Entry into Place to Execute an Arrest Warrant: Difference between revisions
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{{seealso|Search Incident to Arrest#Residences}} | {{seealso|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 a judicial authorization to enter the dwelling using a "Feeney" Warrant.<ref> | 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 a judicial authorization to enter the dwelling using a "Feeney" Warrant.<ref> | ||
{{CanLIIR|Feeney|1fr1w|1997 CanLII 342 (CanLII)}}{{perSCC|Sopinka J}}{{atL|1fr1w|45}} (“generally a warrant is required to make an arrest in a dwelling house.")</ref> | |||
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> | ||
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A warrantless entry into a home is presumed unlawful.<ref> | A warrantless entry into a home is presumed unlawful.<ref> | ||
{{CanLIIR|Silveira|1frk8|1995 CanLII 89 (CanLII)}}{{perSCC|Cory J}}{{atL|1frk8|162}}<br> | |||
</ref> | </ref> | ||
Revision as of 10:23, 29 January 2021
General Principles
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 a judicial authorization to enter the dwelling using a "Feeney" Warrant.[1]
A person has an increased privacy right in their home which prohibits warrantless entries even for the purpose of a lawful arrest[2] or seizure of evidence.[3]
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.[4]
A warrantless entry into a home is presumed unlawful.[5]
- ↑ R v Feeney, 1997 CanLII 342 (CanLII), per Sopinka J, at para 45 (“generally a warrant is required to make an arrest in a dwelling house.")
- ↑ Feeney, ibid., at paras 19 to 20
- ↑ R v Golub, 1997 CanLII 6316 (ONCA), per Doherty JA, at para 41
- ↑ see s. 34.1 of the Interpretation Act
- ↑
R v Silveira, 1995 CanLII 89 (CanLII), per Cory J, at para 162
Implied Invitation to Knock
A peace officer is granted an implied licence by all residents to approach a residence, enter upon the property for the purpose of "knocking" at a door for the purpose of facilitating communication with occupant.[1] Occupants are deemed to have waived their privacy rights for the purpose on "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]
- ↑
R v Evans, 1996 CanLII 248 (SC)
R v Parr, 2016 BCCA 99 (CanLII), per Fitch JA, at para 2
- ↑
Parr, ibid., at para 2
- ↑
R v Sulyk, 1999 CanLII 13919 (SKPC), per Whelan J, at para 4
R v Meier, 2009 SKPC 30 (CanLII), per Morgan J, at para 23
- ↑ e.g. R v Tran, 2013 ABQB 188, 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.
- 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]
- Reasonable terms and conditions
529.2 Subject to section 529.4 [executing a warrant to enter a residence of arrest[2]], the judge or justice shall include in a warrant referred to in section 529 [entry into residence to arrest[3]] or 529.1 [entry into residence to arrest[4]] 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]
- 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[5]] or 529.1 [entry into residence to arrest[6]] 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[7]] 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]
Section 529.4 permits the judge authorizing a dwelling-house entry under s. 529 or 529.1, to omit to announce their presence before entry.
Section 529.5 permits the officer to apply for an entry warrant by telewarrant.[8]
The warrant requirement for arrrests within "dwelling-house" do not include potentially public spaces such as building elevators.[9]
- ↑ R v Neufeld, 2013 MBQB 46 (CanLII), per Oliphant J, at para 56
- ↑ Found elsewhere in this same page.
- ↑ Found elsewhere in this same page.
- ↑ Found elsewhere in this same page.
- ↑ Found elsewhere in this same page.
- ↑ Found elsewhere in this same page.
- ↑ Found elsewhere in this same page.
- ↑ See Telewarrants
- ↑
R v Webster, 2015 BCCA 286 (CanLII), per Chiasson JA, at paras 79 to 85
Executing Warrant
- 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 ofs evidence relating to the commission of an indictable offence.
1997, c. 39, s. 2.
[annotation(s) added]
Telewarrant
- Telewarrant
529.5 If a peace officer believes that it would be impracticable in the circumstances to appear personally before a judge or justice to make an application for a warrant under section 529.1 [entry into residence to arrest[3]] or an authorization under section 529 [entry into residence to arrest[4]] or 529.4 [executing a warrant to enter a residence of arrest[5]], the warrant or authorization may be issued on an information submitted by telephone or other means of telecommunication and, for that purpose, section 487.1 [telewarrants] applies, with any modifications that the circumstances require, to the warrant or authorization.
1997, c. 39, s. 2.
[annotation(s) added]