R. v. SINGER, 2023 SKCA 123, NOVEMBER 15, 2023.

FACTS: The police received a complaint that the accused might be driving while impaired. The police located a motor vehicle matching the description provided, parked in the driveway of the accused’s private residence.  The vehicle was running and had its lights on. The accused was sitting in the driver’s seat. The police (Constable Lapointe) approached the vehicle and knocked on the window.  When they did not get a response they opened the vehicle’s door. They smelled alcohol.

Subsequently, at the police station, the accused refused to provide samples of his breath for analysis. He was charged with failing to comply with a demand made by a peace officer.

The accused was convicted.  He appealed from conviction, arguing that the police breached section 8 of the Charter by entering on to private property without lawful authority.  He argued that his refusal to comply with the demand should have been excluded.

HELD:  The appeal was allowed the evidence excluded and an acquittal entered.

Section 8 of the Charter:

The Saskatchewan Court of Appeal indicated that there is “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 the purpose 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 situation” (at paragraph 38).  However, the Court of Appeal pointed out that that there is “an invitation to enter a driveway to investigate writ large, regardless of how that investigation is to be carried out” does not exist.  The Court of Appeal indicated that “[j]ust as the implied licence to knock does not extend an invitation to the police to approach the door for the purpose of gathering evidence against the occupant, by conversing with and using their senses to determine if the occupant exhibits signs of intoxication, there is no implied invitation to enter the driveway to investigate the owner by gathering such evidence. The question, accordingly, is whether Cst. Lapointe and her partner entered for that improper purpose in this case” (at paragraph 64).

This Case:

The Court of Appeal concluded that “the police intended to investigate by gathering evidence against Mr. Singer from the moment they set foot in the driveway. That being so, they did not have an implied licence to enter at all. To paraphrase Evans, Mr. Singer cannot be presumed to have invited the police to enter the driveway for the purpose of collecting evidence to enable them to substantiate a criminal charge against him. Constable Lapointe was a trespasser from the moment she set foot in the driveway. In our view, the fact that she did not know this was Mr. Singer’s residence is irrelevant in the circumstances of this case” (at paragraph 66).

Section 24(2) of the Charter:

The Court of Appeal held that “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). This is not a case where the third line of inquiry tips the balance against the first two, which make a strong case for exclusion. Inclusion of the evidence would do further damage to the long-term repute of the administration of justice. Accordingly, it must be excluded” (at paragraph 98).