R v Singer, 2023 SKCA 123

Court of Appeal for Saskatchewan Docket: CACR3530 Citation: R v Singer , 2023 SKCA 123 Date: 2023-11-15 Between: Wayne Lester Singer Appellant And His Majesty the King Respondent Before: Schwann, Barrington-Foote and McCreary JJ.A. Disposition: Appeal allowed Written reasons by: The Court On appeal from: Provincial Court (Sask), Pierceland Appeal heard: September 8, 2022 Counsel: Ronald Piché for the Appellant Dean Sinclair, K.C. for the Respondent The Court I.

INTRODUCTION [ 1 ] On March 20, 2019, RCMP Constables Sandra Lapointe and Morgan Fisher found the appellant, Wayne Singer, asleep in the driver’s seat of a truck that was parked in the driveway of his residence at Big Island Lake. Having failed to wake him by knocking on the windows, they opened the doors of the truck and roused him from his sleep. As Mr. Singer exhibited signs of having consumed alcohol, he was asked to take a roadside breath test, which he failed. Thereafter, Cst. Lapointe advised Mr.

Singer that he was charged with having care and control of a motor vehicle with an excessive blood alcohol level and demanded that he provide a breath sample. Mr. Singer was transported to the local RCMP detachment, where he refused to provide a sample. [ 2 ] Mr. Singer was charged with failing or refusing to comply with a demand made by a peace officer under s. 320.27 or 320.28 of the Criminal Code and with operating a motor vehicle while his ability to do so was impaired by alcohol.

At his trial in the Provincial Court of Saskatchewan, he argued that his s. 8 Charter rights had been breached when the officers walked up the private driveway of his residence to his vehicle for the purpose of investigating a complaint of impaired driving. The trial judge concluded that there was no Charter violation and found Mr. Singer guilty of failing to provide a breath sample. The impaired driving charge was stayed. [ 3 ] Mr.

Singer has appealed his conviction, arguing that the trial judge erred by failing to find that his s. 8 Charter right to be secure against unreasonable search and seizure had been violated. He also contends that his right to a fair trial was prejudiced when the Crown’s sole witness was not excluded from the courtroom while Mr. Singer’s counsel made submissions to the court. [ 4 ] For the reasons that follow, we have concluded that Mr. Singer’s appeal should be allowed. II. FACTS [ 5 ] At approximately 11:00 p.m. on March 20, 2019, the RCMP received a call from a person who reported that Mr.

Singer was speeding while driving on Big Island Lake Cree Territory, and that she believed he might be driving while impaired because he sped off when she saw him. The complainant described Mr. Singer’s vehicle as a white single cab Ford truck. [ 6 ] Constables Lapointe and Fisher were dispatched to investigate, each in their own vehicles. Something more than an hour after the call was made to the police, Cst. Lapointe identified a vehicle matching the description provided by the caller, parked on the driveway of a private residence at the Big Island Lake Cree Nation townsite. She contacted Cst.

Fisher, who joined her at the residence. The officers could readily see the vehicle from the public road and observed that it was running with its lights on. They could not see anyone in the vehicle from the road. They did not know that Mr. Singer lived at the residence, but they knew that the driveway was private property. Constable Lapointe testified that she did not think of obtaining a tele-warrant because she was investigating an impaired driver. [ 7 ] The police approached the vehicle, which was parked a short distance from the road, by walking up the driveway.

Constable Lapointe testified that her purpose for entering the driveway was to investigate the impaired driving complaint. As they approached the vehicle, the police officers observed a man in the front seat on the driver’s side of the vehicle, lying down with his head toward the passenger door. He appeared to be asleep. Constable Lapointe knocked on the driver’s side window, but the man did not respond. She then opened the driver’s side door and immediately smelled a strong odour of liquor. Constable Fisher opened the passenger side door, but the man still did not wake up, so Cst.

Fisher shook him until he awoke. [ 8 ] Constable Lapointe testified that the man appeared sleepy, had red, bloodshot eyes, and had a strong odour of alcohol on his breath. She recognized him as Mr. Singer, whom she had met before. Mr. Singer’s speech was not slurred nor were there any observable issues with his fine motor skills. He did not ask the police officers to leave the property. [ 9 ] Constable Lapointe advised Mr.

Singer that she suspected he was in the care and control of a vehicle with alcohol in his body and that he would be required to provide a sample of his breath into an approved screening device [ASD]. Mr. Singer provided a roadside breath sample on the ASD and registered a fail. As a result, Cst. Lapointe arrested Mr. Singer at 12:24 a.m. for having care or control of a

motor vehicle with an excessive blood alcohol level. At 12:27 a.m., she read him a breath demand in the prescribed form. Thereafter, Mr.Singer was transported to the local RCMP detachment. After speaking to legal aid duty counsel by telephone from the detachment,Mr. Singer declined to provide a breath sample and was charged with refusal. [10] Prior to his trial, Mr. Singer filed a Charter notice, alleging a breach of his s. 8 Charter right to be secure against unreasonablesearch or seizure. [11] At trial, the Crown called Cst. Lapointe as its only witness. Just before she was to testify, Mr.

Singer’s lawyer stated that he hada “couple comments” about the Charter application. He asked if he could make those comments in the absence of Crown witnesses. Thetrial judge asked Crown counsel if his witnesses were excluded, and counsel replied that they were. With that, Mr. Singer’s lawyerreminded the trial judge that the onus was on the Crown to prove the lawfulness of the breath demand, which included the existence ofreasonable grounds to make the demand and the requirement for it to be made forthwith. [12] Crown counsel then called Cst.

Lapointe to testify, who, as it turned out, had been in the courtroom during defence counsel’ssubmissions. This was when Crown counsel’s error was identified. When asked for an explanation, Crown counsel said that hemisunderstood the court’s question and thought the trial judge had asked him if his witnesses were present. The trial judge noted for therecord, that despite the court’s inquiry, Cst. Lapointe was present when Mr. Singer’s counsel addressed the court. He stated that he would“see if … or when” that would become “an issue”.

The matter was not raised again by any of the trial participants, including the trialjudge. [13] At trial, Mr. Singer argued that the police had no implied licence to enter onto the driveway and that they should not haveentered his property without permission. It was his position that having failed to obtain permission, they were trespassers, their entry wasunlawful, and his Charter rights were violated. [14] The trial judge found that Mr. Singer had a subjective expectation of privacy.

He noted that the police had walked onto theentrance of a driveway, which was open to public view, that their intrusion was brief, and that they did not know it was Mr. Singer’sresidence when they entered.

He held that “[m]erely walking onto [a private driveway] with intent to conduct an investigation regardingthe vehicle and its driver, as opposed to the occupant of the residence … does not constitute a sufficient intrusion to be considered asearch”. [15] The trial judge also relied on the common law “implied licence” doctrine to enter private property on legitimate business, whichhe found extended to both the investigation and the “corollary” obligation “to protect the general public and their safety from potentialimpaired drivers”.

The trial judge grounded this conclusion on R v Kleven, 2019 SKQB 238, 445 CRR (2d) 141 [Kleven], R v Lotozky(2006), (ON CA), 210 CCC (3d) 509 (WL) (Ont CA) [Lotozky], and R v Soal (2005), (ON SC),14 MVR (5th) 256 (Ont Sup Ct), aff’d (2005), 19 MVR (5th) 176 (Ont CA). On that basis, he found as follows: … I find the officers entered onto the property on legitimate police business, and any interference with Mr. Singer’s property rights wasfleeting at best.

Having found there was no objectively reasonable expectation of privacy in this case, that ends the inquiry, and there is noneed to consider a remedy. … [16] The trial judge also concluded that if he had found there had been a breach of s. 8 of the Charter, he would not have excludedthe evidence under s. 24(2) because the Grant factors favoured its admission (see R v Grant, 2009 SCC 32, [2009] 2 SCR 353). III.

STANDARD OF REVIEW [17] Where it is alleged that a trial judge has erred by failing to find a violation of the Charter, two standards of review are engaged.The findings of fact underlying the trial judge’s decision are reviewable on the standard of palpable and overriding error: R v Côté, 2011SCC 46 at para 44, [2011] 3 SCR 215.

The question of whether the facts as found by the trial judge establish a violation of a Charter rightis a question of law, reviewable on a correctness standard: R v Le, 2019 SCC 34 at para 23, [2019] 2 SCR 692 [Le]; R v Kossick, 2018SKCA 55 at para 19, 365 CCC (3d) 186; and R v Lichtenwald, 2020 SKCA 70 at para 22, 388 CCC (3d) 377 [Lichtenwald]. IV. POSITIONS OF THE PARTIES [18] As in the court below, Mr. Singer contends on this appeal that his s. 8 Charter rights were breached from the momentCst.

Lapointe first entered his private property for the purpose of investigating the potential impaired driving incident. He submits that thisis so because he had a subjective expectation of privacy that was objectively reasonable in the circumstances. Indeed, he suggests that thefact he was in his vehicle on his private driveway and not inside his home is a red herring, as there is a reasonable expectation of privacyin either case. He notes that Cst. Lapointe obtained visual, auditory and olfactory clues about the impaired driving incident beinginvestigated as a result of this search. [19] Mr.

Singer also asserts that Cst. Lapointe’s entry onto private property was not justified by the implied licence to knock. Hecontends that there is no licence if an officer enters for the purpose of obtaining evidence in an ongoing criminal investigation.

Morespecifically, he relies on the reasoning in R v Rogers, 2016 SKCA 105, 341 CCC (3d) 502, leave to appeal to SCC refused, [Rogers], where Jackson J.A. concluded that the implied licence to knock did not extend to a situation where the police entered theproperty to knock on the door for the purpose of securing evidence against the occupant in an impaired driving investigation. [20] In response, the Crown submits that the trial judge’s reasoning reflects no reversible error in any respect.

It emphasizes that theissue is not whether the police were trespassers, but whether there was a search within the meaning of s. 8. It points out that the trial judgefound that everything occurred on a driveway that was open to public view, and that this conclusion is entitled to deference. It cites R vJohnson (1994), (BC CA), 4 MVR (3d) 283 (BCCA) [Johnson], for the proposition that a driveway leading to aresidence is an implied invitation to enter, and that as such, there is no reasonable expectation that people would not enter.

[21] The Crown disagrees with Mr. Singer as to the scope of the implied licence. It argues that R v Evans, (SCC),[1996] 1 SCR 8 [Evans], confirms that police have an implied licence to enter private property if they have a legitimate reason tocommunicate with the occupant, and that the investigation of a crime is such a legitimate reason. It asserts that here, unlike in Rogers, thepolice did not form an intention to investigate activities inside a residence before they entered the property, and that this is importantbecause there is a lesser expectation of privacy in a driveway than in a residence.

As to the fact that the officers had not simply walked upthe driveway – which it says could not constitute a search – but had tapped on the car window, opened the doors and awakened Mr.Singer, the Crown contends that Lotozky stands for the proposition that tapping on a vehicle window or asking a driver routine vehiclelicence or registration questions is not a search within the meaning of s. 8. [22] In its factum, the Crown summarized its submissions as follows: 38. In

summary, the s. 8 application was properly dismissed because:

a) the appellant did not have a reasonable expectation of privacy in adriveway that was open to public view;

b) the police did not conduct a search within the meaning of s. 8 before they obtained grounds tomake an approved screening device demand; and

c) the common law authorized the police to walk up the driveway to communicate withwhomever might be in the running motor vehicle. All of the officers’s [sic] material observations were made as they attempted tocommunicate with the appellant. The appellant did not have any reasonable expectation of privacy at stake and even if he did, the intrusionwas brief and minimal. The appellant has failed to demonstrate the trial judge erred in law by concluding there was no violation of s. 8. V. ANALYSIS A. The legal framework:

Section 8 of the Charter, the implied licence to enterprivate property and ancillary police powers [23] This appeal is concerned with whether the trial judge erred in determining that Mr. Singer’s s. 8 Charter right to be free fromunreasonable search and seizure had not been violated. We will accordingly begin with a brief overview of the analytical framework thatapplies when deciding whether such a breach has occurred.

As Bastarache J. explained in R v Law, 2002 SCC 10, [2002] 1 SCR 227, s. 8protects privacy interests: [15] It has long been held that the principal purpose of s. 8 of the Charter is to protect an accused’s privacy interests againstunreasonable intrusion by the State. Accordingly, police conduct interfering with a reasonable expectation of privacy is said to constitute a“search” within the meaning of the provision: Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, R. v.

Edwards, (SCC), [1996] 1 S.C.R. 128. … [24] Given this purpose, state conduct that does not interfere with a reasonable expectation of privacy is not subject to constitutionalscrutiny under s. 8. Accordingly, a court tasked with determining if a breach of s. 8 of the Charter has occurred must first decide whetherthe accused had a reasonable expectation of privacy.

As Dickson J. (as he then was) wrote in Hunter v Southam Inc., (SCC), [1984] 2 SCR 145 at 159–160, “an assessment must be made as to whether in a particular situation the public’s interest in beingleft alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals,notably those of law enforcement”. This assessment turns on the totality of the circumstances: R v Edwards, (SCC),[1996] 1 SCR 128 at para 31. As James A.

Fontana and David Keeshan explain in The Law of Search and Seizure in Canada, 12th ed(Toronto: LexisNexis, 2021) at 1(2)(a) – citing Edwards; R v Tessling, 2004 SCC 67 at para 32, [2004] 3 SCR 432 [Tessling]; R v Patrick,2009 SCC 17 at para 27, [2009] 1 SCR 579; R v Cole, 2012 SCC 53 at para 40, [2012] 3 SCR 34; R v Spencer, 2014 SCC 43 at para 18,[2014] 2 SCR 212; and R v Marakah, 2017 SCC 59 at para 11, [2017] 2 SCR 608 – this involves four lines of inquiry, as follows: As set out in Edwards, therefore, a reasonable expectation of privacy has both a subjective and objective element.

An individual must firstsubjectively hold an expectation of privacy in a place or thing in order for s. 8 to be engaged. At the same time, however, that expectationmust be objectively reasonable. More recently, in this regard, the court has grouped the factors enunciated above in R. v.

Edwards underthe following four headings: (1) the subject-matter of the alleged search; (2) the claimant’s interest in the subject-matter; (3) the claimant’s subjective expectation of privacy in the subject-matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.

Indetermining this, the court must consider factors such as: a. the place where the alleged “search” occurred; in particular, did the police trespass on the appellant’s property and, if so, what is theimpact of such a finding on the privacy analysis? b. whether the informational content of the subject-matter was in public view; c. whether the informational content of the subject-matter had been abandoned; d. whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality? e. whether the police technique was intrusive in relation to the privacy interest; f. whether the use of this evidence-gathering technique was itself objectively unreasonable; g. whether the informational content exposed any intimate details of the appellant’s lifestyle, or information of a biographic nature.

(Footnotes omitted) [25] In this case, the application of the implied licence to enter private property is also at issue. Justice Sopinka explained the natureand scope of that licence in his majority reasons in Evans, as follows: [13] I agree with Major J. [in his concurring reasons in this case] that the common law has long recognized an implied licence for allmembers of the public, including police, to approach the door of a residence and knock. As the Ontario Court of Appeal recently stated inR. v.

Tricker (1995), (ON CA), 21 O.R. (3d) 575, at p. 579: The law is clear that the occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimatebusiness to come on to the property. The implied licence ends at the door of the dwelling. This proposition was laid down by the EnglishCourt of Appeal in Robson v. Hallett, [1967] 2 All E.R. 407, [1967] 2 Q.B. 939. As a result, the occupier of a residential dwelling is deemed to grant the public permission to approach the door and knock.

Where thepolice act in accordance with this implied invitation, they cannot be said to intrude upon the privacy of the occupant. The impliedinvitation, unless rebutted by a clear expression of intent, effectively waives the privacy interest that an individual might otherwise have inthe approach to the door of his or her dwelling. (Emphasis added) [26] Here, the key issue that arises is as to the terms of the implied licence, and in particular, the scope of the police activities thatare authorized by the invitation.

In Evans, Sopinka J. answered this question in the context of the implied licence to knock: [14] If one views the invitation to knock as a waiver of the occupier’s expectation of privacy in the approach to his or her home, itbecomes necessary to determine the terms of that waiver. Clearly, under the “implied licence to knock”, the occupier of a home may betaken to authorize certain persons to approach his or her home for certain purposes. However, this does not imply that all persons arewelcome to approach the home regardless of the purpose of their visit.

For example, it would be ludicrous to argue that the invitation toknock invites a burglar to approach the door in order to “case” the house. The waiver of privacy interests that is entailed by the invitationto knock cannot be taken to go that far. [15] In determining the scope of activities that are authorized by the implied invitation to knock, it is important to bear in mind thepurpose of the implied invitation. According to the British Columbia Court of Appeal in R. v.

Bushman (1968), (BCCA), 4 C.R.N.S. 13, the purpose of the implied invitation is to facilitate communication between the public and the occupant. As theCourt in Bushman stated, at p. 19: The purpose of the implied leave and licence to proceed from the street to the door of a house possessed by a police officer who has lawfulbusiness with the occupant of the house is to enable the police officer to reach a point in relation to the house where he can convenientlyand in a normal manner communicate with the occupant. I agree with this statement of the law.

In my view, the implied invitation to knock extends no further than is required to permit convenientcommunication with the occupant of the dwelling. The “waiver” of privacy rights embodied in the implied invitation extends no furtherthan is required to effect this purpose. As a result, only those activities that are reasonably associated with the purpose of communicatingwith the occupant are authorized by the “implied licence to knock”.

Where the conduct of the police (or any member of the public) goesbeyond that which is permitted by the implied licence to knock, the implied “conditions” of that licence have effectively been breached,and the person carrying out the unauthorized activity approaches the dwelling as an intruder. (Italicized emphasis in original; underlined emphasis added) [27] This passage makes several points that bear emphasis in the context of this case. The implied licence to knock is a subset of theimplied licence to enter private property on legitimate business.

It authorizes the person who has entered the property only to approach thedoor and knock. A person approaching the door to “case” the residence, whether by looking for useful information or by asking theoccupant questions, is not there on legitimate business. They are a trespasser. The same is true of a police officer who approaches the doorfor the purpose of gathering evidence against the occupant. As Sopinka J. explained: [16] … Clearly, occupiers of a dwelling cannot be presumed to invite the police (or anyone else) to approach their home for thepurpose of substantiating a criminal charge against them.

Any “waiver” of privacy rights that can be implied through the “invitation toknock” simply fails to extend that far. As a result, where the agents of the state approach a dwelling with the intention of gatheringevidence against the occupant, the police have exceeded any authority that is implied by the invitation to knock. [28] In Evans, the police had approached the door for two reasons – to communicate with the occupants, but also with the subsidiaryand improper purpose of attempting to collect evidence against the occupant by attempting to smell marijuana.

For that reason, they werefound to have exceeded the implied licence. [29] This principle – that the purpose of the entry onto property in the context of a criminal investigation determines whether it iswithin the scope of the implied invitation – was affirmed in Rogers. In that case, the police had received a complaint regarding apotentially intoxicated driver who had hit a vehicle and fled the scene. A licence plate number was provided, and the police attended to theaddress shown on the registration for the vehicle, which was Mr. Rogers’ apartment.

The investigating officer knocked on the apartmentdoor and when Mr. Rogers opened the door, the officer formed the opinion – through observing Mr. Rogers – that he was impaired,thereby obtaining grounds for the impaired driving arrest. [30] This Court rejected the Crown’s argument that the officer was permitted to rely on the implied invitation to knock to justifyaccessing Mr. Rogers’ private residence. This was because the trial judge had made a factual finding that the officer had knocked on Mr.Rogers’ door with the intention of gathering evidence against him.

Justice Jackson agreed with the Crown “that the police do not exceedthe implied licence to knock simply because they are intent on investigating a potential criminal offence” and that “a police officer who islooking for information or evidence about a suspected offence, or even about an actual offence, which the police officer has reasonable

grounds to believe has been committed, is not conducting a ‘search’ for s. 8 purposes for that reason alone” (at para 27). However, she didnot agree that this meant they could knock for the purpose of gathering evidence about the occupant’s sobriety, finding as follows: [29] The investigation of the crime of drinking and driving, or a similar offence, necessarily entails the potential to obtain evidencefrom conversing with or observing the person answering the door.

Nonetheless, based on my review of the authorities, I have concludedthat if a trial judge finds on all of the evidence a police officer knocked on the door to a residence for the purpose of securing evidenceagainst the occupant, the officer is conducting a search within the meaning of s. 8 of the Charter. This principle applies equally todrinking and driving offences as well as to other offences where observing the person opening the door will give visual, auditory andolfactory clues about the person’s participation in the crime under investigation.

Evans remains the leading authority on point, and nothingin the jurisprudence extends the principles articulated by the majority in that decision as far as Crown counsel suggests. (Emphasis in original) [31] This reasoning was applied in R v Moyles, 2019 SKCA 72, [2019] 12 WWR 416 [Moyles]. There, a police officer posing as adelivery driver had delivered a box containing a monitoring device and a controlled substance to a house, in the hopes that it would beopened by Mr. Moyles, who they believed was living there, or by another occupant of the residence.

The purpose was to gather evidenceas to the identity of the person that ordered the substance. Justice Barrington-Foote noted that, in Rogers at paragraph 29, Jackson J.A. hadconfirmed that “if a police officer knocks on the door of a residence for the purpose of securing evidence against the occupant, they areconducting a search within the meaning of s. 8 of the Charter” and that this principle “was affirmed by Moldaver J. in his dissentingopinion (but not on this point) in R v Le, 2019 SCC 34 at para 212” (at para 50).

He then found as follows: [53] … [T]he police were delivering the very boxes that contained the imported GBL [gamma-butyrolactone] to the address listed onthe packing slips, one of the direct purposes of the transaction at the doorstep was to gather evidence as to the identity of the person whoordered the GBL. The undercover officer asked for identification and a signature. As instructed, he promptly handed that evidence to hisliaison officer after he delivered the boxes.

All of that was a step in investigating an occupant of the house. [54] The Crown bears the burden of demonstrating a warrantless search is authorized by a reasonable law and carried out in areasonable manner: R v Mann, 2004 SCC 52 at para 36, [2004] 3 SCR 59. In this case, that reasonable law was the implied licence toknock, which did not apply. That being so, the controlled delivery was an unreasonable search which breached Mr. Moyles’s s. 8 Charterright to be secure against unreasonable search or seizure. [32] Rogers was also applied in R v Peequaquat, 2020 SKQB 2, 55 MVR (7th) 21 [Peequaquat QB].

In that case, police officers hadreceived a report of a possible impaired driver and attended at the address of the registered owner of the vehicle. An officer located thevehicle in a driveway in the backyard and, together with another officer, entered the property. They observed two people sitting in theparked vehicle. One of the officers opened the driver’s door and detained Mr. Peequaquat for an impaired driving investigation. He wassubsequently arrested and charged. [33] A judge of the Provincial Court of Saskatchewan found that Mr.

Peequaquat had a reasonable expectation of privacy whilesitting in his vehicle on the driveway outside his house, and that the officers had interfered with his privacy when they entered theproperty and approached him to obtain evidence for an impaired driving investigation: R v Peequaquat, 2018 SKPC 16, 410 CRR (2d) 183[Peequaquat PC]. The Crown appealed to the Court of Queen’s Bench. Justice Tochor denied the appeal, finding as follows: [24] In finding a Charter breach, the trial judge relied upon Rogers and [R v Klevin, 2017 SKPC 4, 375 CRR (2d) 1].

The Crownsought to distinguish the ruling in Rogers on the basis it applied to a dwelling house, not a parked car on a driveway. However, ascarefully enunciated by the trial judge in his decision at paras. 42-57, a person’s interest in privacy begins at the entrance to their property,not at the entrance to their home. The trial judge accepted a person’s privacy interest while in his driveway may not be as high as hisprivacy interest while in his home, but concluded the privacy interest is still significant enough to constitute an objectively reasonableexpectation of privacy.

I can find no error in the trial judge’s analysis in this regard. [34] He also dismissed the appeal of the trial judge’s decision to exclude the evidence obtained by the police as a result of theunlawful search under s. 24(2) of the Charter. [35] We note that in R v LeClaire, 2005 NSCA 165 at para 34, 208 CCC (3d) 559, the Nova Scotia Court of Appeal drew the samedistinction, finding that the conduct of the police did not amount to a search within the meaning of s. 8 of the Charter “because theirpurpose when they went onto the property of the appellant was to investigate the commission of an offence, not to specifically gatherevidence to use against the appellant”. [36] These cases confirm the significance of the purpose of the police entry onto private property where the issue is the impliedlicence doctrine.

As Sopinka J. explained in Evans, a police officer who is approaching the door of a residence for the purpose ofgathering evidence against the occupant is an intruder. That is so because an unlawful search is not lawful police business.

The fact thatthey have entered to investigate a crime does not save the day if they intend to investigate in that prohibited manner. [37] Further, if the implied licence did not authorize the police entry – absent any justification based on statutory authority or policeancillary powers – the police are trespassers as soon as they enter the private property: Le at paras 124–126 and 211.

As Brown andMartin JJ. commented in Le, which dealt with a warrantless police entry into a backyard, “[t]he conclusion that the police officers weretrespassing is clearly relevant under s. 8, as it nullifies any ‘consent’ to the police entry” (at para 128). Put differently, while a policeofficer who is a trespasser is not necessarily conducting a search within the meaning of s. 8, the fact they are a trespasser is relevant whendetermining whether there is a reasonable expectation of privacy. [38] In Mr.

Singer’s case, there was no evidence that the police entered for the purpose of approaching the residence to knock.However, the implied licence is not limited to the licence to knock. In Evans, Sopinka J. adopted the following statement of the law fromR v Tricker (1995), (ON CA), 96 CCC (3d) 198 at 203 (Ont CA) [Tricker]: “The law is clear that the occupier of adwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property.The implied licence ends at the door of the dwelling” (Evans at 6; see also para 30).

There is, in particular, an implied licence to enter an

uncontrolled driveway on private property in certain circumstances. It is clear, for example, that a person who parks in a driveway for thepurpose of conducting legitimate business on the property – such as a meter reader or a courier – would have an implied licence to do so.A police officer would also have an implied licence in some situations. [39] Lotozky demonstrates this principle in the context of a criminal investigation. There, the police had received a call that animpaired driver had been attempting to use the drive-through window of a local restaurant.

The officers matched the licence plate to anaddress and arrived at that address before Mr. Lotozky. They watched him approach, observing that he was driving oddly. He parked inthe driveway, at which time the police approached, attended at the driver’s side window of his vehicle, and knocked. Mr. Lotozky got outof the car and an officer asked to see his licence, ownership and insurance. They observed signs of impairment and arrested him forimpaired driving. [40] The trial judge and the

summary conviction appeal judge found that the officers were not entitled to walk up the drivewayattached to the dwelling house to investigate. The Ontario Court of Appeal allowed the Crown’s appeal, finding that the entry was lawfulas there was a legitimate basis to enter. Justice Rosenberg explained that conclusion as follows: [35] The fact that the police officer intends to pursue an investigation on the driveway, at least if the investigation relates to a motorvehicle, does not in my view exceed the bounds of the implied invitation, provided that the officer has a legitimate basis for entering onthe driveway.

Interpreting the common law in this way is, in my view, consistent with the broader principle identified by Sharpe J.A. [in Rv Mulligan (2000), (ON CA), 142 CCC (3d) 14 (Ont CA)] that licences may arise by implication from the nature of theuse to which the owner puts the property. As I have said, the use to which this property is put is to park motor vehicles and it is an area ofthe property that is open to public view. [36] The officers in this case had a legitimate basis for entering on the driveway. They had received a report that the driver of the carassociated with the address was apparently impaired.

The driver drove the vehicle in an unusual fashion as he approached the driveway.The officers would have been entitled to stop the vehicle on the street under s. 48(1) of the Highway Traffic Act [RSO 1990, c H.8]. Forreasons of safety, they waited until the motorist had brought the vehicle safely to a stop. This was a reasonable decision to make.

It makesno sense that because the officers exercised a reasonable degree of caution their actions should be characterized as illegitimate. (Emphasis added; footnotes omitted) [41] Justice Rosenberg noted that there were other reasons to find that the entry was within the scope of the implied licence. Heobserved that motorists should not be encouraged to head for home to avoid a legitimate investigation and that until an impaired drivingcomplaint is investigated, there is a risk that the driver may re-enter the vehicle and drive again.

In his view, it would not be reasonable toexpect police to wait for the motorist to return to the street. [42] In the result, he found that the officers were lawfully on the driveway in accordance with the implied invitation. [43] Other courts have also found that there is an implied licence to enter a driveway to investigate in certain circumstances: see, forexample, Tricker and Johnson.

However, that does not mean that there is an invitation to enter a driveway – any more than that there is aninvitation to enter a sidewalk leading to a residence – for the purpose of conversing with and observing the occupant to gather evidencethat they are impaired. There is no principled basis to conclude otherwise.

Why would an occupant of private property be presumed tohave invited the police to enter the driveway for that purpose? [44] We also note, by way of analogy, the analysis in R v Mulligan (2000), (ON CA), 142 CCC (3d) 14(Ont CA) [Mulligan], which dealt with the implied licence to enter private property where the police officer suspects a crime may be inprogress. In that case, a police officer saw a pickup truck parked outside an isolated commercial establishment late at night. He suspecteda break-in or theft and drove onto the property to investigate.

The truck was in a parking area that was open to the public, adjacent to thebuilding, with its engine running. Mr. Mulligan, the owner of the property, got out of the truck and approached the officer, who detected astrong odour of alcohol. Mr. Mulligan was arrested and, after speaking to duty counsel, finally provided a sample of his breath thatindicated a blood alcohol content in excess of the prescribed limit. [45] The trial judge concluded that there was no unreasonable search contrary to s. 8 of the Charter, as the police officer’s entryonto the property was authorized by the implied invitation. The

summary conviction appeal judge upheld that decision. The Ontario Courtof Appeal defined the issue on this aspect of the appeal as follows: [22] In the circumstances of this case, to determine whether the conduct of the officer amounted to a search within the meaning of s. 8of the Charter, the matter is to be considered from two perspectives. First is the question of the purpose of the officer when he went ontothe property of the appellant. Second is the question of whether, in light of his purpose, the officer’s activity invaded the appellant’sreasonable expectation of privacy.

Related to both inquiries is the issue of implied licence or implied invitation. [46] In addressing these issues, Sharpe J.A. observed that “[l]icences may arise at common law by implication from the nature of theuse to which the owner puts the property”. He found that “the implied invitation principle extends to situations where the very purpose ofentry is to protect the interests of the property owner or occupant, particularly where the entry occurs on an area of the property to whichall members of the public ordinarily have access to do business with the property owner” (at para 24).

As he saw it, “[i]n an area of thelaw touching police investigative powers, it is in the interests of the public at large, property owners and the police, to have a more certainand coherent legal framework. In my view, that framework is offered by the implied invitation” (at para 25). [47] Justice Sharpe also emphasized that strict limits should be imposed on such licences, commenting as follows: [27] As with all police investigative powers, this licence must be strictly curtailed to avoid the risk of abuse.

The officer must have abona fide belief that gives rise to a reasonable suspicion of criminal activity being perpetrated against the owner or occupant or theproperty. The police officer must be able to demonstrate an objective basis in fact that gives rise to his suspicion. To borrow the languageof Doherty J.A. in R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont.

C.A.) at 500-501, discussing the commonlaw power to detain a suspect for questioning, there must be some “articulable cause” above the level of a mere “hunch”, “a constellationof objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in

the activity under investigation.” [48] In Mulligan, the trial judge had concluded that the police officer’s purpose was to investigate the potential theft. The officer didnot intend to investigate criminal activity by the owner or to secure evidence against him. The communication with Mr. Mulligan was forthe purpose of determining if that suspicion of theft was well-founded.

Based on those facts, Sharpe J.A. found that “the officer’s purposebrought him squarely within the ambit of the implied invitation or licence” (at para 31) and, in turn, it followed that, “given his purpose,the police officer did not invade the appellant’s reasonable expectation of privacy and that s. 8 is therefore not engaged” (at para 33,emphasis added). He summarized his conclusions as follows: [36] I conclude, accordingly, that the officer was entitled to enter on the property of the appellant and that the officer’s conduct did notamount to a search within the meaning of s. 8 of the Charter.

I wish to emphasize that the circumstances of the present case are plainlydistinguishable from those involving investigative techniques to obtain evidence to incriminate the occupant of a dwelling. Even perimetersearches on private property will infringe the rights protected by s. 8 where the purpose of the search is to obtain incriminating evidenceagainst the occupant: See R. v. Kokesch (1990), (SCC), 61 C.C.C. (3d) 207 (S.C.C.), and R. v. Laurin (1997), (ON CA), 113 C.C.C. (3d) 519 (Ont.

C.A.). [49] The Ontario Court of Appeal’s decision in R v McColman, 2021 ONCA 382, 407 CCC (3d) 341 [McColman CA], is also ofinterest. That decision was concerned with a police stop of Mr. McColman, who had just exited the street and stopped in his parents’driveway, to check for signs of impairment. The police observed signs of intoxication and proceeded to arrest and subsequently chargeMr. McColman with impaired operation of a motor vehicle and operating a motor vehicle while “over 80” pursuant to ss. 253(1)(

a) and253(1)(b) (since repealed) of the Criminal Code (at para 2). He was convicted on both counts. [50] On appeal, the

summary conviction appeal judge overturned the s. 253(1)(

b) conviction. They found that the trial judge erredin law by concluding that the stop was authorized under s. 48(1) of the Highway Traffic Act, RSO 1990, c H.8 [HTA]. They held that thestop was unlawful, breaching Mr. McColman’s right not to be arbitrarily detained under s. 9 of the Charter. On that basis, the

summaryconviction appeal judge excluded the evidence under s. 24(2) of the Charter and entered an acquittal. The Crown appealed that acquittaland the remedy to the Ontario Court of Appeal. [51] In McColman CA, the majority held that the police did not have the authority to conduct a stop on private property where theyhad no reason to suspect that the person had been drinking.

They found that the authority to conduct random stops pursuant to s. 48(1) ofthe HTA did not authorize a stop on private property, as it applied only to stops on a “highway” by a “driver” as defined in the HTA (seeMcColman CA at paras 27–28). The majority also addressed the question of whether the police conduct was authorized by the commonlaw, which arises in Mr. Singer’s case.

More specifically, Tulloch J.A. (as he then was) posed this question: [48] The question at issue in this appeal is whether the common law authorizes the police to conduct a random sobriety check on aprivate driveway, in circumstances not authorized by the HTA, where the person exited the highway after the officer decided to conductthe stop but before the officer initiated the stop, and there are no grounds to suspect that an offence has been or is about to be committed. [52] In answering this question, Tulloch J.A. relied on the reasoning in Fleming v Ontario, 2019 SCC 45, [2009] 3 SCR 45[Fleming], where the Supreme Court of Canada reiterated the test to be applied where the question is whether the common law authorizespolice action that interferes with individual liberty.

In Fleming, Côté J. began her analysis with the following general observation relatingto ancillary police powers: [38] The police, in fulfilling the important duties they are tasked with in a free and democratic society, are sometimes required tointerfere with the liberty of individuals.

This is a fact that legislatures and courts in common law jurisdictions have long recognized.However, the rule of law requires that strict limits be placed on police powers in this regard in order to safeguard individual liberties. … [53] As Côté J. explained, “[t]o determine whether a particular police action that interferes with individual liberty is authorized atcommon law, this Court applies the framework that was originally set out in Waterfield” (at para 43, citing R v Waterfield (1963), [1964] 1QB 164).

She summarized this framework as follows: [45] The basis of the doctrine is that police actions that interfere with individual liberty are permitted at common law if they areancillary to the fulfillment of recognized police duties. Intrusions on liberty are accepted if they are reasonably necessary — in accordancewith the test set out below — in order for the police to fulfill their duties. [46] At the preliminary step of the analysis, the court must clearly define the police power that is being asserted and the libertyinterests that are at stake (Figueiras v.

Toronto Police Services Board, 2015 ONCA 208, 124 O.R. (3d) 641, at paras. 55-66). The ancillarypowers doctrine comes into play where the power in issue involves prima facie interference with liberty. The term “liberty” hereencompasses both constitutional rights and freedoms and traditional common law civil liberties (see [R v Clayton, 2007 SCC 32, [2007] 2SCR 725], at para. 59; [Figueiras v Toronto Police Services Board, 2015 ONCA 208, 124 OR (3d) 641], at para. 49). Once the policepower and the liberty interests have been defined, the analysis proceeds in two stages:

(1) Does the police action at issue fall within the general scope of a statutory or common law police duty?

(2) Does the action involve a justifiable exercise of police powers associated with that duty? (R. v. MacDonald, 2014 SCC 3, [2014] 1S.C.R. 37, at paras. 35-36; Reeves, at para. 78) [47] At the second stage of the analysis, the court must ask whether the police action is reasonably necessary for the fulfillment of theduty (MacDonald, at para. 36).

As this Court stated in [R v Dedman, (SCC), [1985] 2 SCR 2]: The interference withliberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of theliberty interfered with and the importance of the public purpose served by the interference. [p. 35] In MacDonald, the majority of theCourt set out three factors to be weighed in answering this question: 1. the importance of the performance of the duty to the public good;

2. the necessity of the interference with individual liberty for the performance of the duty; and 3. the extent of the interference with individual liberty. [para. 37; citations omitted.] [48] Throughout the analysis, the onus is always on the state to justify the existence of common law police powers that involveinterference with liberty. [54] The majority applied the ancillary powers doctrine test in McColman CA.

Justice Tulloch held that while “[d]riving onhighways is a highly regulated activity, and drivers expect that the rules of the road will be enforced [but that] at home, the individual hasno expectation that the police, without any suspicion of wrongdoing or any particular safety concerns, may enter onto their driveway andarbitrarily detain them” (at para 62). On that basis, he concluded that the asserted police power represented a prima facie interference withthe liberty interest in individual autonomy, including the power to walk away from the police.

He noted that the context of this libertyinterest was particularly significant in the circumstances of Mr. McColman’s case, as it involved “limiting the freedom of individuals tomove about freely on their own driveways” (at para 60). As he observed: [61] … I am satisfied that an individual has greater liberty to do as they wish at home than they do on a public highway. This libertymust be considered against the backdrop of one’s reasonable expectation of privacy on their own private property.

This privacy interesthas long been considered paramount, with roots tracing back to the provenance of the common law: see Semayne’s Case (1604), 77 E.R.194, and R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 13-16, 22. [55] Justice Tulloch acknowledged that pursuing impaired drivers from the highway onto private property to conduct randomsobriety checks was related to the police power to prevent crime and protect life and property.

However, he found that, while it is clearlyimportant to the public good to pursue innovative strategies to address the serious problem of impaired driving, “the Crown has not met itsonus of demonstrating that pursuing and detaining an individual on their own private property without any suspicion of wrongdoing isreasonable or necessary to pursue this objective” (at para 66).

As he explained: [68] Considered in light of the powers the police already have at their disposal to combat impaired driving, and the greater intrusion onliberty posed by stops on private property, I cannot conclude that the power to conduct a groundless stop on private property is reasonablynecessary. The police have extensive powers to combat impaired driving, and it is difficult to see the need for the courts to fill a legislativegap in this respect. The police can conduct a random stop under s. 48(1) [of the HTA] as soon as the vehicle enters the highway.

They alsohave the option to observe the driver without detaining them, and based on those observations, develop a reasonable suspicion that wouldgive them a basis to detain. [56] Having found that the police lacked the authority to conduct the random stop pursuant to statute or the ancillary powersdoctrine, Tulloch J.A. held that they had breached Mr. McColman’s Charter rights.

He also concluded that the evidence obtained as aresult of this breach should be excluded pursuant to s. 24(2) of the Charter and that the appeal of the acquittal should accordingly bedenied. [57] McColman CA is also of interest in that Tulloch J.A. observed that in Lotozky, Rosenberg J.A. “held that police officers whohave reasonable grounds to suspect that a motorist is impaired are entitled to walk up a driveway to further their investigation” (at para41, emphasis in original).

This statement was made in response to the Crown’s argument in that case that Lotozky supported its assertionthat the court should interpret the HTA to permit a random stop on private land. We note, by analogy, the Crown’s suggestion in this casethat Lotozky confirms the common law authority of police to do exactly what the police did here – that is, to enter to investigate in themanner the officer did, despite there being no suggestion that the police had reasonable grounds. Put another way, the police did not havereasonable grounds to suspect that Mr.

Singer was impaired until they opened the door of his truck. [58] The Supreme Court of Canada agreed with the majority in McColman CA that the stop was not authorized under s. 48(1) of theHTA: R v McColman, 2023 SCC 8, 478 DLR (4th) 577 [McColman SC]. It did not grant leave to appeal on the issue of whether the policehad the common law authority to conduct the stop: . B. The trial judge erred in finding that Mr. Singer had no reasonableexpectation of privacy and that his s. 8 Charter rights were not breached [59] Turning now to the application of these principles to Mr. Singer’s case, we do not agree with Mr.

Singer that the fact he was ina vehicle rather than a dwelling house is a red herring, if by that he means it is not relevant. In general, a person has a lesser expectation ofprivacy in a motor vehicle than in their residence. That point was made by Cory J. in R v Wise, (SCC), [1992] 1 SCR 527at 534 [Wise]: Society then requires and expects protection from drunken drivers, speeding drivers and dangerous drivers. A reasonable level ofsurveillance of each and every motor vehicle is readily accepted, indeed demanded, by society to obtain this protection.

All this is set outto emphasize that, although there remains an expectation of privacy in automobile travel, it is markedly decreased relative to theexpectation of privacy in one’s home or office. [60] This reasoning is consistent with the principle that there is a hierarchy in relation to territorial privacy, a concept that wasexplained by Binnie J. in Tessling: [22] The original notion of territorial privacy (“the house of everyone is to him as his castle and fortress”: Semayne’s Case,[1558-1774] All E.R.

Rep. 62 (1604), at p. 63) developed into a more nuanced hierarchy protecting privacy in the home, being the placewhere our most intimate and private activities are most likely to take place (Evans, supra, at para. 42; R. v. Silveira, (SCC), [1995] 2 S.C.R. 297, at para. 140, per Cory J.: “[t]here is no place on earth where persons can have a greater expectation ofprivacy than within their ‘dwellinghouse’”; R. v. Feeney, (SCC), [1997] 2 S.C.R. 13, at para. 43), in diluted measure, inthe perimeter space around the home (R. v. Kokesch, (SCC), [1990] 3 S.C.R. 3; R. v.

Grant, (SCC),[1993] 3 S.C.R. 223, at pp. 237 and 241; R. v. Wiley, (SCC), [1993] 3 S.C.R. 263, at p. 273), in commercial space

(Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), (SCC), [1990] 1 S.C.R. 425, at pp. 517-19; R. v. McKinlay Transport Ltd., (SCC), [1990] 1 S.C.R. 627, at pp. 641 etseq.), in private cars (Wise, supra, at p. 533; R. v. Mellenthin, (SCC), [1992] 3 S.C.R. 615), in a school (R. v. M. (M.R.), (SCC), [1998] 3 S.C.R. 393, at para. 32), and even, at the bottom of the spectrum, a prison (Weatherall v. Canada(Attorney General), (SCC), [1993] 2 S.C.R. 872, at p. 877).

Such a hierarchy of places does not contradict the underlyingprinciple that s. 8 protects “people, not places”, but uses the notion of place as an analytical tool to evaluate the reasonableness of aperson’s expectation of privacy. (Emphasis in original) [61] Here, however, Mr. Singer was not simply in a vehicle. He was in his vehicle, parked in the driveway of his residence. Thedecreased expectation of privacy associated with automobile travel referred to in Wise was not in play. The doors of the truck were closedand while his vehicle was in public view, he was not.

Although it is possible that he might have been observed by a person walking pastthe truck who had accessed the driveway for a legitimate purpose, that does not mean he could not have a reasonable expectation ofprivacy. As Major J. commented in Evans: [42] … A reasonable expectation of privacy does not encompass complete and total insulation from acquaintances, salespeople,strangers who need assistance, or police officers conducting an investigation.

All of these people are entitled to seek permission to enter orto speak to the residents of a dwelling house by knocking at the door, as is anyone with a legal and legitimate purpose. Obviously, theresidents of the home may refuse permission. They retain a full measure of choice and control over who may enter and who may not,whom they will speak to and whom they will ignore. They may also choose to revoke this implied licence explicitly, for example byinstalling a locked gate at the entrance to the property, or posting signs to that effect. [62] The Crown argues that the invitation to knock is engaged.

We do not agree. There was no evidence that the police entered theproperty for the purpose of knocking on the door of the residence or, for that matter, on the window of the vehicle. If there was an impliedlicence to enter the driveway, it had to be for some other legitimate purpose. [63] Further, the police could not see that Mr. Singer was in the truck, and there was, accordingly, no evidence that they entered thedriveway to conduct an investigation by communicating with him in the truck or in the driveway.

Constable Lapointe said only that theyentered to investigate the impaired driving that had been reported more than an hour before. She did not explain what that investigationmight entail. Her testimony was unhelpful. She was not asked to do so by the Crown, which had the onus to demonstrate that thiswarrantless search was authorized by law. [64] For the reasons explained above, we do not agree with the Crown that there is an invitation to enter a driveway to investigatewrit large, regardless of how that investigation is to be carried out.

Just as the implied licence to knock does not extend an invitation to thepolice to approach the door for the purpose of gathering evidence against the occupant, by conversing with and using their senses todetermine if the occupant exhibits signs of intoxication, there is no implied invitation to enter the driveway to investigate the owner bygathering such evidence. The question, accordingly, is whether Cst. Lapointe and her partner entered for that improper purpose in thiscase. [65] The police entered Mr. Singer’s property to investigate a report that Mr.

Singer had, while impaired, been driving a truckmatching the description of the truck in the driveway. He was an occupant of that property. In order to investigate in the circumstances ofthis case, the police officers had to engage directly with Mr. Singer in an attempt to observe indicia of impairment. There was no evidenceto suggest that they entered for a more limited purpose, such as to communicate with the occupant of the premises, to get a closer look atthe truck or, for that matter, out of concern for public safety because the truck was running or might return to the street.

This distinguishesthis case from Kleven, where the police testified that they were motivated by a concern for Mr. Kleven’s safety and to ensure that he was“not endangering other members of the public by driving on a highway in an intoxicated condition” (at para 82). [66] Based on this evidence, it is clear that the police intended to investigate by gathering evidence against Mr. Singer from themoment they set foot in the driveway. That being so, they did not have an implied licence to enter at all. To paraphrase Evans, Mr.

Singercannot be presumed to have invited the police to enter the driveway for the purpose of collecting evidence to enable them to substantiate acriminal charge against him. Constable Lapointe was a trespasser from the moment she set foot in the driveway. In our view, the fact thatshe did not know this was Mr. Singer’s residence is irrelevant in the circumstances of this case. [67] As the Crown correctly notes, the issue is not whether the police were trespassing, but whether there was a search within themeaning of s. 8 of the Charter.

If the police had simply walked up the driveway, we would not have concluded that there had been asufficient intrusion on Mr. Singer’s privacy to constitute such a search. However, things changed when they knocked on the window ofthe truck and, having failed to get a response, opened the door of the truck and roused him. They did so to observe and speak to Mr. Singerfor the purpose of gathering evidence against him. That police conduct intruded on Mr.

Singer’s reasonable expectation of privacy.Walking up the driveway for the purpose of investigating the occupant and doing so by opening the truck’s door and gathering evidencewas a s. 8 search. [68] The Crown suggests that this intrusion was justified because the police were faced with exigent circumstances, as there was apotential threat to public safety, and that they accordingly did the only thing they could to protect the community.

On a similar note, thetrial judge commented that, in this case, the police officers, in discharging their obligation to investigate, had a corollary obligation toprotect the public and public safety from impaired drivers. [69] This argument by the Crown is based on the ancillary police powers doctrine, and accordingly engages the analyticalframework described in Fleming. However, the Crown cannot rely on police ancillary powers here.

As we have noted, there was noevidence that the police were concerned with public safety or that they thought these were exigent circumstances when they entered thedriveway, or, for that matter, when they opened the door of the truck. [70] For these reasons, it is our opinion that the trial judge erred in finding that Mr. Singer’s s. 8 Charter rights were not infringed.He had a reasonable expectation of privacy while sleeping in his vehicle on his driveway, as his subjective expectation of privacy was

objectively reasonable. The trial judge erred in law in finding it was not. That reasonable expectation of privacy was not waived by animplied licence or invitation to enter the driveway. The police infringed upon Mr. Singer’s right to be free from unreasonable search byentering the driveway, opening the door of his truck and rousing him. C. The evidence should be excluded pursuant to s. 24(2) of the Charter [71] Given that we have decided that the evidence that led to Mr.

Singer’s conviction was obtained as a result of the violation of hiss. 8 Charter rights, we must consider whether that evidence should be excluded pursuant to s. 24(2) of the Charter. As noted above, thetrial judge said that if he had found there had been a breach of s. 8, he would not have excluded the evidence under s. 24(2) because theGrant factors favoured admission. However, he offered no reasons for that conclusion. [72] In these circumstances, his opinion – which we would take as obiter in any event – is owed no deference. The Crown did notsuggest otherwise.

Both parties invited us to address the s. 24(2) remedy if we found there had been a Charter breach. Mr. Singersubmitted that if it was determined that there had been a breach of his Charter rights, we should exclude all evidence flowing from thebreach and enter an acquittal. He invited us to adopt the analysis in Peequaquat QB. The Crown argued that it should be admitted,asserting that Lotozky and Evans demonstrate that the trial judge had reached the correct conclusion. [73] There is an adequate evidentiary record, and the necessary findings of fact were made by the trial judge.

In light of this, it isappropriate that this Court conduct the s. 24(2) analysis. [74] Lotozky is of little assistance in this context. There, the trial judge had concluded there was a breach of s. 8 and decided toexclude the evidence obtained as a result of the breach. Justice Rosenberg dealt with the question of whether the trial judge had erred indoing so despite having decided that there had been no breach.

He held that the trial judge had erred in law by automatically excluding theevidence because it was conscriptive and had failed to consider the seriousness of the violation and the effect of exclusion. [75] Justice Rosenberg then conducted the analysis anew. He did not apply Grant, as Grant had not yet been decided. Further,Lotozky is distinguishable on the facts. The police there had observed Mr. Lotozky driving in an odd manner before he turned into hisdriveway, but decided to wait until he was parked before initiating the stop.

As Rosenberg J.A. emphasized, if they had not made what heconsidered to be the reasonable decision based on safety considerations to wait until he parked his car, they could have exercised theirpowers under the HTA by stopping Mr. Lotozky on the street. Further, he characterized the trespass that would have occurred as minor.We would not characterize the trespass as minor in the circumstances of this case. [76] Evans was also decided prior to Grant.

The facts were very different, and the analysis of this issue was very brief.Justice Sopinka opined that cultivation of a narcotic is a very serious offence that often leads to other social ills. He noted that if theevidence were excluded, a serious crime would go unpunished. On that basis, he concluded that excluding the evidence would “certainlylessen the esteem in which the public holds the administration of justice” (at para 31).

It is readily apparent that, quite apart from thematerially different facts in Evans and this case, the legal test applied by Sopinka J. does not align with the more comprehensive approachadopted in Grant. [77] The s. 24(2) analysis in Peequaquat QB is also of limited assistance, as it turned on the deferential standard of review thatapplies on such an appeal. [78] The Supreme Court of Canada also conducted a s. 24(2) analysis in McColman SC. While it agreed that a Charter breach hadoccurred, it allowed the appeal on the basis that the evidence obtained from the unlawful police stop should not have been excluded.

Thatdecision was not based on a finding of error in the s. 24(2) analysis by the intermediate appellate judge or by Tulloch J.A. Rather, itconducted a fresh analysis because the trial judge had not addressed the issue, as they had concluded that the stop was lawful. [79] The Supreme Court’s analysis in dealing with the first Grant factor – the seriousness of the state misconduct – referred to veryfew factors. It noted that the police could have conducted the stop without a Charter breach, as they had observed Mr.

McColman ridingthe ATV on the road and could stopped him there under the HTA. [80] However, the focus of the analysis was on the fact that there were two lines of authority, and thus legal uncertainty, as towhether such a stop was lawful in Ontario. As Wagner C.J.C. and O’Bonsawin J. pointed out, “[p]olice officers can only exercise thepowers granted to them by the law. In situations marked by legal uncertainty, police officers should not rely on that uncertainty but insteadshould err on the side of caution” (at para 63).

They nonetheless found as follows: [65] In our view, on the whole, the first line of inquiry pulls slightly in favour of exclusion. The police acted without statutory authorityin effecting the stop, and a body of case law confirmed their lack of authority to stop Mr. McColman. On the other hand, another body ofcase law supported their conduct. Given the legal uncertainty that existed at the time of the random sobriety stop, the breach wasaccordingly not so serious as to require this Court to disassociate itself from the police actions.

In light of that same legal uncertainty,however, the police officers should have acted with more prudence. In our view, on balance, these two effects of the legal uncertainty pullin favour of exclusion, but only slightly. [81] As to the second line of inquiry – the impact of the breach on the Charter-protected interests of Mr. McColman – they foundthat it moderately favoured exclusion.

The Court noted that it was important that the detention had been on private property, that Mr.McColman had been detained for several hours as a result of the unlawful stop, and that the police had obtained significant evidenceagainst him. In their view, this was a moderate, not egregious intrusion on his Charter rights. [82] Dealing with the third Grant line of inquiry – society’s interest in the adjudication of the case on its merits – they noted that theevidence was reliable and crucial to the Crown’s case.

They also emphasized the seriousness of the offence of impaired driving andsociety’s interest in combatting it, citing R v Bernshaw, (SCC), [1995] 1 SCR 254 at para 16, and R v Lacasse, 2015SCC 64 at para 8, [2015] 3 SCR 1089. For these reasons, they concluded as follows: [73] In light of the reliability and importance of the evidence as well as the seriousness of the alleged offence, the third line of inquiry

pulls strongly in favour of inclusion. Admission of the evidence in this case would better serve the truth-seeking function of the criminal trial process and would not damage the long-term repute of the justice system. [ 83 ] As to the final balancing of the cumulative weight of the first two lines of inquiry against the third, Wagner C.J.S. and O’Bonsawin J. held as follows: [74] … Here, the first line of inquiry slightly favours exclusion of the evidence and the second line of inquiry does so moderately.

However, the third line of inquiry pulls strongly in favour of inclusion and, in our view, outweighs the cumulative weight of the first two lines of inquiry because of the crucial and reliable nature of the evidence as well as the important public policy concerns about the scourge of impaired driving. On the whole, considering all of the circumstances, the evidence should not be excluded under s. 24(2). [ 84 ] While this analysis is certainly of interest, the answer to the question posed in Grant depends on the facts.

Chief Justice Wagner and O’Bonsawin J. made this point in McColman SC , as follows: [53] Section 24(2) requires that evidence obtained in a manner that infringes the Charter rights of an accused be excluded from the trial if it is established that “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.

The s. 24(2) analysis is an objective one, evaluated from the perspective of a reasonable person, and the burden to persuade a court that admission of the evidence would bring the administration of justice into disrepute rests on the party seeking exclusion: Grant , at para. 68. [ 85 ] The circumstances in Mr. Singer’s case are materially different than those in Mr. McColman’s matter. Mr. McColman was observed riding an ATV and was stopped immediately after he had parked in his parents’ driveway. He was plainly visible and could readily be spoken to. Mr.

Singer, on the other hand, was not observed driving the truck. The police were looking for Mr. Singer on nothing more than an unsubstantiated report of a potential impaired driver that had been made more than an hour before. As in McColman SC , they did not have reasonable grounds to believe that a crime had been committed. Mr. Singer was asleep in his truck, parked not just on private property, but in his own driveway. The truck doors were closed, and he was not visible from the street. Constable Lapointe’s partner opened a door to shake him awake and Cst.

Lapointe opened the driver’s door to gather evidence. [ 86 ] In our view, these differences bear heavily on the seriousness of the state misconduct. [ 87 ] Further, the ambiguity in the law that was a key element of the analysis in the McColman case did not exist in Saskatchewan. There was no basis to argue that the search was authorized by Saskatchewan legislation. Rogers , which thoroughly explained the significance of the purpose of entering private property, had been decided in 2016.

The 2018 decision in Peequaquat PC applied Rogers in finding that there had been a Charter breach when the police entered a driveway to gather evidence of impairment from the occupant, who was sitting in his parked vehicle in the driveway. In Peequaquat PC , Rybchuk P.C.J. well and thoroughly reviewed the application of the legal test specified in Evans , in very similar circumstances to this case. Our reasoning is, in many key respects, entirely in accord with his.

Judge Rybchuk also clearly and persuasively explained why the evidence obtained in the course of the search should be excluded under s. 24(2), in a manner that emphasized the importance of the privacy interests at stake. [ 88 ] In light of this, the police cannot be said to have acted in good faith.

That is so because, as Brown and Martin JJ. affirmed in Le , “for state misconduct to be excused as a ‘good faith’ (and, therefore, minor) infringement of Charter rights, the state must show that the police ‘conducted themselves in [a] manner ... consistent with what they subjectively, reasonably, and non-negligently believe[d] to be the law’” (at para 147, quoting R v Washington , 2007 BCCA 540 at para 78 , 227 CCC (3d) 214).

As this Court observed in R v Sabiston , 2023 SKCA 105 , “an officer cannot be said to be acting in good faith if ‘the Charter breach arises from a police officer’s negligence, unreasonable error, ignorance as to the scope of their authority, or ignorance of Charter standards’ and that ‘[e]ven where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct” (at para 52, quoting R v Tim , 2020 ABCA 469 at para 85 , 397 CCC (3d) 163, aff’d 2022 SCC 12 , 412 CCC (3d) 147 [ Tim SC ], and citing R v Paterson , 2017 SCC 15 , [2017] 1 SCR 202.

See also Moyles at paras 69– 71 ; and R v Chapman , 2020 SKCA 11 at paras 101–105 , 386 CCC (3d) 24). [ 89 ] R v Beaver , 2022 SCC 54 , 475 DLR (4th) 575 [ Beaver ], summarized the first branch of the Grant analysis in this way: [120] The first line of inquiry under s. 24(2) considers whether the Charter -infringing state conduct is so serious that the court needs to dissociate itself from it. This inquiry requires the court to situate the Charter -infringing conduct on a scale of culpability.

At one end of the scale is conduct that constitutes a wilful or reckless disregard of Charter rights, a systemic pattern of Charter -infringing conduct, or a major departure from Charter standards. At the other end of the scale are less serious Charter breaches, including breaches that are inadvertent, technical, or minor or those that reflect an understandable mistake. The more severe the state’s Charter -infringing conduct, the greater the need for courts to disassociate themselves from it (see Grant , at paras. 72-74; Le , at para. 143; [ R v Harrison , 2009 SCC 34 , [2009] 2 SCR 692], at para. 22; R. v.

Côté , 2011 SCC 46 , [2011] 3 S.C.R. 215, at para. 47 ; [ R v Tim , 2022 SCC 12 , 467 DLR (4th) 389], at para. 82; [ R v Lafrance , 2022 SCC 32 , 472 DLR (4th) 1], at para. 93). [ 90 ] We find that the police conduct in this case was a serious violation of Mr. Singer’s privacy interests in the driveway of his residence on the Big Island Cree Nation. This was not a technical, inadvertent or minor breach that reflected an understandable mistake. In our view, it is important that the court should dissociate itself from it.

The first Grant factor pulls strongly in favour of exclusion. [ 91 ] It is also our opinion that there was a serious impact on Mr. Singer’s privacy interests. The police opened the doors to his vehicle, shook him awake, questioned him, and observed signs of impairment by alcohol. As a result, Cst. Lapointe formulated her grounds to make an ASD demand. The police actions led to the following chain of events. Mr. Singer was taken to the police vehicle and failed the ASD. Constable Lapointe then demanded that he provide a sample of his breath. However, she waited 50 minutes before departing to take Mr.

Singer to the RCMP detachment – while he sat in the police vehicle – as she waited for a tow truck, leaving at 1:14 a.m., and arriving at 1:26 a.m. Mr. Singer spoke to counsel and, at 1:59 a.m., first refused to provide a sample. He continued to refuse, was placed in cells, and was not released until later the next morning. [ 92 ] Further, that the breach occurred, and Mr. Singer was detained, on his residential property is important. As the Court noted in

McColman SC at paragraph 68 , referring to Le , the fact that the arbitrary detention at issue there occurred on private property is relevant because “[r]etreat to a private residence (even if not one’s own residence) will sometimes be the only practical way for individuals to exercise their right to be left alone” (at para 155).

In Moyles , the Court observed that “[c]ircumstances which denote a high expectation of privacy favour the exclusion of evidence … and ‘[a]n illegal search of a house will therefore be seen as more serious at this stage of the analysis’” (at para 90, citing R v Paterson , 2017 SCC 15 at para 49 , [2017] 1 SCR 202, and quoting Grant at para 113). [ 93 ] In the result, the second Grant factor also pulls strongly in favour of exclusion. [ 94 ] In McColman SC , the third line of inquiry was summarized as follows: [69] The third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.

This inquiry requires courts to consider both the negative impact of admission of the evidence on the repute of the administration of justice and the impact of failing to admit the evidence: Grant , at para. 79.

In each case, “it is the long-term repute of the administration of justice that must be assessed”: Harrison , at para. 36 . [70] Under this third line of inquiry, courts should consider factors such as the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the alleged offence, although this Court has recognized that the final factor can cut both ways: Grant, at paras. 81 and 83-84.

While the public has a heightened interest in a determination on the merits where the offence is serious, it also has a vital interest in maintaining a justice system that is above reproach: para. 84. [ 95 ] As in McColman SC , the third line of inquiry weighs heavily in favour of inclusion. The evidence was reliable and essential to the Crown’s case. Courts have repeatedly stressed that impaired driving is a serious offence that has a great impact on Canadian society.

Admission of the evidence would better serve the truth-seeking of the criminal trial process. [ 96 ] The final balancing that occurs at the last stage of the Grant analysis was summarized in Tim SC , as follows: [98] The final step in the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision (see Grant , at paras. 86 and 140; Harrison , at para. 36 ).

Each factor must be assessed and weighed in the balance, focussing on the long-term integrity of, and public confidence in, the administration of justice (see Grant , at para. 68). The balancing is prospective: it aims to ensure that evidence obtained through a Charter breach “does not do further damage to the repute of the justice system” ( Grant , at para. 69).

The balancing is also societal: the goal is not to punish the police, but rather to address systemic concerns by analyzing “the broad impact of admission of the evidence on the long-term repute of the justice system” ( Grant , at para. 70; see also Le , at para. 139). [ 97 ] Here, the first two lines of inquiry weigh strongly in favour of exclusion, while the third weighs in favour of inclusion.

Beaver addressed the correct approach in these circumstances: [134] When undertaking this weighing exercise, “it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry” ( Lafrance , at para. 90 (emphasis in original)). “ [W]hen the two first lines, taken together, make a strong case for exclusion”, the third line of inquiry “will seldom tip the scale in favour of admissibility ” ( Lafrance , at para. 90 ).

The third line of inquiry “becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence” ( R. v. McGuffie , 2016 ONCA 365 , 131 O.R. (3d) 643, at para. 63 , per Doherty J.A.; see also R. v. Chapman , 2020 SKCA 11 , 386 C.C.C. (3d) 24, at paras. 125-26 and 130 ). It is possible that admitting evidence obtained by particularly serious Charter -infringing conduct will bring the administration of justice into disrepute, even if the conduct did not have a serious impact on the accused’s Charter -protected interests ( Le , at para. 141).

But where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute by its admission . (Italicized emphasis in original; underlined emphasis added) [ 98 ] As this Court emphasized in Lichtenwald , the question in the final balancing in every case “remains the impact of inclusion or exclusion on the repute of justice, and the answer to that question turns on all of the circumstances” (at para 74, quoting Moyles at para 104 ).

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