All Canadians enjoy a reasonable expectation of privacy. A reasonable expectation of privacy means that we are free from the intrusion of the State or its agents into our affairs, our private life and our private property/space. At its essence, a person’s reasonable expectation of privacy is meant to protect our personal information which, in a free and democratic society, we desire to maintain control of from the State. This protection applies to everyone including private citizens, inmates, persons held in custody pending charges and even those who are the subject of a lawfully executed search. In each different instance there may be an enhanced or lowered expectation, but there will always be some reasonable expectation of privacy over one’s self, one’s information and one’s property/space. 

Since the introduction of public health orders limiting the number of people allowed indoors, I have been asked on numerous occasions whether the police are entitled to enter a private dwelling to “check compliance”. The answer to this question, as it is generally, is “it depends”. The following is a very basic attempt to provide some context.

We have a high expectation of privacy in our homes.  Our home may be a house, condo, apartment or even a separately rented room. In each case, without the consent of the occupier, police may not simply enter to “check compliance” with provincial health orders. Without consent, a search must be authorized by law. For a search to be authorized by law, the police would require a warrant before they enter or there would have to be exigent circumstances negating the need for a warrant. For there to be exigent circumstances, the police would need to have reasonable grounds to suspect that entry into the house was necessary to prevent imminent bodily harm or that there was evidence relating to the commission of an indicatable offence and that entry into the house was necessary to prevent the imminent loss or destruction of that evidence. This is a high threshold. That being said, it is arguable that exigent circumstances may exist if the police could clearly see a large number of people attending a party or something of that nature. They may say in that case, there is a risk of contracting and spreading COVID-19 that justifies entering without prior authorization.  

To obtain a warrant, the police require prior authorization from an impartial arbiter acting judicially (usually a justice of the peace) based upon reasonable and probable grounds to believe that an offence has been committed and that there is evidence to be found at the house. The police are required to provide full and frank disclosure to the justice of the peace of all material facts (good and bad) with respect to their alleged belief that an offence was committed and that there is evidence to be found. If the police have reached this threshold and have obtained a warrant prior to conducting the search, they may enter your house with respect to their investigation into a breach of a public health order.

While we in no way condone the flouting of the Province’s public health orders during this difficult time, it is important to know that we all have a reasonable expectation of privacy that similarly cannot be ignored during an investigation or enforcement of a public health order in these unprecedented times.

Wishing you Happy New Year.

Matthew J. Schmeling
McDougall Gauley Defence Group

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