Blue Line


April 4, 2016  By Mike Novakowski

1094 words – MR

Implied licence to knock requires careful analysis

The sole intent in using the implied licence to knock waiver to enter private property must be to communicate, otherwise the doctrine can be undermined and the scope of the waiver exceeded.

In <R. v. Parr, 2016 BCCA 99> the accused was arrested at the roadside under the BC Mental Health Act and taken to hospital for medical care. Police impounded his vehicle and took his dog.


The investigator contacted a detachment more than three hours away and asked that another police officer assist by going to Parr’s property, try to locate his fiancée to tell her of the situation and see if arrangements could be made to pick up the dog.

The assisting officer, who knew Parr was the subject of an ongoing marijuana grow operation investigation, went to the residence at 2:52 am. He saw no vehicles but the lights in the main building and a secondary residence were on.

The officer walked straight to the front door of the house and knocked. A sign asked visitors to “Please use the side door.” The officer heard a television or radio on inside the house and could smell vegetative marijuana. Since no one answered, he knocked loudly on the side door. Again, he could smell vegetative marijuana. He noted a PVC pipe at the side of the house that appeared to be venting air from the basement.

With no answer at the side door, the officer went to the secondary residence and noted plastic sheeting and blinds covering some windows. The secondary residence did not appear to be occupied and no one answered his knock on a sliding door so he left without doing a perimeter search of the property.

The officer stopped on the highway to see if he could smell marijuana upwind from the property; he could not.

The olfactory information obtained from the entry onto Parr’s property was used in conjunction with the pre-existing investigation to obtain and execute a search warrant. A large marijuana grow operation was located on the property and the accused was charged with drug offences.

In BC Supreme Court the officer testified to the following:

  • He attended Parr’s property to locate the fiancée, notify her that Parr was on his way to the hospital and see if someone could take custody of the dog;
  • He was aware that a drug investigation was ongoing and that he might make observations confirming or dispelling suspicions that Parr’s residence housed a marijuana grow operation;
  • He had no grounds to be on the property to investigate a potential marijuana grow operation and went straight to the doors to determine if anyone was home;
  • He immediately left the property when no one answered;
  • He would not have gone to the residence had he not received the request for assistance;
  • He did not phone the fiancée because “bad medical news about somebody” was best delivered in person and an unanswered phone call would not confirm that no one was home; and
  • He denied the suggestion that his motivation for attending the property was, at least in part, to further an ongoing criminal investigation.

The judge concluded that the officer was entitled to enter the property under the implied licence to knock doctrine. The purpose was to communicate with an occupant by notifying the next of kin of a medical emergency and not to gather evidence to further the drug investigation.

The officer’s knowledge of the ongoing investigation did not undermine his otherwise valid purpose of communicating Parr’s emergency medical condition. Thus, his observations properly formed part of the reasonable grounds for the search warrant. Parr was convicted of producing marijuana, possession for the purpose of trafficking and improperly storing firearms.

Parr appealed to BC’s top court arguing the trial erred in applying the implied licence doctrine because the officer was motivated, at least in part, by an investigative purpose when he entered onto the property and smelled the marijuana.

{Implied licence}

Under the law, the “occupants of a home are deemed to have waived their reasonable expectation of privacy for defined purposes,” the BC Court of Appeal noted.

<Where the police knock for the sole purpose of facilitating communication with an occupant, they act within the scope of the implied invitation. In these circumstances, no constitutionally recognized search occurs because the entry does not intrude upon the occupant’s reasonable expectation of privacy.

The waiver of privacy rights embodied in the implied invitation extends no further than is required to achieve this purpose. Where the conduct of the police goes beyond that which is permitted by the implied licence to knock, the conditions of that licence are breached and the police approach the dwelling as an intruder> [para. 2].

If the approach to the home for the purpose of communicating is motivated by an investigative purpose, such as smelling for marijuana, the police conduct exceeds the scope of the implied licence to knock principle and the search is subject to <s. 8> Charter scrutiny.

Justice Fitch, writing the unanimous decision, found the trial judge did not err in finding the officer entered the property for the limited purpose of communicating with the occupants, not to further an investigative aim.

<In my view, it is important to distinguish… between the purpose for the entry and knowledge on the part of the police of the potential that evidence might be acquired in the course of that entry. Provided the police act for a purpose falling within the scope of the implied invitation to knock principle, and for no other reason, the fact they are aware evidence might be acquired in the course of the entry does not make them “intruders” acting outside the scope of the doctrine.

I accept, however, that the existence of an ongoing criminal investigation at the time of the entry, and advertence by the police to the prospect of gathering evidence in the course of that entry, are relevant considerations to be taken into account when determining the purpose for which the entry and knock was undertaken> [para. 55].

Fitch did, however, reject the notion of a dual purpose and found such reasoning “incompatible with the implied licence principle.” In other words, police exceed implied licence and cannot rely on it where they have both a purpose to speak to an occupant (even if this is a “predominant” or “primary purpose”) while at the same time having a secondary purpose motivated by an investigative goal.

Communication must be the sole purpose, as the trial judge found. Parr’s appeal was dismissed.

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