Josh Dehaas: Supreme Court gives police greater license to snoop around your home |
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Josh Dehaas: Supreme Court gives police greater license to snoop around your home
Ruling is a blow to property rights
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You probably know that police need a warrant to enter your house or back yard, barring an emergency like someone screaming for help from a bedroom (known as exigent circumstances). You probably also realize that, despite this warrant requirement, police sometimes walk up your driveway, knock on the door and start asking questions.
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How can that be? The answer is the common law concept of an “implied licence,” which says that, although our home is our castle and no one can intrude without our permission, we grant exemptions to members of the public to approach our doors to communicate. This ensures Amazon can drop off our packages, our neighbour can drop by to gossip about that other neighbour, and the police can ring the doorbell to ask if we have any footage of whoever smashed car windows last night.
Josh Dehaas: Supreme Court gives police greater license to snoop around your home Back to video
But what if the officer’s purpose for entering is to investigate a crime where you might be the suspect? Does the implied license cover that? According to a majority of the Supreme Court of Canada, it does. This is a blow to property rights and privacy in Canada.
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In a 5-4 decision in R v Singer on March 20, Justice Mahmud Jamal for the majority found that the implied license extends to police communicating with a homeowner for the purpose of investigating a crime, even where that investigation might reasonably be expected to turn into the kind of search that would normally require a warrant. Justices Michelle O’Bonsawin and Mary Moreau, writing for the minority, suggest that this is an illogical conclusion. They agreed with my organization, the Canadian Constitution Foundation, that the implied licence is based on an assumption that homeowners voluntarily waive their property rights for certain purposes, and few people would agree to license the police to enter their property to investigate a crime when they might be a suspect. O’Bonsawin and Moreau would have required, barring exigent circumstances, that police call up a justice of the peace and ensure they have reasonable grounds for a search before police enter in these situations that are likely to turn into a search.
So why did the majority extend the implied licence beyond what would strike most of us as reasonable? One possibility is that these judges worried about the optics of making it more difficult for police to do their jobs at a time when crime is top of mind for many Canadians, especially in a case involving impaired driving. RCMP officers had received a call about a possible drunk driver in Big Island Cree Nation, Sask. The only evidence they had was a report that Wayne Singer had been seen speeding and a description of his truck. The officers saw a truck matching the description of the speeding driver in a driveway, and entered the property without a warrant or reasonable grounds. Then, they got lucky. A man, who turned out to be Singer, was snoozing in the truck. One of the officers opened the door. At that point, they could smell alcohol and formed grounds to demand a breath sample. The majority found that opening the truck door was an illegal, warrantless search, but that entering the property was covered by the implied license. Had they first confirmed this was Singer’s house and had evidence he had been drinking or swerving, perhaps they could have gotten a warrant.
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Bottom line, police can now enter your property without a warrant if their purpose is to investigate a crime, even one in which you may be the suspect, as long as they say after the fact that they weren’t entering the property for the purpose of a warrantless search. One can expect at least some police to abuse this power by snooping around private properties in cases where they ought to have a warrant. Perhaps your car happens to be the same make and model as a reported drunk driver, even though you’ve been home all night. They can now bang on your door and start asking you questions, invading your privacy by seeing who you happen to have over that night. Even worse, perhaps you say the wrong thing, and get arrested. You can’t get your privacy back once it’s been breached, and it’s hard to undo the impact of criminal charges even if they’re later dropped. This is why we have warrants in the first place.
The good news for homeowners is that, because this is based on the implied license, that license can be revoked. Consider whether posting a sign at the end of the driveway that says “Implied License Revoked for Law Enforcement” or even “No Trespassing” might insulate you from snooping officers. Your neighbours may whisper to each other that you’re a bit weird, but you can explain how the Supreme Court forced your hand.
Josh Dehaas is Interim Litigation Director for the Canadian Constitution Foundation, a legal charity dedicated to defending Canadians’ rights and freedoms.
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