Warrantless Entry into Dwellings in Exigent Circumstances

From Criminal Law Notebook
This page was last substantively updated or reviewed May 2020. (Rev. # 91123)

General Principles

See also: Warrantless Search in Exigent Circumstances

Generally, a warrantless entry into a private residence is not permitted absent statutory authorization.[1]

Search of a rental room even with the consent of the building owner will also require a warrant.[2]

Statutory Exception

Sections between 529 to 529.5 were added in 1997 creating statutory authority to enter a dwelling:

Authority to enter dwelling without warrant

529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 [entry into residence to arrest] or 529.1 [entry into residence to arrest] authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 [entry into residence to arrest] exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

Exigent circumstances

(2) For the purposes of subsection (1) [authority to enter dwelling without warrant], exigent circumstances include circumstances in which the peace officer

(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or
(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.

1997, c. 39, s. 2.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 529.3(1) and (2)

Purpose of s. 529.3

Section 529.3 "relieves against the requirement for a warrant to arrest where exigent circumstances make it impractical to obtain one."[3]

Factors

On a warrantless entry into a residence the courts should look at factors including:[4]

  1. what information did the officers have?
  2. what information could they infer?
  3. what were their alternate courses of action?
  4. what was the reasonableness of the action they took?
Exigent Circumstances

A warrantless entry into a private dwelling (sometimes called the Godoy exception) is permitted for the purpose of protecting or assisting a person in distress.[5] This is a limited and extraordinary exception to the rule against privacy in the home.[6]

Exigent circumstances are "generally found to exist where the police have reasonable grounds to be concerned that prior announcement would: (i) expose those executing the warrant to harm and/or (ii) result in loss or destruction of evidence and/or (iii) expose the occupants to harm."[7]

Exigent circumstances permitting warrantless entry into house will permit a full search of the residence for the purpose of satisfying that they have accounted for all residents. They do not need to rely solely on the reporting of the other people in the house. [8] The search however should be "cursory and noninvasive."[9]

Hot Pursuit

A warrantless entry is further permitted when it falls into the common law doctrine of "hot pursuit."[10]

Exterior of Property

Searches of the surrounding property are treated much in the same way as residences themselves. The police cannot search the perimeter of a residence without a warrant.[11]

  1. R v Silveira, 1995 CanLII 89 (SCC), [1995] 2 SCR 297, per Cory J and L'Heureux‑Dubé J (6:1), at para 49
  2. R v Kenny (1992) 52 OAC 70(*no CanLII links)
  3. R v Knelsen, 2012 MBQB 242 (CanLII), 283 Man R (2d) 182, per Spivak J
  4. R v Jamieson, 2002 BCCA 411 (CanLII), 166 CCC (3d) 501, per Saunders JA (3:0), at para 24
  5. R v Godoy, 1999 CanLII 709 (SCC), [1999] 1 SCR 311, per Lamer CJ (9:0)
  6. R v Wilhelm, 2014 ONSC 1637 (CanLII), OJ No 1176, per Hill J, at para 106
  7. R v DeWolfe, 2007 NSCA 79 (CanLII), 222 CCC (3d) 491, per Bateman JA (3:0)
    R v Knelsen, 2012 MBQB 242 (CanLII), 283 Man R (2d) 182, per Spivak J (Exigent circumstances "include circumstances in which the police officer has reasonable grounds to suspect that entry is necessary to prevent imminent bodily harm or death to any person.")
  8. R v Depace, 2014 ONCA 519 (CanLII), 317 CRR (2d) 296, per curiam (3:0)
  9. Depace, ibid.
  10. R v Feeney, 1997 CanLII 342 (SCC), [1997] 2 SCR 13, per Sopinka J (5:4)
  11. R v Kokesch, 1990 CanLII 55 (SCC), [1990] 3 SCR 3, per Sopinka J (4:3)

911 Phone Calls

A 911 call suggests an emergency, and when made, is considered "pressing and immediate" circumstances to permit warrantless entry. It is often a "distress call."[1]

Upon responding to a 911 call, the police "have authority to investigate" the purpose for the call. This includes the authority to "locate the caller and determine his or her reasons for making the call", but does not include any other intrusions in the dwelling house without "further permission."[2]

Typical reasons for 911 call relate to the caller seeking protection from domestic violence or aid after violence has occurred.[3] Sometimes the reasons are not clear at the time of the call due to lack of information or a dropped call.[4]

Where police respond to a dropped 911 call they can enter the home if they have reasonable grounds to believe an offence has been committed. This even where no evidence of an ongoing crime exists.[5]

Forced entry into a dwelling-house is permitted where necessary to ensure the "health and safety" of individuals inside.[6] This can be established when the caller is calling from within the residence or is a neighbour.[7]

There must be a need to protect "life and safety" such that there is a "threat to life or limb."[8]

Whether the entry or specific actions were justified will depend on the facts of the particular case.[9]

Cancelled Calls

Where the 911 caller tries to cancel the initial emergency call, the police are entitled to consider whether the cancellation was genuine or by force. However, the police should consider other options, including interviewing the caller outside of the residence, before considering the option of entry into the dwelling. If the caller refused, then it may be inferred that she is under duress to stay.[10]

  1. R v Godoy, 1999 CanLII 709 (SCC), [1999] 1 SCR 311, per Lamer CJ (9:0), at paras 16, 19, 22
  2. Godoy, ibid., at paras 22, 23, 28
  3. R v Wilhelm, 2014 ONCA 1637(*no CanLII links) , at para 106
    Godoy, supra, at paras 19, 21, 23, 28
  4. eg. see R v Jones, 2013 BCCA 345 (CanLII), 298 CCC (3d) 343, per Neilson JA (3:0), at para 17
    Godoy, supra, at paras 16, 19 - dropped call
  5. Godoy, supra
    R v Larson, 2011 BCCA 454 (CanLII), 312 BCAC 275, per Groberman JA (2:1), at paras 19 to 26
  6. Godoy, supra, at para 22
    R v Nicholls, 1999 CanLII 2750 (ON CA), 139 CCC (3d) 253, per Finlayson JA (3:0), at para 12
  7. Godoy, supra, at para 22
    Nicholls, supra, at para 12
  8. Godoy, supra, at paras 22, 23, 28
  9. Godoy, supra, at para 22
    Jones, supra, at para 42
  10. R v Timmons, 2011 NSCA 39 (CanLII), 275 CCC (3d) 59, per Oland JA (3:0)

Safety

In urgent circumstance police may enter into an apartment to ensure public safety by securing weapons.[1]

The police must have exigent circumstances under s. 529.3 which requires "reasonable grounds to suspect entry into the home is necessary to protect a person’s imminent harm or death, or to prevent the imminent loss or destruction of evidence."[2]

It may also be justified in order to search for injured persons in an illegal drug lab.[3]

Or in order to safely accompany a female victim of domestic violence into a residence to secure her personal things.[4]

Entry into a dwelling due to "feelings of humanity and goodwill" will not be sufficient.[5]

Concerns for the safety of a child does not include entering the residence to investigate whether the parents are suitable for the child.[6]

  1. R v Golub, 1997 CanLII 6316, 117 CCC (3d) 193, per Doherty JA -- applying Feeney
    R v Farrah, 2011 MBCA 49 (CanLII), 274 CCC (3d) 54, per Chartier JA
    R v Stenning, 1970 CanLII 12 (SCC), [1970] SCR 631, per Martland J (9:0) - applying the Waterfield test
    see also s. 117.02
  2. R v Davidson, 2017 ONCA 257 (CanLII), 352 CCC (3d) 420, per Laskin JA, at para 21
  3. R v Jamieson, 2002 BCCA 411 (CanLII), 166 CCC (3d) 501, per Saunders JA
  4. R v Sanderson, 2003 CanLII 20263 (ON CA), 174 CCC (3d) 289, per MacPherson JA
  5. R v Tunbridge, 1971 CanLII 1194 (BCCA), , 3 CCC (2d) 303 (BCCA), per McFarlane JA
  6. Davidson, supra - an autistic child found in streets, peace officer enters the house to inspect that house is safe for child

Hot Pursuit Exception

At common law, the doctrine of hot pursuit permits a peace officer "to enter a private premises to make an arrest in hot pursuit."[1]

A "hot pursuit" requires a "fresh pursuit" that is a "continuous pursuit conducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction."[2]

It has been said to mean the officer is "literally at the heels of a suspect at the moment the suspect enters a dwelling house.[3]

Before the doctrine applies, the police must "already have the power and grounds to arrest without a warrant" before entering the residence.[4]

However, the police officer does not have to have personal knowledge to form the grounds. An officer continuing the pursuit from another officer can be sufficient.[5]

This exception is considered "narrow" and presumes the police are "literally at the heels of a suspect at the moment the suspect enters a dwelling-house"[6]

  1. R v Macooh, 1993 CanLII 107 (SCC), [1993] 2 SCR 802, per Lamer CJ (7:0), at para 13
  2. Macooh, ibid., at para 24
    see also R v Hope, 2007 NSCA 103 (CanLII), [2007] NSJ No. 433 (CA), per Fichaud JA (3:0), at para 30
    R v Clarke, 2005 CanLII 15452 (ON CA), [2005] O.J. No. 1825 (CA), per Sharpe JA (3:0), at para 29
  3. R v Puyenbroeck, 2007 ONCA 824 (CanLII), 226 CCC (3d) 289, per Feldman JA (3:0), at para 32
  4. see Van Puyenbroek, ibid., at para 21
  5. see also R v Haglof, 2000 BCCA 604 (CanLII), 149 CCC (3d) 248, per Cumming JA (3:0) and Van Puyenbroek, supra
  6. Van Puyenbroek, supra

Securing Evidence

See also: Warrantless Search in Exigent Circumstances