Reasonable Doubt: May we come in? A cautionary tale
The case of Regina v. Campbell starts in 2006 when the remains of a human body were found in a large black sports bag. The body was identified and it was determined that the woman had lived in a rooming house about 100 metres from where her body was found. Three other men rented rooms at the same rooming house and they were immediately investigated as suspects.
Thankfully, the trail to the killer did not end there. Found in the bag with the woman were garbage bags. In these garbage bags, police uncovered a Western Union receipt for William Imona-Russell, one of the men living in the rooming house.
If you are like me, you might be a bit skeptical that someone, clearly intending to hide his tracks, could be so stupid as to leave a veritable trail of bread crumbs to his front door. If so, in this case you would be wrong. Indeed, it turned out to be Imona-Russell of the Western Union receipt who killed this woman. The surprise twist to this story, however, is that it’s not about a murder at all.
As it turns out, during the search for the killer, the police applied for and obtained a search warrant for every unit in the rooming house. During the course of their search, the police went in Norman Martin Campbell’s room and found a sawed-off shot gun and ammunition. Unfortunately for Campbell, he was on probation and prohibited from possessing weapons or ammunition. Campbell had nothing to do with the murder, but was ultimately charged with and tried for illegal possession of a weapon.
This week a reader asked us: When can a police officer search my home?
This is an incredibly complex question that cannot be fully answered in one article. The Supreme Court of Canada has determined that there are varying levels of privacy a person has from the state.
You have rights to privacy in your person, in your home and belongings, and in information generated about you. But there are limits on your rights to privacy from the state. During the course of a criminal investigation there are ways that police can lawfully search you, your home, and your things.
There are three narrow circumstances in which the police can search your home: 1. When they have a warrant to come into your home in order to search; 2. When they ask for and receive consent to search your home from someone who is authorized to allow or restrict access to the house; and 3. When they are responding to an emergency, such as a 911 call or smoke rolling from the windows.
In order for police to get a warrant they have to show a judge or justice of the peace that they have reasonable grounds to believe that an offence is being committed in your house or that they will likely be able to find evidence of an offence that has been committed. This means that if the police have a warrant to search your home, they have been conducting an investigation on you or your home for some time.
When the police knock on your door with a warrant, it is your right to see that warrant before they enter. If the police have a warrant, you must let them in. Otherwise you could face an obstruction of justice charge.
If the police do not have a warrant, and there is no emergency that brought the police to your door, it is your prerogative to allow the police in or not.
I would caution anyone thinking about voluntarily consenting to the police to search their home, their person, or their things to think long and hard about the possible consequences. Denying entry to your home does not make you look guilty. But allowing the police in could end up providing them with evidence against you for something they were not there to charge you with in the first place.
Campbell did not have a choice but to let the police in; however, little did he know that the actions of his neighbour would inadvertently result in him facing charges for illegal possession of weapons.
Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at straight.reasonable.doubt@gmail.com.
A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.
Comments
4 Comments
Jaye Sunsurn
Jul 8, 2011 at 4:40pm
I get there is lots of argument and debate over the specifics of the law and that its perhaps easier to simply say so you don't get sued "Don't take this column as personal legal advice... its for general information and entertainment purposes only" but when you start saying 'FOR ENTERTAINMENT PURPOSES ONLY' you might as well be saying "there is a place where magical wishes all come true! With faries and elves and other wonders!". How can any citizen really have faith and trust in the law when for fear of legal reprisals one cannot write an article giving a moderately definitive answer about the law in which we consider ourselves governed. Ignorance of the law is not a defense, but when we can't talk about the law, and define the law in a way that regular people understand it, how else can a citizen be BUT ignorant, and thus every single person is vulnerable to whatever the authorities SAY is the law, whether it be true or not, as we don't know any better, and cannot know any better.
Birdy
Jul 9, 2011 at 2:29am
I disagree with the assertion that people "own" homes. If you claim to own a home, but don't pay your property tax/RENT to the government, eventually they will show up, armed, to steal everything you own and kick you out on the street so they can sell the home you supposedly own. So really the state is just searching its own property.
Coast Guarder
Jul 10, 2011 at 9:06pm
Birdy, It is true that under British-derived common law, the holders of the land actually have land tenure (permission to hold land from the Crown) rather than absolute ownership. However we in Canada are constitutionally protected from unlawful search and seizure. And whether or not you own or rent your residence you are still afforded those protections. Not paying your taxes essentially places you in debt to the crown and seizure of your property to sell for recovery is understandable and reasonable IMHO.
Birdy
Jul 11, 2011 at 8:48pm
re Coast Guarder
Rights are merely privileges if we're only afforded them when we can afford to pay. We lose our privilege of protection from seizure as soon as we run out of "protection money." I can't take a pay-as-you-go charter of rights very seriously.