In a split decision, the SCC nevertheless allowed the obtained evidence to be used in court
RCMP officers violated a man’s right to freedom from unreasonable search and seizure when they opened his truck door to investigate a drunk driving complaint, but the evidence the officers obtained is still admissible at trial, the Supreme Court of Canada ruled in a split decision on Friday.
A majority of the high court remitted the case, which concerns the limits of the so-called implied licence doctrine, back to the Saskatchewan Court of Appeal.
Justice Mahmud Jamal wrote the opinion for the majority. Justices Michelle O’Bonsawin and Mary Moreau authored a dissent. Justice Sheilah Martin wrote a second dissenting opinion.
The case dates back to 2019, when the RCMP received a complaint that a man, Wayne Singer, was driving drunk in the community of Big Island Lake Cree Nation, Saskatchewan, which has a population of approximately 800 people. Two RCMP officers were dispatched to investigate the complaint. They found Singer’s truck parked in a driveway. The truck’s engine was running, and the headlights were on.
One of the officers approached the truck and saw Singer in the driver’s seat, either asleep or passed out. She knocked on the door of the truck for a few minutes, but he didn’t respond. The officer then opened the truck door and smelled a strong odour of alcohol. She shook Singer awake and saw that his eyes were red and bloodshot.
The officers asked Singer to provide a roadside breath sample, which registered a “fail.” They arrested Singer and took him into custody, where he refused to provide further breath samples. Singer was charged with impaired driving and refusal to comply with a breath sample demand.
At trial, Singer argued that the police had violated his rights under s. 8 of the Charter, which guarantees freedom from unreasonable search or seizure, because they entered the driveway where his truck was parked without a warrant. The trial court rejected his arguments, and Singer was convicted.
The Saskatchewan Court of Appeal disagreed and acquitted Singer. The appellate court found that the police had breached his s. 8 rights and barred the evidence they obtained by opening the truck door from being used in court.
Writing for the high court majority, Jamal said he agreed that the RCMP officers breached Singer’s s. 8 rights. At trial, the Crown had argued that the police had an implied licence to enter the driveway and investigate the drunk driving complaint. The common law doctrine of implied licence authorizes all members of the public, including the police, to approach a home and knock on the door.
The Supreme Court affirmed this principle in a 1996 decision, R. v. Evans. In the 30 years since the ruling was released, courts across Canada have disagreed about the exact limits of the implied licence doctrine. For the Saskatchewan Court of Appeal and several other courts, a proper interpretation of Evans holds that the police exceed the scope of the implied licence whenever they approach a home to investigate and secure evidence against the occupant. Those courts also found that this conduct qualifies as a “search” under s. 8 of the Charter.
According to Jamal, the two RCMP officers had an implied licence to step into the driveway, approach Singer’s truck, and knock on the window. However, when they opened the truck door, they breached Singer’s right to be free from unreasonable search and seizure. By opening the door, they also conducted a search as defined in s. 8.
The Crown had argued that if the police did not have an implied licence to enter the driveway and open the truck door, they alternatively had the right to do so under a new ancillary police power to protect public safety.
However, Jamal said there was “no need” to recognize such a power, because a 2014 decision by the high court already recognizes the police’s common law power to conduct a “safety search” when they have reasonable grounds to believe that such a search is necessary to deal with a threat to the safety of the police or the public. In this case, the Crown did not provide any direct evidence that the RCMP officers were concerned for public safety when they found Singer in his car.
Still, the majority said it would allow the evidence the RCMP officers obtained to be used in court.
“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,” Jamal wrote, referring to the officers opening the truck door. “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.”
In their dissent, O’Bonsawin and Moreau – who were joined by Justice Andromache Karakatsanis – agreed that the officers violated s. 8 of the Charter, but did so when they entered the driveway.
The justices added that the “serious nature” of the violation and its impact on Singer’s privacy interests made it necessary to exclude all evidence that resulted from the officers’ s. 8 breach. They would have dismissed the Crown’s appeal.
Part of their reasons addressed how “over-policing” impacts Indigenous individuals and communities.
“On an individual level, this harm extends to sentiments of mistrust towards police officers and the criminal justice system, changes in behaviour to prevent recurring or negative attention, and the loss of dignity or self-esteem,” the justices wrote. “More broadly, over-policing perpetuates systemic discrimination and over-representation.
“With this context in mind, we conclude that the police officers’ conduct in entering a private driveway situated on a First Nation reserve without authority, late at night, surrounding and opening the truck doors to question the occupant, would have had a severe impact on the respondent as an Indigenous person.”
In her dissent, Martin agreed with O’Bonsawin and Moreau’s conclusion that the police infringed s. 8 and that the evidence should be excluded.
Like Jamal, O’Bonsawin, and Moreau, Martin said she would also have rejected the Crown’s request to recognize a new police power.
“This is not a proper case to recognize a new common law police power,” Martin wrote. “For one, I question whether the Crown has defined the police power it is requesting with sufficient precision. In its factum, the Crown variously describes the power as extending to ‘stepping on a driveway,’ ‘entering private property,’ and ‘step[ping] on a driveway or walk[ing] to the door of a residence.’
“However, given the conduct of police in this case, the proposed power would seemingly also include entry into enclosed spaces, such as the interior of a vehicle,” Martin added. “This lack of clarity makes it difficult to determine the extent to which the proposed power intrudes on individual liberty and, in turn, whether it is Charter compliant and ‘reasonably necessary’ to fulfill a police duty.”
Cory Giordano, a partner at Supreme Advocacy and one of the lawyers representing Singer, told Canadian Lawyer he welcomed the unanimous finding by all the justices that the police conduct breached Singer’s s. 8 rights. However, he noted that the majority and dissenting reasons disagree on whether the breach began when the police opened the truck door or when they entered the driveway.
Giordano argues that while the majority’s findings do not represent a “radical shift” since they’re grounded in the same principles as those articulated in R. v. Evans, “what seems to be different here is that notwithstanding the majority’s finding that entering property to secure evidence would exceed [implied] license, in this particular case, walking up to a vehicle ostensibly to gather information can be legitimate.”
In a statement, a spokesperson for the Saskatchewan Ministry of Justice and Attorney General said, "The Supreme Court resolved conflicting lines of authority and clarified the law governing the police’s ability to approach a residence to communicate with its occupants for investigative purposes. This issue had arisen repeatedly in Saskatchewan and is now settled."
Editor's Note: This story has been updated with a statement from the Saskatchewan Ministry of Justice and Attorney General. It has also been updated to reflect that Giordano does not necessarily disagree with the majority's finding on when the s. 8 breach began.
