The Supreme Court of Canada, in a narrow 5-4 decision, has ruled that police officers may lawfully approach the doors of private dwellings to engage occupants during lawful investigations, according to a recent judgment reported by JURIST. Justice Mahmud Jamal, writing for the majority, articulated that this approach is sanctioned under the common law doctrine of the implied licence to knock, which facilitates communication between a dwelling’s occupants and the public. However, this licence is strictly confined to approaching the door. An officer’s intention to gather evidence by knocking may invalidate this licence.
In dissent, the minority argued that using this doctrine to collect evidence against a resident exceeds its original communication-facilitating purpose. The concept was previously examined in 1995 when the court held that police would become intruders if they entered private property beyond facilitating such communication.
The court’s unanimous decision also established that an unreasonable search occurred when officers opened a truck door without consent, although they deemed the evidence admissible due to the seriousness of the impaired driving offense. This aspect of the ruling drew criticism from a joint dissenting opinion, which pointed to broader concerns of over-policing, especially in Indigenous communities. Further commentary from the Canadian Bar Association highlighted fears that the decision might lead to investigative overreach, with police using this precedent as a pretext for broader “fishing expeditions” in marginalized areas.
The justices rejected the government’s proposal to formalize a new police power allowing private property entry to seek signs of criminal activity, citing the need for such powers to comply clearly with constitutional standards. Justice Sheilah Martin emphasized the necessity of clear definitions and Charter alignment for any new police powers.
This case originated from an incident where two officers responded to a complaint of impaired driving. They found the defendant asleep in his truck, unresponsive to their knock, prompting them to open the door for a breath test, which he subsequently failed. Post-ruling, the court remanded the case to the Saskatchewan Court of Appeal to address concerns about potential prejudice during the trial, stemming from the attendance of a prosecution witness during defense arguments.
Concerns raised by advocacy groups like the BC Civil Liberties Association underscore fears that extending police powers could disproportionally affect marginalized communities, adding another layer of complexity to the implications of this judgment for Canadian jurisprudence.