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OTTAWA – On March 20, the Supreme Court of Canada released its decision in R v Singer, ruling 5-4 that homeowners extend an “implied license” to police to enter onto their property without warrants for investigative purposes. 

The “implied license” is an exception to the normal rule against trespass that assumes property owners extend permission to people to approach their doors to knock and communicate with the occupier, unless they’ve shown a clear intention otherwise. The implied license is based on social norms and customs that assume we waive our right to treat people as trespassers when they come onto our property for purposes such as delivering fliers or just dropping by for coffee.

The main question for the Supreme Court was whether the RCMP could rely on the implied license to enter onto a property for the purposes of furthering an investigation, rather than obtaining a warrant, without violating the right protected by section 8 of the Canadian Charter of Rights and Freedoms to be secure against unreasonable searches.

The case involved two RCMP officers who responded to a report of an intoxicated driver in Big Island Cree Nation, Saskatchewan. The officers saw a truck matching the description in a driveway, and entered onto the property. The officers did not have a warrant and did not have grounds for charges. One of the officers opened the truck’s door. Mr. Singer was in the truck sleeping, and they could smell alcohol. He was charged with impaired driving and refusing to comply with a demand to provide a breath sample.

The majority decision written by Justice Mahmud Jamal found that the RCMP could rely on the implied license to enter the property to investigate. Justice Jamal accepted many of the CCF’s arguments including that the implied license extends only to approaching the door to knock, not to opening the door, conducting random spot-checks or fishing expeditions, or going onto the property if their intention is to obtain evidence without a warrant. However, the majority rejected the CCF’s argument that, because the implied license is based on customary and widely understood social norms, it should only be recognized where it’s reasonable to infer the homeowner would extend their consent voluntarily, and this would not extend to investigative questioning. The dissent, written by Justices O’Bonsawin and Moreau, sided with the CCF on this point.

CCF Counsel Alexander Surgenor said it was “troubling” that the majority found implied license includes entering for investigative purposes such as these. 

“The result of this ruling is that police can now enter onto a residential property to, ostensibly, merely investigate even though their real intention is to furnish evidence against a particular person,” he said. 

“While impaired driving is dangerous, property rights matter too and it would not be particularly onerous for police to get a tele-warrant to confirm whether there are reasonable grounds before they enter onto the property,” he added.

CCF Interim Litigation Director Josh Dehaas said that he was pleased both the majority and dissent affirmed that the implied license is a limited exception to the trespass rule, but that it’s disappointing to see the Court extend the doctrine to police investigations.

“There is something illogical in suggesting a homeowner would license police to come onto their properties for the purposes of investigating whether or not they have committed a crime,” he said. “The result is that homeowners who wish to avoid police entering their property without warrants must now put up ‘No Trespassing’ signs.”

The CCF was represented in its intervention by François Tanguay-Renaud of Osgoode Hall Law School and Annamaria Enenajor of Ruby Shiller Enenajor.