TORONTO: The Canadian Constitution Foundation (CCF) has been granted leave to intervene in the Supreme Court case of R v Singer. The case is about the scope of police search powers, and in particular, the power to enter private property without a warrant under a doctrine called the “implied license.”
There is an implied license that police can approach a home for the purposes of communicating with the person inside, for example by knocking on the door. But the implied license is not so broad that it includes the right to enter private property to look around and collect evidence, as the police did in this case.
In 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 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 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 CCF has been granted leave to intervene on the scope of the implied license doctrine.
CCF Litigation Director Christine Van Geyn noted that tele-warrants are easily obtainable but the police in this case didn’t even ask for one.
“Police failed to use existing and readily available tools to conduct their search and are now retroactively relying on the narrow doctrine of the ‘implied license to knock’ to justify their warrantless search,” Van Geyn explained. “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. That is why we are intervening in this case.”
“The implied license only gives police the power to do what other members of the public can do,” Van Geyn added. “It would make no sense that there is an invitation for police to enter your property to collect evidence to use against you in the prosecution of a criminal offence. If anything, members of the public would object to people entering their property for the purpose of investigating and collecting evidence.”
CCF Executive Director, Joanna Baron said the CCF is intervening in this case to argue against broadening the scope of the ‘implied license’ beyond all recognition, and to ensure that police do not abuse this narrow common law tool.
“If we saw a stranger enter our driveway and walk up to our vehicle to peer into the windows, we would be concerned and we would likely demand that they leave, or even call the police,” Baron explained.
“There is no standing invitation to do such a thing, for either the public or the police,” continued Baron. “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.”
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.
The Canadian Constitution Foundation (CCF) is a registered charity, independent and non-partisan. We defend the constitutional rights and freedoms of Canadians in the courts of law and public opinion.
Christine Van Geyn
Litigation Director
Canadian Constitution Foundation
1-888-695-9105 x. 103
[email protected]
Josh Dehaas
Counsel
Canadian Constitution Foundation
1-888-695-9105 x. 104
[email protected]