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Charter Rights and Private Property: Police Trespassing
Cory Wilson is a criminal defence lawyer serving Calgary, Okotoks, Airdrie, Strathmore, Cochrane, Canmore, Didsbury, Medicine Hat, Lethbridge, Grand Prairie and Turner Valley.
Understanding your legal rights can make a brush with the law in Calgary less intimidating.
It is especially important to know your Charter rights and private property rights so that you understand whether the actions of law enforcement are lawful or not.
If you are unsure whether the police have the authority to enter your home or backyard without direct permission from you (without a warrant or reasonable grounds) this can be particularly significant in a criminal case.
“Police trespassing”, as it is known, is considered a serious breach of your rights and may end up with your case being dismissed, so let’s take a closer look at what it is and what your rights are in these situations.
Can police enter private property?
Section 8 of The Canadian Charter of Rights and Freedoms states that every person has the right to be secure against unreasonable search or seizure and the right to privacy on private properties, such as the home they reside in.
Police in Canada can neither search you without reasonable grounds or a warrant nor trespass on private property.
That does not mean that they cannot enter your home under any circumstances. If the police have the correct authorization, they can enter your home, conduct a search and seize evidence — and it would not be considered trespassing.
When can police lawfully enter your home?
Authorization for police to enter your home can come in one of three forms:
- Permission from the occupant/resident: you may voluntarily provide consent for the police to search your residence.
- Legal authority from a valid search warrant: the police can apply to the courts for a judge to issue a search warrant based on evidence of criminal activity. This may authorize police not only to search the premises but to seize any evidence of a crime.
- Reasonable grounds that a crime has been committed or is about to be committed: this may be a tip from an authorized source or police may have witnessed likely criminal activity on the property.
If any of the above forms of authorization are provided to the police, they can lawfully enter your home to investigate.
However, if these reasons are all absent, it may be a case of police trespassing and you can lawfully request that they leave your property.
Importantly, the same applies regardless of the location of your home — the police are not granted extra powers in “high-crime” areas and they have no more right to enter a home in such an area than any other location.
The Canadian Charter of Rights and Freedoms applies to every citizen equally and this is why these rights are held so sacredly.
What happens if police trespass and find evidence of a crime?
Cases of police trespassing are especially significant when police enter a property unlawfully and find evidence of criminal activity, which leads to prosecution for a crime.
So, if the police find incriminating evidence while trespassing in your home, how does it affect your trial?
Anyone accused of a crime in Calgary should speak to a defence lawyer because there is a serious possibility of a conviction, permanent criminal record and penalties such as jail time and fines.
An experienced Calgary criminal defence lawyer will examine the evidence carefully and one of the first details to check will be whether your Charter rights were violated.
If there is evidence of police trespassing, the lawyer may persuade the judge to dismiss the case entirely as evidence found during an unlawful entry to and search of a property can be deemed inadmissible — even if illegal firearms or evidence of drug possession was found.
Police are expected to follow the laws the same as all other citizens and must not overstep their powers or they will be held accountable. So, unless the police have other critical evidence to prove criminal wrongdoing acquired by legal means in your case, you may be released without further ado.
Can the police search me for no reason?
The Canadian Charter of Rights and Freedoms protects all Canadian citizens against illegal search and seizure.
The police must have the right authority in the form of a search warrant or reasonable grounds — or you must have been arrested — if they want to search you.
A “pat down” is different from a search. The police can lawfully pat you down to make sure that you are not carrying a dangerous weapon but their powers to search you for investigative purposes are limited until after an arrest.
What happens if my Charter rights are violated?
If during the investigative process when the police are looking for evidence of criminal activity, they overstep their powers and either trespass or conduct an illegal search or seizure, it is a violation of your Charter rights.
People’s right to privacy and to live free from unnecessary interference is highly regarded in Canada. Therefore, a criminal defence lawyer can apply to the judge to have the evidence excluded, which usually means that the prosecution’s case against the defendant collapses and is dismissed. The evidence found during an illegal search is often the critical evidence in a case.
However, the evidence is not always declared inadmissible and the defendant is not always acquitted. The court will consider several factors, including the seriousness of the charges and how seriously the defendant’s Charter rights were violated.
This is where the skills, experience, and persuasive powers of your criminal defence lawyer really come to the fore.
Call Us To Arrange A Confidential Consultation
To speak with Cory Wilson or arrange a free, no-obligation consultation with Wilson Criminal Defence, call 403-978-6052 or email us here.
Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.