Entry into Place to Execute an Arrest Warrant: Difference between revisions

From Criminal Law Notebook
← Older editNewer edit →
VisualWikitext
Line 8: Line 8:
{{CanLIIRP|Feeney|1fr1w|1997 CanLII 342 (SCC)|[1997] 2 SCR 13}}{{perSCC-H|Sopinka J}}{{atL|1fr1w|45}} (“generally a warrant is required to make an arrest in a dwelling house.")</ref>
{{CanLIIRP|Feeney|1fr1w|1997 CanLII 342 (SCC)|[1997] 2 SCR 13}}{{perSCC-H|Sopinka J}}{{atL|1fr1w|45}} (“generally a warrant is required to make an arrest in a dwelling house.")</ref>


; Requirements of Entry
Under common law, before entry can be made into a residence against the will of the householder, there must be:<ref>
R. v. Brown, 2024 ONCA 453 (CanLII), at para 49, <https://canlii.ca/t/k531h#par49> per Gomery JA<br>
Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739, at p. 744
</ref>
# "reasonable and probable grounds for the belief that the person sought is within the premises" and
# "proper announcement is made prior to entry."
Under s. 8 of the Charter, entry without authorization is only permitted where there are exceptional or exigent circumstances.<ref>
{{supra1|Feeney}}
</ref>
; Enhanced Privacy
A person has an increased privacy right in their home, which prohibits warrantless entries even for the purpose of a lawful arrest<ref>
A person has an increased privacy right in their home, which prohibits warrantless entries even for the purpose of a lawful arrest<ref>
{{ibid1|Feeney}}{{atsL|1fr1w|19| to 20}}</ref> or seizure of evidence.<ref>
{{ibid1|Feeney}}{{atsL|1fr1w|19| to 20}}</ref> or seizure of evidence.<ref>
{{CanLIIRP|Golub|6hfp|1997 CanLII 6316 (ON CA)|117 CCC (3d) 193}}{{perONCA-H|Doherty JA}}{{atL|6hfp|41}}</ref>
{{CanLIIRP|Golub|6hfp|1997 CanLII 6316 (ON CA)|117 CCC (3d) 193}}{{perONCA-H|Doherty JA}}{{atL|6hfp|41}}</ref>


; Application to Legislation
Any power to enter a dwelling-house to carry out an arrest under a Criminal Code offence will equally apply to warrants under other federal Acts.<ref>
Any power to enter a dwelling-house to carry out an arrest under a Criminal Code offence will equally apply to warrants under other federal Acts.<ref>
see [http://canlii.ca/t/7vhg s. 34.1] of the Interpretation Act</ref>
see [http://canlii.ca/t/7vhg s. 34.1] of the Interpretation Act</ref>


; Presumption of Warrantless Entry
A warrantless entry into a home is presumed unlawful.<ref>
A warrantless entry into a home is presumed unlawful.<ref>
{{CanLIIRP|Silveira|1frk8|1995 CanLII 89 (SCC)|[1995] 2 SCR 297}}{{perSCC|Cory J}}{{atL|1frk8|162}}<br>
{{CanLIIRP|Silveira|1frk8|1995 CanLII 89 (SCC)|[1995] 2 SCR 297}}{{perSCC|Cory J}}{{atL|1frk8|162}}<br>
</ref>
{{reflist|2}}
==Knock Rule==
An officer is presumptively required to knock, identify themselves as police, and then give the persons inside an opportunity to answer the door before resorting to force.<ref>
Eccles, at p. 740<br>
Feeney, at para. 26<Br>
Brown at para 51
</ref>
The purpose of the knock rule is to "minimize the invasiveness of arrest in a dwelling and permit the offender to maintain his dignity and privacy by walking to the door and surrendering himself."<Ref>
Feeney at para 50<Br>
Brown at para 54<br>
</ref>
It also promotes safety of both the persons in the house and the police.<REf>
Brown at paras 54 and 55<br>
R v Cornell, 2010 SCC 31 (CanLII), [2010] 2 S.C.R. 142, at para. 19 (The knock rule “not only protects the dignity and privacy interests of the occupants of dwellings, but it may also enhance the safety of the police and the public”.)
</ref>
</ref>


Revision as of 19:59, 4 November 2024

This page was last substantively updated or reviewed January 2017. (Rev. # 96710)

General Principles

See also: Search Incident to Arrest#Residences

When a suspect is the subject of an arrest warrant, and he is believed to be found in a dwelling-house, the peace officer must seek judicial authorization to enter the dwelling using a "Feeney" Warrant.[1]

Requirements of Entry

Under common law, before entry can be made into a residence against the will of the householder, there must be:[2]

  1. "reasonable and probable grounds for the belief that the person sought is within the premises" and
  2. "proper announcement is made prior to entry."

Under s. 8 of the Charter, entry without authorization is only permitted where there are exceptional or exigent circumstances.[3]

Enhanced Privacy

A person has an increased privacy right in their home, which prohibits warrantless entries even for the purpose of a lawful arrest[4] or seizure of evidence.[5]

Application to Legislation

Any power to enter a dwelling-house to carry out an arrest under a Criminal Code offence will equally apply to warrants under other federal Acts.[6]

Presumption of Warrantless Entry

A warrantless entry into a home is presumed unlawful.[7]

  1. ↑ R v Feeney, 1997 CanLII 342 (SCC), [1997] 2 SCR 13, per Sopinka J, at para 45 (“generally a warrant is required to make an arrest in a dwelling house.")
  2. ↑ R. v. Brown, 2024 ONCA 453 (CanLII), at para 49, <https://canlii.ca/t/k531h#par49> per Gomery JA
    Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739, at p. 744
  3. ↑ Feeney, supra
  4. ↑ Feeney, ibid., at paras 19 to 20
  5. ↑ R v Golub, 1997 CanLII 6316 (ON CA), 117 CCC (3d) 193, per Doherty JA, at para 41
  6. ↑ see s. 34.1 of the Interpretation Act
  7. ↑ R v Silveira, 1995 CanLII 89 (SCC), [1995] 2 SCR 297, per Cory J, at para 162

Knock Rule

An officer is presumptively required to knock, identify themselves as police, and then give the persons inside an opportunity to answer the door before resorting to force.[1]

The purpose of the knock rule is to "minimize the invasiveness of arrest in a dwelling and permit the offender to maintain his dignity and privacy by walking to the door and surrendering himself."[2] It also promotes safety of both the persons in the house and the police.[3]

  1. ↑ Eccles, at p. 740
    Feeney, at para. 26
    Brown at para 51
  2. ↑ Feeney at para 50
    Brown at para 54
  3. ↑ Brown at paras 54 and 55
    R v Cornell, 2010 SCC 31 (CanLII), [2010] 2 S.C.R. 142, at para. 19 (The knock rule “not only protects the dignity and privacy interests of the occupants of dwellings, but it may also enhance the safety of the police and the public”.)

Implied Invitation to Knock

A peace officer is granted an implied licence by all residents to approach a residence and enter the property for the purpose of "knocking" at a door for the purpose of facilitating communication with the occupant.[1] Occupants are deemed to have waived their privacy rights for the purpose of "facilitating communication" only, and where the purpose goes beyond that, it will be impermissible.[2]

Where a peace officer speaks to an occupant at the door who could be subject to arrest, the occupant is entitled to refuse to leave his residence and require police to get a "Feeney" warrant.[3]

"Knock and Sniff" Not Permitted

The use of knowledge of suspicious activity cannot be used as a pretext to go beyond the implied licence to knock.[4]

  1. ↑ R v Evans, 1996 CanLII 248 (SCC), [1996] 1 SCR 8
    R v Parr, 2016 BCCA 99 (CanLII), 334 CCC (3d) 131, per Fitch JA, at para 2
  2. ↑ Parr, ibid., at para 2
  3. ↑ R v Sulyk, 1999 CanLII 13919 (SK PC), per Whelan J, at para 4
    R v Meier, 2009 SKPC 30 (CanLII), 186 CRR (2d) 27, per Morgan J, at para 23
  4. ↑ e.g. R v Tran, 2013 ABQB 188 (CanLII), per Yamauchi J

Requirements

Sections 529 and 529.3 of the Code were added to address the requirements for a "Feeney" Warrant.[1]

Section 529 states:

Including authorization to enter in warrant of arrest

529 (1) A warrant to arrest or apprehend a person issued by a judge or justice under this or any other Act of Parliament may authorize a peace officer, subject to subsection (2) [execution of warrant to enter residence to arrest], to enter a dwelling-house described in the warrant for the purpose of arresting or apprehending the person if the judge or justice is satisfied by information on oath in writing that there are reasonable grounds to believe that the person is or will be present in the dwelling-house.

Execution

(2) An authorization to enter a dwelling-house granted under subsection (1) [including authorization to enter in warrant of arrest] is subject to the condition that the peace officer may not enter the dwelling-house unless the peace officer has, immediately before entering the dwelling-house, reasonable grounds to believe that the person to be arrested or apprehended is present in the dwelling-house.
R.S., 1985, c. C-46, s. 529; 1994, c. 44, s. 52; 1997, c. 39, s. 2.

– CCC (CanLII), (DOJ)

Note up: 529(1) and (2)


Defined terms: "justice" (s. 2)

Warrant to enter dwelling-house

529.1 A judge or justice may issue a warrant in Form 7.1 [forms] authorizing a peace officer to enter a dwelling-house described in the warrant for the purpose of arresting or apprehending a person identified or identifiable by the warrant if the judge or justice is satisfied by information on oath that there are reasonable grounds to believe that the person is or will be present in the dwelling-house and that

(a) a warrant referred to in this or any other Act of Parliament to arrest or apprehend the person is in force anywhere in Canada;
(b) grounds exist to arrest the person without warrant under paragraph 495(1)(a) or (b) [warrantless arrest power] or section 672.91 [arrest without warrant for contravention of disposition]; or
(c) grounds exist to arrest or apprehend without warrant the person under an Act of Parliament, other than this Act.

1997, c. 39, s. 2; 2002, c. 13, s. 23.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 529.1


The warrant requirement for arrests within "dwelling-house" do not include potential public spaces such as building elevators.[2]

  1. ↑ R v Neufeld, 2013 MBQB 46 (CanLII), 268 Man R (2d) 340, per Oliphant J, at para 56
  2. ↑ R v Webster, 2015 BCCA 286 (CanLII), 326 CCC (3d) 228, per Chiasson JA, at paras 79 to 85

Terms and Conditions of Authorization

Reasonable terms and conditions

529.2 Subject to section 529.4 [executing a warrant to enter a residence of arrest[1]], the judge or justice shall include in a warrant referred to in section 529 [entry into residence to arrest[2]] or 529.1 [entry into residence to arrest[3]] any terms and conditions that the judge or justice considers advisable to ensure that the entry into the dwelling-house is reasonable in the circumstances.
1997, c. 39, s. 2.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 529.2

A term that can be added includes permission for a "no-knock" entry.[4]

  1. ↑ Found elsewhere in this same page.
  2. ↑ Found elsewhere in this same page.
  3. ↑ Found elsewhere in this same page.
  4. ↑ R. v. Brown, 2024 ONCA 453 (CanLII), at para 2, <https://canlii.ca/t/k531h#par2> per Gomery JA

Announcement Upon Entry

Section 529.4(1) permits the judge authorizing a dwelling-house entry under s. 529 or 529.1, to omit to announce their presence before entry.

Omitting announcement before entry

529.4 (1) A judge or justice who authorizes a peace officer to enter a dwelling-house under section 529 [entry into residence to arrest[1]] or 529.1 [entry into residence to arrest[2]], or any other judge or justice, may authorize the peace officer to enter the dwelling-house without prior announcement if the judge or justice is satisfied by information on oath that there are reasonable grounds to believe that prior announcement of the entry would

(a) expose the peace officer or any other person to imminent bodily harm or death; or
(b) result in the imminent loss or imminent destruction of evidence relating to the commission of an indictable offence.
Execution of authorization

(2) An authorization under this section is subject to the condition that the peace officer may not enter the dwelling-house without prior announcement despite being authorized to do so unless the peace officer has, immediately before entering the dwelling-house,

(a) reasonable grounds to suspect that prior announcement of the entry would expose the peace officer or any other person to imminent bodily harm or death; or
(b) reasonable grounds to believe that prior announcement of the entry would result in the imminent loss or imminent destruction of evidence relating to the commission of an indictable offence.
Exception

(3) A peace officer who enters a dwelling-house without a warrant under section 529.3 [authority to enter dwelling without warrant] may not enter the dwelling-house without prior announcement unless the peace officer has, immediately before entering the dwelling-house,

(a) reasonable grounds to suspect that prior announcement of the entry would expose the peace officer or any other person to imminent bodily harm or death; or
(b) reasonable grounds to believe that prior announcement of the entry would result in the imminent loss or imminent destruction of evidence relating to the commission of an indictable offence.

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

– CCC (CanLII), (DOJ)

Note up: 529.4(1), (2) and (3)


Defined terms: "justice" (s. 2)

Telewarrant

See also: Telewarrants

Section 529.5 permits the officer to apply for an entry warrant by telewarrant.[3]

Means of telecommunication

529.5 An application for a warrant under section 529.1 [entry into residence to arrest] or an authorization under section 529 [entry into residence to arrest] or 529.4 [executing a warrant to enter a residence of arrest] may be submitted, and the warrant or authorization may be issued, by a means of telecommunication, and section 487.1 [telewarrants] applies for those purposes with any necessary modifications.

1997, c. 39, s. 2; 2022, c. 17, s. 34.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 529.5


Warrantless Entry

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[4]] or 529.1 [entry into residence to arrest[5]] 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[6]] 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)

  1. ↑ Found elsewhere in this same page.
  2. ↑ Found elsewhere in this same page.
  3. ↑ See Telewarrants
  4. ↑ Found elsewhere in this same page.
  5. ↑ Found elsewhere in this same page.
  6. ↑ Found elsewhere in this same page.


See Also

Retrieved from "https://criminalnotebook.ca/index.php?title=Entry_into_Place_to_Execute_an_Arrest_Warrant&oldid=96710"