In Your Own Backyard: The Implied Licence Doctrine and Section 8 of the Charter in R v Le
Do police officers have the power to enter a person’s backyard without express permission from the owner? On January 25, 2018, the Ontario Court of Appeal (“ONCA”) released R v Le, 2018 ONCA 56 [Le], a decision where the majority found the police had lawfully entered a backyard in order to investigate potential criminal activity. What makes Le an interesting decision is the fiery dissent from Justice Lauwers, who found the police conduct to go beyond their powers, calling their actions “casually intimidating and oppressive” (Le, para 163).
Should Le head upstairs to the Supreme Court of Canada (“SCC”), I predict they will agree with Justice Lauwers’s dissent and find the implied licence doctrine did not give police powers to enter the backyard without the occupier’s vocal permission. However, I believe the SCC will agree with the majority’s end result and find the police did not violate Mr. Le’s right against unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms [Charter], despite Justice Lauwers’s persuasive dissent.
At trial, Justice Campbell of the Ontario Superior Court of Justice (“ONSC”) made the following findings of fact: on May 25, 2012, three police officers were on patrol in the Atkinson Housing Co-operative, an area with a history of drug and gang related crime. The officers were looking for two individuals associated with violent crimes. Security guards at the co-op directed the officers to 84 Vanauley Walk, advising that one of the individuals frequented the townhouse located at that address. The guards further expressed their concern of drug trafficking in 84 Vanauley’s backyard.
The officers set out and arrived at the rear of 84 Vanauley Walk. In the townhouse’s backyard, they observed four young black males, and the appellant, Mr. Le, a young Asian male. The backyard was enclosed by a waist-high fence, with a large opening that could allow people to walk in and out of the yard.
The officers entered into the backyard through the opening and started to question the men. One officer, Constable O’Toole, spoke with Mr. Le. He noticed Mr. Le was “blading” his body, turning his body away from the officer to hide a bag behind his hip. Constable O’Toole asked Mr. Le, “What’s in the bag?” upon which Mr. Le ran away. The officers gave chase, caught Mr. Le, and found a gun and 13 grams of cocaine on his person. Mr. Le was subsequently charged with ten criminal offences, including several firearm and drug possession charges.
At trial, Mr. Le argued that the police had illegally entered the backyard of 84 Vanauley Walk. He uses the doctrine of “implied licence,” a common-law principle which gives the police the power to enter private property on “legitimate business” and speak with the occupier (R v Le, 2014 ONSC 2033, para 72). Mr. Le argued the officers should have walked around to the front of 84 Vanauley and knocked on the door in order to ask permission to speak with the men in the backyard.
The trial judge rejected Mr. Le’s claim, finding the officers indeed had implied licence to enter the backyard to pursue an investigation to find a wanted individual. As Mr. Le was a guest of 84 Vanauley, the trial judge found Mr. Le could not revoke the officers’ implied licence to be in the backyard. One of the men, a Mr. Dixon, did live at 84 Vanauley, but the trial judge found that Mr. Dixon never expressly told police to leave his backyard. Finding that the officers were legally allowed to enter into the backyard of 84 Vanauley, the trial judge disposed of Mr. Le’s s. 8 Charter claim.
Implied Licence Doctrine
At the ONCA, Justice Doherty, writing for the majority, took a different approach to Mr. Le’s section 8 claim under the Charter. The majority looked at whether the police trespassed onto 84 Vanauley and Mr. Le’s section 8 Charter claim as two separate issues. They found the implied licence doctrine had little relevance to whether the officer’s search was lawful, and concluded the police officers’ presence was unlawful in their section 8 Charter analysis.
Justice Lauwers, writing for the dissent, agreed with the majority that the trial judge erroneously used the doctrine to diminish Mr. Le’s Charter claims. However, unlike the majority, Justice Lauwers came to a firm conclusion that the officers trespassed onto 84 Vanauley.
Justice Lauwers’ reasoning is persuasive. I predict the SCC will side with his point on defining the powers of the implied licence doctrine. With his reasoning, Justice Lauwers restricted the implied licence doctrine’s scope of powers, stating police can use the doctrine when there is “a bona fide intention to communicate with its occupants about an investigation” (Le, para 109). In the case of Le, Justice Lauwers did not find the officers had such an intention, but had engaged in a random “fishing expedition” for criminal activity (Le, para 107).
Justice Lauwers also addressed the potential racial and class bias on the part of the police officers, adding a new dimension to the implied doctrine analysis. In his conclusion, he wrote: “I doubt that the police would have brazenly entered a private backyard and demanded to know what its occupants were up to in a more affluent and less racialized community” (Le, para 162). With his dissent, Justice Lauwers recognized police may operate on bias, which constitutes unacceptable grounds to use their investigative powers.
Section 8 Analysis
Both the majority and dissent conducted a fresh section 8 Charter analysis. The main issue was whether Mr. Le had a reasonable expectation of privacy in the backyard of Mr. Dixon’s home of 84 Vanauley. If he did, the police’s actions constitute a search under section 8 of the Charter, and the analysis proceeds to whether the search was unreasonable.
Should the case be appealed, I expect the SCC to agree with the majority on this point. Mr. Le makes a territorial privacy claim. The majority turns to the leading authority in R v Edwards  1 SCR 128 [Edwards], which lays out the test for a claimant’s privacy interests on a third party’s premises and/or property.
In Mr. Le’s case, the majority held that he had no expectation of privacy as he was a “mere transient guest” with no possession or control of the backyard (Le, para 41). Though the majority did not mention this, it would also be important to note the backyard was shielded by a fence that was only a few feet high, and there was also a big gap where the gate used to be. A passersby in the common walkway could easily see into the yard. The lack of Mr. Le’s control of the premises and his visibility from a public space could prove fatal to his privacy claim.
Justice Lauwers’s dissent is persuasive. He turned to the SCC’s recent decision in R v Marakah, 2017 SCC 59, where the majority agreed that a lack of control is not determinative of a reasonable expectation of privacy. Furthermore, Justice Lauwers stated that it would be incongruous that Mr. Dixon, an occupier of 84 Vanauley, would be entitled to Charter protection, but a guest of the home would not have the same rights. However, Justice Lauwers did not address the easy ability to look into the backyard of 84 Vanauley from a public area. He assumed that Mr. Dixon would have a reasonable expectation of privacy in his backyard, without further justification.
Given the split decision, Le can appeal to the SCC as of right. In an interview with The Toronto Star, Emily Lam, Mr. Le’s lawyer, stated, “We’re seriously considering an appeal to the Supreme Court.” If the SCC hears Mr. Le’s appeal, their decision presents an opportunity to further explore the contours of reasonable expectation of privacy under section 8 of the Charter.