One of the oldest tenets of Canadian Law is the principle that a person’s home is inviolable. Canadian case law recognizes, however, particularly since R. v. Evans of the Supreme Court of Canada, the principle of “implied invitation”. In this case, the operation consists of sending an undercover agent to knock on the door of the residence and inform the occupant that “everyone has just been arrested” and that “the boss is saying to get rid the stock ”. He therefore urges the occupier to “hand over the stock” to him so that he can deal with it.
« “The poorest man may in his cottage bid defiance to all the forces of the Crown. […] So be it—unless he has justification by law. » – Lord Denning, 1964
Tremblay c. R., 2020 QCCA 1131
The facts
In the present case, an undercover officer appeared at the door of a residence to attempt, through conversation with its occupant, to obtain sufficient reasonable grounds to request the issuance of a search warrant. In order to receive the goods, the undercover agent wanted to inform the occupier that “everyone” had just been arrested and that his “boss” was telling him to get rid of the stock.
The judgment
The Quebec Court of Appeal had to determine whether this process constituted a search within the meaning of section 8 of the Canadian Charter of Rights and Freedoms.
The Court of Appeal begins by asserting that the principles set out in R. v. Evans still apply even when there’s an undercover agent involved. However, when that police officer shows up at a residence to question the occupant for the purposes of a legitimate investigation, incriminating information can legally be obtained if the occupant agrees to reveal it. Thus, the Quebec Court of Appeal emphasizes that the trial judge did not err in considering that the information obtained during the conversation did not constitute a search within the meaning of section 8 of the Charter.
She goes on to rule that the conversation itself is not a search and that the purpose of the undercover officer was not to gather evidence since he refused to enter the house. Consequently, the Court dismissed the accused’s appeal and upheld his conviction in first instance.
In short, state agents are allowed to appear at the door of a home with the intention of questioning the occupier in order to advance a legitimate investigation. In order for the investigation to be qualified as “legitimate”, these same officers must be in possession of information enabling the occupants of the residence to be linked to actual or suspected criminal conduct. In the absence of such information, he indulges in a fishing trip and in so doing, bypasses the implied invitation.
These facts are a fine example of the “implied invitation” rule. Although the Quebec Court of Appeal rejected the accused’s claims, it recognized that it “is true that the present case is at the limit of the principles set out in R. c. Evans. As the Supreme Court of Canada said in R. v. Evans: “Obviously, one cannot presume that the occupants of a house invite the police (or anyone else) to approach their house to establish the merits of a charge against them. “
Published on 26/05/2021