The Ancillary Powers of Police in the Context of Entering a Home Without a Warrant

The s. 8 Charter right to be secure against unreasonable searches protects a person’s expectation of privacy from state intrusion. Nowhere is that expectation of privacy higher than in one’s home. To enter a home, police ordinarily need previous authorization: a warrant. Warrantless entries of a home are presumed to be unreasonable and in breach of s. 8.

 See R. v. Silveira, [1995] 2 S.C.R. 297, at para. 162.

But exceptions exist, both by statute and at common law.

Criminal Code Exceptions to the Warrant Requirement

Under s. 529.3 of the Criminal Code, the police may enter a home without a warrant to arrest or apprehend a person if the conditions for obtaining a warrant exist but “exigent circumstances” – that is, urgent or pressing circumstances – make it impractical to obtain one.

The Code includes among exigent circumstances those where the police have reasonable grounds to suspect entry into the home is necessary to protect a person’s imminent harm or death, or to prevent the imminent loss or destruction of evidence.

Common law Exceptions to the Warrant Requirement

In R. v. Godoy, [1999] 1. S.C.R. 311, the Supreme Court of Canada held that the police can enter a home without a warrant if they have reasonable grounds to believe it is necessary to do so to protect a person’s life or safety.

Godoy affirms the principle that the police have a common law duty to protect a person’s life or safety and that duty may, depending on the circumstances, justify a forced, warrantless entry into a home.

However, Godoy also narrowly limits when the police can enter a person’s home without a warrant in response to a 911 call. The police must reasonably believe that the life or safety of a person inside the home is in danger. And once inside the home, their authority is limited to ascertaining the reason for the call and providing any needed assistance. They do not have any further authority to search the home or intrude on a resident’s privacy or property.

In R. v. Davidson,, the police responded to a 911 call in regard to a four year old autistic boy, clad only in a diaper, standing alone at a busy intersection By the time the police arrived, the boy was safely in his mother’s arms, wrapped in a blanket.  

Applying R. v. Godoy, the Court of Appeal for Ontario held that after the police had ascertained the reason for the 911 call, they were not entitled to search the family house (ostensibly they did so to assess whether or not the child was being supervised properly).  At most, the police were entitled to inspect the lock on the front door the child had bypassed, which they could do without going inside the home. Godoy did not support their warrantless entry.  Drug evidence found in home during the police search was excluded under s. 24(2).

R. v. Davidson, 2017 ONCA 257.

Section 24(2) Analysis

Case	(1)Seriousness  of the Charter -Infringing State Conduct	(2) Impact on the Charter-Protected Interests of the Accused	(3) Society’s Interest in an Adjudication of the Case on its Merits	(4) Would the Admission of the Evidence Bring the Administration of Justice into Disrepute
R. v. Davidson, 2017 ONCA 257Para	a) Multiple Charter breaches, aggravating the overall seriousness of the violations. b) Individuals possess a very high expectation of privacy in their home. c) Notwithstanding the fact they did not have a warrant, police did not possess the requisite grounds to obtain a warrant. d) Police acted in ignorance of the scope of their constitutional authority. e) The search was part of a systemic police practice of warrantless searches of homes to check the well-being of children, The seriousness of the police conduct strongly favours excluding the evidence.	Police entered an area where accused had a high expectation of privacy: his home. Once inside the home, the police engaged in conduct that infringed on his dignity. They searched his cupboards and refrigerator, and then questioned him in front of his family. (See Grant, at paras. 78, 113). These factors favour the exclusion of the evidence.	The evidence (marijuana plants) seized is relevant and reliable evidence, and is important to the Crown’s case. The public interest in having a trial on the merits favours the admission of the evidence on this basis.	Yes.  Evidence excluded. The seriousness of the breaches, especially the initial s. 8 breach, and the significant impact of the breaches on the accused’s expectation of privacy and dignity favour exclusion of the evidence, and outweigh society’s interest in deciding the case on its merits.  If there were any doubt, the police’s utter disregard for constitutional standards would, if the evidence were admitted, bring the justice system into disrepute.