Police Had No Reason to Search a Home, Drug Conviction Overturned

Written on Behalf of Affleck & Barrison LLP

A man operating a marijuana grow-op in his basement has had his drug conviction thrown out after the Court of Appeal found that the police had no right to enter his home, despite the fact that the man’s four-year old child was found wandering by himself, wearing a diaper, near a busy intersection close to the home.

What Happened?

A passing motorist called 911 to report a child standing alone at the side of a busy road. By the time the police arrived, the child’s mother had intercepted him, and had him safely in her arms. The child’s father arrived shortly thereafter and explained to police that the boy was autistic, “tended to wander”, and had managed to get out of the house despite a special lock on the door.

The man permitted the police to visit his home to inspect the lock. When police arrived, they insisted on going inside the home, claiming that they were entitled to do so in order to check on the boy’s well-being.

Once inside the home, the officers smelled marijuana and began to look around, including inside cupboards and inside the fridge. The officers eventually made it to the basement and found marijuana plants. They arrested the man and charged him with a number of drug-related offences.

The Original Trial Decision

At the original trial, the man argued that the police had violated his constitutional rights when they conducted the search.

Superior Court Justice McIsaac rejected this assertion, finding that the police had been entitled to conduct a “protective sweep” of the home due to their “child-protection concerns.” The judge rejected any suggestion that the police had used the child as a pretext to “insinuate themselves into a suspected drug operation”. The marijuana evidence was admitted, and the man was convicted.

The man appealed the conviction.

The Court of Appeal Decision

On appeal, prosecutors argued that the search had been appropriate and justified. However, the Court of Appeal ultimately disagreed and quashed the conviction. The Court of Appeal found that the police’s actions had amounted to an illegal search and a breach of the man’s rights.

The Court’s decision was based largely on evidence from the lead police investigator who had testified that he had no concerns that the boy was in serious danger in the home, and that there would have been no grounds to obtain a search warrant.

Justice John Laskin, writing on behalf of the court, noted that the police have a duty to investigate 911 calls, as well as a limited right to enter a home without a warrant; however once inside a home, police do not have any additional authority to search a home or intrude on a resident’s privacy or property:

Police can enter a home without a warrant if they have reasonable grounds to believe it is necessary to do so to protect a person’s life or safety…[that] does not give the police sweeping authority to enter a home without a warrant to investigate whether a child’s mother and father are good parents.

Justice Laskin ultimately found that the breaches of the man’s rights in this case were serious enough to merit throwing out the drug evidence. The man was acquitted.

If you have been charged with a drug offence contact one of the Oshawa drug offence lawyers at Affleck & Barrison. You can reach us  online or at 905-404-1947. We maintain a 24-hour phone service and we accept cases by private retainers and Legal Aid. Trust our experienced lawyers to handle your defence with diligence and expertise.