At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made.
See R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145, and Eccles v. Bourque et al., 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739).
However, in the 1997 decision of R. v. Feeney, the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited. Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.
R. v. Feeney, 1997 CanLII 342 (SCC), at paras. 44-51.
Parliament responded by enacting sections 529-529.5 of the Criminal Code, which, among other things, creates two distinct authorization procedures (each known as a “Feeney warrant”):
1. The inclusion of judicial authorization on an arrest warrant to enter a dwelling house for the purpose of arresting or apprehending a person.
See section 529, Criminal Code. Typically, judicial authorization will be on a Form 7 Criminal Code arrest warrant (Warrant for Arrest), though it may be on any federal warrant to arrest.
2. A “stand-alone” warrant in Form 7.1, Criminal Code (Warrant to Enter Dwelling-House) authorizing entry to a dwelling house for the purpose of arresting or apprehending a person.
See section 529.1, Criminal Code.
To obtain the Feeney entry warrant, the police will need to satisfy a judicial officer that, apart from there being a lawful basis to arrest the person sought, the person is or will be present within the dwelling house. [FN1].
The police are generally required to announce their presence before entering the dwelling (section 529.4).
In some cases, police secure lawful entry to a dwelling without a warrant and, in speaking to occupants therein and learning additional facts, such an investigation only then leads to reasonable and probable grounds to arrest, resulting in a lawful arrest.
However, a warrantless end-run around Feeney requirements violates the Charter.
See, for example, R. v. Adams, 2001 CanLII 16024 (ON CA);
Tymkin v. Winnipeg (City) Police Service, 2014 MBCA 4 (CanLII)(leave to appeal refused [2014] S.C.C.A. No. 75);
R. v. M.C.G., 2001 MBCA 178 (CanLII).
Exceptions to the Requirement of a Feeney Warrant
There are at least three exceptions to the requirement that police officers obtain an entry warrant pursuant to Feeney before effecting an arrest in a dwelling-house:
· The police officer is in hot pursuit of an individual in attempting to make an arrest;
· there are exigent circumstances (set out in s. 529.3 of the Code); [FN2]
· Police are given consent to enter.
In my next blog entry, I will discuss consent as an exception to the warrant requirement in Feeney.
[FN1] The term “dwelling house” is defined in section 2 of the Criminal Code. In short, it refers to a building or structure that is kept or occupied as a permanent or temporary residence. Further, the Feeney warrant requirement is not limited to arrests in a suspect’s dwelling house. There is nothing in s. 529 of the Criminal Code or in Feeney to suggest that a warrant is not required for an arrest in the dwelling house of a third party: R. v. Adams, 2001 CanLII 16024 (ON CA), at para. 6.
[FN2]: Exigent circumstances have been recognized at common law as a basis for searching property without a warrant. Cases that have addressed the issue of exigent circumstance appear to rest on two bases. The first basis relates to the risk of imminent loss or destruction of the evidence or contraband before judicial authorization could be obtained. The second basis emerges where there is a concern for public or police safety: R. v. Kelsy(M), 2011 ONCA 605 (CanLII), at paras. 24, 35. Section 529.3 of the Code tracks the common law.
