Drawing a line on the implied license doctrine

Although police were fine to approach the vehicle of a suspected impaired driver in a private driveway and knock on the window, officers breached his privacy rights when they opened the door after he failed to respond. 

That was the Supreme Court of Canada’s finding in a 5-4 decision in the case of Wayne Singer. The matter began when two RCMP officers in the community of Big Island Lake Cree Nation in Saskatchewan responded to a complaint that he was driving while impaired. They saw a truck that matched the description in the complaint in a residential driveway, running with its lights on. Inside, they could see that Singer was either asleep or passed out. 

The officers spent several minutes knocking on the window with no response, so they opened the door to rouse him and smelled alcohol on his breath. Singer failed a breath test and was arrested. Once in custody, he refused to provide another breath sample, so he was charged for that along with impaired driving.

The only issue at trial was whether police could use the doctrine of implied license to enter the driveway. Singer argued that entering the driveway without a warrant violated his Charter rights protecting against unreasonable search and seizure. The judge found there was no breach and convicted him for refusing to provide a breath sample. 

In contrast, the Saskatchewan Court of Appeal found that the police had no implied license to enter the driveway for the purpose of gathering evidence of impairment and excluded the evidence under section 24(2) of the Charter.

The Supreme Court of Canada allowed the appeal and set aside the judgment.

“The implied license to enter the driveway and knock ended at the door of the truck,” Justice Mahmud Jamal wrote for the majority. 

“The police intruded onto Mr. Singer’s reasonable expectation of privacy and conducted a search when they opened the truck door.”

The majority, however, decided that evidence obtained as a result of the breach was still admissible at trial. The case was remanded to the Court of Appeal to revisit on trial fairness grounds, as the Crown’s sole witness was briefly present in the courtroom when Singer’s counsel made opening remarks at the start of the trial.

Kyla Lee of Acumen Law in Vancouver specializes in impaired driving cases. She says the ruling affects about 60 per cent of the Charter notices she is sending to Crown counsel. It makes sense because it draws a fine but important distinction between police knocking on the door to communicate and approaching for the dual purpose of gathering evidence. 

“If you look at it from the defence counsel perspective, there’s stuff to work with there,” says Lee, the past chair of the CBA’s criminal justice section. 

“You’re going to have to get the officer to admit in cross-examination that they were there to make visual or olfactory observations, and they decided to go for the purposes of smelling the breath. If that’s their intention in communication, and the smell isn’t incidental, then that crosses the line.”

Counsel will need to get the officer to admit that to still get the benefit of the breach. She says it would be an uphill battle in the vast majority of circumstances that, once a breach has been established, it would lead to an exclusion of evidence on section 24(2) grounds.  

“The majority’s 24(2) analysis says that it wasn’t much of an intrusion and there was no significant impact. Impaired driving is bad, so therefore the [evidence was included], and I don’t love that,” Lee says.

The dissenting judges did not agree with the 24(2) analysis. They felt the breach was significant, particularly because the defendant was First Nations, which the majority did not engage with.

Maija Martin, lead counsel with Martin Barristers in Toronto, and a vice-president of the Criminal Lawyers’ Association, is concerned with the expansion of the implied license doctrine because it enhances police powers by common law instead of statute. She says that it has an impact on members of communities who are subject to differential treatment by police.

“In this particular case, Mr. Singer lived in a First Nations community. We need to be very careful about expanding police powers to justify searches that involve members of communities that are overrepresented in the criminal justice system.”

She fears that expanding the implied license to knock will become an excuse for the police to mount fishing expeditions.

Shakir Rahim, director of the Canadian Civil Liberties Association’s (CCLA) criminal justice program, shares that concern. His organization’s position is that having police enter a property to substantiate a criminal charge is not something anyone would consent to, so it goes beyond the implied license doctrine.

“You need clarity and certainty in what police can and cannot do, because there is a very discernible difference between entering a property for an investigative purpose or not,” he says.

“If the purpose of coming onto the property is investigative in nature, then the implied license to knock does not permit police entry."

Rahim says the majority has weakened important privacy protections that exist for people’s homes.

Martin agrees. 

“If police are allowed to go onto private property where they don’t have grounds to believe someone has committed an offence, or even grounds to suspect, the challenge is that we may then end up with spot-checks on private property,” she says.

All judges agreed that the case did not engage the ancillary powers doctrine, which is a common law rule used to determine if police actions that interfere with a person’s liberty are lawful when they’re not specifically authorized by statute. Here, there were no police powers to enter someone’s property for the purposes of investigating impaired driving, particularly as there was no immediate threat to safety.

“It’s important that they drew that line,” Lee says.

“As soon as you blur it, you get into a situation where that type of ancillary power would ultimately be recognized for any exercise of police powers. That would completely erode the privacy rights that are at the core of what the implied license still protects, but also your interactions with police in any circumstances.”

However, the Court did give police a backdoor with the imminent safety risk, Lee says. But it will be hard for police and Crowns to make that argument if someone is in their home.