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Charter - s.8 - 'Reasonable Expectation of Privacy' (4). R. v. Lye
In R. v. Lye (Ont CA, 2026) the Ontario Court of Appeal allows a criminal appeal, here where the "trial judge denied leave to cross-examine" the affiants in a search warrant challenge.
The court considers whether the appellant had standing to argue a Charter s.8 ['search and seizure'] challenge (here regarding 'reasonable expectation of privacy'), this in the context of deciding an appeal against a denial of leave to cross-examination the affiants to a search warrant:[43] Of course, the appellant could only invoke the Charter if he had standing to do so. The question of standing is co-extensive with an inquiry into whether the appellant enjoyed a reasonable expectation of privacy in the location searched, or the information seized, such that the surveillance impinged on his constitutional rights. This question is determined by reference to the totality of circumstances, grouped into four broad categories: (1) the subject matter of the search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy; and (4) whether the subjective expectation of privacy was objectively reasonable: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; see also R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 10-12; R. v. Bykovets, 2024 SCC 6, 489 D.L.R. (4th) 1, at para. 31.
[44] In this case, the Crown took no issue with the appellant’s standing to raise a claim relating to the residence or the motor vehicle. That served as an acknowledgement that the appellant could claim a reasonable expectation of privacy. The trial judge accepted this concession in his first ruling, finding that he was “satisfied that Mr. Lye has demonstrated a reasonable expectation of privacy based on the Crown theory that he was the occupant of the condominium unit and the operator of the motor vehicle in question”.
[45] However, in the second ruling, the trial judge came to a different view, finding that the appellant had neither a subjective, nor objectively reasonable expectation of privacy in either the use of a spot in the underground parking garage, or the information acquired by police (i.e. his municipal address). The trial judge noted that it was not clear whether the appellant was an owner of the unit, a tenant or a guest. The trial judge reasoned that because “this was a 12-storey condo building with common areas” the appellant’s “comings and goings would be observed by others.” Relying on R. v. Saciragic, 2017 ONCA 91, he further found that the appellant did not have a reasonable expectation of privacy in his municipal address, which was the information gleaned by police from the surveillance.
[46] With respect, I am of the view that the trial judge erred in his assessment of the appellant’s reasonable expectation of privacy. There was a sufficient basis on which the appellant could claim a reduced, yet reasonable, expectation of privacy in the parking garage. More specifically, as I will explain, the appellant had a reasonable expectation that outsiders to the building, including police, would not gain entry or access without permission from an authorized building official.
1. The Claimant’s Interest in the Subject Matter of the Search
[47] In this case, the surveillance implicated privacy in both the place of the search – the garage – and the content of the surveillance – the observations made by the police. Hence, it impinged on two zones of privacy: territorial and informational: see Spencer, at para. 35; Tessling, at para. 24. First, entry into a garage, or viewing surveillance of a garage implicates territorial or spatial privacy: privacy in a particular location or area: see R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at pp. 428-29. The question is whether the claimant can assert a privacy interest in the place of the search: see Tessling, at para. 24. The second zone concerns informational privacy: "This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit": Dyment, at p. 429. This zone is concerned with the subject matter of the search.
[48] These zones of privacy find their correlates in elements of the standing test: the place of the search, and the subject matter of the search: see Marakah, at para. 24; Tessling, at para. 32; R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para 45. I will deal with each of these in turn when discussing whether the expectation of privacy was objectively reasonable.
2. Subjective Expectation of Privacy
[49] The trial judge found that the appellant did not have a subjective expectation of privacy in the garage or his municipal address. In addressing the subjective expectation, the trial judge considered factors that are more typically reserved for the objective assessment. The appellant did not testify that he had a subjective interest, but that is by no means fatal. A subjective expectation of privacy is often established through the operation of a presumption or inference: R. v. Campbell, 2024 SCC 42, 498 D.L.R. (4th) 195, at para. 45. The burden to establish a subjective expectation of privacy does not pose a significant hurdle. There is nothing in the record in this case to suggest that the appellant did not maintain a subjective privacy interest in the location of the garage, and the information acquired by Officer Dhillon.
3. Objectively Reasonable Expectation of Privacy
[50] Of course, the subjective expectation of privacy is only one part of the constitutional equation. The subjective expectation of privacy must be one that society would view as objectively reasonable. This turns on the place of the search, the content of the information acquired (whether it engages biographical core) and the level of control over the subject matter (which is no longer a determinative factor): Marakah, at para. 24.
a. The Place of the Search: Territorial Privacy
[51] The place of the search in this case is, from a territorial perspective, the parking garage. That is the location in which the appellant’s activities were recorded by the building and ultimately observed by police. The question is whether the appellant had a reasonable expectation of privacy in a shared-use parking garage in the underground of his condominium building.
[52] Various cases have considered whether individuals can reasonably claim privacy in common areas of multi-unit buildings. There is no categorical answer to this question: R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32, at para. 41; R. v. Yu, 2019 ONCA 942, 151 O.R. (3d) 244, leave to appeal refused, [2020] S.C.C.A. No. 38 at paras. 69, 81. As with many constitutional queries, it is fundamentally context and fact specific. Common areas, accessible by multiple tenants or occupants, attract less privacy than do residential units, but occupants do not lose all semblance of privacy the moment that they leave their residence. Locations such as garages, hallways, and other common areas outside of private units can attract constitutionally significant privacy interests: Yu, at para. 84. This is so even though this court has recognized that an underground parking garage is a common area to which a resident’s right to a reasonable expectation of privacy would not ordinarily attach: R. v. Salmon, 2024 ONCA 697, Yu, at paras. 78-80, and R. v. Drakes, 2009 ONCA 560, 252 O.A.C. 200, at para. 18, leave to appeal refused, [2009] S.C.C.A. No. 381. A host of factors are relevant to the determination.
[53] In one of the early cases to consider this question, White, at paras. 47-48, Huscroft J.A. observed the nuanced and highly contextual nature of this inquiry. He found that there was an expectation of privacy in the common hallway of a small building. From the stairwell, the police could overhear what was happening in the respondent’s unit. He offered that:Although the respondent did not have absolute control over access to the building, it was reasonable for him to expect that the building's security system would operate to exclude strangers, including the police, from entering the common areas of his building several times without permission or invitation and investigating at their leisure. It was reasonable for him to assume that although access to the building's storage area was not regulated, it was not open to the general public. And it was reasonable for him to assume that people would not be hiding in stairwells to observe the comings and goings and overhear the conversations and actions within his unit.
In any event, the fact that a relatively large number of people may have access to a building's common areas need not operate to eliminate a reasonable expectation of privacy. It is one thing to contemplate that neighbours and their guests, all of whom may be strangers to another resident, might be present in the common areas of a building, but another to say that a resident has no reasonable expectation of privacy as a result. An expectation of privacy may be attenuated in particular circumstances without being eliminated. [54] Since White, courts have applied various factors that bear on the question of privacy in common areas. These include: (1) degree of possession or control exercised by the claimant over the common area in question; (2) the size of the building; (3) security measures in place in the building; (4) ownership of the property; (5) whether the subject matter was in public view; (6) the intrusiveness of the police conduct; and (7) whether the information exposed intimate details of the claimant’s lifestyle or information of a biographic nature: see R. v. Unrau, 2025 ABCA 239, 449 C.C.C. (3d) 408, at para. 30; White, at para. 45; Yu, at para. 68; R. v. Boaheng, 2024 ONSC 781, 548 C.R.R. (2d) 329, at para. 96.
[55] One important factor is the extent to which the area in question is generally accessible to the public. For example, some parking garages are above ground and publicly visible, such that persons on the street can observe the area. Other garages may be underground, but have visitor parking areas that are freely accessible to the public. Visitors may have free access to the entire garage, or they may be able to observe the garage from their vantage point. If a garage can be entered by any random member of the public, at will, it will be difficult for the accused to claim that he or she expected privacy in that location: see e.g. R. v. Nguyen, 2025 ONCA 609, 6 C.R. (8th) 164, at paras. 24, 26, 34; Yu, at para. 80.
[56] The evidence in this case established that the public could not freely come and go from the underground garage as it pleased. The entrance to the building was enhanced by a fob-gated door, which also prevented general public access to the garage area. This was established through the testimony of Mr. Wickham, the defence articling student, who also testified that his requests for access to the garage, or to video surveillance of the garage, were denied because he was not a resident. This evidence was not dispositive of the privacy issue, but it did tend to rebut the notion of public access.
[57] In finding no reasonable expectation of privacy, the trial judge considered the fact that the appellant could be seen by others as he went about his business in the underground garage as it was a 12-storey building. This is a factor, but it is by no means dispositive of the privacy issue. First, privacy is not “all or nothing”. The fact that someone cannot expect complete privacy does not mean that they have lost all privacy. For constitutional purposes, the assessment depends on who is doing the looking, and why. The question is not whether an individual reasonably expected the subject matter of the search to remain private vis-à-vis the world, what matters is whether the individual reasonably expected it to remain private vis-à-vis state intrusion: R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 57; R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, at p. 46; R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, at pp. 43-44, 47-48; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 291-93; Tessling, at para. 18; Marakah, at paras. 40-45.
[58] It follows that individuals can enjoy a semblance of privacy in places frequented or occupied by others, including public places: Jarvis, at para. 37. The fact that a person knows she will be observed by others, including by strangers, does not negate the right not to be subject to certain types of observations or recordings: Jarvis, at para. 61. The appellant risked being observed by other occupants of the building when he entered the garage, if other occupants happened to be present when he was. He may or may not have been aware that his activities were being monitored or recorded by video. In any event, it remains the case that the risk of being seen by an uninterested stranger is very different than the risk of being watched by a very interested police investigator. To reiterate the principle stated in White at para. 48, “[i]t is one thing to contemplate that neighbours and their guests, all of whom may be strangers to another resident, might be present in the common areas of a building, but another to say that a resident has no reasonable expectation of privacy as a result.”
[59] Third, while the appellant was unable to control access to the garage, control is no longer a definitive factor in defining the scope of privacy. The majority in Marakah clarified that privacy can exist, and persist, in the absence of control. As McLachlin C.J. emphasized at para. 38: “control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest”: see also R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 37.
[60] Fourth, a finding that there is an expectation of privacy in an underground garage does not mean that police cannot access such areas for investigative purposes. Nor does it necessarily mean that police require a warrant to enter or view video surveillance from a common area. What it does mean is that the police may require some type of lawful authority for warrantless access. Depending on the location and the information to be acquired it will usually suffice for police to obtain valid consent from an authorized building official: Yu, at paras. 70-75, 90, 94-96, 102; Salmon, at paras. 20-23. Whether a person has the authority to control access to a condo building, and to respond to police inquiries, is fundamentally a question of fact: Salmon, at para. 24; see also Yu, at paras. 98-99. To the extent that the authorities recognize the need for valid third-party consent, the law implicitly recognizes that some degree of privacy can attach to these locations.
[61] This also defines the nature of the reasonable expectation. Occupants in buildings with restricted access cannot expect that they will not be observed by others. What they can reasonably expect is that any strangers to the building – be they workmen, guests, or police investigators – will only enter if they are authorized to do so, if permission is granted by someone with the requisite authority: see e.g. Yu, at para. 87. Guests may enter with other occupants. Workmen may have to sign in and register their presence. When the strangers to the building are police, they will generally be required to obtain permission to enter by a property manager or other similarly situated official. . R. v. Singer ['implied license' to enter onto real property]
In R. v. Singer (SCC, 2026) the Supreme Court of Canada allowed a Crown appeal, this brought against a Saskatchewan CA decision which "acquitted him of failing or refusing to comply with a demand to provide a breath sample".
Here the court considers "whether any of the police conduct of stepping onto the driveway, knocking on the truck window, or opening the truck door constituted a “search” under s. 8", examining the doctrine of 'implied license' to enter onto real property to communicate with the occupants:(1) The Police Did Not Conduct a Search by Stepping Onto Mr. Singer’s Driveway and Knocking on the Truck Window
(a) There Is an Implied Licence to Approach the Door of a Residence and Knock
[40] In Evans [SS: R. v. Evans (SCC, 1996)], Sopinka J. affirmed that “the common law has long recognized an implied licence for all members of the public, including police, to approach the door of a residence and knock” (para. 13). He cited in support the Court of Appeal for Ontario’s statement in R. v. Tricker (1995), 1995 CanLII 1268 (ON CA), 21 O.R. (3d) 575, that “[t]he law is clear that the occupier of a dwelling 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” (p. 579, citing Robson v. Hallett, [1967] 2 All E.R. 407 (Q.B.)). The implied licence can be “rebutted by a clear expression of intent” on the part of the occupant (Evans, at para. 13), such as by “installing a locked gate at the entrance to the property, or posting signs to that effect” (para. 42, per Major J., dissenting, but not on this point).
[41] The implied licence doctrine originated in basic social norms and customs embedded in common law property principles relating to the law of trespass (see Robson, at pp. 412 and 414; Tricker, at p. 579; R. v. Bushman (1968), 1968 CanLII 802 (BC CA), 4 C.R.N.S. 13 (B.C.C.A.), at p. 19). It has since been incorporated into the analysis conducted under s. 8 of the Charter (Evans; MacDonald). The occupier “effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling” and “is deemed to grant the public permission to approach the door and knock” (Evans, at para. 13).
[42] The effective waiver of the resident’s privacy interest is limited by the purpose of the implied invitation, which is “to permit convenient communication with the occupant of the dwelling” and “those activities that are reasonably associated with the purpose of communicating with the occupant” (Evans, at para. 15). Sopinka J. quoted approvingly (at para. 15) the British Columbia Court of Appeal’s reasons in Bushman, 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 lawful business with the occupant of the house is to enable the police officer to reach a point in relation to the house where he can conveniently and in a normal manner communicate with the occupant. [43] Sopinka J. highlighted that the intention of the police is relevant in determining whether their activity is a “search”. If the intention of the police were not a relevant factor, “the police would then be authorized to rely on the ‘implied licence to knock’ for the purpose of randomly checking homes for evidence of criminal activity” (Evans, at para. 20). They could conduct “surprise ‘spot-checks’ of the private homes of unsuspecting citizens, surreptitiously relying on the implied licence to approach the door and knock” (para. 20). This “Orwellian vision of police authority [would be] beyond the pale of any ‘implied invitation’” (para. 20). The implied licence to approach and knock applies to all members of the public, including the police, but it is not a police power per se (para. 13).
[44] Sopinka J. summarized the essential elements of the implied licence doctrine as follows:In my view, the implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. The “waiver” of privacy rights embodied in the implied invitation extends no further than is required to effect this purpose. As a result, only those activities that are reasonably associated with the purpose of communicating with the occupant are authorized by the “implied licence to knock”. Where the conduct of the police (or any member of the public) goes beyond 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.
(Evans, at para. 15) [45] Almost 20 years later, in MacDonald, this Court unanimously affirmed Sopinka J.’s statement of the law and confirmed that police action exceeding the conditions of the implied licence to approach and knock “constitutes a ‘search’” (para. 26, per LeBel J. for the majority, and at para. 66, per Moldaver and Wagner JJ., concurring on this point and in the result; see also R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 125-27, per Brown and Martin JJ., and at para. 210, per Moldaver J., dissenting, but not on this point).
[46] In the aftermath of Evans, courts of different provinces have disagreed about the reach of the implied licence doctrine. The Court of Appeal for Saskatchewan and several other courts have concluded that Evans holds that the police exceed the scope of the implied licence and conduct a search under s. 8 of the Charter whenever they approach a home to investigate and secure evidence against the occupant (see, e.g., R. v. Rogers, 2016 SKCA 105, 341 C.C.C. (3d) 502, at paras. 28-29 and 50, leave to appeal refused, [2017] 1 S.C.R. xvi, Moldaver and Côté JJ. dissenting; R. v. Moyles, 2019 SKCA 72, [2019] 12 W.W.R. 416, at paras. 50-54; R. v. Peequaquat, 2020 SKQB 2, 55 M.V.R. (7th) 21, at para. 26; R. v. Babich, 2017 SKQB 304, rev’d on other grounds 2020 SKCA 139, 398 C.C.C. (3d) 457; R. v. Klevin, 2017 SKPC 4, 375 C.R.R. (2d) 1, at paras. 18-26; R. v. Parr, 2016 BCCA 99, 334 C.C.C. (3d) 131, at paras. 3 and 36; R. v. Crowley, 2020 ONCJ 271, 464 C.R.R. (2d) 50, at paras. 39-44; R. v. Thibodeau, 2023 ONCJ 308, at paras. 75-77; R. v. Michaud, 2018 QCCM 104, at paras. 37-46).
[47] An example of this line of authority is the Saskatchewan Court of Appeal’s decision in Rogers. In that case, a police officer received a complaint that an impaired driver had backed into a parked vehicle. The officer went to the driver’s apartment and knocked on the door. The accused opened the door and slurred his words as he spoke to the officer. He offered to show the officer the damage to his car, stumbling and staggering as he walked. The police arrested the accused, whose blood alcohol reading significantly exceeded the legal limit. Relying on Evans, the Court of Appeal held that the officer conducted a search within the meaning of s. 8 by knocking on the accused’s apartment door “for the purpose of securing evidence against the occupant” (para. 29 (emphasis in original)). As the court ruled, “[t]his principle applies equally to drinking and driving offences as well as to other offences where observing the person opening the door will give visual, auditory and olfactory clues about the person’s participation in the crime under investigation” (para. 29).
[48] In the case under appeal, the Court of Appeal followed its earlier decision in Rogers and stated that there is no implied licence to enter a driveway “for the purpose of conversing with and observing the occupant to gather evidence that they are impaired” (para. 43; see also paras. 64-66).
[49] By contrast, other courts have interpreted Evans as accepting that the police act within the scope of the implied licence if their purpose is to communicate with the occupant, even if the police are investigating the occupant for an offence or if they secure evidence as a result. On this view, the police exceed the scope of the implied licence if they had no communicative purpose, were on a fishing expedition, or intended to conduct a search (see, e.g., R. v. Lotozky (2006), 2006 CanLII 21041 (ON CA), 81 O.R. (3d) 335 (C.A.), at paras. 18-19; R. v. Atkinson, 2012 ONCA 380, 110 O.R. (3d) 721, at paras. 72-75; Mulligan, at paras. 27-28, 31 and 34; R. v. Van Wyk (1999), 6 M.V.R. (4th) 248 (Ont. S.C.J.), at paras. 29-31 and 33-35; R. v. Dhindsa, 2013 ONCJ 32, at paras. 36-44; R. v. de Medeiros Arruda, 2016 ONCJ 654, at paras. 17-28; Tremblay v. R., 2020 QCCA 1131, 67 C.R. (7th) 72, at para. 25, fn. 21, and at paras. 26-28; R. v. Contant, 2008 QCCA 2514, 253 C.C.C. (3d) 259, at paras. 33-36; Joseph v. R., 2008 QCCA 2515, at paras. 32-34; Hallé v. R., 2010 QCCA 2229, at paras. 24-32; Cotnoir v. R., [2000] R.J.Q. 2488 (C.A), at para. 26; R. v. Lafortune, 2023 QCCM 48, at para. 9; R. v. Vu, 2004 BCCA 381, 201 B.C.A.C. 293, at paras. 24-26; R. v. Roy, 2010 BCCA 448, 261 C.C.C. (3d) 62, at paras. 30-33; R. v. Petri, 2003 MBCA 1, 171 C.C.C. (3d) 553, at paras. 21-23 and 27; R. v. LeClaire, 2005 NSCA 165, 208 C.C.C. (3d) 559, at paras. 13-20; R. v. Fowler, 2006 NBCA 90, 304 N.B.R. (2d) 106, at paras. 31-33; R. v. Silverfox, 2022 YKSC 14, at paras. 54-59; R. v. Neugebauer, 2009 NUCJ 28, at paras. 23-33).
[50] An example of this line of authority is the Ontario Court of Appeal’s decision in Lotozky. In that case, the court held that police officers were entitled to walk onto a private driveway to investigate a suspected impaired driver. The police tapped on the window of the accused’s car. When the driver exited the vehicle, they asked him to provide his driver’s licence, ownership, and insurance. The accused showed signs of impairment when he spoke to the police. He had difficulty maintaining his balance, he looked disheveled, his eyes seemed watery, and there was a smell of alcohol on his breath. The Court of Appeal rejected the conclusion of the trial judge and summary conviction appeal court that the police were not entitled to walk onto the accused’s driveway to further their investigation. As Rosenberg J.A. stated:... merely walking on to a driveway, even with an intent to conduct an investigation involving the owner, does not, in my view, constitute a sufficient intrusion to be considered a search. There must be something more, as in the perimeter search cases, peering in windows of the home and trying to detect odours from within. [para. 18] [51] The trial judge in the case under appeal applied the reasoning in Lotozky (A.R., vol. II, at p. 167). However, the Saskatchewan Court of Appeal interpreted Lotozky narrowly, as applying only when the police already have reasonable grounds to suspect that the motorist is impaired (para. 57, citing R. v. McColman, 2021 ONCA 382, 407 C.C.C. (3d) 341, at para. 41, rev’d on other grounds 2023 SCC 8, [2023] 1 S.C.R. 309). It concluded that the police in this case only acquired such grounds after they opened the truck door (para. 57).
[52] I respectfully disagree with the Saskatchewan Court of Appeal’s narrow reading of Lotozky. Although the presence of reasonable grounds to suspect impairment may show that the police are on the accused’s property on legitimate business, such grounds are not required to enter property under an implied licence. In my view, Rogers and Lotozky present inconsistent interpretations of Evans. The present case requires this Court to resolve this inconsistency. Because the legitimate business of the police often involves investigative activity, defining the implied licence too narrowly could significantly hamper the police in performing their duty to investigate and prevent crime and protect the public. At the same time, the implied licence must not be applied so broadly as to give the police effectively unconstrained investigative authority.
[53] I will first consider in greater detail how this Court applied the implied licence doctrine in Evans, along with the authorities that the Court cited approvingly in that decision. I will then consider several of this Court’s subsequent s. 8 rulings. As I will explain, in my respectful view, the court below erred in defining the scope of the implied licence to approach and knock based on an untenable distinction between “investigating” a potential criminal offence (which it said is permissible) and “securing evidence” against the home’s occupant (which it said is impermissible). At paras 54-78 the court continues to expand on this issue, summarizing:(iii) Summary
[79] 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 (Evans, at paras. 13 and 42).
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