A decision out of the Ontario Court of Justice, R. v. Sheppard 2015 ONCJ 164, has examined the common law doctrine of “implied invitation to knock” in a different light. A police officer went to Sheppard’s address in response to a complaint about a possible impaired driver. The entrance to the property was blocked by a metal gate whose opening was controlled by a security guard who had to insert a code on a keypad on the left of the gate. There were two CVCC cameras at the gate and a sign indicating that the property was protected by a security company. The guard asked the officer to wait until the guard consulted the owner, but the officer went in behind the guard after he opened the gate. The officer drove up to the house area, saw Sheppard sitting in her car and arrested her for impaired driving. Sheppard claimed a violation of her rights under s. 8 of the Charter.
The doctrine of “implied invitation” or “implied licence” has been discussed in several cases in the past (R. v. Evans,  S.C.J. No. 1, R. v. Fowler 2006 NBCA 90, to name a couple), but one of the most recent cases was R. v. Le 2014 ONSC 2033, a case that I have already discussed on this blog, but in terms of a “safety search” the last time. As far as Le discussed the implied invitation doctrine, the Honourable Justice Campbell, at para. 69 said:
The law is clear that the occupier of a dwelling gives implied licence to any member of the public, including police officers, who are on legitimate business, to come onto the property, even through an unlocked gate, and attend at a door of the dwelling. This implied licence applies to anyone who has a lawful reason to speak to the occupier of the dwelling. This implied licence ends, however, at the door to the dwelling. The purpose of this implied licence is to facilitate convenient communication between members of the public and the occupier of the dwelling. This implied licence may be rebutted by some express notice on the property itself, or revoked explicitly by the occupier of the dwelling. Once revoked by the occupier, the person who entered upon the property pursuant to this implied licence is obliged to leave with reasonable dispatch. Anyone who does not so leave becomes a trespasser. If a police officer enters property pursuant to this implied licence and, before the licence is withdrawn, develops the necessary grounds to detain or arrest a suspect, the police remain entitled to detain or arrest that person and use proportional and reasonable force to do so.
There are many cases (some cited above) which state and re-state that there is, in the normal case, an implied licence to go onto the drive and up to the front door. In the Sheppard case, there was a locked gate at the entrance to the property. The only reasonable means to access the property and get to the front door is by car and the nature of this gate, the intercom, the keypad, the security sign, and the CVCC cameras would be a statement to any reasonable person that further entry onto the property would be allowed only with the express permission of the occupants, or their agents, according to Justice Bourque, and this gate and the other things that surrounded it made this gate in all practicality, the front door. In that regard, there was no implied consent to come onto the drive and up to the front door of the dwelling house, resulting in a s. 8 Charter violation.
The Crown also argued that these facts constituted an officer in “hot pursuit” and thus the breach of this privacy right (going through the gate) was justifiable under this doctrine. Justice Bourque said in this case, the officer had nothing more than a suspicion that an offence had been committed, he had nothing more than a suspicion that the culprit was on the premises, and he was not following anyone and was not in any position to affect an arrest without further investigation; in other words, his entry on the property was to “investigate a possible commission of a crime”. Thus, the Justice ruled there was not “hot pursuit” on the facts of this case. The Justice also found that the officer did not have reasonable grounds to arrest the defendant for impaired driving based on indicia of red watery eyes and slurred speech (this issue will not be discussed in this post), and found another s. 8 Charter violation.
Given the two breaches, Justice Bourque ruled the evidence of the breath results and the evidence of any observations of the police officer after he proceeded down the defendant’s drive would bring the administration of justice into disrepute; as such, all such evidence was excluded.