The Police Are At Your Door ' Now What?

• Published date: 23 June 2022
• Subject Matter: Litigation, Mediation & Arbitration, Privacy, Privacy Protection, Trials & Appeals & Compensation
• Law Firm: Devry Smith Frank LLP
• Author: Mr David Schell and Kathleen Judd

When faced with this scenario, do you allow the police to enter your home?

Knowing Your Rights

Your rights against unreasonable exercises by the police are enshrined in the Charter of Rights and Freedoms¹. Many cases have explored these rights. Very recently, in R v. Stairs², the Supreme Court of Canada further reiterated that when a home is being entered without a warrant (for the purposes of arrest), the surrounding area of the person being arrested is free for the police to not only search but to seize property. The three-part test permits the police to search the person and the surrounding area when: (1) the arrest is lawful; (2) the search is incidental to the arrest, such that there is some reasonable basis for the search connected to the arrest and the search is for a valid law enforcement purpose, including safety, evidence preservation, or evidence discovery; and (3) the nature and extent of the search are reasonable.

When a search is conducted at the time of an arrest (search incident to arrest), the search must be (1) conducted when reasonable grounds exist and (2) justified on the premise that the arrest itself was lawful. The Supreme Court of Canada stated:

"where the area searched incident to arrest in a home is outside the arrested person's physical control at the time of the arrest, the common law standard for a search incident to arrest must be modified in two ways that make the standard stricter. First, the police must have reason to suspect that there is a safety risk to the police, the arrested person, or the public which would be addressed by a search".

It is important to understand when a search violates your rights and when it can be justified. This distinction is not easily assessed and you could benefit from legal advice if you are faced with this situation. Many times, a lawyer is not readily available - but consulting one as soon as possible following the fact is imperative!

At what point does a search violate your Charter rights?

There needs to be a connection between: location - purpose - grounds for arrest. If this connection does not exist, there is potential for a violation of a s. 8 Charter right.

In order to enter a dwelling, the police should obtain a warrant - however, sometimes this doesn't happen. There are valid exceptions that apply to entering a dwelling without a warrant.

What do I do when the Police are at my door?

It is important to know that the Police do have a right to approach your door and knock - this is...