Can Police Enter Your Home In Canada? coachgrant, February 21, 2024April 10, 2024 Understanding Your Rights: When Can Police Enter Your Home? Exploration of the Canadian Charter of Rights and Freedoms in relation to home entry In this post we ask the question ‘can police enter your home in Canada?’ Section 8 of the Canadian Charter of Rights and Freedoms: 8. Everyone has the right to be secure against unreasonable search or seizure. Similar provisions While privacy is a central or core concern under section 8 of the Charter, section 7 also provides residual protection for privacy interests (R. v. Mills, [1999] 3 S.C.R. 668. Section 7 of the Charter guarantees the right to life, liberty and security of the person, which can also affect cases of home entry. The Canadian Bill of Rights contains no specific rights to privacy or to be secure against unreasonable search and seizure; but section 1(a) protects a limited right not to be deprived of the enjoyment of property without due process. Analysis of Section 8 of the Charter “It should be noted that Section 8 protects people, not places, against unjustified intrusions on their privacy interests (Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 159; R. v. Gomboc, [2010] 3 S.C.R. 211 at paragraphs 17, 75). As demonstrated by Hunter v. Southam, the protection of people includes corporations as legal persons. The purpose of section 8 is to prevent unjustified searches before they happen, not simply to determine after the fact whether they ought to have occurred in the first place (Hunter v. Southam at page 160). The values underlying the privacy interest protected by section 8 are dignity, integrity and autonomy (R. v. Plant, [1993] 3 S.C.R. 281 at page 292). The protection section 8 provides for privacy ― personal, territorial and informational — is essential not only to human dignity, but also to the functioning of our democratic society. As such, section 8 protects a sphere of individual autonomy within which people have the right “to be let alone” and on which the state cannot intrude without permission (R. v. Ahmad, 2020 SCC 11 at paragraph 38). At the same time, section 8 permits reasonable searches and seizures in recognition that the state’s legitimate interest in advancing its goals or enforcing its laws will sometimes require a degree of intrusion into the private sphere (Goodwin v. British Columbia (Superintendent of Motor Vehicles), [2015] 3 S.C.R. 250 at paragraph 55).” The Supreme Court has identified three broad privacy interests protected by section 8: personal privacy, territorial privacy and informational privacy. The distinction between these categories provides a useful analytical tool but is not determinative of the analysis as, in a given case, the privacy interest may overlap the categories (Tessling at paragraph 24; see also Gomboc at paragraph 19). Personal privacy Privacy of the person perhaps has the strongest claim to constitutional shelter because it protects, in particular, the right of individuals not to have their bodies touched or explored to disclose objects or matters they wish to conceal (Tessling at paragraph 21) and is often at issue in criminal investigations when the state wishes to pursue invasive procedures such as drug testing and cavity searches. The Supreme Court has repeatedly emphasized the close relationship between bodily privacy and human dignity (see e.g., Tessling at paragraph 21; R. v. Golden, [2001] 3 S.C.R. 679 at paragraphs 87 and 98-99; Dyment at 431-32; R. v. Pohoretsky, [1987] 1 S.C.R. 945 at 949; R. v. Stillman, [1997] 1 S.C.R. 607 at paragraph 42). Territorial/spatial privacy Territorial privacy has its origins in the notion that “the house of everyone is to him as his castle and fortress” (Semayne’s Case, [1558-1774] All E.R. Rep. 62 (1604), at 63). This has developed into a more nuanced hierarchy protecting privacy: in the home, being the place where our most intimate and private activities are most likely to take place (Evans at paragraph 42; R. v. Silveira, [1995] 2 S.C.R. 297 at paragraph 140; R. v. Feeney, [1997] 2 S.C.R. 13 at paragraph 43); in diluted measure, in the perimeter space around the home (Kokesch; R. v. Grant, [1993] 3 S.C.R. 223 (Grant (1993) at pages 237, 241); R. v. Wiley, [1993] 3 S.C.R. 263 at 273); in commercial space (Thomson Newspapers at 517-19; McKinlay Transport at 641); in private cars (R. v. Wise, [1992] 1 S.C.R. 527 at 533; R. v. Mellenthin, [1992] 3 S.C.R. 615); in a school (R. v. M. (M.R.), [1998] 3 S.C.R. 393, at paragraph 32); and even, at the bottom of the spectrum, a prison (Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872, at 877) (Tessling at paragraph 22). Such a hierarchy of places does not contradict the underlying principle that section 8 protects “people, not places”, but uses the notion of place as an analytical tool to evaluate the reasonableness of a person’s expectation of privacy (Tessling at paragraph 22). Informational privacy In fostering the underlying values of dignity, integrity and autonomy, it is fitting that section 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual (Plant at 293). Informational privacy has been defined as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” (Tessling at paragraph 23; see also Patrick, Gomboc, Cole, A.M.). Informational privacy includes at least three conceptually distinct, though overlapping, understandings of what privacy is: privacy as secrecy; privacy as control and privacy as anonymity. Privacy as secrecy encompasses the expectation that information disclosed in confidence will be held in trust and confidence by those to whom it is disclosed. Privacy also encompasses a wider notion of control over, access to, and use of information. This aspect of privacy “derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit” (Spencer at paragraph 40). Privacy as anonymity permits individuals to act in public places but to preserve freedom from identification and surveillance. This conception of privacy is particularly important in the context of Internet usage (Spencer at paragraphs 41-43). Because the Internet has exponentially increased both the quality and quantity of information that is stored about Internet users, and because users cannot fully control or even be fully aware of who may observe a pattern of online activity, it is by remaining anonymous that the user can in large measure be assured that the activity remains private (Spencer at paragraph 46). Privacy concerns in relation to information are at their strongest where aspects of an individual’s identity are at stake, such as in the context of information “about one’s lifestyle, intimate relations or political or religious opinions” (Mills (1999) at paragraph 81; Thomson Newspapers at 517; Branch at paragraph 62). Nature of the information Documents of a personal and confidential nature or that reveal a personal core of biographical information carry a reasonable expectation of privacy sufficient to attract constitutional protection (Mills (1999) at paragraph 81; Plant at pages 292-294). This includes information which tends to reveal intimate details of the lifestyle and personal choices of the individual (Plant at page 293; Tessling at paragraph 62). Personal computers, because of the vast amounts of information they contain — including intimate correspondence, the details of our financial, medical and personal situations, internet browsing histories, as well as information that users cannot control and information that they may not be aware of or may have chosen to discard — attract a very high expectation of privacy (Morelli at paragraph 105; R. v Vu, [2013] 3 S.C.R. 657 at paragraphs 24, 40-45). Because of the unique and heightened privacy interests in personal computer data, specific, prior judicial authorization, in other words a warrant, is presumptively required to seize a personal computer from a home (Reeves at paragraph 35). Text messages are both private and discreet: receipt of the information is confined to the people to whom the text message is sent; service providers are contracted to confidentiality; no one else generally knows about the existence or contents of the message (Marakah at paragraph 34). As such, electronic text conversations are capable of revealing a great deal of personal information (para. 37). 1. Has there been a search or seizure (i) Types of state conduct to which section 8 may apply The first question in this context is ‘has there been a search?’ The courts have defined “search” for section 8 purposes as any state activity that interferes with a reasonable expectation of privacy. This can include looking for things that are tangible or intangible, such as spoken words and electronic data (R. v. Morelli, [2010] 1 S.C.R. 253), or scents (Evans at paragraphs 12-21; R. v. Kokesch, [1990] 3 S.C.R. 3). The interception and recording of a private communication should be considered a search in all circumstances, except where all parties to a conversation expressly consent to the recording (R. v. Duarte, [1990] 1 S.C.R. 30 at pages 42-46). A “seizure” for section 8 purposes is the “taking of a thing from a person by a public authority without that person’s consent” (R. v. Dyment, [1988] 2 S.C.R. 417 at 431; R. v. Colarusso, [1994] 1 S.C.R. 20 at 58; R. v. Law, [2002] 1 S.C.R. 227 at paragraph 15). This includes situations in which a person is required to produce a thing (including information) pursuant to a state compulsion (R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627 at 642; Mills (1999) at paragraph 77; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3 at page 34; see also R. v. White, [1999] 2 S.C.R 417; R. v. Fitzpatrick, [1995] 4 S.C.R. 154; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425). The power to make copies of documents is analogous to a requirement for production of documents and constitutes a seizure within section 8 (Comité paritaire at page 439). Scenarios that grant law enforcement the legal right to enter a private residence In Canada, law enforcement officers are granted the legal right to enter a private residence under specific scenarios. If police are at your door, you can consent to a search. We will cover this scenario in detail below. Beyond consent, one such scenario is when officers have obtained a search warrant from a judge. This warrant allows them to enter a private residence to search for and seize evidence related to a criminal investigation. A warrantless search or seizure is presumptively unreasonable (Hunter v. Southam; Nolet at paragraph 21; Goodwin at paragraph 99). The party seeking to justify a warrantless search bears the onus of rebutting the presumption by establishing that the search was: authorized by law; the law itself is reasonable; and the manner in which the search or seizure takes place is reasonable. (Collins at 278; R. v. Caslake, [1998] 1 S.C.R. 51, at paragraphs 10-11; Tessling at paragraph 18; R. v. Mann, [2004] 3 S.C.R. 59 at paragraph 36; Grant (2009) at paragraph 56; Shepherd at paragraph 15; Nolet at paragraph 21; but see Nolet at paragraph 46, upholding the warrantless search on the basis that the reasonableness of the law authorizing it had not been challenged). Common law power to search in exigent circumstances Warrantless searches may be reasonable in some situations if exigent circumstances make it impracticable to obtain a warrant (Grant (1993) at pages 239-242; Plant at page 292; see also Wiley). “Exigent circumstances” denotes not merely convenience but urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety (R. v. Paterson, 2017 SCC 15 at paragraphs 32-33). Exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed. While the fact that the evidence sought is believed to be present on a motor vehicle, water vessel, aircraft or other fast moving vehicle will often create exigent circumstances, no blanket exception exists for such conveyances (see e.g., Hunter v. Southam; Grant (1993); Wiley; and see Silveira, where entry into a dwelling house while awaiting the issuance of a warrant to prevent the destruction of evidence violated section 8). For situations involving emergency entries to protect life and to prevent death or serious injury, see Godoy, in which police entered a dwelling house without a warrant as a result of a 911 call. The Supreme Court did not squarely deal with the section 8 issue, but instead considered an analytical framework dealing with the common law/statutory police duties which followed the structure of a section 8 analysis. The Court noted that the police have the authority to investigate a 911 call but said that whether the police can enter a dwelling house as part of that investigation would depend on the circumstances of each case. See also Tse, where the Court applied section 8 analysis in evaluating the reasonableness of the provisions of the Criminal Code governing warrantless wiretapping under exigent circumstances. Exigent Circumstances and Hot Pursuit: Exceptions to the Rule Definition of exigent circumstances within Canadian law As we have seen, exigent circumstances, within Canadian law, refer to situations that require immediate action or intervention by law enforcement or other authorities. These circumstances are often seen as exceptions to the usual legal requirements, such as obtaining a warrant, in order to ensure the preservation of evidence, protect public safety or prevent serious harm. Examples of exigent circumstances may include situations where there is a risk of someone being harmed or evidence being destroyed if immediate action is not taken. In Canadian law, the concept of exigent circumstances is recognized as a valid justification for law enforcement to enter a property, conduct a search or make an arrest without first obtaining a warrant. However, it is important to note that the use of exigent circumstances is subject to certain limitations and must be justified based on the specific circumstances of each case. The actions taken under exigent circumstances must be reasonable and proportionate to the threat or danger at hand. Analysis of the ‘hot pursuit’ doctrine and its application in Canada The ‘hot pursuit’ doctrine is another legal principle that allows law enforcement officers to continue pursuing a suspect across jurisdictional boundaries or into a private home without obtaining a warrant. This doctrine is based on the idea that the immediate apprehension of a suspect is more important than the formalities of obtaining a warrant. In Canada, the application of the ‘hot pursuit’ doctrine is guided by the Supreme Court of Canada’s decision in the case of R. v. Hufsky. In this case, the court held that the doctrine could be applied when the pursuing officers have reasonable grounds to believe that the suspect has committed a serious criminal offense and that there is a risk of the suspect escaping. The court also emphasized that the pursuit must be continuous and unbroken and that the pursuing officers must have acted reasonably in the circumstances. The application of the ‘hot pursuit’ doctrine in Canada is therefore limited by these strict criteria and any deviation from these criteria could result in the evidence obtained during the pursuit being deemed inadmissible in court. The role of consent in police home entry and its implications for residents In Canada, the role of consent in police home entry is an aspect of the ability of law enforcement to enter a private residence and has significant implications for residents. According to the Canadian Charter of Rights and Freedoms, individuals have the right to be secure against unreasonable search or seizure. This means that police officers generally require a warrant to enter a person’s home, unless there are exigent circumstances such as the risk of harm to someone inside the home or the destruction of evidence. However, in some cases, individuals may give consent for police to enter their home without a warrant. It is important for residents to understand their rights in these situations and to be aware of the potential consequences of granting consent to police. While consenting to a search may seem like the easiest way to resolve a situation, it is important for individuals to consider the potential impact on their privacy and legal rights. Individuals should be aware that they have the right to revoke consent at any time during a search. It is possible for what would otherwise be an infringement of section 8 to be constitutional if the person concerned waives their constitutional right to privacy. For such waiver/consent to be valid, it must be fully informed and voluntarily given by the rights holder. To be fully informed, a person must be provided with sufficient information to make the preference meaningful (R. v. Borden, [1994] 3 S.C.R. 145). For the consent to be voluntary, the person must have had a real choice in providing the purported consent (see Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 at paragraph 72; Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at paragraph 98). Consent cannot be given by a third party (Cole at paragraphs 75-79). The Importance of Search Warrants: Safeguarding Privacy and Legal Procedures The legal threshold for obtaining a search warrant in Canada In Canada, obtaining a search warrant is a legal process that requires meeting a specific threshold. In order to obtain a search warrant, law enforcement officials, in an affidavit in support of the request for a warrant, must demonstrate to a judge or justice of the peace that there are reasonable grounds to believe that an offence has been committed and that evidence related to that offence can be found at the location to be searched. This threshold is known as “reasonable grounds” and it requires more than a mere suspicion but less than proof beyond a reasonable doubt. The evidence presented to the judge or justice of the peace must be sufficient to establish a credible and reliable basis for the belief that an offence has been committed and that evidence of that offence can be found at the location in question. Once the threshold is met, the judge or justice of the peace may issue a search warrant, which authorizes law enforcement officials to search the specified location and seize any evidence related to the offence. It is important to note that the threshold for obtaining a search warrant is designed to protect the rights of individuals and ensure that searches and seizures are conducted in a manner that is consistent with the principles of fundamental justice. Failure to meet the legal threshold for obtaining a search warrant can result in the warrant being deemed invalid and any evidence obtained as a result of the search being excluded from court proceedings. Therefore, it is essential from a law enforcement perspective, that police carefully adhere to the legal requirements for obtaining a search warrant. Thresholds upon which a search may be authorized “Reasonable grounds to believe” is the common standard in the Criminal Code, and most federal enactments, authorizing a search warrant in Canada. “Reasonable grounds to believe” and “probable cause” as found in the Fourth Amendment to the American Constitution are identical standards (Hunter v. Southam at pages 167-168) and equate with “reasonable and probable grounds” (R. v. Debot, [1989] 2 S.C.R. 1140 at page 1166). “Reasonable grounds” is the equivalent of “reasonable and probable grounds” (Baron at pages 446-447; Morelli at paragraphs 127-8, per Deschamps J., in dissent but not on this point). Reasonable grounds can be based upon detailed “tips” furnished by a reliable informer (Debot at pages 1168-1169; Plant at pages 296-297; see also Grant (1993); Wiley). Reasonable grounds can also be based on information provided in a 911 call, particularly where firearms posing a risk to public safety are the focus of the investigation (Clayton at paragraphs 33-5). It is important to recognize that, if police appear at your door with a search warrant, you should not resist. This will be covered in a future post but, for the time being recognize that, if police show up at your door with a search warrant and you try to resist, you could potentially face serious consequences. Resisting a search warrant is a criminal offense and can result in charges being brought against you. This could lead to fines, jail time, or even a criminal record. Attempting to resist the police could also escalate the situation and potentially result in physical harm to yourself or others. It is important to remember that police officers are authorized to carry out their duties and refusing to comply with a search warrant is not only illegal but it can also make the situation more difficult for everyone involved. The best thing to do is to seek legal advice if can reasonably do so in the circumstances if you have any concerns about the search warrant or the actions of the police. However, if police are not willing to provide you with the time to do so, it is best to allow police to carry out the warrant. You will have the opportunity to challenge the validity of the warrant and/or the reasonableness of police conduct in carrying out the terms of the warrant at a later date in court. Much of the content in this post has been reproduced from the Government of Canada website ‘Canada’s System of Justice, The Canadian Charter of Rights and Freedoms, Charterpedia’. For more information here is the link to the site: Charterpedia I hope you have found this content informative. If you have questions or would like to make a comment please do so in the ‘Leave a Reply’ section below. Finally, if you would like to be notified as updates to the content on this platform are made enter your name and best email in the form below. Grant Edward Rayner* *Grant is a member of the Law Society of Ontario. He has permission from the Law Society of New Brunswick to practice as a visiting lawyer with the firm Langdon Law pending the transfer of his membership with the Law Society in Ontario to the Law Society of New Brunswick. If you need legal advice from a seasoned criminal lawyer in the Upper St. John River Valley, call Grant at Langdon Law: 506.497.2560. Offices in Woodstock, Hartland and Florenceville-Bristol to serve you. Grant has been in practice for more than 39 years and has the experience, sensitivity and maturity to guide you through this difficult period in your life. 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