As a lawyer, I often tell clients that your home is your castle. It is a foundational principle of our legal system that the state cannot cross your threshold without a warrant. However, the Supreme Court of Canada’s recent decision in R. v. Singer reveals that this principle is not absolute, neither when it comes to members of the public nor the police.
This case explores the delicate balance between your Charter rights and the ever-expanding reach of police investigative powers.
What Happened
Two RCMP officers were investigating an impaired driving complaint in a small Saskatchewan First Nations community. At around midnight, after about an hour of investigating, they located a truck matching the description from the complaint parked in a residential driveway with its lights on and engine running.
Unable to see anyone inside from the road, the officers stepped onto the driveway, approached the truck, and saw Mr. Singer sleeping or passed out in the driver’s seat. They knocked on the window for several minutes. Mr. Singer did not respond. The officers then opened the truck door to wake him, at which point they detected a strong odour of alcohol and observed bloodshot eyes and signs of fatigue. Mr. Singer provided a roadside breath sample that registered a fail. When taken into custody, he refused to provide a further breath sample and was charged with that refusal.
At trial, Mr. Singer challenged the police conduct under s. 8 of the Charter, arguing that entering his driveway without a warrant was an unreasonable search. The trial judge disagreed and entered a conviction. The Saskatchewan Court of Appeal disagreed with the trial judge, found a s. 8 breach at the moment the officers set foot on the driveway, excluded the evidence, and entered an acquittal. The Crown appealed to the Supreme Court of Canada.
Why the Court Ruled the Way it Did
The majority of the Supreme Court of Canada ruled that the police did not violate Mr. Singer’s rights simply by walking onto his driveway at midnight to investigate a drunk-driving tip. Their reasoning rests on the implied licence doctrine. This is a legal rule based on the idea that you, as a homeowner, effectively waive your privacy in the path leading to your door so that people can approach you for legitimate reasons.
The majority concluded that the police were on legitimate business investigating a safety complaint. Because the truck was in plain view and there were no physical barriers like a fence, the Court decided that merely walking onto a driveway is not a search. However, they drew a line at the door of the vehicle itself: the moment the officers opened the truck door without a warrant or a proven imminent safety emergency, they committed an unreasonable search and breached Mr. Singer’s Section 8 Charter rights.
Crucially, even though the Court found a rights violation, they refused to throw out the evidence. They viewed the police’s actions as an understandable mistake and ruled that the public interest in prosecuting impaired driving outweighed the moderate impact on Mr. Singer’s privacy.
The Erosion of Property and Privacy Rights
For those of us concerned with civil liberties, this decision is a troubling signal of the erosion of privacy and property rights. The dissenting judges argued that the majority has essentially granted the police a licence to trespass. They pointed out that no homeowner truly invites the police onto their property at midnight for the purpose of gathering evidence to arrest them.
By allowing the police to use their senses such as sight, smell, and hearing all while standing on your private property without a warrant, the Court has created a diluted zone of privacy at your home. This turns the driveway into a staging ground for fishing expeditions. As the dissent noted, this is particularly dangerous for marginalized and Indigenous communities, where over-policing is already a systemic issue. Allowing warrantless wandering around private homes late at night risks further alienating these communities from the justice system.
Okay, so it’s not that extreme. The majority of the judges did say police cannot engage in a fishing expedition and must be involved in a true communicative, not search, purpose. But the difficulty for defence lawyers and accused persons alike will be in proving the purpose of the entry onto the property. How hard is it for a bad police actor to simply say “I was going to speak to the homeowner” instead of that they were there to smell breath, look for vehicle damage, and peek around the home for signs of recent drinking?
It will all come down to cross-examination in many cases.
The Ancillary Powers Problem
A major part of this case involved the ancillary powers doctrine. This is a legal tool that allows courts to create new police powers when there is a gap in the law. The Crown asked the Court to create a brand-new power allowing police to conduct random sobriety checks on private property.
The Court’s reaction to this was mixed but ultimately cautious. The majority saw no need to create a new power because the police already have a safety search power to address imminent threats. However, they warned that courts should tread softly before enlarging police authority.
Tips to Protect Yourself
If you want to maintain the sanctity of your castle, you can no longer rely on the law to do it for you automatically.
Here are some tips for you on how you can protect your privacy rights in light of Singer.
First, explicitly revoke the license to knock on the door and approach the residence. The law assumes you allow people to walk to your door unless you say otherwise. You can rebut this by installing a locked gate or posting clear No Trespassing signs or a sign that says the police are not welcome.
Privacy is not absolute in plain view. Anything visible or detectable from your driveway (like the smell of alcohol or items in your car) is fair game if the police are lawfully present. So make sure you do what you can to keep anything and everything out of sight of police.
Don’t answer your door. If you don’t open the door the police cannot just force it open without a warrant or without an emergency or without a hot pursuit. So if you’re at home, minding your own business, and the police knock at your door you can — and should — just refuse to open it.
The Singer decision is a reminder that privacy in Canada is a sliding scale. While the police cannot kick down your door, they can, under the right circumstances, walk right up to it and start gathering grounds to arrest you. So don’t give them the opportunity.
