This page is still very
much under development. It needs tons of work. Treat the
information here as incompletely researched.
The commission of a crime does not suspend the rights of privacy of the people who live where it occurred.
Consider the possibility that the people whose privacy you violate when you investigate are parties to the offence.
Here are two decisions. In the first, there was no crime, but
there
was lawful authority to search a residence without a warrant. In
the
second, there was a serious stabbing in a residence, but no lawful
authority to search it.
Ms Peacock-McDonald,
2007 ONCA 128 wanted to kill herself. Police officers took her to
hospital where she was detained under Ontario's Mental Health
Act. The
doctor's order could hold her not more than 72 hours. Meanwhile,
one
officer returned to her house and searched it for firearms.
Although
the decision doesn't say, it appears he had good reason to believe that
there were firearms present. He didn't get a warrant. He
found guns. Defence
complained that he should have sought a warrant. There was time:
Ms
Peacock-McDonald wasn't released for 2 days.
The officer explained
that although she was detained, she could
be released at any time
simply by "shoring herself up" and denying that she was suicidal.
The
court agreed with the officer. This was a risk which rendered it
impractical to seek a warrant, and the search was for her safety and
the safety of the public.
Consider, on the other hand, Mr McCormack,
2007 BCSC 1526, who called the police after he'd been stabbed at his
residence. The attending officers also heard from a neighbor that
the
assailant had a gun. They searched through the residence for guns
and
other occupants. They found blood trails, including one which led
to
the garage, but they did not find guns nor the stabber. McCormack
became uncooperative, and told the police to leave his residence.
McCormack went to hospital, and the police left the residence. A
senior officer directed another search of the residence for weapons and
evidence of the offence. But he did not seek a warrant because
the
assailant enjoyed no expectation of privacy in the house. He also
thought that because the house was a "crime scene", police were
entitled to search.
The second search found large quantities of drugs in the garage.
McCormack
complained that the officers violated his expectation of privacy, and
the court agreed. The first search was justified by the risks to
the
officers and the public of an armed assailant in the house. The
second
search was not.
The senior officer was right about one thing: if the assailant was a
visitor to the house, then the assailant enjoyed no expectation of
privacy in it. The assailant would have no standing to complain
about
breaches of his rights. But McCormack did, and he had
specifically
ordered the officers out of his house.
The officers went into the house as trespassers looking for evidence against the visitor, but emerged carrying evidence against the resident.
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