The 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.
