R. v. Atkinson, 2012 ONCA 380 (CanLII)
[45] The common law recognizes an implied licence for all members of the public, including police officers, to approach the door of a residence and to knock: R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, at para. 13. Thus, an occupier is deemed to grant the public, including the police, permission to approach the door and to knock. Police who act in accordance with this implied invitation do not intrude on the occupant’s privacy: Evans, at para. 13. Unless rebutted by some clear expression of intent, the implied invitation effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling: Evans, at para. 13.
[46] This implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. It follows that only those activities reasonably associated with the purpose of communicating with the occupant are authorized by the “implied licence” to knock: Evans, at para. 15.
[47] Where state agents approach a dwelling with the intention of gathering evidence against an occupant, they have exceeded any authority implied by the invitation to knock and become engaged in a search of the occupant’s home: Evans, at paras. 16, 18, and 21. Likewise, where police specifically advert to the possibility of securing evidence against an accused by “knocking on the door”, they have exceeded the authority conferred on them by the implied licence to knock: Evans, at para. 20.
[48] In some circumstances, police officers lawfully present at the door of a residence may lawfully enter the premises. An invitation to enter may be implied from the circumstances, for example from the words and conduct of a person in charge of the place. An implied invitation to enter furnishes lawful authority for the police to be in the residence or other place: R. v. Clarke2005 CanLII 15452 (ON CA), (2005), 196 C.C.C. (3d) 426 (Ont. C.A.), at para. 28.
[49] When determining whether to imply an invitation to enter a residence from the words and conduct of a homeowner in a brief interaction with a police officer, we should not lose sight of the dynamics of the police-citizen relationship. The essence of the policing function puts citizens on an uneven footing with police. We should not too readily imply an invitation to enter from the absence of objection or mere compliance, any more than we would equate consent with acquiescence or compliance in equivalent circumstances: R. v. Wills 1992 CanLII 2780 (ON CA), (1992), 7 O.R. (3d) 337 (Ont. C.A.), at p. 348
Aucun commentaire:
Publier un commentaire