Arrested at Home: Feeney Warrants
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.
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].
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 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.
Stuart
O’Connell, O’Connell Law Group, www.leadersinlawca
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