The Police Are At Your Door ' Now What?

• Published date: 23 June 2022
• 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...