Police entry into a shared residence is a matter of considerable importance to the administration of criminal justice — and one which Parliament has to date left unaddressed. Police frequently attend residences to investigate suspected or ongoing criminal activity. Many of those residences are inhabited by more than one person with authority to permit third parties to enter the home.
If a resident cannot consent to police entry to a shared home without the consent of all the other residents, it undermines the dignity and autonomy of that resident — especially for a victim of a crime. Further, a rule, for instance, that the police may enter the common areas of a shared home only if they obtain consent from each and every person who lives there is unworkable.
That one resident can consent to have police enter the home does not displace the privacy expectations of the other residents, however.
In the case of joint residents, the question is not whether one resident can waive the constitutional rights of another. They cannot. Rather, the question is what, if any, impact the fact of joint residency has on one’s expectations of privacy, assessed in the totality of circumstances.
R. v. Reeves, 2017 ONCA 365 (CanLII), at para. 49.
And here, currently, the law is not entirely settled.
Commenting in obiter, a majority of the Supreme Court in R. v. Reeves, 2018 SCC 56 recognized that police entry into a shared home with the consent of only one resident raises a number of important questions:
- Would police also be authorized to search common areas of the home?
- Should the privacy interests of other residents affect the authority to seize evidence, even if in plain view?
- Could another resident who is present object to the police entry?
- What if the officers seek entry for the specific purpose of investigating one of the other residents?
R. v. Reeves, 2018 SCC 56, at para. 25.
Stuart O’Connell, O’Connell Law Group (All rights reserved to author).