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OTTAWA: The Canadian Constitution Foundation (CCF) will be appearing as an intervener at the Supreme Court of Canada on February 18 in the case R v Singer. The case is about the scope of the police powers, and in particular, the power to enter private property without a warrant under a doctrine called the “implied license.” 

The Supreme Court will broadcast a live webcast at 9:30 am February 18 here.

The CCF’s factum in this case can be found here.

In Singer, the police observed a vehicle parked on private property running. The property belonged to Mr. Singer. The police entered Mr. Singer’s private driveway without a warrant, walked up to his truck and looked in the window. Inside the truck, they saw Mr. Singer in the driver’s seat slumped over and unconscious. They knocked on the window and he did not respond, and they then opened the truck door and woke him up. Singer was given a breath test, which he failed, and was subsequently charged with impaired driving. 

The police have claimed they had an implied license to enter Mr. Singer’s property, look into his vehicle window, open the vehicle door, and then subsequently collect evidence to be used in a prosecution against him. The CCF will be arguing that the scope of the implied license does not extend so far.

The Saskatchewan Court of Appeal found that there was no implied license for the police to enter Mr. Singer’s private property for the purpose of furthering their investigation by collecting evidence. As a result, the Court found that there was a breach of the section 8 Charter right to be free from an unreasonable search, and excluded the evidence collected during the search. 

“The implied license needs to be clearly and narrowly defined so that police do not use it in a free-wheeling way to enter private property and collect evidence. Police conduct needs to comport with the constitution. If a search is unconstitutional, they cannot remedy that failing by expanding doctrines like the implied license to search. That is why we are intervening in this case,” said CCF Litigation Director, Christine Van Geyn.  

“The police in this case are seeking to broaden the scope of the ‘implied license’ beyond all recognition. Such an expansive approach to what should be a narrow and limited doctrine would open the common law tool of the ‘implied license’ to abuse by police,” continued Van Geyn. “We will be making arguments to ensure the police use the authority that is granted to them to conduct their investigations, and do not unduly expand this authority in ways that would violate the Charter,” added CCF Litigation Director Joanna Baron. 

The CCF is being represented in this case by lawyer Annamaria Enenajor of Ruby Shiller Enenajor and Professor François Tanguay-Renaud of Osgoode Hall Law School.