Quid enim sanctius, quid omni religione munitius, quam domus unusquisque civium?
What more sacred, what more strongly guarded by every holy feeling, than a man’s own home?
A man’s home is his castle. It’s not just an old proverb; it’s also a centuries-old statement of English Law dating back to the famous Semayne’s Case. When police enter a dwelling, it’s one of the greatest invasions of personal privacy and thus it’s important to know the circumstances where police have the lawful authority to enter, and when you have the lawful authority to say ‘no.’
The Common Law Position – the Castle Doctrine
Rooted in Semayne’s Case and firmly enshrined in Canadian law, Castle Doctrine (sometimes referred to as the Sanctity of the Home Doctrine) is a common-law principle codifies the right of a Canadian citizen to the control and enjoyment of his own property, including the right to determine who can and cannot enter it. In R v. Thomas, the Supreme Court of Canada affirmed that, to comply with the common law, the police need a ‘valid and unrevoked invitation to enter and remain in a house’ unless otherwise authorized by statute or common-law to do so.
When the Charter of Rights and Freedoms was entrenched in 1982, it constitutionally enshrined a number of rights, among them the right to be free from unreasonable search and seizure. While the Supreme Court has been emphatic that s.8 ‘protects people, not places’ Courts have easily found that people have a reasonable expectation of privacy in their homes. The jurisprudence has developed much in the same vein as the common-law, with the Charter requiring a warrant or exceptional circumstances to validly enter a dwelling. While some may question the necessity of having similar protections under common-law and the Charter, there is a difference. Under the common law, there is no right to the exclusion of evidence that has been obtained illegally. In effect, there is no remedial right for someone under the Castle Doctrine. However, under s.24(2), evidence obtained as a result of a Charter breach can be excluded if to do otherwise would bring the justice system into disrepute. As well, if the police enter your home without lawful authority and seize evidence, that evidence may be inadmissible under s.24(2) of the Charter.
Exceptions to the Rule
There are currently five recognized situations where the police have been authorized to force entry into a dwelling, against the wishes of the occupier, by statute or common law. If a court finds that the police were acting in one of these capacities, a search will be justified. These five exceptions are:
- The so called ‘hot or continuous pursuit’ exception, where police can follow an offender who entered their dwelling to evade arrest: R v. Macooh, 1993 CanLII 107 (SCC);
- Where the police believe, on reasonable grounds, that it is necessary to enter the dwelling to prevent the commission of an offense that would cause immediate and serious injury, or to protect life and safety by assisting a resident who is in potential danger: R Godoy, 1999 CanLII 709 (SCC)
- Where the police have an arrest warrant for an occupant, they may enter a dwelling without permission to effect the arrest: R v. Landry, 1986 CanLII 48 (SCC);
- Various statutory provisions allow police to enter dwellings in ‘exigent circumstances’ where there is a risk that evidence will be destroyed or serious harm will befall someone in the dwelling: see, e.g., s.487.11 and 529.3 of the Criminal Code;
- Where police have obtained a search warrant for the dwelling: see, e.g., s.487 of the Criminal Code.
As well, police enjoy what is known as an ‘implied license to knock’ – like every other citizen, a police officer has the right to approach the door of a dwelling and knock: R v. Evans, 1996 CanLII 248 (SCC). However, the Supreme Court has recently confirmed that such ‘implied license’ does not allow a police officer to open the door, not even a few inches: R v. MacDonald, 2014 SCC 3 (CanLII)
If the police are not acting within one of these exceptions, then they are trespassing if they enter your home.
What Can I Do If the Police Unlawfully Enter My Home?
This is one of those too-frequent situations where the realms of law and reality part ways. Practically speaking, it’s very hard to do anything if the police unlawfully enter your home. They carry guns and, if you physically attempt to evict them from your home, you’re liable to learn that they also carry silver bracelets. Legally speaking, the recently amended s.35 of the Criminal Code provides some relief to an aggrieved inhabitant. S.35 states that a person may do any reasonable act (including a reasonable use of force) to prevent a person from entering the property, and will not be guilty of an offence if:
- That person is in lawful possession of a property, and;
- They believe on reasonable grounds that the other person is about to enter or has entered that property without lawful authority.
To learn more about your rights as an occupant of a dwelling, or if you have been charged with a criminal offence, contact the experienced criminal law team at Devry Smith Frank LLP.