police have no information linking occupants to suspected criminal conduct, or approaches for the purpose of securing evidence against an accused through a “knock on” search, under the implied licence doctrine.

The Majority SCC Decision

In the circumstances of this case, and a 5:4 split decision, the majority ruled that the police did not conduct a search by stepping onto Mr. Singer’s driveway and knocking at the truck window, as they had an implied licence to do so, but that the officers did conduct a search by opening the door to Mr. Singer’s truck.

In the majority’s view, the officers had an implied licence to step onto Mr. Singer’s driveway, approach his running truck, and knock on the window to facilitate convenient conversation with the occupant. The majority accepted the trial judge’s conclusion that the officers walked onto the driveway with only an intent to conduct an investigation regarding the vehicle and its driver, which was not a sufficient intrusion onto privacy interests to be considered a search.

While the officers were lawfully present on Mr. Singer’s driveway, the implied licence in this case only extended to the door of his truck, as it would have to the door of his residence . While his expectation of privacy was reduced in a vehicle compared to a private residence, the police still exceeded terms of the implied licence by opening the door to his truck and intruding on his reasonable expectation of privacy.

In determining where the search was reasonable, while the majority acknowledged that the search may have been justified under the ancillary power to conduct a safety search, it declined to do so as the safety search power was not argued at trial. As a result, the Court concluded that the police breached section 8 of the Charter by opening the truck door.

Ultimately, on the three-part analysis to exclude evidence under section 24(2) of the Charter, the majority found that the conduct was on the “less serious” end of the spectrum, reflecting a reasonable misunderstanding about the law, and its impact on Mr. Singer’s Charter-protected interests was “no more than moderate”. On balance, the Supreme Court ruled that society’s interest in an adjudication of the case on its merits outweighed the first two lines of inquiry, admitting the evidence. The case was remitted to the Court of Appeal for determination on Mr. Singer’s outstanding ground of appeal.

The Dissent

The dissent concluded that the officers exceeded their implied licence, characterizing the police’s purpose for entering the property as solely to gather evidence in an impaired driving investigation based on an unsubstantiated tip. The dissent pointed out that there were no reasonable grounds for a warrant, no reasonable suspicion of criminal activity and no exigent circumstances, as the only evidence suggesting that Mr. Singer was intoxicated arose only after the officers opened the doors of a vehicle. The dissent found that the officers did not consider their authority when entering the property. The dissent also considered that the Respondent, as an Indigenous person, would have suffered a severe impact as a result of the officers’ conduct, preferring exclusion of evidence as the appropriate remedy.

Conclusion

The divided opinions in Canada’s highest Court illustrates how a simple set of facts can be analyzed in different ways. In a narrow decision, the majority held that the implied licence doctrine allowed the police to enter Mr. Singer’s driveway and knock on his truck window to further an investigation, but opening the door exceeded the scope of that licence. The dissent ruled that merely entering the driveway in the circumstances of this case exceeded the implied licence and constituted an unreasonable search, as they saw the sole police intent in entering the driveway as gathering evidence.

Singer is a reminder for officers to be mindful on specifically why they are entering private property, and on what authority they do so. Where officers are seeking to obtain specific evidence against an occupant, the implied licence doctrine may not be sufficient to justify entering onto their private property or opening vehicle doors, and other legal alternatives, such as a warrant, should be considered, or the officers may risk the exclusion of evidence.

If you require additional information or further assistance, please contact David McKnight and Naomi Krueger.