Can the police enter and search your home without your permission? Can you tell them to “come back with a warrant,” as is often seen on American television and film? The subject requires some clarification in the Canadian context.
You are entitled to privacy in your own home, but there are several circumstances in which law enforcement can enter your home without permission, either with a warrant or in some cases without.
Law enforcement officers can enter your home if they have a search warrant for the home or an arrest warrant for someone in the home. There are also non-warrant exceptions. Police can enter without a warrant and without your permission if they are in “hot pursuit” of a suspect. An officer may also enter if they believe, on reasonable grounds, that it is necessary to prevent an offense that would cause immediate injury or danger or protect life and safety for a resident in potential danger. During exigent circumstances, the police may enter to prevent someone from being seriously injured or killed, or to prevent the imminent destruction or loss of evidence.
Sanctity of The Home Doctrine
On December 30th, 2011, police were called to a condominium in downtown Toronto in response to a noise complaint. The officers entered the home when the owner, Mehdi Zargar, opened the door. After one officer refused to leave, Mr. Zargar attempted to push him out of his home. Mr. Zargar was charged with assaulting the officer. Mr. Zargar was found guilty at trial. However, the decision was appealed to Superior Court.
The determinative issue was whether the officer was lawfully on the premises. If the officer was not, then he would not be in lawful execution of his duties, and Mr. Zargar was entitled to use reasonable physical force to remove the police officer from his home.
In the judgment of R. v. Zargar, 2014 ONSC 1415, Justice M.A. Code, thoroughly explored the legal concept “sanctity of the home”, a common law notion dating back to seventeenth-century England. The common law right to private property is foundational to our legal system. Considering the “sanctity of the home” doctrine’s clarity and strength, Justice Code moved on to look at the well-articulated exceptions.
Justice Code found that the trial judge had erred in three ways. The exceptions listed did not apply to the case at bar. The “hot pursuit” doctrine does not include a “hot pursuit” of an investigation, and Mr. Zargar was already in his apartment. The “implied license” doctrine did not give the officers the right to enter the foyer of the condominium without permission. Finally, the officer safety doctrine did not apply in this context either. As noted in paragraph 34 of the judgment, officer safety cannot be invoked without foundation, as “this kind of speculative fear of the unknown, when there is such a gathering of people in a dwelling, could apply to any dinner party…”
Justice Code concluded that the police officer became a trespasser once he entered Mr. Zargar’s home without his permission and without any circumstances that would justify the entry. The officer was, as a result, not acting lawfully or in the execution of his duties. Mr. Zargar’s conviction was set aside, and an acquittal was entered.
Entering Your Home with Your Permission
Generally, permission to enter your home must be given by an adult that lives in the home. If the police officer asks to enter and does not have a warrant, you have the right to refuse and say no. It is important that you communicate clearly to the officer that you do not permit them to enter. If you have given permission for an officer to enter your home without a warrant, you can change your mind at any time and ask them to leave, at which time they must oblige.
Entry With a Warrant
The most common method for entry into a home without permission is if the officer has obtained a warrant for the purposes of search or arrest. A warrant must be signed by a judge or justice of the peace that states who specifically is being arrested or what can be legally sought. You also have the right to look at the warrant and record the names and badge number of the officers in charge. It is important to note that unwarranted searches are considered by the courts to be presumptively unreasonable.
Removing a Police Officer From Your Home
In Mr. Zargar’s case, the Court ruled that the police officer had trespassed once he entered the home without permission or a recognized “exception” that could justify it. The Court concluded that “minimal force” was used against the officer, and only when he refused to leave, so the force was therefore justified.
Under Canada’s new self-defense laws, a homeowner has the right to use physical force for the purposes of protecting their property. This does include the right to prevent a person from entering or to remove that person from the property. This includes entry by a police officer. Reasonable force is a key component. The act committed must be reasonable in the circumstances. Excessive force is deemed “unreasonable,” and is illegal.
Police officers are only entitled to enter your home without permission under the few circumstances enumerated above. It is important to understand what actions you are entitled to take in protecting your home and property in Canada, even against law enforcement. For more information and legal expertise in regard to these issues, or any other criminal matters contact the Toronto criminal law firm Weisberg Law today.