Sep 24, 2016

Invitation To Knock? Depends If You Are Investigating Or Searching...

R v Rogers, 2016 SKCA 105 (CanLII)

John Rogers backed into another vehicle. He was intoxicated when he did so. Someone noticed. Rogers left the scene but the police were called. The police obtained the licence plate of the vehicle Rogers was driving and went to the address of the registered owner. The officer entered the apartment complex at that address and knocked on the door. Rogers answered. As the officer spoke to Rogers standing at the door he formed grounds to arrest Rogers for impaired driving.

At trial Rogers argued that the officer violated his section 8 rights by approaching his door. The trial judge agreed and excluded the evidence obtained therefrom. The Crown successfully appealed to the summary conviction appeal court; a new trial was ordered. Rogers appealed from that ruling: 2016 SKCA 105.

The Saskatchewan Court of Appeal allowed the appeal and restored the trial judge's conclusion. The court accepted the Crown’s position on the law as follows:

Crown counsel on appeal submits that it is settled law that the police do not exceed the implied licence to knock simply because they are intent on investigating a potential criminal offence. He submits further that a police officer who is looking for information or evidence about a suspected offence, or even about an actual offence, which the police officer has reasonable grounds to believe has been committed, is not conducting a “search” for s. 8 purposes for that reason alone. In support of this proposition, he relies upon Laurin; R v Vu, 1999 BCCA 182 (CanLII), 133 CCC (3d) 481, leave to appeal to SCC refused [1999] SCCA No 330 (QL) [Vu]; R v Grotheim, 2001 SKCA 116 (CanLII), 161 CCC (3d) 49 [Grotheim]; R v Petri, 2003 MBCA 1 (CanLII), 171 CCC (3d) 553 [Petri]; and Van Wyk. He states that all of the officers in these cases were looking for information and evidence about possible or actual crimes but none of them violated s. 8 simply because they approached a residence and knocked on the door in an effort to further their investigation. [Para 27].

The court rejected the notion, however, that the implied invitation to knock included situations where the police approach “with the intention of gathering evidence about the state of an occupant’s sobriety” [para 28]. The court acknowledged that the line between “investigation” and “searching” is a difficult one to draw but insisted it must be drawn:

There are numerous other applications of the implied licence to knock principle from all levels of court. Often, the line between when the police intend to investigate a crime and when they intend to secure evidence in relation to it is not easy to perceive; but, in my view, none of the appellate authorities stand for the proposition urged upon us by the Crown in this appeal that the Court can ignore the express purpose of the police in approaching a dwelling house. [Para 46].

In the end the court noted that the trial judge made the “critical finding” that the officer attended the Rogers’ residence “for the purpose of…obtaining evidence against” him. In such a case the officers exceeded the implied invitation to knock: see Evans, 1996 CanLII 248 (SCC).

This is indeed the critical finding. In Fowler, 2006 NBCA 90 the Court of Appeal noted that the trial judge, in that case, made the critical finding that the officers attended Fowler’s residence for the purpose of communicating with him. That finding resulted in no breach.

Notably, the Ontario Court of Appeal in Lotozky, 2006 CanLII 21041 (ONCA) recognized that the “fact that the police officer intends to pursue an investigation” of impaired driving “does not in my view exceed the bounds of the implied invitation” [Lotozky at para 35]. While the “entry” in that case was onto the driveway, the principles surrounding the implied invitation to knock remain the same. Where the officer had “a legitimate basis” for the entry – the investigation of a criminal offence – the entry was permissible.

The law surrounding this issue is nuanced. The distinctions are fine. Attending one’s dwelling for the purpose of “investigating” an impaired driving offence is permissible conduct under the implied invitation. Attending for the purpose of “searching” is not.