Court of Appeal says Police Can’t Climb Through Windows and Spy on You - LawNow Magazine

Court of Appeal says Police Can’t Climb Through Windows and Spy on You

criminal law
The Ontario Court of Appeal recently held in its decision in R. v. White [2015] O.J. No. 3563 that police officers do not have unrestricted access to enter common areas in residential buildings to gather evidence against an individual.

The police had suspected that Mr. White was dealing drugs from his condominium, and on three separate occasions Detective Hill secretly entered Mr. White’s building without knowledge or prior consent from any other resident. The detective observed the comings and goings of Mr. White’s apartment, observed the contents of Mr. White’s condominium locker, and because of the poor quality of the walls was able to hear conversations taking place inside Mr. White’s apartment. On one occasion, the detective hid in a stairwell inside the building to continue surveillance on Mr. White’s apartment.

After these secret entries, a search warrant was granted and executed. The police found drugs and cash inside the apartment. Mr. White was subsequently charged with possession of marijuana and cocaine for the purpose of trafficking, possession of cocaine, and possession of property obtained by a crime. The Court of Appeal upheld the trial judge’s ruling that the gathering of the evidence that formed the grounds of the search warrant violated Mr. White’s Section 8 rights under the Charter of Rights and Freedoms (“Charter”), and the evidence was excluded pursuant to section 24(2) of the Charter.

Privacy is an internationally recognized human right deserving of protection that ought not to be violated on a discretionary basis by police.Cue outrage and disagreement from those who view Charter rights as “technicalities” that clever defence lawyers argue to win cases for their clients. But pause for a moment and consider the ramifications of unfettered access to everywhere Canadian citizens live. Certainly the detectives in R. v. White assumed this was their right, given their testimony, so long as they didn’t break anything on the way in. They were of the opinion that there was no reasonable expectation of privacy in the common areas of the condominium building, and so they could investigate as they pleased. If this were the case, privacy would be a casual right that had little weight. In fact the Court of Appeal held that:

“If the police are entitled to climb through windows to gain entry to multi-unit residential buildings and, once inside, enter common areas such as storage rooms, hide in stairwells, and conduct surveillance operations for as long as they want on those who live there – all without a warrant – on the basis that those who live in these buildings have no reasonable expectation of privacy in the common areas, then the concept of a reasonable expectation of privacy means little.”

Though it can be assumed that the police had every intention to stop drugs from being sold on our streets, it cannot be a goal achieved by trampling on constitutionally protected rights of Canadians without regulation. Privacy is an internationally recognized human right deserving of protection that ought not to be violated on a discretionary basis by police. The Court of Appeal in White succinctly and perfectly encapsulates this notion in one sentence: “Some limits on police activity are necessary if privacy is to be protected.”

Cue outrage and disagreement from those who view Charter rights as “technicalities” that clever defence lawyers argue to win cases for their clients. But pause for a moment and consider the ramifications of unfettered access to everywhere Canadian citizens live. Even giving this ruling, many Canadians will still view these types of Charter violations as a “technicality,” and be appalled that an alleged drug dealer is now “free.” Yet what is appalling to most defence counsel, and hopefully to other Canadians, is the nature in which the detectives in White chose to gather evidence, and were certain in their right to do so in their testimony. If a line isn’t drawn here by the Court of Appeal, then I invite you to imagine the vastness of power that we as Canadians would be handing over in exchange for human rights violations against ourselves or our fellow citizens.

Deeming Charter violations a “technicality” not only minimizes the importance of constitutionally protected human rights, but also adds to a problematic rhetoric that perpetuates trivializing the Charter. Rather, as the Court of Appeal in White makes clear, sometimes our Charter rights can only be protected at the expense of limiting police powers. A limit that is not only necessary, but essential.

In fact, the trial judge in White found that the police had “neither statutory authority to conduct the searches nor a constitutionally unrestricted right to trespass upon private property to conduct the searches.” The Court of Appeal upheld this finding, showing strong support for the protection of Mr. White’s Section 8 Charter right. So too should Canadians agree with the reasoning in White, and leave behind conservative notions of limitless state powers that trample on the rights of all.

Authors:

Melody Izadi
Melody is a criminal defence lawyer with the firm Caramanna Friedberg LLP, located in Toronto, Ontario.
 


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