Case: R. v. Singer, 2023 SKCA 123 (CanLII)

Keywords: Asleep at the wheel; reasonable expectation of privacy; s. 8 of the Charter

Synopsis:

RCMP Constables find the Appellant asleep in the driver’s seat of a truck parked in the driveway of his residence. (See para. 1). The truck is running with the lights on. (See para. 6). The Constables are responding to a complaint about a speeding truck. (See para. 5). To approach the vehicle, the RCMP walk up the Appellant’s private driveway. (See para. 7).

The Constables knock on the windows. The Appellant does not wake up. The Constables next open the doors of the truck and “immediately” detect a “strong odour of liquor”. (See para. 7). They shake the Appellant until he wakes up, then ask him to take a roadside breath test. He fails. The RCMP then advises the Appellant he is charged with having care and control of a motor vehicle with an excessive blood alcohol level, and demand that he provide a breath sample at the local RCMP detachment. (See paras. 1-2). Upon his arrival at the RCMP detachment, the Appellant refuses to provide a sample. He is then charged with failing or refusing to comply with a demand and operating a motor vehicle while his ability to do so was impaired by alcohol. (See para. 2).

The Appellant argues his s. 8 Charter rights were breached by the Constables walking up his private driveway for the purpose of investigating. The Trial Judge finds no Charter violation and convicts the Appellant for failure to provide a breath sample. The Court of Appeal (Schwann, Barrington-Foote, and McCreary JJ.A.) allows the appeal, finding the Trial Judge erred by finding there was no reasonable expectation of privacy and no s. 8 breach. (See paras. 2-3; 70).

Importance:

This case provides a detailed summary of the legal framework applicable to s. 8 of the Charter. (See paras. 23-24). The Court of Appeal also engaged in a very detailed review of jurisprudence regarding scope of the “implied licence to enter private property”. (See paras. 25-58).

In addition, the Court of Appeal provided a helpful refresher on the applicable standard of review analysis for Charter cases. (See para. 17). For the Court of Appeal, two standards are engaged: one applicable to the Trial Judge’s findings of fact (i.e., “palpable and overriding error”), and another applicable to whether the facts establish a violation of the Charter (i.e., “correctness”). (See para. 17; R. v. Côté, 2011 SCC 46 at para 44; R. v. Le, 2019 SCC 34 at para. 23).

Regarding s. 8 of the Charter, this case is about the “implied licence” for police to enter private property.

As described by the Court of Appeal, s. 8 involves the right to be free from unreasonable search and seizure by state actors – but the “purpose” of the section is to protect an accused’s reasonable expectation of privacy. (See paras. 23-24). Importantly, state interference is not subject to constitutional scrutiny under s. 8 of the Charter where it does not violate a reasonable expectation of privacy. So, what about the RCMP walking down the Appellant’s driveway, knocking on his vehicle, and, eventually opening the doors? Did the Applicant have a reasonable expectation that this would or would not take place?

In this case, the Court of Appeal found there was no implied licence to enter the Appellant’s property for the purpose of knocking on the window of the vehicle. Rather, “[i]f there was an implied licence to enter the driveway, it had to be for some other legitimate purpose.” (See para. 62).

The Court of Appeal rejected the Crown’s submission that there is “an invitation to enter a driveway to investigate writ large, regardless of how that investigation is to be carried out”, emphasizing that:

  1. the police could not see the Appellant in the truck; and
  2. there was “no evidence that they entered the driveway to conduct an investigation by communicating with him in the truck or in the driveway.” (See para. 63).

The Court of Appeal accepted that a lesser expectation of privacy exists in a vehicle, as compared to a residence. (See para. 59; R. v. Wise, [1992] 1 SCR 527 at p. 534). However, the Court determined Wise is distinguishable here because “the decreased expectation of privacy associated with travel referred to in Wise was not in play.” (See para. 61; emphasis in original).

Contrary to the Trial Judge’s decision, the Court of Appeal found a s. 8 Charter search occurred when the police entered the driveway “for the purpose of investigating the occupant and doing so by opening the truck’s door and gathering evidence.” (See para. 67).

The Court of Appeal also considered and rejected the application of the ancillary police powers doctrine. (See para. 69). In other words, the Court of Appeal determined that the RCMP’s interference with the Appellant’s privacy was not justified based on “exigent circumstances” and the need for community safety. (See paras. 68-69).

Ultimately, the Court of Appeal found the RCMP infringed upon the Appellant’s right to be free from unreasonable search by “entering the driveway, opening the door of his truck and rousing him”. (See para. 70). Since the evidence that led to the Appellant’s conviction was obtained as a result of the violation of his s. 8 Charter rights, the Court of Appeal then considered whether to exclude it pursuant to s. 24(2) of the Charter. (See paras. 71-98). For the Court of Appeal, the admission of the evidence “would do further damage to the long-term repute of the administration of justice” and, therefore, “it must be excluded”. (See para. 98).

Counsel for the Appellant: Ronald P. Piché (Piché & Company, Saskatoon)

Counsel for the Respondent: Dean Sinclair, K.C. (Saskatchewan Ministry of Justice, Regina)

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