A Toronto police officer has learned the hard way that one’s home is indeed one’s castle.
An Ontario Superior Court judge admonished Constable Danny Mota for believing police can remain at a private dinner or house party uninvited, even if an individual refuses to provide them with identification when asked.
Justice Michael Code said the officer did not understand when it is legal to enter someone’s home without a warrant and threw out a conviction for assaulting police against Mehdi Zargar. Justice Code found that two officers were trespassing when they entered a downtown condominium to investigate a noise complaint and refused to leave.
The errors by police date back to “the long-standing common law precept concerning the sanctity of the home,” which originated in England in the 17th century, said Justice Code in his recent ruling. “The courts have repeatedly held that there is no power to enter a dwelling, simply for purposes of furthering an investigation.”
Erika Chozik, who represented Mr. Zargar in his appeal, said police should not overestimate their legal powers. “They have to take care to obey the law while enforcing it,” said Ms. Chozik. “The common law has firmly held that a person’s home is his castle. That is what this case is about.”
The successful appeal by Mr. Zargar comes more than two years after he was charged by police following a brief altercation on Dec. 30, 2011, inside his downtown Toronto condominium.
A security guard called police shortly before 4 a.m. with a complaint that Mr. Zargar was playing music too loudly inside his residence. Constable Mota and another officer responded and asked Mr. Zargar for identification. Mr. Zargar was described as confrontational by police because he responded “what for” and asked the officers to leave.
Constable Mota testified at the provincial court trial in May, 2012, that he was investigating whether Mr. Zargar had committed the offence of “mischief” for playing music too loudly. Asked for identification a second time, Mr. Zargar turned like he was going to comply and then pushed Constable Mota in the chest, said police. Mr. Zargar was arrested and charged with mischief and assaulting police, although at his trial, the prosecution dropped the mischief charge. “As a result, there was no proof that any criminal offence was actually being committed at the time of the police investigation,” Justice Code noted in his ruling.
The Superior Court judge explained that Constable Mota was incorrect to believe he had the right to stay in the private residence because Mr. Zargar would not provide identification. At the time of the arrest, Constable Mota had been an officer for about four years, “which perhaps explains his apparent lack of understanding of police powers,” Justice Code wrote.
Police may enter a residence without a warrant in certain circumstances, such as to prevent an offence that could cause a serious injury or if they are in “hot pursuit” of an offender. Justice Beverly Brown, who convicted Mr. Zargar at his provincial court trial, concluded that police were “in hot pursuit of the investigation of the offence of mischief,” which Justice Code found to be a legal error.
The Superior Court judge also faulted Constable Mota for believing that because he saw about eight to 10 people inside the condominium unit there were possible “officer safety” concerns. “This kind of speculative fear of the unknown, when there is a gathering of people in a dwelling, could apply to any dinner party or house party and it would effectively allow police to remain uninvited, at any such gathering. This would amount to an extraordinary expansion of police powers,” Justice Code wrote.
A spokeswoman for the Toronto police said its legal department is reviewing the decision. “If there are any issues identified with respect to our current training or procedures, they will be forwarded to the appropriate unit and addressed,” Meaghan Gray said.
The deadline to appeal by the Crown was April 4. It did not appeal so the acquittal will stand.
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