Warrantless Entry into Dwellings in Exigent Circumstances

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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 or 529.1 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 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.
Exigent circumstances
(2) For the purposes of subsection (1), 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.


CCC

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 surrounding property is 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] 2 SCR 297, 1995 CanLII 89 (SCC), at paras 49
  2. R v Kenny (1992) 52 OAC 70(*no link)
  3. R v Knelsen, 2012 MBQB 242 (CanLII)
  4. R v Jamieson, 2002 BCCA 411 (CanLII) at para 24
  5. R v Godoy [1999] 1 SCR 311, 1999 CanLII 709
  6. R v Wilhelm, 2014 ONCA 1637 (*no link)at para 106
  7. R v DeWolfe 2007 NSCA 79 (CanLII), (2007), 222 CCC (3d) 491
    R v Knelsen, 2012 MBQB 242 (CanLII) (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)
  9. Depace, ibid.
  10. R v Feeney, 1997 CanLII 342 (SCC), [1997] 2 SCR 13
  11. R v Kokesch, [1990] 3 SCR 3, 1990 CanLII 55 (SCC)

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] 1 SCR 311, 1999 CanLII 709 at paras 16, 19, 22
  2. Godoy at paras 22, 23, 28
  3. R v Wilhelm, 2014 ONCA 1637 (*no link) at para 106
    Godoy at paras 19, 21, 23, 28
  4. eg. see R v Jones, 2013 BCCA 345 (CanLII) at para 17
    Godoy at para 16, 19 - dropped call
  5. R v Godoy [1999] 1 SCR 311, 1999 CanLII 709
    R v Larson, 2011 BCCA 454 (CanLII) at paras 19 to 26
  6. Godoy at para 22
    Nicholls, 1999 CanLII 2750 (ON CA) at para 12
  7. Godoy at para 22
    Nicholls at para 12
  8. Godoy at para 22, 23, 28
  9. R v Godoy at para 22
    Jones at para 42
  10. R v Timmons, 2011 NSCA 39 (CanLII)

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 a 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 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), 117 CCC (3d) 193 (Ont. C.A.), 1997 CanLII 6316 (ON CA), -- applying Feeney
    R v Farrah, 2011 MBCA 49 (CanLII)
    R v Stenning, 1970 CanLII 12 (SCC), [1970] SCR 631 - applying the Waterfield test
    see also s. 117.02
  2. R v Davidson, 2017 ONCA 257 (CanLII) at para 21
  3. R v Jamieson, 2002 BCCA 411 (CanLII)
  4. R v Sanderson (2003), 174 CCC (3d) 289 (Ont. C.A.), 2003 CanLII 20263 (ON CA)
  5. R v Tunbridge (1971), 3 CCC (2d) 303 (BCCA)(*no link)
  6. R v Davidson, 2017 ONCA 257 - autistic child found in streets, peace officer enters 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 usspect 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 at para 13
  2. Macooh at para 24
    see also R v Hope, 2007 NSCA 103 (CanLII), [2007] NSJ No. 433 (C.A.), at para 30
    R v Clarke, 2005 CanLII 15452 (ON CA), [2005] O.J. No. 1825 (C.A.), at para 29
  3. R v Puyenbroeck, 2007 ONCA 824 (CanLII) at para 32
  4. see R v Van Puyenbroek 2007 ONCA 824 (CanLII) at para 21
  5. see also R v Haglof, 2000 BCCA 604 (CanLII), 149 CCC (3d) 248 and Van Puyenbroek
  6. Van Puyenbroek

Securing Evidence

See also: Warrantless Search in Exigent Circumstances