The Supreme Court of Canada ruled by a 5-4 narrow majority on Friday that the police may approach the door of private dwellings to talk with the occupier for a lawful investigation.

Writing for the five-judge majority, Justice Mahmud Jamal held that the police may use their senses of sight, hearing, or smell to further a lawful investigation at the door of private dwellings without constituting a search. This stems from the implied licence to knock, a common law doctrine to facilitate convenient communication between the occupier and the general public. The majority held that the licence ends at approaching the door, and the officer’s intention to secure evidence against the occupant by knocking on the door would vitiate the licence.

The dissenting judges would have held that the purpose to substantiate a criminal charge and gather evidence against the occupier exceeded the scope of the doctrine because the purpose was beyond convenient communication.

The court first considered the doctrine in 1995, holding that the police would become intruders had they entered a private premise for a purpose beyond facilitating communication with the occupier.

While the police may lawfully approach the door of a private dwelling, the court unanimously held that an unreasonable search took place when the officers opened the defendant’s truck door without his consent. The majority decided that the evidence was admissible because the search was not a serious breach and impaired driving is a serious offense. The three-judge joint dissenting opinion highlighted the broader over-policing issues on First Nation reserves that disproportionately impact Indigenous communities.

The court also unanimously rejected the government’s call to recognize a new police power to enter private property with the intent to talk to the occupier and observe signs of impairment, should there be reasonable grounds to believe that the occupier is connected to a recent or ongoing crime. Justice Sheilah Martin, in her separate dissenting opinion, suggested that the proposed power must be clearly defined and Charter-compliant. She also suggested that the court should refrain from recognizing new police powers.

In this case, two police officers were investigating a complaint of impaired driving. The defendant passed out in the driver’s seat of a truck parked in a residential driveway when the officers knocked on his truck’s door. Without the defendant responding to the knock, the officers opened his door and requested the defendant to undergo a roadside breath test, which he failed.

The BC Civil Liberties Association expressed disappointment with the ruling, stating that it expanded the police power, which would disproportionately impact marginalized communities. The Canadian Bar Association expressed its concerns that the police may quote this ruling to justify fishing expeditions.

Following the ruling, the court sends the case back to the Saskatchewan Court of Appeal to consider whether the prosecution’s sole witness, being present in the court when the defendant’s counsel was addressing the court, prejudiced the defendant’s right to a fair trial.