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Charter - s.8 Search and Seizure - Spatial-Territorial (2). R. v. Singer [common law implied license to approach residence/s.8 search on entering car]
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 summarizes this search and seizure case [Charter s.8], which focusses on whether there is an 'implied license' to enter onto property for the purpose of communicating with the occupants:[1] Thirty years ago, in R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, this Court 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, per Sopinka J.). Under the implied licence doctrine, a police officer who has lawful business with the occupant of a dwelling may proceed from the street to the door of a house to communicate with the occupant (para. 15). The issue on this appeal is whether the police likewise possess an implied licence to step onto a private driveway to investigate a complaint of impaired driving when they observe, in plain view, a running vehicle matching the description in the complaint.
[2] Two RCMP officers were investigating a recent complaint of impaired driving made against the respondent, Wayne Singer, in a small Saskatchewan First Nations community. After investigating for about an hour, at around midnight, the officers saw a truck matching the description in the complaint in a residential driveway on the community territory. The truck was running with its lights on. The officers stepped onto the driveway to approach the truck and saw a man sleeping or passed out in the driver’s seat. The officers spent a few minutes knocking on the truck window, but the occupant, Mr. Singer, did not respond. When the officers opened the truck door to rouse Mr. Singer, they smelled a strong odour of alcohol coming from his breath. He seemed tired and had bloodshot eyes. At the officers’ request, Mr. Singer provided a roadside breath sample, which registered as a “fail”. He was then arrested and taken into custody, where he refused to provide a further breath sample. He was charged with impaired driving and refusing to comply with a demand to provide a breath sample.
[3] At trial before the Provincial Court of Saskatchewan, the only issue was whether the implied licence authorized the police to enter onto Mr. Singer’s driveway. Mr. Singer argued that the police breached his right to be secure against unreasonable search or seizure under s. 8 of the Canadian Charter of Rights and Freedoms by entering his driveway without permission or a search warrant. In response, the Crown relied on this Court’s decision in Evans to claim that the police had an implied licence to step onto the driveway to investigate the impaired driving complaint. The trial judge agreed with the Crown, found no s. 8 breach, and entered a conviction for refusing to comply with a demand to provide a breath sample.
[4] The Court of Appeal for Saskatchewan set aside the conviction. The court ruled 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” (2023 SKCA 123, 431 C.C.C. (3d) 364, at paras. 43 and 64-66). In the court’s view, the police infringed Mr. Singer’s s. 8 Charter rights and were trespassers from the moment they set foot on the driveway. The court excluded the evidence under s. 24(2) of the Charter and entered an acquittal.
[5] Before this Court, the Crown argued that the police were authorized to enter the driveway and to open Mr. Singer’s truck door under the implied licence doctrine or, alternatively, under a new ancillary police power to protect public safety in the context of an impaired driving investigation.
[6] I would allow the appeal, set aside the judgment of the Court of Appeal, and remit the case to the Court of Appeal to determine the outstanding ground of appeal that it did not address. In my view, the police had an implied licence at common law to step onto Mr. Singer’s driveway, approach his truck, and knock on the truck window. The police were entitled to do so on legitimate business: to investigate a recent impaired driving complaint. This police conduct did not, on its own, constitute a “search” under s. 8 of the Charter. The Court of Appeal’s decision on this point was wrongly decided, and, as noted by the learned authors of Drug Offences in Canada, “the weight of authority [is] to the contrary” (B. A. MacFarlane, R. J. Frater and C. Michaelson, Drug Offences in Canada (4th ed. (loose-leaf)), at § 25:21).
[7] At the same time, the implied licence to enter the driveway and knock ended at the door of the truck. The police intruded onto Mr. Singer’s reasonable expectation of privacy and conducted a search when they opened the truck door.
[8] In this case, there is no need to recognize a new ancillary police power to provide potential authority to open the truck door. This Court’s decision in R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, already recognizes the common law power of the police to conduct a “safety search” when they have reasonable grounds to believe that the search “is reasonably necessary to eliminate an imminent threat to the safety of the public or the police” (para. 40). A safety search “will generally be conducted by the police as a reactionary measure” and “will generally be unplanned”, since it is “carried out in response to dangerous situations created by individuals, to which the police must react ‘on the sudden’” (para. 32).
[9] Here, there arguably were objective grounds to believe that the search was reasonably necessary to protect public safety. During the impaired driving investigation, the police found Mr. Singer asleep and unresponsive late at night in a running truck matching the description in the complaint. A running vehicle associated with an impaired driving complaint is effectively a weapon that can — and all too often does — kill both the impaired driver and innocent members of the public.
[10] However, there was no direct evidence that the officers were subjectively concerned for public safety when they encountered Mr. Singer asleep or passed out in the truck, as this issue was not raised at trial. Because the Crown bears the burden of justifying a warrantless search, and no such evidence was led, in the particular circumstances of this case I would conclude that the police breached s. 8 of the Charter by opening the truck door.
[11] Even so, I would not exclude the evidence under s. 24(2) of the Charter. The Charter-infringing state conduct was not so serious that the Court must dissociate itself from it. Nor did it have more than a moderate impact on Mr. Singer’s Charter-protected interests. In the circumstances, these factors are outweighed by society’s strong interest in prosecuting the serious offence of failing or refusing to comply with a demand to provide a breath sample. . R. v. Nguyen
In R. v. Nguyen (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here from convictions for "possessing cocaine and methamphetamine for the purpose of trafficking and of possessing the proceeds of crime".
The court considered a Charter s.8 'reasonable expectation of privacy' issue, here regarding videotaping in common areas of apartment buildings:[25] There is a substantial body of case law on the reasonable expectation of privacy in shared areas of multi-unit dwellings. In R. v. Saciragic, 2017 ONCA 91, at paras. 32-34, leave to appeal refused, [2017] S.C.C.A. No. 106, this court concluded that the accused had no reasonable expectation that his movements to and from his unit – located in a relatively large apartment building equipped with video surveillance – would not be observed by others, including the police. In R. v. Yu, 2019 ONCA 942, 151 O.R. (3d) 244, leave to appeal refused, [2020] S.C.C.A. No. 38, when addressing an underground condominium parking garage, this court held at para. 79: “to put it in terms of the factors set out in [R. v. Spencer, 2014 SCC 43, 375 D.L.R. (4th) 255], unit owners could not have an objectively reasonable expectation of privacy in a garage shared with so many other owners and over which they had very little control”. And in R. v. Salmon, 2024 ONCA 697, 443 C.C.C. (3d) 110, at para. 39, this court reaffirmed the general principle that underground parking garages are common areas where a resident’s right to a reasonable expectation of privacy would not ordinarily attach.
[26] In line with this jurisprudence, and after applying the guiding principles to the facts as he found them, the application judge concluded that 1) anyone could access the public parking area, and 2) from there, anyone could see into the residential parking area. There is nothing unique about this case that sets it apart from Salmon and Yu.
[27] In my view, we must resist the appellant’s attempt to broaden the subject matter of this search to include intimate details of what was happening inside his apartment. The application judge found that the officers’ objective in making observations from the public parking area was to confirm the appellant’s presence at that location, his movements to and from that place, and who he was associating with. The police were not pursuing more intimate details, nor would what they were pursuing tend to reveal any.
[28] The appellant contends that observations in the parking area could reveal what was happening inside his home, and that the police specifically sought to determine whether his unit was being used as a stash house. While s. 8 requires us to consider what the subject matter of the search “tends to reveal” (Bykovets, at para. 53; Spencer, at para. 27), the analysis cannot rely on speculative inferences. In this case, it is difficult to see how observations in the underground parking area could be used to infer what goes on in an at-the-time unknown unit a considerable distance away. This court noted in Saciragic, at para. 30, that the use of an elevator did not yield any information about the nature of the activities inside a unit. Similarly, in this case, the use of an underground parking garage could not be expected to reveal much. I reject the appellant’s suggestion that this appeal is analogous to R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32, where the police attempted to eavesdrop by hiding in the stairwell near a unit: see also R. v. Roy, 2020 ONCA 18, 386 C.C.C. (3d) 183, at paras. 15-16.
[29] I also reject appellant counsel’s characterization of the police activities in this case as “intensive scrutiny”, “extensive surveillance”, and “prolonged” tracking. The police activities did not reach this level. It appears as though the entire investigation lasted about six hours; of those six hours the appellant only appeared around the last two hours; and the video recordings were less than two minutes in total. As a comparison, in R. v. Hoang, 2024 ONCA 361, when confronted with a situation where the police recorded “everyone who came and went at all times of the day for a period of 8 days” (at para. 41), this court held that:As a general proposition, it may well be that police camera surveillance could give rise to an objective expectation of privacy over the subject matter of the recording within the s. 8 Charter analysis, based on its duration, the scope and nature of its surveillance, the basis for its placement or because of other contextual or technological factors. This general proposition stems from the broad and functional view of the subject matter of such a recording, which could potentially capture information about an accused’s comings and goings as well as who they associate with and what activities they take part in. In the circumstances of this case, however, where the pole camera captured only the public space that an individual police investigator would have seen from the same distance, without any additional capture of sound or close-up camera angles, and for a limited period of time, such broader concerns do not arise. [Emphasis added.] [30] The act of video recording does not create an expectation of privacy where one does not already exist and many of the cases the appellant relies upon in this regard are not helpful. For example, in both R. v. Duarte (1990), 1990 CanLII 150 (SCC), 71 O.R. (2d) 575 (S.C.C.), and R. v. Wong (1990), 1990 CanLII 56 (SCC), 60 C.C.C. (3d) 460 (S.C.C.), where the Supreme Court held that the recording of private communications and activities was more intrusive than just listening or watching, the recordings engaged s. 8 because the communications and actions in question were private. Here, the investigators did not observe or record anything that was private. The appellant was simply observed walking back and forth between an elevator and his car in a parking lot and loading bags into vehicles.
[31] Finally, the appellant places undue emphasis on the fact the police did not pay for a parking ticket. I accept that, by not paying for and displaying a parking ticket, the officers were likely trespassing. In this regard, the application judge erred by finding that the police had “an implied licence … to be on private property for investigative purposes where the public has a general invitation to be present.” The general invitation to the public was conditioned on the payment of a parking ticket, which the officers did not comply with. Nor does the doctrine of implied licence apply: The purpose of the officers’ entry onto the premises was not to communicate with, or to protect the interests of, the owner or the occupant; rather, it was to surveil one of the occupants: White, at paras. 56-57; R. v. Mulligan (2000), 2000 CanLII 5625 (ON CA), 142 C.C.C. (3d) 14 (Ont. C.A.), at para. 24.
[32] Nevertheless, the police conduct did not result in a s. 8 breach. Although the requirement to purchase a ticket and the limited use of the space for parking could reduce foot traffic and the length of anyone’s stay, the garage was shared with other buildings in a busy area of Toronto, with around 50 public parking spots on the same level. Given the nature of the space and the manner of the surveillance, what the officers observed while in the parking area could be observed by anyone who happened to be in the parking garage: see Roy, at paras. 15-18.
[33] In these circumstances, whether the observations were made after paying for a parking ticket or not has no material bearing on the reasonableness of the appellant’s expectation of privacy. What is important at this stage of the analysis is not whether the police were trespassing on common property, but their access to the appellant’s private activities and communications. Viewed in context, the physical intrusion or trespass by the police was peripheral to the s. 8 analysis: White, at para. 16; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at paras. 41-45.
[34] I see no error in the application judge’s ultimate conclusion that the appellant did not have a reasonable expectation of privacy when in the multi-condominium parking garage; a finding that sits comfortably with this court’s and the Supreme Court’s guidance on how to assess the reasonableness of a subjective expectation of privacy in similar locations. . R. v. Maric [uses Edwards 1996 test]
In R. v. Maric (Ont CA, 2024) the Ontario Court of Appeal dismissed several merged criminal appeals, here on Charter s.8 'reasonable expectation of privacy' grounds:(b) There Was No Reasonable Expectation of Privacy
[105] The application judge applied the factors set out by the Supreme Court in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 45, that should be considered in assessing whether there is a reasonable expectation of privacy:(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation. ....
[111] The application judge distinguished this case from R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32, where this court found that an accused had a reasonable expectation of privacy in common areas of his building.
[112] In White, a police officer, surreptitiously and without a warrant, entered the common areas of a building where the accused owned a unit, which led to a seizure and drug charges. The officer entered the locked building through a defective door without any owners’ prior consent or knowledge, walked through the hallways, listened at the accused’s door, observed the comings and goings at the accused’s unit, and viewed the accused’s storage locker in the common storage area. The results of these observations were included in the ITO used to obtain a search warrant for the accused’s unit. The affiant of the ITO did not inform the issuing judge that the investigating officer had entered the locked building without permission. The accused applied successfully to exclude that evidence under s. 24(2) of the Charter on the basis that the police violated his rights under s. 8.
[113] On appeal, this court held that the trial judge did not err in finding that the accused had a reasonable expectation of privacy in the common areas of his condominium building. In its analysis, the court relied on the factors set out in Edwards, at para. 45.
[114] The court held, at para. 41, that there was no categorical rule for common areas in multi-unit buildings and that a nuanced, contextual approach is required. Relevant factors in White included that the building was small enough that a stranger’s presence would be noteworthy and that “[a]lthough the [accused] 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 several times without permission or invitation and investigating at their leisure”: at paras. 46-47.
[115] The application judge held that the situation before him, involving observations of the eighth-floor hallway, was distinct from the multiple police entries in common areas, observation of the inside of a storage locker and eavesdropping of conversations inside a condominium unit at issue in White.
[116] The application judge adopted the words of Huscroft J.A. in White, at para. 44, that the reasonable expectation of privacy analysis is contextual:[T]he lesson from Edwards is that a reasonable expectation of privacy is a context-specific concept that is not amenable to categorical answers. A number of considerations may be relevant in determining whether an expectation of privacy is reasonable in the context of particular multi-unit buildings, albeit that none of them is dispositive. The Edwards factors must be considered as a whole, having regard to the particular circumstances of each case. ....
(b) The application judge did not err in finding no reasonable expectation of privacy
[196] In his analysis of Mr. Eckstein’s reasonable expectation of privacy, the application judge referred to the following non-exhaustive factors set out by the Supreme Court in Edwards, at para. 45:(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation. [197] In Edwards, these factors were used to consider whether the subject of a search had a reasonable expectation of privacy in his girlfriend’s apartment, in which he was described as “just a visitor.” According to the Supreme Court, Mr. Edwards demonstrated no expectation of privacy in his girlfriend’s apartment since he contributed nothing to the rent or household expenses and had no authority to regulate access to the premises.
[198] In this case, Mr. Eckstein argues that the application judge erred in concluding that, as “an exceptionally privileged guest,” he had no reasonable expectation of privacy. He submits that the application judge erred in rejecting categorically that a guest could have an objectively reasonable expectation of privacy.
....
[210] The application judge’s reliance on White demonstrates his understanding that a reasonable expectation of privacy could arise over the common areas of an apartment building or condominium complex, but that context was important. While the application judge did not have the benefit of this court’s decision in Yu, we do not see the analysis in Yu as inconsistent with the application judge’s reasoning. In Yu, Tulloch J.A. (as he then was) described, at paras. 81-83 and 87, the privacy interests in common areas generally in these terms:The hallways are a different story. Under the White framework, in my view, the appellants had a reasonable expectation of privacy in the hallways of their respective buildings, although it was at the low end of the spectrum. White establishes that a contextual approach is required when applying the reasonable expectation of privacy analysis, and there is no categorical bar to a reasonable expectation of privacy in shared common areas.
Once inside an access-controlled condominium building, residents are entitled to expect a degree of privacy greater than what, for instance, they would expect when approaching the building from the outside. This results from the fact that anyone can view the building from the outside, but there is some level of control over who enters the building.
The level of expectation of privacy inside a condominium building will vary. The level of expectation of privacy is dependent on the likelihood that someone might enter a certain area of the building, and whether a person might reasonably expect a certain area to be subject to camera surveillance.
...
On balance, the factors listed above establish a low, but reasonable expectation of privacy in these common areas. The buildings had strict security features designed to exclude outsiders, and the condominium rules at Joe Shuster Way barred non-owners and non-occupants from accessing the common areas unless accompanied by an owner or occupant. It was thus reasonable for the appellants to believe that the buildings’ security systems would operate to exclude the police from entering the common areas of the building multiple times without permission. [Emphasis added.] ....
[213] We do not read the application judge’s reasons as requiring strict security measures in order to establish a reasonable expectation of privacy. Rather, he considered the type and quality of security measures and noted that there were no exceptional security measures that would heighten any expectation of privacy. In Yu, for example, the strict security measures were a key factor in finding that there was a reasonable expectation of privacy in the condominium hallways. Furthermore, the application judge took into account that police did not have permission from building management to enter the building but found that this did not provide Mr. Shahin with a reasonable expectation of privacy. . R. v. Singer [vehicular searches]
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 expectation of privacy wrt a private vehicle:(2) The Police Did Conduct a Search by Opening the Door to Mr. Singer’s Truck
[84] Despite my conclusion that the police were lawfully present on Mr. Singer’s driveway under the implied licence, I would find that the implied licence extended only to the door of Mr. Singer’s truck, just as it would have extended only to the door of his home. An individual has a reduced but still reasonable expectation of privacy in a private vehicle, as compared to a private residence (Mellenthin; Wise). The police exceeded the terms of the implied licence when they opened the door to Mr. Singer’s truck and intruded on his reasonable expectation of privacy inside the truck. The police otherwise had no access to the information inside Mr. Singer’s truck, including the smell of alcohol on his breath. In this respect, this case is like MacDonald, where the police conducted a search by pushing open the front door to a residence where they were lawfully present under the implied licence. As a result, the police conduct of opening the truck door was a search under s. 8 of the Charter. . R. v. Salmon [third party property manager authorizes release of videotape of common areas]
In R. v. Salmon (Ont CA, 2024) the Court of Appeal dismissed an appeal against a trial judge's finding that there was no Charter s.8 ['Search and Seizure'] violation.
Here the court considers the 'reasonable expectation of privacy' doctrine, here as it bears on a "“senior property administrator” authorizing a "security guard to turn over CCTV footage from the building elevators and elevator vestibule."":[18] The appellant contends that in R. v. Yu, 2019 ONCA 942, 383 C.C.C. (3d) 260, leave to appeal refused, [2020] S.C.C.A. No. 38, this court recognized a “narrow carve-out” to the Reeves[2] expectation of privacy that permits a condo board to waive its residents’ privacy interests. He says that this carve-out must be interpreted narrowly, and that only a building employee who has the approval of the board of directors, as the persons authorized under the Condominium Act, 1998, S.O. 1998, c. 19, may waive a resident’s privacy interest. The appellant contends that Mr. McKensie Stone acknowledged in the voir dire that he did not think he had authority to release the CCTV footage, and there was no evidence that the condominium board had in fact approved its turnover to the police. When pressed by the panel to articulate exactly what was required of the police when, as here, a person with apparent authority co-operated with their request, the appellant’s counsel asserted that the police would have to ascertain in each case whether the condominium board in fact had authorized the release of the information they requested.
[19] I reject this argument. First, it proposes too narrow a reading of Yu. Second, it was a reasonable interpretation of the evidence as a whole that the building employees had the requisite authority to provide the requested information to the police, including the CCTV footage.
[20] Yu recognizes that the ability of a condo board and property management to co-operate with a police investigation by providing access to common areas of the building and other information is relevant to two issues: first, it will attenuate a resident’s reasonable expectation of privacy in common areas of the building; and second, it can provide lawful authority for a warrantless search and seizure: at paras. 72-75.
[21] It is not a question of “waiver” of a resident’s privacy interests, as suggested by the appellant, but whether an authorized person consents to entry and/or seizure on behalf of the residents of the building as a collective. In Yu, Tulloch J.A. (as he then was) referred to the duty of a condominium corporation under the Condominium Act to administer the common elements and to manage the property of the corporation on behalf of the owners, and he noted that it is the “condominium board and, by extension, property management” that is entrusted with security of the building and the residents: at paras. 91-92.
[22] Further, and contrary to the appellant’s argument, Yu does not require evidence in each case that the condominium board specifically authorized the turnover of information to the police. At para. 131, Tulloch J.A. concluded: “the board and property management have valid authority to cooperate with the police and to consent on behalf of the residents to allow police entry” (emphasis added). The case recognizes as “property management” the persons who, by reason of their position, have the authority and ability to regulate access to the building: at para. 93.
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