POLICE ACADEMY

715 McBride Blvd. New Westminster B.C. V3L 5T4

IN SERVICE:10-8
A newsletter devoted to operational police officers across British Columbia.

ABOUT THE NEWSLETTER
The “In Service:10-8” newsletter is a publication of the
JIBC Police Academy.
No glossy paper, no fancy
pictures, just plain “black letter” bringing you, the front
line officer, up to date and current with issues facing
you on the street. It is our intention to bring you this
newsletter on a regular basis. You are free to copy this
publication and pass it on to your colleagues. Copies of
“In Service:10-8” will soon be available online at the
Police Academy website at www.jibc.bc.ca.

PLAIN VIEW: SEEING IS
BELIEVING
Sgt. Mike Novakowski

The common law “plain view”
doctrine authorizes the nonconsensual seizure of property
obtained without a warrant.
The police are not expected
to "turn a blind eye to things
in plain view that evidence, or
raise suspicions of illegality1".
In a sense, plain view is an exception to the rule
requiring a search warrant2. This doctrine is a seizure
authority only and is unconnected to the law of search3.
Although plain view permits the seizure of items by
police lawfully present it does not allow the officer to
effect a warrantless search through areas unrelated to
the reason for attendance nor into areas the police do

IN THIS ISSUE
Plain View:Seeing is Believing……………………..1
Implied Licence:Opportunity Knocks………….2
Sink or Swim at the JI…………………………….….4
BC Courts Online……………………………………………..4
1

See Belnavis & Lawrence v. the Queen (1997), 118 CCC (3d) 405 (S.C.C.) at para.
57.
2
R. v. Ruiz (1991) 68 C.C.C. (3d) 500 (N.B.C.A.) at p.509.
3
R. v. Smith (1998) 126 C.C.C. (3d) 62 (Alta.C.A.)

Volume 1 Issue 1
June 2001

not have lawful authority to intrude or otherwise be
present4. A plain view seizure does not involve a
significant further invasion into a person's privacy
beyond what initially placed the officer at the location.
Plain view serves only to supplement the prior
justification.

Fundamental Requirements
Plain view will justify a seizure if the following conditions
are satisfied5:
•
•
•

lawful presence at the location where the object
of seizure is found6
the discovery of the object of seizure is
inadvertent7
it must be immediately apparent the object of
seizure (evidence, contraband) is subject to
seizure8.

Lawful Presence
The police officer must have prior justification, by
warrant or otherwise, to be in the location and position
to view the evidence seized. Lawful prior intrusion may
include the execution of a search warrant, search
incident to lawful arrest, hot pursuit, consent, implied
licence to enter, or some other legitimate reason for the
officer's presence. Prior intrusion could be unconnected
with a search of the individual altogether and may
include entry into an apartment to assist the landlord
with an emergency water leak9. Succinctly, the
lawfulness of the seizure turns on the legality of the
intrusion that permitted the police to view and physically
seize the property in question.

4

R. v. Knee 2001 ABPC 23 at para.50.
R. v. Kyllo [1999] B.C.J. No.717 (B.C.S.C.) at para.48.
6
R. v. Belliveau (1986) 30 C.C.C. (3d) 163 (N.B.C.A.), R. v. Ruiz (1991) 68 C.C.C. (3d)
500 (N.B.C.A.) , R. v. Askov [1987] O.J. No.1626 (Ont.D.Crt)
7
R. v. Belliveau (1986) 30 C.C.C. (3d) 163 (N.B.C.A.), R. v. Ruiz (1991) 68 C.C.C. (3d)
500 (N.B.C.A.)
8
R. v. Belliveau (1986) 30 C.C.C. (3d) 163 (N.B.C.A.)
9
R. v. Shea (1982) 1 C.C.C. (3d) 316 (Ont.H.C.J.)
5

Inadvertent Discovery
The police officer must inadvertently discover the
evidence. Accordingly, the officer may not know in
advance the location of the evidence and, intending on
seizing the evidence, use plain view as a pretext to
legitimize the seizure. However, having a suspicion or
even knowing in advance that evidence will be found does
not necessarily render the seizure unreasonable10
provided the intrusion was not a ruse merely to cause
the item to be in plain view. The discovery of an item
through an affirmative search does not amount to
inadvertence11.

Apparently Subject to Seizure
The police must have reasonable grounds to believe the
item subject to observation may be evidence of a
crime12, contraband or otherwise subject to seizure. The
officer must be more than "merely suspicious"13. Police
action in some circumstances, like opening a package, will
be treated as plain view. If the contents of the
container or package may be inferred from the outward
appearance of the package or container, the opening
does not necessarily intrude upon any reasonable
expectation of privacy14.

Limitations
Because plain view is a seizure authority only and does
not authorize a search15, plain view may not be relied
upon to extend a search from one object of focus to
another. For example, where police enter a residence
under the authority of a warrant to search for stolen
items, this doctrine allows the officer to seize drugs in
plain view without retreating from the residence and
obtaining a secondary warrant authorizing the seizure of
the drugs. However, police are not entitled to expand
the focus of the original search warrant from stolen
property to now include drugs. If the police wish to
expand the search to include the search for drugs, the
officer must obtain a secondary warrant. Alternatively,
the officer may continue the legitimate search for
stolen property and if further drugs come into view the

officer may seize them provided the officer does not
exceed the scope of the original warrant.
The police are not limited to only the officer having
observed the item in plain view participating in the
seizure of that item. An officer who is lawfully present
in a premise may seize evidence and retain possession
over the evidence while awaiting the arrival of further
assistance. Entry of additional police officers to assist
the seizing officer does not render the seizure
unreasonable16.
"Plain smell" does not authorize the engagement of the
plain view doctrine unless the odour provides the
reasonable grounds to believe the item already in view is
apparently evidence. When an officer who is present in a
premise such as a dwelling house detects a unique smell
believing marihuana is present elsewhere in another part
of a dwelling, the officer is not entitled to search for
the origin of the smell and then rely on the plain view
doctrine to justify its seizure17.

IMPLIED LICENCE:
OPPORTUNITY KNOCKS
Sgt. Mike Novakowski
Have you ever wondered why
police are entitled to walk up to
and talk up the occupants of a
dwelling? The common law has long
recognized an implied licence for
all members of the public,
including the police, to approach
the door of a residence and
knock18. Implied licence however,
relates to the approach to the dwelling, not to the
premises generally19, and ends at the door of the
residence20. When a police officer acts "in accordance
with this implied invitation, they cannot be said to
intrude upon the privacy of the occupant21" and do not
engage in unconstitutional activity22. Implied licence
extends only to those activities for the purpose of

16
10

R. v. Fitt (1995) 96 C.C.C. (3d) 341 (N.S.C.A.) at p. 346 affirmed (1996) 103 C.C.C.
(3d) 224 (S.C.C.)
11
R. v. Nielsen (1988) 43 C.C.C. (3d) 548 (Sask.C.A.) at p.556.
12
R. v. Lalibert (1995) SKQB QB9550.
13
R. v. Dreysko (1990) 110 A.R. 317 (Alta.C.A.)
14
R. v. Brennan [2000] O.J. No.3257 (Ont.S.C.J.) at para.70.
15
R. v. Smith 1998 ABCA 418 at para17.

Volume 1 Issue 1
June 2001

R. v. Shea (1982) 1 C.C.C. (3d) 316 (Ont.C.H.J.)
R. v. Smith 1998 ABCA 418 at para 24.
18
R. v. Evans (1996) 1 S.C.R. 8 (S.C.C.) per Sopinka J. at para. 13, per Major J. at
para. 40, R. v. Tricker (1995) 96 C.C.C. (3d) 198, R. v. Hallet [1967] 2 All E.R. 407,
19
Anderson v. Smith 2000 BCSC 1194.
20
R. v. Tricker (1995) 96 C.C.C. (3d) 198 (Ont.C.A.) at p. 203.
21
R. v. Evans (1996) 1 S.C.R. 8 (S.C.C.) per Sopinka J.
22
R. v. Van Wyk [1999] O.J. No.3515 (Ont.S.C.J.)
17

2

communicating with the occupant and anything beyond
this “licenced purpose” is not authorized by implied
licence. Synonymously, implied licence is known as
implied invitation, invitation to knock23, implied
invitation to attend24, implied licence to enter, or door
knocking.

Scope of Implied Licence
In determining whether the activity of the police fell
within the implied licence doctrine, the "underlying
purpose or intent" of entry onto the property from the
perspective of the police must be considered and
carefully assessed25. In R. v. Evans (1996) 1 S.C.R. 8
(S.C.C.), police attendance by acting on an anonymous
tip and knocking at the door for the purpose of
securing evidence against the owner (by sniffing for
marihuana odour) exceeded the scope of implied
licence. However, circumstances where the police are
not investigating the occupant or are "in the legitimate
pursuit of evidence"26 may be lawful uses of implied
licence. In R v. K.L & S.L. 1999 BCCA 3727, police
attendance at the residence of the accused to
determine whether the accused owned a pair of shoes
similar to the type of footprint left at the scene of a
robbery "was a natural step in a series of enquiries in
an investigation of possible suspects". The court found
the "visit" of the police to the residence did not violate
s.8 of the Charter. A circumstance where the sole
purpose of the police officer is to ask questions of the
homeowner, even investigative questions, does not
exceed the bounds of implied right to approach and
knock28.
The approach to the residence will generally import the
"requirement of a direct approach to the front doornot a trespassory detour elsewhere on the property to
secure evidence29". Since the purpose of implied
licence is to enable a person, police officer's included,
to reach a point in relation to the house where normal
and convenient communication may occur, an open porch
door may constitute an invitation to proceed past the
porch door to the outer door of the house proper30.
23

R. v. Peters [1998] B.C.J. No.156 (B.C.S.C.), R. v. Van Wyk [1999] O.J. No.3515
(Ont.S.C.J.) at para.28.
24
R. v. Piasentini [2000] O.J. No.3319 (Ont.S.C.J.)
25
R. v. Evans (1996) 1 S.C.R. 8 (S.C.C.), R. v. Mulligan [2000] O.J. No. 59 (Ont.C.A.)
26
Anderson v. Smith 2000 BCSC 1194
27
Police attended the residence of the accused and spoke to his mother. Upon
questioning of whether her son owned a pair of Converse Illusion brand shoes she
presented, on request, the shoes.
28
R. v. Van Wyk [1999] O.J. No.3515 (Ont.S.C.J.) at para.33,
29
R. v. Van Wyk [1999] O.J. No.3515 (Ont.S.C.J.) at para.35.
30
R. v. Bushman (1968) 4 C.C.C. 17 (B.C.C.A.)

Volume 1 Issue 1
June 2001

Likewise, an approach to a dwelling that necessitates
driving on a driveway and through some trees leading to
the residence does not fall outside the scope of implied
licence31. However, the act of surreptitiously looking
through windows of a house, amounting to a perimeter
search, goes beyond any waiver of privacy rights
implied through the invitation to knock doctrine32.
Similarly, visual observations by police (noting a bright
light and condensation) at a basement apartment
window made from a side-yard at a distance of two
inches, was a violation of a person's reasonable
expectation of privacy33.
A business establishment open to all members of the
public impliedly invites those members to enter and
there is no breach of privacy when a police officer
enters the area of the premises to which the public is
impliedly invited34. However, the police will be
restricted from accessing private, non-public areas of
the business under implied invitation35. The implied
invitation respecting a business establishment will be
dependent on the circumstances and nature of the
business.
Implied licence also "extends to situations where the
very purpose of entry is to protect the interests of
the property owner or occupant" provided the police
officer has a reasonable suspicion (articulable cause)
that criminal activity is being perpetrated against the
owner or occupant of the property36. In R. v. Mulligan
[2000] O.J. No.59 (Ont.C.A.) Sharpe J.A. held:
“It is plainly in the interests of a property owner or
occupant that the police investigate suspected crimes
being committed against the owner or occupant upon
the property. For that reason, absent notice to the
contrary, a police officer may assume that entry for
that purpose is by the implied invitation of the owner,
particularly where entry is limited to areas of the
property to which the owner has extended a general
invitation to all members of the public.”

In R. v. Hern [1994] A.J. No.83 (Alta.C.A.) police
entered a residence in response to a complaint of a
break and enter in progress. While inside police
discovered a marihuana grow operation. In determining
31

R. v. Johnson [1994] B.C.J. No.1165 (B.C.C.A.)
R. v. Peters [1998] B.C.J. No.156 (B.C.S.C.)
R. v. Laurin (1997) 113 C.C.C. (3d) 519 (Ont.C.A.)
34
R. v. Fitt (1995) 96 C.C.C. (3d) 341 (N.S.C.A.) at p.346 affirmed (1996) 103 C.C.C.
(3d) 224 (S.C.C.), R. v. Kouyas [1994] N.S.J. No.567 (N.S.C.A.)
35
R. v. Kouyas [1994] N.S.J. No.567 (N.S.C.A.)
36
R. v. Mulligan [2000] O.J. No,.59 (Ont.C.A.)
32
33

3

the reasonableness of the police entry and search of
the residence, the Court found “an inference can be
drawn that the owner would welcome police to stop a
break-in and protect the residents".

Constitution stands between
citizen44”. BCCA Justice Wood.

A police officer who is lawfully on property under
implied licence who finds an occupant of that property
committing an offence, may arrest that person and the
subsequent arrest and continued custody will be lawful
regardless of whether the occupant revokes the
implied licence42. If the property owner withdraws the
implied licence before the officer has grounds to make
the arrest, the police officer must leave the property
or risk becoming a trespasser. For example, where
evidence of impairment was obtained after the implied
licence was revoked causing the officer to be a
trespasser, the officer is no longer acting in the lawful
execution of his duty43. However, if grounds for arrest
came into existence before the implied licence was
withdrawn, the police are lawfully entitled to arrest.

Note-able Quote
“It is the nature of police officers to be suspicious.
Indeed, a suspicious nature is one of the positive
attributes of a competent police officer. But the

Volume 1 Issue 1
June 2001

the

Sgt. Tammy Schellenberg and Sgt. Frank Querido
Swimming has been added to police recruit physical
training at the JI in partnership with the Canada
Games Pool and Fitness Centre. Basic swimming and
survival skills are taught. For those who can’t swim, a
life jacket will be provided!!!

BC COURTS ONLINE
Did you know that all three BC Court levels now have a
web-site where you can access judicial decisions? Search
engines are easy to use and you may query key words.
Try running your own name and check for decisions of
cases in which you were involved.
BC COURT OF APPEAL
www.courts.gov.bc.ca
BC SUPREME COURT
www.courts.gov.bc.ca
BC PROVINCIAL COURT
www.provincialcourt.bc.ca

Note-able Quote
“It would be impractical to expect of an officer
swearing an information [to obtain a search warrant] in
these circumstances the precise prose of an Oxford
grammarian, the detailed disclosures of a confessional
and the legal knowledge of a Rhodes scholar45”. BCCA
Justice Gibbs.

WANTED: FEEDBACK
For comments or topics you would like to see
published in this newsletter contact
Sgt. Mike Novakowski at the JIBC Police Academy
at (604) 528-5733 or e-mail at
mnovakowski@jibc.bc.ca

37

R. v. Johnson [1994] B.C.J. No. 1165 (B.C.C.A.), R. v. Bushman (1968) 4 C.C.C. 17
(B.C.C.A.)
38
R. v. Evans (1996) 1 S.C.R. 8 (S.C.C.)
39
Robson v. Hallet (1967) 51 Cr.App.R. 307 per Diplock L.J.
40
R. v. Tricker (1995) 96 C.C.C. (3d) 198 (Ont.C.A.) at p. 205 leave to appeal to
S.C.C. refused (1995) 103 C.C.C. (3d) vi.
41
R. v. Forsyth [1982] B.C.J. No. 469 (B.C.S.C.)
42
R. v. Mulligan [2000] O.J. No. 59 (Ont.C.A.), R. v. Johnson [1994] B.C.J. No. 1165
(B.C.C.A.)
43
R. v. Smith [1999] B.C.J. No. 908 (B.C.S.C.)

and

SINK or SWIM AT THE JI

Revoking Implied Licence
Implied licence may be revoked on notice by the
occupant37. Revocation may be done in advance of police
attendance by the posting of signs38 such as "No
admittance to police officers39" or by oral revocation
while the police are on the property. Once the occupant
revokes or withdraws the implied licence, they must
provide a reasonable opportunity for the police to
leave40. If a police officer is assaulted while departing,
a conviction of assaulting a police officer will stand41.
If circumstances arise that would otherwise permit the
officer to remain on the property, such as effecting an
arrest, the implied licence revocation would not require
the officer to leave.

suspicion

44

R. v. Martin(1995) 97 C.C.C. (3d) 241 (B.C.C.A.) affirmed S.C.C. 104 C.C.C. (3d)
224.
45
R. v. Melenchuk (1993) 24 B.C.A.C. 97 (B.C.C.A.)

4