Can the police invade a home over the protests of the occupier?

The decision of our highest court is that neither the police nor anyone else can invade a home over the protests of the occupier unless authorizing legislation is sufficiently specific or the right to do so is firmly embedded in the common law as in the arrest cases referred to by Mr. Justice Dickson in Eccles v. Bourque et al. 1974 19 C.C.C. (2d); 1974 CanLII 191 (SCC), 1975 2 S.C.R. 739. Here there is no element of invasion, no challenge to a protesting occupier. The whole success of the operation is that the entry is unknown to the occupant or alternatively is known to him but he is misled as to the purpose. The success of the operation is that the transmitter is planted without the knowledge of the occupier.

It has never been thought that the principle of law embodied in the expression "a man's home is his castle" was breached by a policeman listening at an open window even though standing in the owner's flower bed. In Ghani v. Jones (1970) 1 A.B. 693, Lord Denning had this to say about trespass at page 705: "The first thing to notice is that police officers had no search warrant. The reason is simple. No magistrate - no judge even - has any power to issue a search warrant for murder. He can issue a search warrant for stolen goods and for some statutory offences, such as coinage. But not for murder. Not to dig for the body. Nor to look for the axe, the gun or the poison dregs. The police have to get the consent of the householder to enter if they can: or, if not, do it by stealth or force. Somehow they seem to manage. No decent person refuses them permission. If he does, he is probably implicated in some way or other. So the police risk an action for trespass. It is not much risk." I am of the opinion that that principle is not breached by the placing of a transmitter surreptitiously or by a trick within private premises.