I have put together a brief overview answering some of the most common questions from my subscribers.

Mixed in are quick tips and notable cases from which I am drawing some of my answers and legal interpretations. These answers are based on Canadian jurisprudence, focusing on Ontario statute and common law. However, some of the cases are applicable across the country as many of the citations are from the Supreme Court of Canada. While understanding your rights and obligations is an essential first step, simply reading some case law and sections of an Act is insufficient when facing complex legal issues and situations. While this information is meant to educate, it cannot replace a qualified and licensed advocate authorized under statute to provide legal advice and services. You should always seek the advice of a lawyer or paralegal when asking about specific legal ramifications to a particular fact situation or pattern.

Your Rights in Your Home: “Et domus sua cuique est tutissimum refugium.” A man’s home is his castle. This is not just a common saying; it is a legal maxim enshrined by our Charter of Rights and Freedoms (for a historical and persuasive common law case see, Semayne’s Case, (1604) 77 E.R. 194, or Colet v The Queen, 1981 CanLII 11 (SCC), [1981] 1 SCR 2). The police or other law enforcement authorities can only lawfully enter your home under certain circumstances – otherwise, they are the same as any trespasser (as defined by the Trespass to Property Act, RSO 1990, among other acts and by common law). The home is seen as the most private place under our law, but there are exceptions to your protection against police intrusion. The legal maxim that enshrines your right to privacy from the government or state agents is otherwise known as “the castle principle.” (Here’s a link to the Charter of Rights and Freedoms)

Notable Case: R v Le, 2019 SCC 34, [2019] 2 SCR 692

Police at Your Door: Any person, including a peace officer, has your implied consent (otherwise known as an “implied right of access”) to walk onto your property for the purpose of communicating to you at your front door. If the police have a legitimate reason for communicating with you, such as responding to a call or seeking information for an investigation, then there is nothing wrong with this. Police are not, however, entitled to abuse this ability by using it to conduct a “sniff” test – for example, just going to the front door to see whether there is any sign of criminal activity when someone answers the knock. 

  1. There is also no obligation to answer the door when the police knock, 
  2. There is no obligation to speak to the police at your door, and 
  3. You can end any conversation with them whenever you choose.

Police Entering Your Home (by Invitation): The police may come to your door to speak with you and, in the process, ask if they can come inside. You do not have to let them enter, but they are allowed to under the law if you permit them. Giving the police permission to enter your home is not the same as permitting them to search your home, but police may ask to do this as well, and you may grant it. If you give police permission to search your home, then they can do so without a warrant. A search of your home by police is a severe intrusion of your constitutionally protected privacy interests, and you should consult a lawyer or licensed paralegal for legal advice before making this decision.

Quick Tip: It’s never advisable to litigate your case or create a disturbance with a law enforcement officer at the side of the road. Often when people are confronted by a law enforcement officer, it is best to remain silent. If an officer is inclined to violate your rights, either because of their ignorance or understanding of the situation, remain silent and contact a lawyer or licensed paralegal as soon as reasonably possible.

Can Police Search Me Without Reason? Police cannot search anyone unless they have a valid reason. Valid reasons for a search include a search warrant or just after arrest (known as a “search incident to arrest”). Like detention, police also have a limited power to search for investigative purposes. When searching for investigative purposes, police can only conduct a “pat-down.” Police cannot force people to empty their pockets when searching for incidents in an investigation. The purpose of this search is to ensure a person doesn’t have anything that would endanger the police or the public. The criteria for what constitutes “reasonable and probable grounds” are were established in Hunter, et al. v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145.

Notable Case: R v Mann, [2004] 3 SCR 59, 2004 SCC 52

What is “Reasonable or Probable Grounds”? Before doing specific things, like charging you with a criminal offence or conducting a search, the police must have ‘reasons to believe’ that you: could have committed a criminal offence, or have evidence or weapons related to a criminal offence. Their reasons must be based on reliable information. Having reasonable and probable grounds is more than having a hunch or suspicion, but less than being able to show on a balance of probabilities. “Reasonable and probable grounds” and “reasonable grounds” mean the same thing.

Your Home and Search Warrants: A search warrant is a judicial authorization to enter and search a place for evidence of a crime. They are often used to search and seize illegal drugs or firearms but may be related to a search for evidence of any crime. It may authorize the police to enter at night, and it may allow the police to use force in making their entry. Police can detain people found in the home while the search is being conducted and may make arrests or lay charges based on what is found. The police may also seize any number of items found during a search in pursuit of their investigation. The validity of search warrants can be challenged later in court, and issues related to the release of items that are seized can also be dealt with later. Anything taken as evidence will likely be held until the related charges are over.

Your Home and Arrest Warrants: In certain circumstances, police will obtain a warrant to enter a home where a wanted person is believed to be in order to arrest that person. The validity of these warrants can be challenged later in court.

“Hot Pursuit,” or the Fresh or Immediate Pursuit Doctrine: Even without a warrant and without consent, police have authority under law to enter your home in certain circumstances. Police officers may be entitled to enter your home to pursue a fleeing suspect, even if the suspect is entering a home that is not her own. This is sometimes referred to as “hot pursuit” and may include a drunk driver pursued by police who pulls into her driveway and runs into her home.

Notable Case: R v Macooh, [1993] 2 SCR 802

Police may have grounds to believe that entering a home is necessary to prevent the destruction of evidence of a serious crime. This may include flushing drugs down the toilet or burning or destroying DNA evidence related to a sexual assault or a murder. Other emergencies may justify a warrantless entry by the police, such as responding to a distress call made over 911, an ongoing domestic assault, or some other circumstance where police ‘reasonably believe’ that someone’s life or safety is in danger.

Outside of Your Home: Your gated backyard is also a private place, but the trash that you leave on your driveway is not private. Once you leave trash out to be collected, you give up your privacy in the contents, meaning that police are as free as the sanitation worker to pick it up and take a look inside. Whatever the case, contacting a lawyer or licensed paralegal directly for legal advice at the earliest opportunity is the best way to know what your rights are in protecting the privacy of your home.

Your Rights in a Vehicle: Getting pulled over by the police while in your car is a common experience for many Canadians. Despite how frequent this experience is, most people aren’t sure about the scope of the powers of the police to stop, question, search, or otherwise interact with them during a stop in their motor vehicle. However, there are a few things that you should know to ensure that you can exercise your rights in the car if you need to. Be it on the highway or a side street; your Charter rights apply to you and anyone else in your vehicle.

Firstly, the law recognizes a few issues that the police should legally be able to investigate in almost all driving situations. These issues include:

  1. Whether or not the vehicle’s driver is licensed to drive,
  2. Whether or not the motor vehicle is adequately insured and registered, and
  3. Whether or not the vehicle is in good working order.

Unlike other situations, the police do not need grounds to believe that your licence, insurance, or registration documents are not up to date in order to pull you over to investigate these issues. The rationale for this is that driving is not a right, but a privilege, and the power for a stop of this kind comes from the Highway Traffic Act, RSO. 1990. (Here is a link to the Highway Traffic Act)

However, this power does not allow the police to pretend to stop a car for a legitimate investigation of a Highway Traffic Act offence (this is referred to as a “pretextual traffic stop”). If the real reason the police have chosen to stop your vehicle is that they ‘don’t like the way you look’ or are ‘just curious to stop you and see what you are doing,’ they will be breaching your right not to be detained, or arrested, arbitrarily, under s.9 of the Charter.

Quick Tip: Though the term “pretextual stop” is an American term, it has been recognized in Canadian common law per, R v Oliynyk et al., 2005 BCSC 1894, R v Nagy, 2003 ABQB 690, and R v Thompson, 2012 ONCJ 758. The American decision of Whren v. United States, supra 517 U.S. 806 (1996), defines what a pretextual stop is, “the defendant, [Whren] an African-American motorist, claimed that the traffic stop by the police was pretextual, and that the police used their observation of a relatively minor traffic infraction as a basis to stop the accused’s vehicle to investigate unrelated crimes.”

Section 9 of the Charter reads: “Everyone has the right not to be arbitrarily detained or imprisoned.”

Similarly, the police power to stop your car to investigate your licence, insurance, registration, or the safety of your vehicle does not permit a wholesale search of your vehicle or an investigation into the identity of your passengers. Since your passengers are not driving the car, they are not required to identify themselves to the police unless the police have some other ‘reasonable suspicion’ or belief that they are involved in a criminal offence. It stands to reason the police do not need to look into your trunk to see whether or not you have valid insurance or to determine whether or not you are wearing your seatbelt. Searches that go beyond the purposes of a Highway Traffic Act investigation will breach your right not to be unreasonably searched, protected by s.8 of the Charter, unless the police can demonstrate that they otherwise had reasonable grounds or authority to search you.

Section 8 of the Charter reads: “Everyone has the right to be secure against unreasonable search or seizure.”

The police may request that you allow them to search your vehicle over the course of a vehicle stop. A word to the wise: this ‘request’ does not need to sound like a request but can sound a lot more like an order. You do not need to consent to allow the police to do this. If the police are asking or demanding that you let them search your car, make sure you insist on calling a lawyer or licensed paralegal right away before you decide or give any permission.

Of course, if the police have grounds to believe you have committed a criminal offence, or if they observe you committing a Highway Traffic Act offence, they may have a right to stop your vehicle and conduct further investigations of you, and in some cases, your passengers. If the police stop you, insist on your right to speak to a lawyer or licensed paralegal without delay and to be told why you are being stopped. This is the best way to ensure that your rights are protected.

What is duty counsel? Legal Aid Ontario pays lawyers, known as duty counsel, to give free legal advice to people who can’t afford a lawyer. Duty counsel are lawyers who work in the courthouse. They usually can’t represent you at your trial, but they may be able to:

  1. Give you information and advice,
  2. Help you find out if you qualify for Legal Aid.

Your Rights on the Street: Let’s say you are enjoying a walk in your area, and a police officer tells you that he wants to speak with you. Most people who encounter this situation will stop and talk to the police officer until it becomes clear that the conversation is over. Most people believe that when a police officer asks to speak with you, you have no choice but to comply with the request. In reality, the Canadian Charter of Rights and Freedoms affords everyone with many protections in these situations.

Section 9 of the Charter protects individuals from arbitrary detentions. A “detention” occurs when the police through words, or actions, force you to stop and remain with them. An obvious example of a detention is an arrest; the police by force ensure that you remain in their custody. However, a detention need not be so apparent; the police could simply say “stop” or “don’t move,” and a detention would occur. Further, even less intrusive police conduct can cause a detention to occur, such as a group of police officers surrounding you, an officer blocking your path in an intimidating manner; in these situations, the police conduct can cause you to “reasonably believe” that you are not free to leave and these situations amount to “detentions” in law.

Notable Case: R v Yeh, 2009 SKCA 112

Quick Tip: As per the Yeh decision, “the police do not enjoy a general power to detain individuals for the purpose of ferreting out possible criminal activity.” The suspicion that the police are using to justify the investigative detention must be particularized. In other words, it must relate to “specific criminal wrongdoing.” Also per Yeh, “the police could not detain an individual for investigative purposes simply because he was walking in a downtown alley at 2:00 a.m. and they had a hunch he might be doing something illegal.”

Simply put, a detention occurs when the police’s actions cause you to believe that you are not free to walk away reasonably. The police are only permitted to detain you when they have reasonable grounds to believe or suspect that you are engaged in criminal activity. If the police do not have the required grounds, the detention is illegal, and any evidence they obtain can be excluded at trial.

The difficulty for you and most residents being asked by the police officer for a conversation is that you do not know if the police have reasonable grounds to force you to remain. The ambiguity caused by this reality can quickly be resolved; simply tell the police officer that you do not wish to speak to them and ask, “Am I free to leave?” If the police officer tells you that you are free to leave, you can simply walk away. If the police officer tells you that you are not free to leave, you are detained and have to remain until they allow you to leave. When you are detained, s.10(a) of the Charter requires the police to tell you why you are being detained, and s.10(b) of the Charter requires them to provide you with the opportunity to speak to a lawyer or licensed paralegal in private as soon as possible.

Section 10 of the Charter reads: “Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefore; (b) to retain and instruct counsel without delay and to be informed of that right, and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.”

When you are detained, you are also under no obligation to say anything to the police. You do not have to answer any of their questions or even give them your name and address; you are free to say absolutely nothing to the police. The police may make you feel like you have to answer their questions, but the law allows you to remain silent. If you choose to speak to the police, anything you say must be the truth to avoid being charged criminally.

Quick Tip: Unless you are under 18, the police do not have to let you have a lawyer or paralegal with you while they question you. Unlike what you might see on American legal dramas, in Canada, an accused person does not have the right to have their legal advocate in the room with them. If you have spoken to a lawyer, the police do not usually have to let you speak to a lawyer again during the same interview. But they might have to let you do this if something has changed so that you need to get legal advice again. If you’ve spoken with an attorney or a licensed paralegal and the police continue to question you, it is best to remain silent. They will likely try a number of tactics to compel you to speak, often these are successful and your statements will always be used to further incriminate you. The police are not your friends. They are not there to help you out. If you’ve been detained or arrested, you are the subject of an investigation and there is no way to talk yourself out of this. Keep quiet.

When you are detained, the police have certain powers that allow them to search you. If you are being arrested, the police can search you and your clothing if they have reasonable grounds to believe that evidence will be found. Suppose the police are stopping you but do not have grounds to arrest you. In that case, they can conduct a pat-down search of the exterior of your body (they are not entitled to search your pockets) unless they have reasonable grounds to believe that you pose a safety risk to them, yourself, or the public.

During your next walk in your neighbourhood, you now know how to respond to a police request to speak to you. Remain calm, ask the right questions, and the situation will become more evident. The situation will be stressful, but there is no need to feel helpless – you know your rights.

What happens if my Charter rights are violated? If the police violate your Charter rights, your lawyer or licensed paralegal can apply to have the evidence excluded. Only evidence obtained through the police’s violation is eligible for exclusion. Furthermore, when a Charter right is violated, the evidence is not automatically thrown out. The court will look at several factors, including the seriousness of the charges and how seriously the police violated the person’s Charter rights.

Referring back to the decision in Le, the police would not have found the evidence against Mr. Le if they had not trespassed on private property. The police began to interrogate the group with Mr. Le when they had no reason to believe they had done anything illegal. The court found that the police had knowingly entered the occupant’s property without permission. The court also found that police had been aggressive and took control over the groups’ movements as soon as they entered the yard. People’s homes are private and should be protected from interference. Police should not be allowed to interfere with people and their property whenever absent reasonable or probable grounds. For these reasons, the court excluded all evidence, Mr. Le’s conviction was overturned, and he was acquitted on all charges.

Published with the help of:

  • Rusonik, O’Connor, Robbins, Ross, & Angelini, LLP
  • Roulston Urquhart Criminal Defence
  • Kruse Law

DISCLAIMER

The information contained in the above post should not be interpreted as legal advice. The information provided on this website does not, and is not intended to, constitute legal advice; all information, content, and materials available on this site are for general informational purposes only.

Readers of this website should contact their attorney or licensed paralegal for advice concerning any particular legal matter. No site reader should act or refrain from acting based on information on this site without seeking legal advice from counsel in the relevant jurisdiction. Only your attorney or licensed paralegal can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular fact scenario.