Can the police come on to my property without a warrant and search for evidence of a crime?

Can the police come on to my property without a warrant and search for evidence of a crime?

Date Updated: April 10, 2020
Written By: Ravi Prithipaul (Alberta Criminal Defence Lawyer)

Detailed Law Breakdown

We are discussing here police action without a search or arrest warrant. A warrant is a judicial authorization which gives the police the permission to arrest or search. Warrantless searches, on the other hand, are presumptively unreasonable which means that the prosecution bears the onus of establishing that they meet constitutional standards.

Our criminal law has long recognized that individuals have a high expectation of privacy in their residences: “a man’s home is his castle”. In 1996, the Supreme Court of Canada decided that, although occupiers of a house have an expectation of privacy in the approach to their residence, that privacy interest yields to the need to permit communication with the public: R v Evans, [1996] 1 S.C.R. 8. Any member of the public, including the police, may approach the door of a home and knock for the purpose of communicating with the occupants.

In Evans, an anonymous tipster had informed the police that marijuana was being grown in the residence of Cheryl and Robert Evans. But the police lacked sufficient information to obtain a search warrant. They decided to knock on the door of the residence and, if opened, to “sniff” for marijuana. Officers in plain clothes went to the couple’s home, knocked, and Robert Evans opened the door. The officers smelled marijuana, detained Evans, obtained a search warrant, and discovered a number of marijuana plants inside the home.

Although Cheryl and Robert Evans were ultimately convicted of drug offences, the majority judgment of the Supreme Court of Canada ruled that the actions of the police had violated their right to be secure against unreasonable search or seizure. While the police could knock on the door of the residence, the further action of “sniffing” the air within the home amounted a search which exceeded the scope of what was reasonable according to the Canadian Charter of Rights and Freedoms.

Thoughts from a Criminal Lawyer’s Perspective

Some suggest that the Evans decision means that the police can attend on private property without a warrant for the sole intention of communicating with an occupant. As long as that is their sole purpose, then they act within Charter standards. But if the police enter private property without a warrant and communicate with the resident in order to further an investigation, then they have violated his or her right against unreasonable search or seizure.

A decision of the Saskatchewan Court of Appeal illustrates this kind of reasoning. In R v Rogers, 2016 SKCA 105, police officers responding to an impaired driving complaint knocked on the door of the accused’s apartment, observed signs of intoxication, and made a breathalyzer demand. Because the police attended at the accused’s residence for the purpose of obtaining evidence of impairment, it was decided that they had exceeded the scope of the license to knock. Mr. Rogers was found not guilty of impaired driving.

On the other hand, if any member of the public has a license to knock, then is it truly objectionable for a police officer who is suspicious of a crime to go to a suspect’s residence and knock on the door to further the investigation? In R. v. Parr, 2016 BCCA 99, decided in the same year as Rogers, the British Columbia Court of Appeal ruled that Evans should not be interpreted as meaning that the police are barred from communicating with the resident of a home where they want to secure evidence:

• [54] Acceptance of the appellant’s argument on this point would entail adoption of the proposition that a police officer who suspects criminal activity on a property could never lawfully enter that property, even if the sole purpose of the entry was to facilitate contact with an occupant. I do not accept that the Supreme Court of Canada intended this result.
• [55] In my view, it is important to distinguish, as the trial judge did, between the purpose for the entry and knowledge on the part of the police of the potential that evidence might be acquired in the course of that entry. Provided the police act for a purpose falling within the scope of the implied invitation to knock principle, and for no other reason, the fact they are aware evidence might be acquired in the course of the entry does not make them “intruders” acting outside the scope of the doctrine. I accept, however, that the existence of an ongoing criminal investigation at the time of the entry, and advertence by the police to the prospect of gathering evidence in the course of that entry, are relevant considerations to be taken into account when determining the purpose for which the entry and knock was undertaken.

Indeed, the Saskatchewan Court of Queen’s Bench, although bound to follow Rogers, cited Parr with approval in R v Kleven, 2019 SKQB 238. Kleven was a Crown appeal from an acquittal for impaired driving. As was the case in Rogers, officers were responding to a complaint of a drunk driver. They went to the suspect’s house and observed a vehicle stationary on the driveway with its lights on. The police approached the vehicle and saw the Mr. Kleven inside, slumped over the steering wheel. The police opened the door, observed obvious signs of impairment, and performed a breathalyzer test which Kleven failed. Although he was acquitted at trial, the Crown’s appeal was successful. For the appeal judge, it was relevant that the police had not knocked on the door of Kleven’s residence, but merely walked on to his driveway to determine why the vehicle was sitting there with its lights on.

This very brief summary shows that the court judgments appear to differ significantly from one another. It is difficult to extract firm principles from the decided cases because the factual circumstances vary so widely.

If you are charged with a criminal offence arising from a police entry on to your property, you should retain counsel who is experienced in these matters. Mr. Ravi Prithipaul, QC has over 25 years in defending impaired driving, drug offences, and other criminal matters. Call Mr. Prithipaul at 780 705 7737 to arrange for a free initial consultation.