The police had an implied licence at common law to step onto the accused’s driveway, approach his truck, and knock on the window to investigate a recent impaired driving complaint. This police conduct did not, on its own, constitute a “search” under s. 8 of the Charter. However, the police exceeded the scope of the implied licence and conducted a search under s. 8 of the Charter by opening the truck door. The search was unreasonable and breached s. 8 of the Charter. Even so, the evidence obtained should not be excluded under s. 24(2) of the Charter given society’s strong interest in prosecuting the serious offence at issue.
Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. The purpose of this guarantee is to protect individuals from unjustified state intrusions upon their privacy. Whether a claimant has a reasonable expectation of privacy is assessed based on a content-neutral and normative inquiry into the totality of the circumstances. An individual has a reasonable expectation of privacy in their home, where privacy is most protected, in its perimeter, where privacy is protected in diluted measure, and in a vehicle in the driveway of their property. A police investigatory technique is a search under s. 8 only if it intrudes upon a person’s reasonable expectation of privacy.
The common law recognizes an implied licence for all members of the public, including police, on legitimate business to approach the door of a dwelling and knock. The occupier effectively waives the privacy interest that they might otherwise have in the approach to the door of their dwelling. The implied licence ends at the door of the dwelling. The purpose of the implied licence is to permit convenient communication with the occupant of the dwelling and to permit those activities reasonably associated with that purpose. Conduct falling within the scope of the common law implied licence is not a search under s. 8 of the Charter. Activities that go beyond the purpose of facilitating effective communication with the occupant of the dwelling breach the implied conditions of the licence and the person conducting the unauthorized activity approaches the dwelling as an intruder. In such circumstances, police action constitutes a search.
The intention of the police is relevant in determining whether the police activity falls within the communicative purpose of the implied licence or whether it constitutes a search. Where evidence clearly establishes that the police have specifically adverted to the possibility of securing evidence against the occupant by knocking on the door, the police have exceeded the terms of the implied licence to knock. However, a conversation with the occupier of a dwelling, without more, is not a search. There is no general prohibition against the police approaching a dwelling to question the occupier for the purpose of furthering a lawful investigation. So long as the police officer is lawfully present, the use any of their senses of sight, hearing, or smell is not a search. There is therefore no basis to exclude from the implied licence the investigation of offences, such as impaired driving, for which ordinary communication might reveal evidence of impairment by using the police officer’s senses, provided that the officer did not intend to conduct a search, and provided that the officer is not conducting a speculative criminal investigation or fishing expedition.
The main principles regarding the common law implied licence doctrine may be summarized as follows:
1. The common law recognizes an implied licence for all members of the public, including police, on legitimate business to approach the door of a dwelling and knock (Evans, at para. 13; MacDonald, at para. 26; Le, at paras. 125 and 210). The implied licence ends at the door of the dwelling (Evans, at para. 13; MacDonald, at para. 27).
2. Under the implied licence, the occupier effectively waives the privacy interest that they might otherwise have in the approach to the door of their dwelling and is deemed to grant the public permission to approach the door and knock (Evans, at paras. 13-14).
3. The purpose of the implied licence is to permit convenient communication with the occupant of the dwelling and those activities reasonably associated with that purpose (Evans, at para. 15; MacDonald, at para. 26; Le, at paras. 125 and 210).
4. Conduct falling within the scope of the implied licence is not a “search” under s. 8 of the Charter. Activities that go beyond the purpose of facilitating effective communication with the occupant of the dwelling breach the implied conditions of the licence. The person conducting the unauthorized activity approaches the dwelling as an intruder. In such circumstances, police action constitutes a “search” (Evans, at para. 15; MacDonald, at para. 26).
5. The intention of the police is relevant in determining whether the police activity falls within the communicative purpose of the implied licence or whether it constitutes a “search”. For example, police are not authorized to: (a) randomly check dwellings for evidence of criminal activity by conducting “spot-checks” of unsuspecting citizens (Evans, at para. 20); or (b) conduct a speculative criminal investigation or “fishing expedition”, where the police have no information potentially linking any of the occupants to any criminal conduct or suspected criminal conduct (Le, at para. 127). In addition, (c) where the police approach for the purpose of “securing evidence against the accused” through a “knock-on” search, “the police [will] have exceeded the authority conferred by the implied licence to knock” (Evans, at para. 20; see also paras. 13, 16 and 18-21; Le, at para. 127). Where evidence clearly establishes that the police have specifically adverted to the possibility of securing evidence against the occupant by knocking on the door, the police have exceeded the terms of the implied licence to knock (Evans, at paras. 16 and 20).
6. However, a conversation with the occupier of a dwelling, without more, is not a “search” (Evans, at para. 18). There is no general prohibition against the police approaching a dwelling in order to question the occupier for the purpose of furthering a lawful investigation (Le, at para. 212). So long as the police officer is lawfully present, the use of any of their senses of sight, hearing, or smell is not a search (Hogg and Wright, at § 48:14).
7. The implied licence can be rebutted or revoked at any time by a clear expression of intent.
Citation: R. v. Singer, 2026 SCC 8
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