The Police Are At Your Door – Now What? Posted onJune 22, 2022October 31, 2023/ David M. Schell When faced with this scenario, do you allow the police to enter your home? Knowing Your Rights Your rights against unreasonable exercises by the police are enshrined in the Charter of Rights and Freedoms[1]. Many cases have explored these rights. Very recently, in R v. Stairs[2], the Supreme Court of Canada looked at the power of the police to conduct searches incident to arrest in the context of a home being entered without a warrant (for the purposes of arrest). The common law power to search incident to arrest permits the police to search the person and the surrounding area when: (1) the arrest is lawful; (2) the search is incidental to the arrest, such that there is some reasonable basis for the search connected to the arrest and the search is for a valid law enforcement purpose, including safety, evidence preservation, or evidence discovery; and (3) the nature and extent of the search are reasonable. In Stairs, the Supreme Court of Canada stated: “where the area searched incident to arrest in a home is outside the arrested person’s physical control at the time of the arrest, the common law standard for a search incident to arrest must be modified in two ways that make the standard stricter. First, the police must have reason to suspect that there is a safety risk to the police, the arrested person, or the public which would be addressed by a search”. Second, the police must conduct the search reasonably, ensuring they respect the heightened privacy interests in a home. At what point does a search violate your Charter rights? It is important to understand when a search violates your rights and when it can be justified. This distinction is not easily assessed and you could benefit from legal advice if you are faced with this situation. Many times, a lawyer is not readily available – but consulting one as soon as possible following the fact is imperative! There needs to be a connection between: location being searched and the purpose or grounds for arrest. If this connection does not exist, there is potential for a violation of a s. 8 Charter right. In order to enter a dwelling, the police should obtain a warrant – however, sometimes this doesn’t happen. There are valid exceptions that apply to entering a dwelling without a warrant. What do I do when the Police are at my door? It is important to know that the Police do have a right to approach your door and knock – this is where the rights end! Without a warrant – you are not required to open your door, answer any questions, or to allow entry. With a warrant – you are required to allow them entrance. You do not, however, have to assist them or answer any questions. Contact a lawyer at this stage! Exceptions to entry with no warrant A home is viewed as a sanctum of one’s ultimate model of privacy. While this regard is held to a high standard, so too are the expectations of protecting the police and public safety. Evidence obtained in one’s home, without a warrant (outside these exceptions), can be excluded at trial. Exceptions: In order for the Police to enter without a warrant, the “exigent circumstances” exception was articulated in the Court of Appeal decision, R v Rao[3]: “Exigent” indicates in dictionary usage, the “requiring of immediate action or aid; pressing, urgent” or “[a] state of pressing need; a time of extreme necessity; a critical occasion, or one that requires immediate action or remedy; an emergency, extremity, strait”. If the police have entered your home on the pretense of “exigent circumstances” and have obtained any evidence of an offence while in your home, you will want to contact a lawyer! A lawyer will determine if the search was truly “exigent circumstances”. A court may find that the situation did not warrant “exigent circumstances”; if so, any evidence found by the police may be ruled inadmissible. This can result in the charges being dropped. A lawyer can assess the merits of this entry exception! In R v Van Puyenbroek[4]: “[i]f there are no exigent circumstances, it is difficult to imagine why an officer could not proceed to obtain the warrant, outside of a “classic” situation of hot pursuit, in which the officer is literally on the heels of a suspect at the moment the suspect enters a dwelling-house”. Another exception to not having a warrant is the “hot pursuit” doctrine. In this case, the Police are actively pursuing a suspect and follow them into a dwelling. This exception is premised on the ability of the police to continue pursuing a fleeing suspect, even inside a dwelling, in order to arrest them. In R v Macooh[5] the Supreme Court defined “hot pursuit” as: “continuous pursuit conducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction.” In Feeney[6], the Supreme Court recognized that: “in cases of hot pursuit, the privacy interest [of the citizen] must give way to the interest of society in ensuring adequate police protection.” The Test for “Hot Pursuit” is: there are reasonable and probable grounds to believe the indictable offence has been committed and that the person sought is within the premises and a proper announcement is made prior to entry. If the Police are claiming they entered while in “hot pursuit”, contact a lawyer to ensure the test has been met! While the common perception is that one should cooperate with the Police – this may not always be a good idea! If you have concerns regarding allowing police entry into your home – call our Criminal Law lawyer to weigh in on your particular situation! If you have more questions related to Criminal Law, please visit our website or contact David Schell at Devry Smith Frank LLP to discuss any questions regarding allowing entry into your home and your options at 416 446-5096 or david.schell@devrylaw.ca. This blog was co-authored by Summer Law Student, Kathleen Judd. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” [1] https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/ [2] R. v. Stairs, 2022 SCC 11 (CanLII) [3] R. v. Rao (1984), 1984 CanLII 2184 (ON CA), 46 O.R. (2d) 80 (C.A.) at 102. [4] R. v. Puyenbroek, 2007 ONCA 824 (CanLII) [5] R. v. Macooh, 1993 CanLII 107 (SCC), [1993] 2 SCR 802 [6] R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 SCR 13 Authors David M. Schell 416-446-5096 416-446-5096 david.schell@devrylaw.ca