Squaring the Castle Rule: Criminal Home Invasion versus Police No-Knock Incursions
Squaring the Castle Rule: Criminal Home Invasion versus Police No-Knock Incursions
In this post, my intention is to stitch together my thoughts and opinions about expanding the Castle Rule for home defence, its relationship to policing and the potential risks to home occupants from the UCP's messaging (which on a certain level, this criminal defence lawyer agrees).
According to the Calgary Herald, United Conservative Party leader Danielle Smith has instructed that Albertan’s will not be prosecuted for defending their home and families from intruders.
As reported by Rick Bell,
“She goes so far as to tell “lowlife criminals” if they don’t want to get shot then don’t break into anybody’s home”.
The purpose of this post is contemplate the messaging in relation to Castle Rules.
Home is a Person's Sanctuary
The age-old adage “a home is a person’s sanctuary” has been recognized by the Supreme Court of Canada in cases such as Semayne’s Case (1604), 5 Co. Rep. 91, R. v. Silveira, [1995] 2 S.C.R. 297, Eccles v. Bourque, [1975] 2 S.C.R. 739, R. v. Kokesh, [1990] 3 S.C.R. 3 and R. v. Genest, [1989] 1 S.C.R. 59. While the Alberta Court of Appeal and Canada’s Supreme Court has, in recent decades, consistently eroded home sanctuary principles (for example, R. v. Cornell, 2010 SCC 31) it is interesting that the Alberta government now apparently supports home sanctuary principles as they relate to home invasion by alleged criminals. In other words, if somebody is the victim of a break enter, the rule in Semayne’s Case arguably applies:
"The house of every one is to him [or her]…a castle and fortress, as well for…defence against injury and violence as for… [his or her] repose."
This Calgary criminal lawyer wonders whether the Government will similarly recognize the home sanctuary when it comes to unannounced forced entry by police.
As powerfully stated by Lord H. Brougham:
The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter! – all his force dares not cross the threshold of the ruined tenement!
Home as Safe Haven
Both poetic and powerful, Lord Brougham’s ruined tenement stands for the proposition that a person’s home is their castle, even if that be a ruined castle. The ruined castle is effectively an impenetrable barrier for which the State cannot enter.
Securing the home makes sense. After all, what is the place inside of which almost every person generally feels the most secure, most of the time; while at the same time, the most vulnerable when that security is broken? It is certainly not while walking through a back alley or a crowded street. It is not in the shopping mall, the lecture theatre, the cinema, the dance floor, public transit or even in your own automobile. It is, I suggest, in the home.
It is the home where most of us feel the highest safety and security and it is while in that safe and secure environment where we also might experience the highest uneasiness, even danger, such as by an unexpected sound, an unexpected entry or worse, an unexpected and uninvited entry. When the home sanctuary is violated, I suggest that the feeling of vulnerability is exacerbated to the point of potentially overwhelming. Our home is a place where we are not only physically, emotionally and mentally protected, but due to the enhanced feeling of security within our home, that sanctuary can easily be transformed into a place of ultimate terror when that security is violated.
In R. v. Matiwy (1996), 178 A.R. 356 (Alta. C.A.) the Alberta Court of Appeal confirmed Judge Daniel’s decision in relation to home invasion and in so doing, established an 8 year starting point for home invasion break and enters.
Feelings of safety, security and vulnerability are at their highest within our homes because it is in that private space where people are most relaxed. It is in the comfort of our own home where we play, dance, express intimacy and potentially are at liberty to be the closest version of our true selves.
I raise these points for a reason.
Potential Mixed Messaging
To begin with, I agree that home occupants should not be expected to behave as sheep when confronted by wolves invading their own home. If there is any place where people should have near carte blanche to defend themselves, it is against those who violate the home sanctuary.
A home invasion is an extremely violent act. It is not only so because somebody enters private space, but because the invader very likely exposes the home occupant in a place where that home occupant is already the most exposed. To appreciate what I am saying requires nothing more than a most rudimentary thought experiment. Within the home ordinary people cook, clean, entertain themselves, work, store their most personal belongings, and generally bask in their own privacy. Imagine if somebody walked-in uninvited while you are getting out of the shower, being intimate with your partner or even just lounging on the couch. Now imagine if that person is somebody that doesn’t belong in your space. Imagine that intruder is uninvited; now standing in the privacy of your castle walls, in a zone of silence, free from the public’s eye. While that’s unsettling, what is worse is that the invader generally enters with an expectation that there might be an encounter with the home’s occupant. In other words, they are ready, you are not.
It is for this reason that this Calgary criminal lawyer’s opinion is that home occupants should not be subject to the same arguably overly esoteric legal restrictions to self-defence outlined in s. 34 of the Criminal Code.
Section 34 of the Criminal Code of Canada mandates that the self-defence response must be reasonable. Since home invasion constitutes an extreme violation of safety and security in a place of extreme vulnerability, it is my view that the law should recognize an expanded authority for the home occupant to, by any means, defend his or her castle. Of course, this is just my opinion. Please understand, notwithstanding the opinion of this Alberta defence lawyer, the Minister of Justice and/or the Premier, the fact is, if a home-owner uses extreme force to defend his or her domicile, there is a reasonable prospect that the home-owner will be charged, prosecuted and even convicted of a crime.
For example, in August this year an Ontario resident woke to find an intruder in the home. When the home-owner confronted the intruder and ultimately inflicted serious injuries to the intruder with a knife, the homeowner was charged with aggravated assault.
https://calgary-law.ca/blog/opinion-lets-honour-the-castle-rule/
With this in mind, I wonder whether the UCP’s messaging is sending the wrong message; for I suspect that if a homeowner shot an intruder, there is a good chance, notwithstanding the opinion of our Premier, that the home-owner would be charged.
Impact on Policing
This criminal defence lawyer speculates that there may another reason most Government’s are reluctant to embrace stronger Castle rules with respect to homes. While many will argue that strong Castle rules will lead to unintended consequences for innocent people, I expect there are also concerns for police. Weak Castle rules means that there is a reduced likelihood that police are met with resistance when entering a private dwelling house.
Though Alberta’s United Conservative Party’s focus is on home invaders – a class of people who many of us probably believe deserve what they get when they break into a home – I suggest that if there is an expansion of Castle rules for home defence, there needs to be a concurrent response by law enforcement.
In my view, even when engaged in proper policing, law enforcement should always -- where possible – treat a person’s home and its occupants with an appropriate measure of respect (even if that entry is authorized by prior judicial authorization). “Prior judicial authorization” means by way of a search warrant.
According to Calgary Herald writer, Rick Bell, the Minister of Justice reportedly “…intends to tell Crown prosecutors who is the real sheriff in town by sending out guidelines on what to do if a lawbreaker tries to invade someone’s home and the law-abiding citizen makes a judgment call and deals with the ugly situation”.
But what if there is uninvited entry by the Sheriff in town and that the home occupant deals with the perceived “ugly situation”? Even more likely, what if the Sheriff in town enters the home and interprets the innocuous as sinister?
Interpretation in the Moment
It is not unheard of for people to be harmed or even killed by police in their own home.
A few months ago, the CBC reported an incident involving a man named Anthony Heffernan who was occupying a temporary private living space – a hotel room. Mr. Heffernan was shot by police while inside of a hotel room.
Now, I appreciate that a hotel room is not the same as a private dwelling house; but as the majority of the Supreme Court of Canada stated in R. v. Wong, 1990 CanLii 56: “Normally, the very reason we rent such rooms is to obtain a private enclave where we may conduct our activities free of uninvited scrutiny”. Wong supra confirmed that hotel room occupants have a reasonable expectation of privacy. In other words, a person in a hotel room has the right to shower in privacy, to walk naked in privacy, to sleep, eat, drink and watch television with the same privacy as those who enjoy those same activities within their own private dwelling house.
It struck me that if a third-party was to enter a home or hotel room unexpectedly and uninvited, they might catch the occupant in a condition of embarrassment or vulnerability similar to that of a private dwelling house. The party who enters the private domain might very catch the occupant in an innocuous situation that the invader might perceive to be threatening. For example, the occupant might be holding implements that the occupant has every right to hold within their own home – such as a tool or kitchen knife. Worse, a sudden uninvited entry might reasonably cause the occupant to take a hostile action in relation to the invader(s). In the moment, it matters not whether the invader is entering for a nefarious purpose or are police by way of prior judicial authorization, the point is, in the moment, the occupant is vulnerable. In the case of police entries, the occupant doesn’t necessarily expect officers to barge through the door and may respond to the ugly situation. Equally, the entering police might interpret an innocuous situation as sinister and respond accordingly.
Imagine if police come into contact with an unexpecting home occupant who is by ordinary behaviour within the home, also coincidentally using an ordinary household implement for its natural purpose, only to have that implement interpreted as sinister by police. For example, the occupant was buttering bread, using a screwdriver, taping a hockey stick or performing cleaning and maintenance on a lawfully possessed firearm. Since the occupant is potentially holding an implement perceived dangerous by the invading police, who likely already have firearms in hand, there is a reasonably high likelihood that officer’s respond with deadly force. If for example I am cutting my steak with a steak knife and police enter, they are almost assuredly going to perceive that implement as a threat and point a loaded firearm in my direction.
As person who grew up with firearms, I know that anytime a loaded firearm is pointed, there is a risk that it will be discharged. As a lawyer, I know that the risk that a firearm will be discharged – even by well trained police officers – increases with perceived risk to officer safety. People have been killed by police in these situations.
Consider a few examples:
The Death of Anthony Heffernan
As reported by the CBC:
On March 16, 2015, five officers were called to a northeast Calgary motel to check on Anthony Heffernan, who hadn't checked out of his room on time.
They found him alone in the room. He had relapsed and was using drugs.
Just 72 seconds later, Heffernan had been shot four times, including in the head and neck.
Officers said he had rushed at them with a syringe in his hand, which they later found out had no needle.
https://www.cbc.ca/news/canada/calgary/anthony-heffernan-wellness-check-death-discipline-1.7635178
Now, I wish to be very clear, the purpose of this example is not to place blame on police; for the Alberta Serious Incident Response Team (ASIRT) already conducted an investigation that was it seems in all too typical fashion ignored by the Crown. As an aside, this criminal defence lawyer in Alberta wonders about the efficacy of an investigative service where former Crown Prosecutor’s recommend charges, only to be ignored by other Crown Prosecutors. It strikes me that this system of investigating police conduct might be more about creating the impression of oversight without meaningful oversight. Alas, I digress.
According to the CBC:
ASIRT recommended charges against the officer who fired the shots, Const. Maurice McLoughlin, but Crown prosecutors did not pursue criminal charges.
The purpose of my thoughts about police entry is simply to highlight that when ordinary people are in private spaces, they may naturally be in a position of extreme vulnerability to the extent that their conduct and behavior is at a higher risk of being interpreted as abnormal or aggressive by the invading police. Those same persons might even have items in hand that the intruder would reasonably perceive to be implements that could cause danger. When it comes to police, as soon as they are in danger, there is an extreme risk of use of force; and since police are equipped with firearms, there is a heightened risk of deadly force.
In Mr. Heffernan’s case, he was holding an empty syringe that police almost certainty identified as part of their justification for taking his life. The issue I have is that they took his life in circumstances where he was using an implement – a syringe – in the privacy of a hotel room – a space that he was using to privately take his drugs. In my view, the moral assessment of Mr. Heffernan’s drug use must be viewed independently from the space in which he chose to privately use his drugs. To mind, the better way to think about the Heffernan situation is to contemplate the array of different items that a person might have lawfully in hand at the time of an unexpected entry.
It takes little imagination to change the item from empty syringe to kitchen knife, screwdriver, razor blade or any other handheld item that could be construed as a weapon. A person could be cooking with sharp instruments or even hot water; they could be shaving using a razer; they could be fixing a hinge with a screwdriver or hammering a nail.
Other than to say that I would really like to view the body camera footage in Mr. Heffernan’s case, I am not going to delve deeper into that situation. What I will say is that when police enter private spaces, such as dwelling houses (including hotel rooms), it is not unheard-of for things to end poorly for the occupant.
While I completely agree that home occupants should have a right to defend their castle, if that is to be the law, then we must also expect police to take all reasonable safeguards for themselves and the home occupant prior to making entry – even if that entry is by way of prior judicial authorization. If reasonable steps are not taken by law enforcement to protect the occupants of the home, I worry that a justice policy endorsing home defence could place both police and the occupant(s) at greater risk to serious bodily and death when law enforcement forces entry into private dwelling houses.
The Killing of Sonja Massey
In 2024 an Illinois woman, Sonja Massey was shot by a Sheriff because she had a pot of boiling water in hand. As reported:
The video, recorded by cameras worn by the officers, shows Massey, 36, in her kitchen removing a pot of boiling water from the stove at their request. As she was doing so, the accompanying officer, who has not been named, backed out of the kitchen into the living room. He said he wanted to put distance between himself and the boiling water.
Massey then said, "I rebuke you in the name of Jesus," after which Grayson aimed his gun at her and threatened to shoot her in the face.
https://www.cbc.ca/news/world/bodycam-video-illinois-police-shooting-sonya-massey-1.7271928
Interestingly, it was Ms. Massey who actually called police for help. While this is not a case of unexpected forced entry into a home by police, it nevertheless serves to highlight that innocuous implements in hand can result in deadly consequences.
The Death of Ejaz Ahmed Choudry
In 2021 a Peel Region man (in Canada) was shot when police responded to a non-emergency call. When police attended, an officer kicked open a balcony door and observed a man holding a kitchen knife in hand.
As reported by the CBC:
“[the man] was armed with a 20-centimetre-long kitchen knife when police kicked in his balcony door and shouted at him in English — a language his family…said he didn't properly understand — to drop his weapon. The officer in charge was concerned [the man], who had schizophrenia and was not taking his medication, was at risk of self-harm”.
https://www.cbc.ca/news/canada/toronto/ejaz-choudry-no-charges-siu-peel-police-1.5976266
While the officer might have speculated that the man was able to do “self harm”, the end result was that the man suffered actual harm when he was killed by the police officer. This case not only illustrates the danger of holding ordinary tools capable of being construed as weapons, it also illustrates that communication barriers might potentially augment the likelihood of a deadly encounter.
Overwhelming Sensory Force
In cases such as R. v. Cornell, 2010 SCC 31 police have confirmed the use of overwhelming sensory force as a tactic when executing no-knock and announce entries.
https://www.scc-csc.ca/pdf/case-documents/33186/FM010_Appellant_Jason-Michael-Cornell.pdf
The idea by behind overwhelming sensory force is that the entry into the home is so sudden, so loud and so perceptually overwhelming that the occupant(s) are essentially shocked into submission. In Cornell, the police shocked an innocent young man who had mental health issues.
While I appreciate that there may be occasions where tactical no-knock and announce entries into private dwelling houses are necessary, one of the problems with Cornell is that there was arguably, in this Calgary criminal lawyer’s opinion, no meaningful attempt by law enforcement to do its job peacefully. In my view, if Canada is to be a peaceful society, all Canadians should expect that law enforcement will as a matter of priority, make every effort to treat every situation as peacefully as possible. After all, sometimes police get it wrong; sometimes police raids fail to turn up evidence.
Occasionally Police are Wrong
For example, in 2020 police raided the home of Joshua Bennett and Jennifer Hacker.
https://calgary.citynews.ca/2022/04/12/alberta-couple-suing-police-botched-raid/
According to City News, police responded to a false drug tip. According to the complainant's lawyer:
“(Police used) a battering ram to go through the living room window, used unnecessary and excessive force on my clients, and then kidnapping them and taking them to Calgary when they had no basis to do so.”
Police ended up finding no drugs in the home but managed to cause tens of thousands of dollars in damages. On top of the damage to the home, the couple is still suffering from post-traumatic stress disorder.
In 2023, based on false tip, police raided the home of James Potts.
https://www.ctvnews.ca/canada/article/alberta-family-furious-after-home-raided-by-police/
According to CTV news, video from the home was obtained.
Timestamps on the video indicate police arrived just before 5:20 p.m., simultaneously entering the home through the backyard and approaching the front door with a vehicle-mounted battering ram.
In the backyard, video shows EPS officers with their guns drawn, directing the Potts family—a group of children, teenagers and their grandmother—to get down on the ground. At one point, an officer can be seen tearing off a teenaged boy's t-shirt before telling him to lie down on his stomach on the pavement.
"Why are we getting arrested?," a girl can be heard asking in the video. One officer responds: "Arms out to your side."
Tara Yaschuk
By way of a more local example, police entered the home of Tara Yaschuk in response to an interpretation of a domestic issue. When asked by Ms. Yaschuk to leave, she was assaulted by the attending police.
The complaint says her son, whom CBC News has agreed not to name at her lawyer's request, answered the door when the police arrived. Yaschuk alleges in her complaint that the officers — identified only as Constables M. Lavictoire and G. Desjardins — refused to listen to her son explain the false alarm over the missing car and "immediately pushed their way into the family home" despite being told they weren't invited in.
The officers are told the same thing by Yaschuk's partner but proceed upstairs and into Yaschuk's bedroom, where she was just coming out of her en suite washroom. Her son follows, recording the encounter on a cellphone video and protesting they weren't invited in.
Yaschuk — who stands 5 feet 4 inches — can be heard asking on the video, "Who let you into my home?"
One of the officers responds, "Nobody."
The officers tell Yaschuk's son to leave.
Then officer identified in the complaint as Desjardins says, "Seriously, I am going to arrest somebody."
This case highlights that when police enter a home, there is a chance that the occupant might take exception to their presence. Some police take this very personally.
Conclusion
Please understand, I am not suggesting that the majority of police encounters result in trauma to the people they serve. Rather, I am only trying to highlight that every encounter has a chance at evolving into a negative encounter.
The purpose of this post is to highlight that home invasions cause serious harm to home occupants; and that harm is not necessarily attenuated simply because the invaders are police. Cases such as Yaschuk and Massey highlight the risk to home occupants whenever there is a law enforcement visit. Cases such as Heffernan, Choudry, Bennett, Hacker and Potts highlight the extreme trauma from no-knock encounters.
If Alberta is serious about protecting a home-owners right to defend their Castle, there must be a concurrent recognition by law enforcement that whenever possible, private dwelling houses should be approached peacefully, with the understanding that the storm may enter, the rain may enter, but unless it is absolutely necessary, even the King shall not enter.
There can even be serious consequences for police.
By way of example, in 2008 Laval police acknowledged that they needed to review their guidelines with respect to dynamic, tactical, no-knock entries after an officer was killed by a home-owner. As reported by the CBC:
Basil Parasiris was acquitted…by a 12-person jury at the Longueuil courthouse, on Montreal's South Shore. [Parasiris] was charged with first-degree murder in the death of Const. Daniel Tessier, who died after being shot three times last spring after he entered Parasiris's Brossard home with a battering ram during a botched drug raid.
This criminal defence lawyer appreciates that police are motivated to collect evidence. What I question is the value of potential evidence collection in certain circumstances. To my mind, it is important to remember that Charter protected interests do not come free of charge. Sometimes it is better to risk cocaine being flushed down the toilet than risk the innocence of unknowns within a Castle.
While this Calgary criminal lawyer agrees that those committing break-and-enter into private domains should think twice before going into someone’s home (for they may get what’s coming to them), I wonder how this squares with the objectives of law enforcement who choose to execute dynamic no-knock entries. I wonder if the UCP has contemplated this side of their messaging?
These are my thoughts and opinions, not yours.
Davd Chow
Calgary Criminal Defence Lawyer