Although police were fine to approach the vehicle of a suspected impaired driver in a private driveway and knock on the window, officers breached his privacy rights when they opened the door after he failed to respond.
That was the Supreme Court of Canada’s finding in a 5-4 decision in the case of Wayne Singer. The matter began when two RCMP officers in the community of Big Island Lake Cree Nation in Saskatchewan responded to a complaint that he was driving while impaired. They saw a truck that matched the description in the complaint in a residential driveway, running with its lights on. Inside, they could see that Singer was either asleep or passed out.
…
Kyla Lee of Acumen Law in Vancouver specializes in impaired driving cases. She says the ruling affects about 60 per cent of the Charter notices she is sending to Crown counsel. It makes sense because it draws a fine but important distinction between police knocking on the door to communicate and approaching for the dual purpose of gathering evidence.
“If you look at it from the defence counsel perspective, there’s stuff to work with there,” says Lee, the past chair of the CBA’s criminal justice section.
“You’re going to have to get the officer to admit in cross-examination that they were there to make visual or olfactory observations, and they decided to go for the purposes of smelling the breath. If that’s their intention in communication, and the smell isn’t incidental, then that crosses the line.”
Counsel will need to get the officer to admit that to still get the benefit of the breach. She says it would be an uphill battle in the vast majority of circumstances that, once a breach has been established, it would lead to an exclusion of evidence on section 24(2) grounds.
“The majority’s 24(2) analysis says that it wasn’t much of an intrusion and there was no significant impact. Impaired driving is bad, so therefore the [evidence was included], and I don’t love that,” Lee says.
