Implied License for Differential Treatment

The interaction between law enforcement and notions of privacy in the security of our homes has always been a special focus of s. 8 Charter rights. The treatment of the home as a special place in the law was described by Justice Binnie in R. v. Tessling as a nuanced hierarchy protecting privacy of places, used to evaluate the reasonableness of a person’s expectation of privacy. This privacy interest is not absolute, and although the “dwelling house” enjoys the greatest expectation of privacy, the perimeter space around the home enjoys a diluted measure of this same expectation. One example of how the perimeter around a home is treated differently is under the common law doctrine of “implied license,” described in R. v. Evans, where all members of the public are provided a presumptive ability to approach the door of a residence to knock. The police can enjoy this same presumption, and use this license to contact individuals within a…

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