The short answer is “Yes” according to retired Court of Queen’s Bench Justice M.A. Binder.

“The fact of the matter is that it is unlawful to carry out a warrantless search under the guise of a curfew check,” he wrote.

Binder’s decision (view PDF) came in response to a complaint against Edmonton Police Service Sgt. Ashley Hayward, in which he ruled Hayward violated the rights of John Jacknife during a 2017 curfew check.

This commentary is divided into three parts:

1. Case Overview
2. Formal Reprimand
3. Evaluation of the Decision

No case is ever as simple as it appears at first glance.

 

Case Overview

In 2017, John Jacknife, a former and possibly (at the time) current member of the Red Alert street gang, was on probation. One of the conditions of his release was a nightly curfew of 11pm to 7am.

On August 16, 2017, Sgt. Ashley Hayward and Det. Daniel Behiels attended a private Edmonton, Alberta, residence to ensure Jacknife’s compliance with that curfew.

The written decision does not delve into why Sgt. Hayward and Det. Behiels performed the compliance check at 11:30pm, since another police officer and a probation officer already checked to ensure John Jacknife was home at 11pm that same evening.

When he and Det. Behiels attended the residence what they could see through the uncurtained windows of the home led them to believe a crime was in process, although neither man explain what type of crime they thought they witnessed.

During the disciplinary proceedings Det. Behiels testified he…

“observed people in the Residence and ‘there’s some kind of frantic activity.’ He saw three people in a room inside the Residence – ‘a female lying face down on the bed, and there were two males, and they were sitting on the edge of the bed, facing away from me, so facing west, directly in front of an open closet…and they’re passing things between each other. And it seemed kind of frantic, what they were doing, and made me feel a little bit uneasy, to be honest with you… Something was creepy about that situation. I felt uncomfortable’.”

Both police officers believed one or more women could be in distress and called for backup before attempting to enter the home.

When additional police personnel arrived, Sgt. Hayward ordered two Edmonton Police constables to search the downstairs portion of the home while Sgt. Hayward would search the upstairs.

While Sgt. Hayward searched a closet in a bedroom, John Jacknife called his lawyer and left a message describing the search in progress. Shortly after that phone call, the police left the residence.

John Jacknife filed a complaint with the Edmonton Police Service, which led to the ruling the search of his residence was illegal.

All police actions were predicated on the suspicious actions Sgt. Hayward and Det. Behiels witnessed when they first arrived that led them to believe a criminal act was in progress and/or one or more women may be in distress inside the residence.

They were not.

On July 23, 2019, the Chief of the Edmonton Police Service formally cited Sgt. Hayward (4 counts) and Det. Behiels (2 counts) of Unlawful or Unnecessary Exercise of Authority contrary to section 5(1)(i) of the Police Service Regulation as defined by section 5(2)(i)(i) of the Police Service Regulation.

Both citations against Det. Daniel Behiels were dismissed as, on balance of probabilities, he did not perform the actions he was accused of.

Not so for Sgt. Hayward.

 

Formal Reprimand

Sgt. Ashley Hayward was given a formal reprimand and was also ordered to review his authority and power to perform a search under the Charter of Rights and Freedoms.

Retired Court of Queen’s Bench Justice M.A. Binder – quoted from his formal decision (PDF):

[31] Although the Search by Sgt. Ashley Hayward was well intentioned – to ensure the safety and well-being of those in the Residence and therefore without moral culpability – a sanction, although perhaps minimal, in my opinion is nevertheless warranted because:

• • The essence of s. 8 of the Charter is to protect the privacy – a cornerstone of the Charter – of all, particularly in a residence, and to make an exception in the case of suspected criminal or suspicious activity in a residence will erode the right of privacy of law-abiding persons.
  • Accordingly, in my opinion an equally important principle in this case is both personal and general deterrent.

[32] The fact of the matter is that it:

• • is unlawful to carry out a warrantless search under the guise of a curfew check.
  • is imperative that the message to every police officer is not that you will not be sanctioned if you breach the privacy of a residence absent moral culpability ; but rather: you have a duty to use reasonable efforts to keep abreast of changes in legislation and court decisions that affect the carrying out of your duties, and more so in the case of sergeants and senior officers, because it is axiomatic that any officer – especially a sergeant in charge of a squad of 6 – purporting to enforce a law must understand and appreciate any limitations of that law.

 

Evaluation of the Decision

This ruling is both refreshing and problematic at the same time.

It’s refreshing because it reiterates the time-honoured tradition that a man’s home is indeed his castle and the state may not intrude without just cause.

I also love Justice Binder places the onus squarely on the shoulders of police officers to “keep abreast of changes in legislation and court decision that affect the carrying out of your duties” because “any officer… purporting to enforce a law must understand and appreciate any limitations of that law.”

It’s a strong statement and, while not issued from a court of law, will still carry weight there.

It’s problematic because, in the specific case before us, both Sgt. Ashley Hayward and Det. Daniel Behiels legitimately believed two women may be in danger. Operating under that believe, whether we view it with 20/20 hindsight as legitimate or not, police officers must ensure that individual is safe.

In a very real sense, these two Edmonton Police Service members were in an impossible situation.

If they did nothing and one of those women were injured or killed, they would be held accountable for failing to do their jobs. By ensuring they were safe, and searching the home as part of doing so without a search warrant, they violated John Jacknife’s Charter rights.

It’s a no-win scenario for them.

“It is my fear that this ruling will lead to fewer opportunities for … vulnerable people to seek help from police,” Det. Daniel Behiels said after the ruling was released.

He hopes Hayward appeals and said this decision could discourage officers from engaging in “consensual conversation for fear of being branded as abusing their authority.”

There is a power imbalance any time a police officer enters a home not their own. It’s inevitable and unavoidable.

It’s also true that civilians typically do not provide “informed consent” when allowing a police officer to enter their home – especially when they are on probation.

As lawyer Erika Norheim said, “People who are caught up with the criminal justice system are generally terrified that the police will arrest them and therefore will not protest even when police conduct is unlawful or unwelcome, and I believe that is what occurred in this case.”

There is no easy or “correct” answer here. In some ways, this decision makes the job of front-line police officers more difficult when they are trying to do the right thing, as I believe these two men did.

That said, if we are going to err on any side of this power equation, I prefer we err on the side of mere citizens as Justice M.A. Binder did in this case, and not on the side of agents of the state.

 

What do you think? Please let me know in the comments section below.