Legal scholars state it is likely unconstitutional to enter a person’s home without permission by the homeowner or the courts.
August 17, 2021 (3 Minute Read) (Photo: Jeff Bowman)
With files from Kuwarjeet Singh Arora, Contributing Editor at Bramptonist
Last week, Councillor Jeff Bowman and other city representatives met with Ontario’s Minister of Municipal Affairs and Housing, Steve Clark, to discuss city issues. The meeting was not open to the public. At the meeting Bowman broke ranks with the majority of his colleagues when he requested, again, that the government permit entry into people’s homes without permission.
Months prior to this meeting, at city council, Bowman has been advocating for municipal inspectors “to be allowed to enter (a) home without search warrants” to assess bylaw and building code compliance. He then asked city staff to ensure “rights to entry” was on the agenda during a designated meeting between City Councillors and the Minister of Municipal Affairs and Housing at the AMO (Association of Municipalities of Ontario) conference.
Multiple confidential sources who attended the meeting have advised the Bramptonist, that Minister Clark responded to Bowman, “You know my position of rights to entry”, and dismissed Bowman’s request.
Abby Deshman is a lawyer and the Director of the Criminal Justice Program at the Canadian Civil Liberties Association. She also teaches at the Centre for Criminology and Sociolegal Studies at the University of Toronto and is a Mentor with the Law Practice Program at Ryerson University.
“Doing away with the requirement for a warrant for things like building code inspections is likely unconstitutional”
When asked about Bowman’s idea to enter homes without consent, Abby Deshman responds, “The constitution protects people against unreasonable search and seizure – including unreasonable searches of our homes, one of our most private, intimate spaces.”
“A warrant is a key constitutional safeguard. Requiring law enforcement to provide the evidence that would justify an intrusive search before it happens is a fundamental democratic check on police powers”.
She continues, “The law is clear: warrantless searches are presumptively unconstitutional. There are times when law enforcement can go into your home without your consent and without a warrant, but this is an extraordinary power that is reserved for very exceptional circumstances – an imminent risk to a person’s life, for example.”
“Doing away with the requirement for a warrant for things like building code inspections is likely unconstitutional and would concentrate too much power in the hands of individual law enforcement agents.”
Currently, there already exists legal avenues for government agencies to enter a dwelling without the homeowner’s permission. The Criminal Code of Canada permits a Justice to issue a search warrant authorizing a peace officer (or a public officer) to search the building, receptacle or place for any such thing and to seize it.
However, the current law was not good enough for Bowman. Back in October of last year, Councillor Bowman proposed a motion, which included a request to the province, “…that section 16 of the Ontario Building Code Act be amended to allow inspectors to enter into dwellings to ensure compliance with the Act where the inspector has reasonable grounds to believe that construction has or is taking place within the dwelling for the purpose of creating an additional rentable occupancy space, without a permit.”
When asked for comment for this story and offer an explanation to his request, Councillor Bowman refused to respond to both email and telephone requests.
Who Can Enter?
Within Ontario’s Building Code, and with the issuance of a building permit, the municipality has the right to conduct a mandatory inspection at certain stages of the construction. Upon inspection, the designated Inspector can issue orders if they feel there are violations to the Building Code.
In the event that the inspection is refused, or there was no initial building permit that was issued, the municipality can evoke Section 1.4 of the Building Code in order to obtain a search warrant. With court-authorized entry, the municipality can inspect the construction, issue orders, or even seize the property.
The law has been written to prevent unreasonable search and seizure, thereby protecting privacy rights of property owners.
Absolutely, a municipality should take immediate action on violations of the bylaw and building codes. However, Bowman has offered no quantitative evidence of inspection refusals occurring in Brampton to justify his comments.
It would be helpful if a Councillor suspected a problem, they would report the number of complaints registered with the City on illegal construction, or, how many instances have occurred where the homeowners have refused entry to the bylaw inspector or enforcement officer? Then, of the number of instances where entry was refused, how many occasions have there been where the City has made an application before the courts to request search warrant for legal entry? Finally, of these court applications, how many times has the Justice refused to issue a search warrant to the City official?
Perhaps, if this data was known, one may find very few cases where a Justice would deny a city official a warrant where there is compelling evidence (or reasonable grounds) that the homeowner is in violation.
Rather than change the law, Councillors should research and learn from the best practices of other municipalities…who are not asking for Bowman’s intrusive, and likely unconstitutional, legislative changes.