When The Police Can Enter Your Home

Can the Police Enter Your Home Without Your Permission?

 

police-break-down-a-doorThe ruling of R. v. Zargar, 2014 ONSC 1415 affirms that police cannot generally enter a person’s home without permission except under very limited circumstances. The case also establishes that a person can use a reasonable amount of physical force to remove a police officer who is trespassing on their private property.

Facts:

In the early morning hours of December 30th, 2011, police were called to a condominium to investigate a noise complaint. Earlier that evening, building security had attended at one of the condo units in the building and had asked the male resident to turn down his loud music. Police were eventually called to speak with the resident when he refused to comply with security's request.

One of the police officers responding to the call for assistance knocked on the door of the condo unit and stepped inside when the owner, Mr. Zargar, answered his door.

After a brief discussion, the officer was asked by Mr. Zargar to leave his home. When the officer refused to leave, Mr. Zargar attempted to push him out of the unit. Mr. Zarger was charged with assaulting the officer while the officer was in the lawful execution of his duties contrary to section 270(1)(a) of the Criminal Code of Canada.

The issue for the Court to decide was whether the officer was trespassing on private property when he entered the residence and refused to leave such that he could no longer claim he was in the lawful execution of his duties when he was assaulted by Mr. Zargar. 

“Sanctity of the Home” Doctrine 

To determine whether or not the officer was entitled to enter the residence, the Court examined the legal concept of sanctity of the home which states that there exists, “the longstanding right of a citizen of this country to the control and enjoyment of his own property, including the right to determine who shall and who shall not be permitted to invade it.”

With respect to whether police can enter a private residence, it has long been held that, “The police must, therefore, rely entirely upon a valid and unrevoked invitation to enter and remain in the house.  … Unless authorized by statute or the common law, a police officer may not enter the premises of another without that other’s permission and must leave if and when that permission is revoked.”

Exceptions to the “Sanctity of the Home” Doctrine:

The court identified some exceptions to the general rule that the police must not enter a person's home uninvited. These exceptions include: 

1) Where the police are in “hot pursuit” or “continuous pursuit” of an offender who has gone to his home while fleeing solely to escape arrest.

2) Where the police, on reasonable grounds, believe that it is necessary to enter the premises in order to prevent the commission of an offence that would cause immediate and serious injury, or to protect life and safety by assisting a resident who is in potential danger.

3) Where the police enter the premises in order to effect the arrest of a resident.  In order to come within this exception, an arrest warrant to enter the home is required prior to entry.

4) There are also a few exceptions in the Criminal Code that permit entry to a home where “exigent circumstances” exist. Exigent circumstances are defined by statute to include “imminent bodily harm or death” and “imminent loss or imminent destruction of evidence”.

5) Police may also enter a residence where they have obtained prior judicial approval in the form of a search warrant.

Can physical force be used to remove a police officer who trespasses on private property?

The Court concluded that the police officer became a trespasser when he enter Mr. Zargar’s home without his permission and without bringing himself within one of the recognized exceptions to the “sanctity of the home” principle.

Canada’s new self defence laws allows a property owner to commit a reasonable act (including the use of force) for the purpose of protecting his property from being taken, damaged or trespassed upon. It will be up to the Court to decide in all the circumstances whether the force used in ejecting a trespasser was reasonable.  Any amount of force deemed to be unreasonable is not permitted under the laws of Canada. 

In Mr. Zargar's case, the Court concluded that the "minimal force" applied to the officer when Mr. Zargar attempted to push him out of the unit was reasonable in the circumstances. The force used was deemed to be justifiable on the basis that the officer was trespassing and refused to leave when asked. The amount of force deemed to be justifiable will be decided on a case by case basis after considering all of the facts and circumstances. 

To learn more about the right to eject a trespasser or defend yourself and property from an intruder, read my article on Changes to the Citizen’s Power of Arrest, Self-Defence and Defence Of Property Laws in Canada.

Application to Access the Rob Ford ‘Crack Video’ Dismissed

Toronto Mayor Rob Ford At News ConferenceEarlier today, Justice Ian Nordheimer released his ruling dismissing the application by Mohammad Khattak to access to the Rob Ford 'crack video'.

The Application was brought on behalf of Mohammad Khattak, one of three men pictured with Mayor Rob Ford outside a suspected drug house for the purpose of dispelling the perception there’s a connection between Khattak  and the video of the mayor smoking crack cocaine. 

During the application hearing, Justice Nordheimer watched two videos recovered by Toronto Police during the execution of search warrants as part of Project Traveller and clarified the contents of the two videos.

It was a widely held belief that the videos seized by police were essentially two version of the same video depicting the Mayor smoking crack cocaine. This is apparently incorrect. At paragraph 2 of his ruling, His Honour confirmed that the longer video depicted the Mayor of Toronto and that the second video is much shorter and is "separate and apart" from the first video. He observed that, "it might be reasonably concluded that what is revealed in the second video relates back to the first".

Judge Nordheimer also noted that Police Chief Bill Blair “fairly characterized the contents of the video as being ‘consistent’ with previous media reports.”

The ruling concluded that while Mr. Khattak has a "legal interest" in the video, allowing him access to the video at this time would be premature. Given the interest in protecting the fair trial rights of Mr. Lisi, who is currently charged with extortion, access to the video should only be granted after Mr. Khattak commences a civil action against those who associated his photograph with the video. 

Justice Norheimer concluded "there is nothing that prevents [Khattak] from bringing a subsequent application for access to the videos when his interests in them may have become more tangible"

The full decision can be found below.

 Mohammad Khattak Ruling

Winning Your Criminal Appeal With Fresh Evidence

 What is fresh evidence?

Appeal LawyerA criminal appeal lawyer is often required to prepare an appeal by relying solely on the evidence presented during the trial. In some cases, the appeal lawyer can present new evidence to the appeal court.  This can assist in getting the court to overturn a conviction or reduce a sentence imposed at the trial level. 

When new evidence is led on an appeal it is called “fresh evidence.”  Courts of appeal have very broad discretion to receive fresh evidence though the Appeal courts have set a very high threshold to receive this type of evidence. Fresh evidence is not intended to be used as another attempt to litigate the facts heard at trial.  

What is the test for admitting fresh evidence on a criminal appeal?

In all cases, the key question the Court must answer is whether it in the interest of justice to do admit the fresh evidence.  This involves an evaluation of all the circumstances of the case.   

In determining whether an appeal court will receive fresh evidence, the court is required to balance four factors:

(1) The evidence should generally not be admitted if, by due diligence, it could have been led at trial;

Note: this general principle will not be applied as strictly in a criminal case as in civil cases.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) The evidence must be credible in the sense that it is reasonably capable of belief; and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

No one factor is determinative.  

How can fresh evidence impact a trial verdict?

Fresh evidence can impact the reliability of a verdict in different ways – for instance, it could create doubt on a theory advanced by the Crown, undermine an essential element that the Crown has to prove or impeach the credibility of a crucial Crown witness or the reliability of his or her testimony.

In a recent Court of Appeal decision argued by Daniel Brown, his client has his conviction overturned and obtained a new trial with the assistance of fresh evidence. In this particular case, the fresh evidence presented on appeal helped show the appeal court why a key crown witness wasn’t likely telling the truth in her claim of sexual assault.

What happens when fresh evidence is accepted on appeal?

If the appeal court accepts that the fresh evidence should have been before the trial court, the only remedy is to overturn the conviction and order a new trial. It is for this reason that the Crown will often fight very hard to avoid having the court consider fresh evidence on appeal.

Calling fresh evidence on a sentence appeal:

On an appeal against sentence, both the Crown and the court are more likely to accept fresh evidence.  In the sentencing context, fresh evidence can present the appeal court with information that was not before the judge at the time of the trial. This is particularly so, when the client is released on bail pending appeal for a period of time waiting for his appeal to be heard.  Fresh evidence led on a sentence appeal can cause the appeal court to reduce the length of a sentence or eliminate the jail sentence all together. It can also be used to modify the sentencing order in a variety of other ways.  

Fresh evidence is valuable tool to advance a client’s case before the courts of appeal.  You need the experience of Daniel Brown, and the members of his firm, to determine if your appeal is one that could be assisted by fresh evidence and also how to prepare a strategy to present this new evidence to the court to maximize your chance of success. To learn more about the appeal process read: Criminal Law Appeals.

To arrange a consultation with Daniel Brown, call his office at (416) 297-7200. 

Image consulting for lawyers and their clients

Image Consulting 101- What lawyers need to know:

image consulting services

It is often said that perception is reality. In court, first impressions are vitally important given that trial judges, prosecutors and jurors have very little opportunity to evaluate the players in a case and often make snap decisions about the parties involved. The ability to make a positive first impression is of crucial importance and may help tip the scales of justice in a person’s favour.

Recognizing this, lawyers will often consult with image experts to help shape their own image or the image of their clients in order to achieve top results in court.

In the following blog post, image consulting expert, Zayna Mosam offers some information and advice on how lawyers can maximize results in court for themselves and their clients by utilizing basic image management principles and strategies.

What is the impact of image?

The ability to build and maintain strong rapport is one of the most valuable skills one can develop no matter the environment or ambitions at play. While character and talent are of highest importance, image is always a major factor in getting what you want because it can quickly attract or repel people and prospects.

The image an individual projects can either prevent a favourable outcome or propel them forward beyond all expectation. Perception is of paramount importance and must be monitored and managed.

Why examine your personal and professional image?

Your personal image is a demonstration of your credibility, your personality and your confidence. It gives you the power to establish the impression of you that will be carried by others and allows you the opportunity to change existing perceptions.

You must feed your priority messages to the conscious and subconscious minds of your audiences. You can communicate your messages swiftly and accurately using your appearance, demeanour and language. Make yourself the easy choice for the decision maker in a world that has us bombarded by millions of pieces of information daily.

The lawyers I have worked with well understand the value of their image as they are so often working to present their clients’ cases. The verbal message or argument must align with the image of the messenger so that it registers as credible to the audience. Wardrobe, body language and tone of voice aid in influencing the relevant parties. The image of the client can be just as critical. Especially when appearing in a boardroom for negotiation or on the stand during trial.

How does an image advisor help you to add value to your personal brand?

An image consultant guides you to become a master communicator. An experienced consultant can develop your customized image (that is authentic for you) and can train you to shift seamlessly between modes in order to connect effectively with your audience of one person or thousands of people. For some, a touch of polish or a small adjustment is what it takes. For others, a major transformation may be in order.

In my experience, even those at the top of their fields are interested in strengthening their personal brands further. Here are some tips to consider:

1. Conduct an image & reputation analysis

Find out how you or your clients are perceived by various groups/audiences through interviews and an honest examination of your reputation, personal image (including appearance and communication style), online presence and business materials. This can be done on your own to a degree or you can have a professional create an objective comprehensive report for you.

2. Extend your strategic goals to include image management

Your image must harmonize with the key messages identified in your strategic direction. For example, if you are a top executive of a company with a cutting edge product that is also known for excellent customer service it is critical for your look to be current or fashion forward.  A global sensibility in terms of etiquette is also an advantage. 

Formulate a plan if adjustments are required and enlist assistance where needed. 

3. Craft a customized flexible image to prepare yourself for your path

Define your natural image parameters. Some people are always somewhat casual (in look and demeanour) while others are very formal at certain times and very relaxed at others. Have a corresponding visual image you love for each mode you have. In order to be comfortable and prepared for anything that may come up, plan a wardrobe that includes every level of dress you may need i.e formal corporate, business casual, evening informal. 

Your body language, conversation and voice must be an extension of your style. Find a balance by appearing poised but relaxed. You can choose movements, words and tones of voice that are most natural to you so that you don’t feel as if you are putting on an act. You are simply optimizing your communication for the situation at hand.

4. Attend to the little things  - they linger and speak volumes about you

Wear a piece of clothing or an accessory that helps you to stand out for making an uncommon choice. This could be a piece of jewelry, patterned lining in your jacket, a pocket square or a beautiful pair of shoes. It’s not enough for the item to be rare though because the effect only works when the piece suits you. This means it should be of a scale, colour palette and style that suits your body type and personality.

5. Orchestrate the first impression when possible

Plan to impress at a first meeting whether it is in your office, at a party or in a networking context. Set the stage while leaving room for spontaneous moments and genuine small talk. If you know that important people of interest will be in attendance, prepare a few topics and questions to guide the conversation in the direction that will best serve you. Plan every detail of your outfit including accessories and if possible wear or hold something that gets you noticed (I mean a beautiful piece of clothing or an accessory, not something that borders on costume). A compliment is a great way to start a conversation.

If you are in the host role, also design your environment to suit the goals of the day. For instance, when looking to sign a new client different set ups can be ideal depending on the individual or group. Venue, seating arrangements, decor, available refreshments, type of small talk and time of day can make a world of difference. 

Considering immigration consequences on sentencing

Earlier this week, tsupreme_court_of_canadahe Supreme Court of Canada released their ruling in R. v. Pham 2013 SCC 15 which answers the question, “What weight should be given to collateral immigration consequences in sentencing?” 

Mr. Pham was not a Canadian citizen. He was convicted at trial of producing marihuana and possessing it for the purpose of trafficking. The trial judge imposed a sentence of two years imprisonment after a receiving a joint recommendation on sentence from Pham’s lawyer and the crown prosecutor.

Only after the sentencing hearing did Pham learn he had lost the right to appeal a deportation removal order made against him pursuant to the Immigration and Refugee Protection Act. This was on account of the fact that he received a jail sentence of more than two years. Neither his lawyer, nor the judge were aware of this collateral immigration consequence at the time the sentence was imposed.

On appeal, Pham sought to reduce his jail sentence by one day so that he would be eligible to challenge his removal order. The Alberta Court of Appeal refused to modify the sentence given that the original sentence Pham received was not “unfit”.

Ultimately, the Supreme Court of Canada overturned the Alberta Court of Appeal and granted Mr. Pham a sentence reduction of one day so that he might appeal his removal order.

Justice Wagner on behalf of the unanimous Court recognized that judges are entitled to consider collateral immigration consequences when sentencing an offender provided that, “the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.”

However, the court also warned that, “the sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.”

All of this is to say that the collateral consequences of a jail sentence such as immigration concerns should be only one factor to consider when crafting an appropriate sentence and should not, “dominate the exercise or skew the process either in favour of or against deportation.”

The Supreme Court was prepared to modify Pham’s sentence because either the sentencing judge was not aware of the collateral immigration consequences of the sentence or because his counsel had failed to advise the judge on this issue and the modification of sentence did not otherwise render the sentence unfit.

However, Justice Wagner cautioned, “where the issue of immigration consequences is brought to the trial judge’s attention and the trial judge applies the proper sentencing principles but nonetheless decides on a two-year sentence, then, absent fresh evidence, deference is owed to that decision”.

Therefore, absent new evidence not presented at the time of sentencing, the Pham decision stands for the proposition that appeal courts will rarely, if ever, interfere with a trial judge’s decision not to reduce a sentence in order to accommodate collateral immigration consequences even if the request is to simply reduce the appropriate sentence by just a single day.

Public Mischief Charge in Canada

Public Mischief Lawyer Toronto

Toronto PoliceIt is a crime in Canada to cause a police officer to enter on or continue an investigation with the intent to mislead them in any of the following scenarios:

(a) making a false statement that accuses some other person of having committed an offence;

(b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself;

(c) reporting that an offence has been committed when it has not been committed; or

(d) reporting or in any way making it known or causing it to be made known that he or some other person has died when he or that other person has not died.

Committing any of these acts can lead to a public mischief charge.

Frequently asked questions about public mischief charges:

Why is public mischief considered a crime?

The purpose of this law is to discourage the false reporting of offences. In a general sense, this charge is designed to prohibit someone from making false accusations which can potentially implicate an innocent person and usurp precious police investigatory resources.

What must the prosecution prove in order to establish a public mischief charge?

Where an accused person is charged with reporting that an offence has been committed when it has not been committed, the Crown must prove the following:

1)   that the accused reported an offence;

2)   that the accused’s actions or words contained in the report were false;

3)   that the accused intended to mislead the police; and

4)   that the accused’s actions or words caused a police officer to commence or to continue an investigation. 

Must the falsely reported offence be a criminal offence to meet the definition of public mischief?

The word "offence" has been given a very broad interpretation by our courts. The term “offence” is not restricted to Criminal Code offences. The term also includes any breach of the law, federal, provincial or otherwise, that involves penal sanction.

Must the prosecutor prove the offence did not occur in a public mischief prosecution?

Where the Crown Attorney has failed to prove that an offence has not in fact been committed, the accused is entitled to an acquittal. 

Must the police officer be misled by the false statement made by an accused person?

Where a police officer is not actually misled by the false statements or reports, the accused will be acquitted of public mischief but can nevertheless be convicted of attempted public mischief.

Is it still public mischief if the false report is not made directly to a police officer?

The law is still unsettled in this area. In some cases our courts have held that in order to attract criminal liability, the accused must be found to have made a false report directly to a police officer, or to someone else, with certainty that the person would contact the authorities.

At the very least, the “report” must be a formal complaint, made to a public authority who can effect an investigation in order to constitute public mischief.

What is the punishment for public mischief?

In Canada, the maximum punishment for committing the crime of public mischief is five years in jail. However every case and offender is unique and sentencing must be assessed on a case by case basis. 

If you are facing a public mischief charge or any other criminal offence, contact Daniel Brown for a consultation.  

Understanding the Defence of Entrapment in Canada

The police will often act covertly in an undercover capacity in order to investigate criminal activity. Rarely, the police will go too far in their undercover investigations and actually induce an otherwise law-abiding person into committing a crime such as trafficking drugs or soliciting a prostitute. The criminal justice system protects against situations like this by dismissing cases where such behaviour has occurred on the basis that such police conduct constitutes an abuse of the court’s process.

The following article attempts to explain the legal defence of entrapment in the Canadian criminal justice system. 

Frequently Asked Questions About Entrapment

What is entrapment?

Entrapment occurs when someone is induced to commit a criminal offence as a result of unfair law enforcement practices such as trickery, persuasion or fraud.

What must be proven to establish the defence of entrapment?

In raising the defence of entrapment, an accused must establish on a balance of probabilities that either:

(1) the police, without reasonable suspicion that the target was already engaged in related criminal activity, provided the target with an opportunity to commit a crime; or

(2) the police, having the reasonable suspicion noted in (1) above, went beyond providing the target with an opportunity to commit the alleged offence and actually induced the commission of that offence.

Does the accused bear the burden of establishing entrapment occurred?

The onus of establishing an entrapment defence falls on the accused to prove on a balance of probabilities that entrapment has occurred.

Do the entrapment rules change in high crime areas?

It is permissible for the police to offer to a person, about whom they have no reasonable suspicion that he or she is engaged in criminal activity, an opportunity to commit an offence if that person is located in an area in which the police reasonably suspect such criminal activity is occurring.

Therefore, residing in an area known for drug trafficking may permit a police officer to engage strangers in drug related conversations with a view to arresting them without knowing anything about them.

At what point in time must the police have reasonable suspicion the target was engaged in criminal activity?

The relevant time when determining whether the police had a reasonable suspicion that the target was engaged in criminal activity is when the opportunity to commit a related offence was given to the accused by the police.

What constitutes a reasonable suspicion for the purpose of assessing an entrapment defence?

A reasonable suspicion is more than a mere suspicion and less than reasonable and probable grounds. It is dependent on both the content of the information provided to the police and its degree of reliability.

What are there limitations to the defence of entrapment?

1) The offence must be induced by the state

Entrapment must involve the state or state agents. One cannot argue that he was entrapped into committing an offence by a private individual.

2) Excluded offences

There may be offences to which the defence cannot apply. Previous court decisions have indicated the defence of entrapment is not available where actual killing, bodily harm or other acts of violence are involved.

3) Not available at extradition proceedings

Entrapment cannot be used as an argument against extradition to a foreign country.

What are some factors the court will consider in determining whether or not someone was entrapped to commit a crime?

  • The type of crime being investigated and the availability of other techniques for the police detection of its commission;
  • Whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;
  • The persistence and number of attempts made by the police before the accused agreed to committing the offence;
  • The type of inducement used by the police including deceit, fraud, trickery or reward;
  • The timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;
  • Whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;
  • Whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;
  • The proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;
  • The existence of any threats, implied or express, made to the accused by the police or their agents; and
  • Whether the police conduct is directed at undermining other constitutional values.

At what point in the trial should the defence of entrapment be raised?

The Crown must prove that the criminal activity which gave rise to the entrapment allegation occurred before an entrapment defence can be raised. Therefore, entrapment arguments are almost always raised after the judge or jury has found the accused guilty but before the accused is sentenced.  

What is the appropriate remedy when entrapment is established?

A stay of proceedings is typically the proper remedy for entrapment; however, a judge may also grant the remedy of excluding evidence where appropriate.

Establishing a person was entrapped by police is extremely rare. If you have further questions about the law of entrapment, Daniel Brown is available for consultation at (416) 297-7200.