Held (La Forest J. dissenting): The appeal should be allowed.
Per Dickson C.J. and Chouinard, Lamer and Wilson JJ.: If the criteria of s. 450(1) of the Criminal Code and the standards enunciated in Eccles v. Bourque are met, a police officer can make an arrest on private premises without a warrant in the execution of his duty for the purposes of s. 450(1)(a).
Section 450(1) of the Criminal Code does not alter the common law principles with respect to spatial limits on arrest without a warrant and the silence of the Code requires that the common law apply. Eccles v. Bourque was not a case restricted to situations where a warrant, albeit unendorsed, existed, but rather dealt with the power of the police to arrest without warrant in private premises. The present case falls to be decided by application of Eccles v. Bourque, just as Eccles v. Bourque, on the view of the Court at that time, fell within the four corners of the old common law authorities. The policy underlying the cases, both older and more recent, is clear and compelling: there should be no place which gives an offender sanctuary from arrest. Although the Criminal Code provides for warrants for the search of things, it does not provide for the search of persons. Absent the power of police to arrest on private premises, a criminal offender might therefore find complete and permanent protection from the law in a private home.
Parliament took for granted the common law power of forcible entry to effect an arrest. While the courts can decline to confer new common law powers intruding on civil liberties‑‑and this Court has been cautious in conferring those powers‑‑it is quite another thing for the Court to abrogate powers recognized by the courts, particularly when those powers descend from entrenched authorities of the 17th century.
The right of entry to search for an offender is not unrestricted. This Court held in Eccles v. Bourque that entry could only be made against the will of a householder if: (1) there were reasonable and probable grounds for the belief that the person sought was within the premises, and (2) if proper announcement was made prior to entry. Proper announcement would ordinarily entail the police giving (i) notice of presence, (ii) notice of authority by identifying themselves as police officers, and (iii) notice of purpose by stating lawful reasons for entry. These requirements minimize the invasiveness of arrest in a dwelling and permit the offender to maintain his dignity and privacy by walking to the doorway and surrendering himself.
There is good reason to stand by the common law authorities in lieu of adopting a new rule requiring the police to obtain an arrest warrant in order to make an arrest in residential premises. If a police officer is forced to obtain an arrest warrant before entering a residence, he will first have to attempt to obtain the name of the offender from the neighbours. In many cases the neighbours will be unable to supply this information. Even if he obtains the offender's name, the police officer will then have to seek a justice of the peace to execute a warrant. Valuable time‑‑and probably the offender‑‑will be lost.
The specific concerns relating to arrests within a dwelling are met as fully as they can be, without unduly impinging an effective crime control, by the special requirements imposed on peace officers who must make arrests in a house or apartment.
An affirmative answer to all of the following questions means the arrest is lawful:
(1) Is the offence in question indictable?
(2) Has the person who is the subject of arrest committed the offence or does the peace officer believe on reasonable and probable grounds that that person has committed or is about to commit the offence in question?
(3) Are there reasonable and probable grounds for belief that the person sought is within the premises?
(4) Was proper announcement made before entry?
This case arose before the Charter was in effect. Furthermore, no determination was made on the nature and scope of the spatial limits of arrest without warrant under any section or subsection other than s. 450(1) (a) of the Criminal Code .
Per Beetz, Estey and McIntyre JJ.: The ancient principle in Semayne's Case, "That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose", must yield to the legitimate requirements of law enforcement. Eccles v. Bourque established that a peace officer has authority at common law to enter private premises to effect an arrest without warrant pursuant to s. 450(1) (a) of the Criminal Code . The Court required that the peace officer must have reasonable and probable grounds to believe that an indictable offence has been or is about to be committed and that the person sought is on the private premises, and must make a proper announcement of his presence and purpose before entering.
Per Le Dain J.: The authority of a police officer to enter private premises without the consent of the occupant in order to effect an arrest without warrant was affirmed, with the conditions on which it may be exercised, in Eccles v. Bourque and there are sound reasons for adhering to that decision. Notwithstanding concurrence with Dickson C.J., the distinction drawn by him with reference to the judgments of the majority in Wiretap Reference, Lyons v. The Queen and Dedman v. The Queen, was not necessarily subscribed to.
Per La Forest J., dissenting: The principle that a man's home is his castle along with the demonstrably justifiable exceptions developed under the old common law have constituted an excellent balance between the security and privacy of the individual and the needs of law enforcement since their enunciation in Semayne's Case. If Parliament finds it necessary to adjust the balance, it can do so. It is in a far better position to provide for the precise balance than the courts.
At common law, the better view has been until recently that entry into private dwellings without a warrant was not permitted to effect an arrest apart from hot pursuit and some narrow exceptions to prevent the commission of an offence. Although the police power was extended to include going on private property, other than dwellings, in the exercise of their duty to preserve the peace and to conduct investigations into crimes, no significant change in the common law right of a policeman to enter a home took place until Eccles v. Bourque.
Eccles v. Bourque constituted an extension of the law by ignoring some of the requirements for the arrest of a person against whom a warrant has been issued. But these in the context may have been looked upon by the Court as technical omissions. Eccles v. Bourque simply gave a restricted power to police officers to enter a person's home when they reasonably believe a person for whom a warrant of arrest has been issued is there. It should not be broadly interpreted so as to authorize entry into a dwelling whenever the police believe on reasonable grounds that a person has committed an offence and that he is in that dwelling. They should obtain a warrant to permit them to do so.
Apart from flagrant abuses, the courts cannot exercise much control over police discretion to arrest. So far as arrests in public places are concerned, the police' job of maintaining the peace and enforcing the criminal law is difficult enough without fearing about being regularly "second guessed" about every mistake of judgment. Apart from the compelling exceptions allowed by the common law, it is not reasonable for a policeman to be permitted to enter a private home without consent unless he has a warrant authorizing him to do so. Invasion of a person's home, in circumstances like these, is too high a price to pay to prevent the possible escape of some criminals, especially for non‑violent crimes.
Allowing arrest without warrant on private premises has serious disadvantages: not only is the owner's security and privacy invaded, violence can result. Again notwithstanding reasonable and probable belief on the part of police that an offence has occurred, no offence may have been committed at all. Since it is essential for police to have the support of the community, it would be unwise to place them in a situation where they are called upon to breach the sanctity of the home in such circumstances. Moreover, the grant of such a vague discretion is more likely to be used against the economically or socially disadvantaged.
The grant of wide, vague and virtually uncontrollable discretion to the police here would create a greater danger to the sanctity of the home than the danger that criminals would otherwise escape. It would amount to giving the police an almost unfettered discretion to break into a home by day or night whenever they seriously suspect an indictable offence has been committed and that the perpetrator is there. It is highly unlikely that a house would become a permanent sanctuary for a criminal because of the want of search warrants for persons, as opposed to things. Parliament, however, can provide for search warrants for people if it thinks this desirable. Finally, good police work can easily overcome resultant problems in most cases. It is doubtful that law enforcement has suffered because the police have not been authorized, the narrow common law exceptions apart, to enter a private home. On the other hand, on the basis of limited experience with entries into homes without warrant, mistakes are inevitable.
The police need the clearest possible rules in situations like the present. The current rule is clear: absent well recognized and widely supported exceptions, the police may not enter private homes. Their authority ends at the door.
Cases Cited
By Dickson C.J.
Eccles v. Bourque, [1975] 2 S.C.R. 739, applied; Colet v. The Queen, [1981] 1 S.C.R. 2; Semayne's Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194, considered; Morris v. Beardmore, [1980] 2 All E.R. 753; Finnigan v. Sandiford, [1981] 2 All E.R. 267, distinguished; Wiretap Reference, [1984] 2 S.C.R. 697; Lyons v. The Queen, [1984] 2 S.C.R. 633; Dedman v. The Queen, [1985] 2 S.C.R. 2, referred to.
By Estey J.
Eccles v. Bourque, [1975] 2 S.C.R. 739; Wiretap Reference, [1984] 2 S.C.R. 697; Lyons v. The Queen, [1984] 2 S.C.R. 633, applied; Semayne’s Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194, referred to.
By Le Dain J.
Eccles v. Bourque, [1975] 2 S.C.R. 739, applied; Wiretap Reference, [1984] 2 S.C.R. 697; Lyons v. The Queen, [1984] 2 S.C.R. 633; Dedman v. The Queen, [1985] 2 S.C.R. 2, referred to.
By La Forest J. (dissenting)
Semayne’s Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194; Payton v. New York, 445 U.S. 573 (1980); Davis v. Russell (1829), 5 Bing. 355, 130 E.R. 1098; Thomas v. Sawkins, [1935] 2 K.B. 249; Swales v. Cox, [1981] 1 All E.R. 1115; R. v. Stenning, [1970] S.C.R. 631; Eccles v. Bourque, [1975] 2 S.C.R. 739; R. v. Custer, [1984] 4 W.W.R. 133; Colet v. The Queen, [1981] 1 S.C.R. 2; Lyons v. The Queen, [1984] 2 S.C.R. 633; Wiretap Reference, [1984] 2 S.C.R. 697; Morris v. Beardmore, [1980] 2 All E.R. 753; Finnigan v. Sandiford, [1981] 2 All E.R. 267.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, ss. 105(1), 246(1), 450(1)(a), (b), (c), (2)(a), 461.
Criminal Law Act 1967, 1967 (U.K.), c. 58, s. 2(4), (6).
Road Traffic Act 1972, 1972 (U.K.), c. 20.
Authors Cited
Black’s Law Dictionary, 5th ed., St. Paul, Minn., West Publishing Co., 1979, "Process".
Canada. Law Reform Commission of Canada. Arrest (Working Paper 41), Ottawa, Law Reform Commission of Canada, 1985.
Coke, Sir Edward. The Fourth Part of the Institutes of the Laws of England [Cokes Institutes: the third and fourth parts], London, W. Clarke, 1817.
Foster, W. F. and Joseph E. Magnet. "The Law of Forcible Entry" (1977), 15 Alta. Law Rev. 271, 271‑291.
Gellhorn, Walter. Individual Freedom and Governmental Restraints, Baton Rouge, Louisiana State University Press, 1956.
Goodhart, A. L. "Thomas v. Sawkins: A Constitutional Innovation" (1936), 6 Camb. L.J. 22, 22‑30.
Grant, Alan. "The Supreme Court of Canada and the Police: 1970‑76" (1978), 20 Crim. Law Q. 152, 152‑166.
Halsbury’s Laws of England, 3rd ed., vol. 10, London, Butterworths, 1955.
Halsbury’s Laws of England, 4th ed., vol. 11, London, Butterworths, 1976.
Jowitt’s Dictionary of English Law, 2nd ed., vol. 2, by John Burke, London, Sweet & Maxwell, 1977, "Process".
Maloney, Arthur. "Law Enforcement and The Citizen's Liberty" (1966), 9 Can. Bar J. 168, 168‑189.
Manley, John. Case comment on Eccles v. Bourque (1975), 7 Ottawa L. Rev. 649, 649‑657.
Plucknett, Theodore T. F. A Concise History of the Common Law, 5th ed., London, Butterworths, 1956.
Weiler, Paul C. "The Control of Police Arrest Practices: Reflections of a Tort Lawyer" in Allen M. Linden, ed., Studies in Canadian Tort Law, Toronto, Butterworths, 1968.
APPEAL from a judgment of the Ontario Court of Appeal (1981), 128 D.L.R. (3d) 726, 34 O.R. (2d) 697, 63 C.C.C. (2d) 289, 24 C.R. (3d) 300, dismissing an appeal from an acquittal on a directed verdict by Smith Co. Ct. J. Appeal allowed, La Forest J. dissenting.
Howard F. Morton, Q.C., for the appellant.
Scott T. Milloy, for the respondent.
The judgment of Dickson C.J. and Chouinard, Lamer and Wilson JJ. was delivered by
1. The Chief Justice‑‑This is an appeal from the Court of Appeal of Ontario which dismissed an appeal from a directed verdict at trial. The issue is whether a peace officer, acting pursuant to s. 450(1) (a) of the Criminal Code , can lawfully arrest a person on private premises.
Facts
2. Paul Landry was charged with assaulting a peace officer engaged in the execution of his duty, contrary to s. 246(1) of the Criminal Code . The following summary of the facts is based on the testimony of the witnesses. No findings of fact were made at trial as the trial judge directed a verdict of acquittal.
3. On the evening of April 20, 1980 a public transit inspector observed two youths opening the driver's side of a parked truck and then trying to open car doors in a parking lot at the back of a shopping centre. He called the police on his radio. When the police arrived he gave them descriptions of the youths and advised them that he had seen the youths enter an apartment building. One of the police officers, Constable Handy, went to the front of the apartment building.
4. Constable Handy testified that as he approached the front door of the apartment building, he looked through the window of the basement apartment and saw two male persons who matched the description given to him by the transit inspector. He entered the building and walked down the stairs to the basement apartment. According to his testimony, the door to the apartment was open. The testimony of Landry and MacLaren (the second youth) differs from that of Constable Handy on this point. Landry testified that the door was closed and the officer knocked on it. Similarly, MacLaren testified that the officer knocked on the door and the door was answered by Landry. It is clear from the testimony of all three parties that Constable Handy stood in the doorway of the apartment and asked Landry if he lived there. Constable Handy testified that Landry replied in an offensive manner.
5. Constable Handy was in uniform at the time. He testified that he told the two youths they were under arrest for investigation of attempted auto theft. MacLaren testified that, initially, Constable Handy said only "you are under arrest" and did not state why until asked by MacLaren. Landry then indicated he did not want to go to the police station and both youths stated they had not done anything. Constable Handy walked into the room and stood quite close to them. When MacLaren took some steps toward the open door, Constable Handy took physical control of him by holding the sleeve of his jacket. Landry repeated several times that he was not going anywhere, so Constable Handy grabbed him with the other hand. An altercation ensued which gave rise to the present charge.
II
Judgments
(a) Trial
6. Following the hearing of the evidence and legal argument, the County Court judge ruled that an arrest without a warrant in the home of the accused was unlawful, except in circumstances of hot pursuit. Accordingly, he instructed the jury to return a verdict of not guilty, and concluded:
...I have come to the conclusion, based on the existing law, that when officer Handy entered the home, the apartment, without permission and without a warrant, he was not in the execution of his duty. He was exceeding his powers. He was exceeding his right and therefore the accused had a right to resist and that, as you can see, removes all necessity of making findings of fact as to who did what, who started, what kind of force was used and so on.
The plain fact of the matter is that the arrest was not lawful. It is not say that the officer acted wrongly in a general sense, but in the legal sense, if he did not have a warrant the arrest was not a lawful arrest and I must direct you that it was unlawful and if it was unlawful the accused was not committing an offence when he resisted.
Landry was accordingly acquitted of the charge of assaulting a peace officer in the execution of his duty.
(b) Court of Appeal
7. The Crown appealed the decision of the County Court and the appeal was dismissed by a majority in the Ontario Court of Appeal. Houlden J.A., with Thorson J.A. concurring, found that, though s. 450(1)(a) of the Criminel Code empowers a peace officer to arrest without warrant a person whom he believes, on reasonable and probable grounds, has committed an indictable offence, there are certain spatial limits on this power, imposed by common law and preserved by s. 7 of the Criminel Code. According to the majority, there is no common law authority to render lawful an arrest by a police officer without a warrant on private premises when the officer enters the premises without permission. In the present case, Constable Handy entered the premises without permission or even acquiescence. He was, therefore, not in the execution of his duty.
8. Jessup J.A. would have allowed the appeal. He found that at common law a citizen could deny entry to his home to a peace officer without warrant and use any requisite force in doing so. If Constable Handy was a trespasser, he would have been acting unlawfully at the time of the arrest and, thus, could not be said to be in the execution of his duty. On the facts, however, Jessup J.A. found that Constable Handy was not a trespasser, but that he entered the apartment as a licensee. Though the assault by Landry may have amounted to a retraction of the licence, by the time of the assault the officer was in the execution of his duty.
III
The Law
(a) Criminal Code
9. The power of a peace officer to arrest without a warrant for an indictable offence is found in s. 450(1) of the Criminal Code :
450. (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence,
(b) a person whom he finds committing a criminal offence, or
(c) a person for whose arrest he has reasonable and probable grounds to believe that a warrant is in force within the territorial jurisdiction in which the person is found.
The Ontario Court of Appeal was unanimous in finding that it would have been open to a jury to conclude that Constable Handy had reasonable and probable grounds to believe Landry and MacLaren had committed the indictable offence of attempted theft for the purpose of s. 450(1)(a).
10. What must be determined, however, is whether, assuming that Constable Handy had reasonable and probable grounds, there were any spatial limits on his power to arrest. Section 450(1)(a) is silent on the matter of whether an arrest without a warrant is lawful on private premises, and there are no other provisions which provide express statutory authority on this matter.
11. I agree with Jessup J.A. in the Court of Appeal that s. 450(1) should not be taken to alter the common law principles with respect to spatial limits on arrest without a warrant and that the silence of the Code on this matter requires that we turn to the common law for direction. As the Court stated in Eccles v. Bourque, [1975] 2 S.C.R. 739, at p. 742, "If they [the police constables] were authorized by law to commit a trespass, the authority for it must be found in the common law for there is nothing in the Criminal Code ".
(b) Eccles v. Bourque and Recent Related Cases
12. Eccles v. Bourque though a civil case, dealt with the powers of arrest without a warrant on private premises. The case arose out of a claim by the appellant against three constables on the Vancouver Police Force for damages for trespass. The constables had entered the Vancouver apartment of Mr. Eccles in order to apprehend one Edmund Cheese, for whom there were three outstanding Montreal warrants of arrest. These warrants had not been endorsed in the Province of British Columbia. Furthermore, they were not search warrants and, therefore, they did not provide a right to enter premises. Cheese was not found in the apartment and the trial judge concluded that either he had not been there, or he had successfully escaped just prior to the arrival of the police officers. The trial judge awarded $300 damages and costs. The judgment was reversed by a majority (Robertson and Taggart JJ.A., with Nemetz J.A. [as he then was] dissenting) of the Court of Appeal of British Columbia.
13. This Court was unanimous in dismissing the appeal. Since the Montreal warrants had not been endorsed in the province of British Columbia, pursuant to s. 461 of the Criminal Code, s. 450(1)(a) was applied. The Court held that, had Cheese been found and arrested, the requirements of s. 450(1) (a) of the Criminal Code would have been met (at pp. 741‑42):
There were reasonable and probable grounds for believing that Cheese had committed a criminal offence and had the respondents found him in the apartment or elsewhere there is no doubt they would have been authorized by s. 450(1)(a) to arrest him.
Section 450(1)(a) did not, however, provide any guidance on the question of whether a peace officer was justified in committing a trespass in order to make an arrest, and that was the issue which had to be resolved. It was thus necessary to turn to the principles of the common law.
14. The Court summarized the relevant principles of the common law at pp. 742‑43:
For these principles, we go back to vintage common law, to 1604, and Semayne’s Case, in which the principle, so firmly entrenched in our jurisprudence, that every man's house is his castle, was expressed in these words: "That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose ...". That, then, is the basic principle, as important today as in Biblical times (Deuteronomy 24:10) or in the 17th century. But there are occasions when the interest of a private individual in the security of his house must yield to the public interest, when the public at large has an interest in the process to be executed. The criminal is not immune from arrest in his own home nor in the home of one of his friends. So it is that in Semayne's Case a limitation was put on the "castle" concept and the Court resolved that:
In all cases when the King is party, the Sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the K.'s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors ...
See also, a century later, to the same effect, Hale, Pleas of the Crown (1736), 582; Foster, Crown Law (1762), 320. Thus it will be seen that the broad basic principle of sanctity of the home is subject to the exception that upon proper demand the officials of the King may break down doors to arrest.
15. The Court made it clear that the right of entry in search of an offender was not unrestricted. Entry could be made against the will of the householder only if (i) there were reasonable and probable grounds for the belief that the person sought is within the premises and (ii) proper announcement is made prior to entry (at p. 744). With respect to the latter of these, the Court said (at p. 747):
The traditional demand was "Open in the name of the King". In the ordinary case police officers, before forcing entry, should give (i) notice of presence by knocking or ringing the doorbell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry. Minimally they should request admission and have admission denied although it is recognized there will be occasions on which, for example, to save someone within the premises from death or injury or to prevent destruction of evidence or if in hot pursuit notice may not be required.
On the facts of Eccles, the requirements were met and the appeal was dismissed.
16. In Colet v. The Queen, [1981] 1 S.C.R. 2, the principles of Eccles were discussed. The appellant was charged with attempted murder and attempting to cause bodily harm. He had committed the alleged offences in response to what he deemed to be a wrongful intrusion onto his property by police officers. The police officers had a warrant to seize firearms issued under s. 105(1) of the Criminal Code . Ritchie J. at p. 9, speaking for the Court, found that "the authority to seize specified in that warrant [did not] carry with it the right to enter and search", and that "it would ... be dangerous indeed to hold that the private rights of the individual to the exclusive enjoyment of his own property are to be subject to invasion by police officers whenever they can be said to be acting in the furtherance of the enforcement of any section of the Criminal Code although they are not armed with express authority to justify their action."
17. Eccles v. Bourque was distinguished on the ground that it related only to arrest and not to seizure of goods on private premises. Ritchie J. said (at pp. 8‑9):
The common law principle has been firmly engrafted in our law since Semayne’s case in 1604 where it was said "That the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose ...". This famous dictum was cited by my brother Dickson in the case of Eccles v. Bourque in which he made an extensive review of many of the relevant authorities. He was there dealing with a case of police officers entering private property for the purpose of effecting an arrest and in so doing he made reference to the limitation of the extent of the general application of Semayne’s case at p. 743 saying:
But there are occasions when the interest of a private individual in the security of his house must yield to the public interest, when the public at large has an interest in the process to be executed. The criminal is not immune from arrest in his own home nor in the home of one of his friends.
And later on the same page he observed:
Thus it will be seen that the broad basic principle of sanctity of the home is subject to the exception that upon proper demand the officials of the King may break down doors to arrest.
The italics in the last two quotations are my own.
This makes it clear that Mr. Justice Dickson was limiting his remarks to occasions when the house of the individual is entered against his will by police officers in search of a fugitive from justice whose arrest they consider to be justified.
18. Both Ritchie J.'s judgment in Colet and my judgment in Eccles v. Bourque refer to the exception to the principle of the sanctity of the home which was approved by this Court in Eccles v. Bourque as a general limitation which permits the police to enter forcibly a dwelling‑house in order to effect an arrest. There is no suggestion whatsoever in either Eccles v. Bourque or Colet that the power of forcible entry is limited to occasions when a warrant has been issued. On the contrary, both the facts and the reasoning in Eccles v. Bourque demonstrate that the case was not treated as a case of arrest with a warrant. Although there were warrants outstanding for Cheese, the warrants were not endorsed in British Columbia and were therefore of no legal effect in that province. The existence of the warrants was thus relevant for one purpose only: it afforded evidence of the reasonable and probable grounds for the police officer's belief that Cheese had committed an indictable offence. The Court expressly referred to s. 450(1)(a) as the source of authority to arrest Cheese and at no time suggested that s. 450(1)(c) offered any assistance. The existence of the warrants was not perceived by the Court to be relevant to the scope of the common law police power of forcible entry to effect an arrest.
19. The Court in Eccles v. Bourque did not consider its decision in that case to be an extension, but rather an application, of the old common law power first described in an authoritative manner in Semayne’s Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194. It is plain from the excerpt from Eccles v. Bourque at pp. 742‑43, quoted above, that the Court was simply reaffirming common law principles of some considerable antiquity. The plain language in Semayne’s Case authorizes the sheriff, in all cases when the King is a party, "to break the party's house ... to arrest him", if the doors be not open. If this authority were restricted by the judges to occasions of arrest with a warrant, one would have expected Lord Coke to have said so in his report of the case. He did not; this lends support to the view that Semayne’s Case conferred a power of forcible entry incidental to arrests in general and not just to arrests with a warrant.
20. The policy underlying the cases, older and more recent, on this issue, is clear and compelling: there should be no place which gives an offender sanctuary from arrest. While the Criminal Code empowers a justice to issue a warrant, on proper grounds being shown, authorizing a search for things, there is no power to issue a warrant to search for a person. If the police did not possess the power to arrest on private premises, then a criminal offender might find complete and permanent protection from the law in his or her own home or the home of another.
21. This compelling policy consideration suggests that Parliament took for granted the common law power of forcible entry to effect an arrest as originally articulated in Semayne’s Case and reaffirmed in Eccles v. Bourque. It is one thing for the courts to decline to confer new common law powers which intrude on civil liberties; it is another thing altogether to abrogate powers which have already been recognized by the courts, particularly when, as in the present case, those powers descend from entrenched authorities of the seventeenth century. This Court has exhibited a cautious approach to the conferral on the police of new common law powers or implied statutory powers, although there has been something less than unanimity amongst the members of the Court on this point: Colet, supra; the Wiretap Reference, [1984] 2 S.C.R. 697; Lyons v. The Queen, [1984] 2 S.C.R. 633; and Dedman v. The Queen, [1985] 2 S.C.R. 2. The present case is markedly different, however, since it falls to be decided by application of Eccles v. Bourque, just as Eccles v. Bourque, on the view of the Court at that time, fell within the four corners of the old common law authorities.
22. There is, moreover, good reason to stand by these authorities in lieu of adopting a new rule requiring the police to obtain an arrest warrant in order to make an arrest in residential premises. Crime is often committed adjacent to residential premises. When a police officer witnesses a crime or appears on the scene shortly thereafter, his ability to apprehend the offender should not be capable of being foiled by an offender ducking into a nearby house or apartment building. Our society is more urban, more mobile, and more anonymous than ever before. If a police officer is forced to obtain an arrest warrant before entering a residence, he will have to attempt to obtain the name of the offender from the neighbours. In many cases the offender may have slipped into someone else's dwelling and the neighbours will be unable to supply this information. In other cases the offender may indeed have taken refuge in his own dwelling, but the neighbours may not know him. Even if the police officer is fortunate enough to obtain the offender's name, he will have to seek a justice of the peace to execute an arrest warrant. Valuable time‑‑and probably the offender‑‑will be lost because, when the police officer finally returns with his warrant, the offender will have sought refuge elsewhere.
23. These serious limitations against effective police work and public protection must be balanced against the intrusiveness of arresting a person in a house or apartment. This intrusiveness is carefully delineated and restricted by the requirement of reasonable and probable grounds for the belief that the person sought is within the premises, and the requirements of notice of presence, notice of authority and notice of purpose. These requirements minimize the invasiveness of arrest in a dwelling and permit the offender to maintain his dignity and privacy by walking to the doorway and surrendering himself.
24. The risks associated with arresting on reasonable and probable grounds, namely, that an innocent person may be arrested, devolve from the power of arrest itself and not from the place where the suspect is arrested. Similarly, the risk of increased resistance which is associated with warrantless arrests derives from the power of arrest without a warrant and not from the location of the arrest. The specific concerns relating to arrests within a dwelling are met as fully as they can be, without unduly impinging on effective crime control, by the special requirements imposed on peace officers who must make arrests in a house or apartment.
25. I am unable, in any event, to fathom how a warrant for arrest can be perceived as a solution to the question of police authority to trespass incidental to arrest. The warrant is a judicial authorization to arrest and contains no express power of trespass. The justice of the peace must be given evidence as to the reasonable and probable grounds for making an arrest, but hears no evidence as to the likelihood or otherwise that the offender can be found at any particular location. There is no good reason, therefore, why the presence or absence of a warrant of arrest should have any bearing on the right to make an arrest in one particular place or another.
(c) Recent Cases in the House of Lords
26. The respondent has cited two recent House of Lords cases in support of the proposition that s. 450(1) (a) of the Criminal Code should not be interpreted to allow arrest on private premises. In Morris v. Beardmore, [1980] 2 All E.R. 753 (H.L.), the accused was charged under the Road Traffic Act 1972, 1972 (U.K.), c. 20, which provides that where a person fails to comply with a request for a sample of breath, the constable may arrest him without a warrant. Following an accident involving the accused, uniformed police officers arrived at his house and were admitted by the accused's son. The accused refused to come down from his bedroom to be interviewed by the officers, and refused to provide a specimen of his breath when the officers went up to his bedroom. The House of Lords found that the officers were trespassers and that, in the absence of express provision in the Road Traffic Act 1972, Parliament did not intend to authorize tortious conduct. Accordingly, though the Act authorized the making of an arrest without a warrant, it did not authorize such an arrest on private premises.
27. The decision in Morris v. Beardmore was confirmed in Finnigan v. Sandiford, [1981] 2 All E.R. 267 (H.L.), where it was again stated that the Road Traffic Act 1972 did not authorize police officers to enter private premises, without the permission of the occupier, for the purpose of effecting an arrest.
28. The two House of Lords cases do not, however, provide support for the position advanced by the respondent. The United Kingdom is in a markedly different position than Canada with respect to the question of arrest without a warrant on private premises. In the United Kingdom, the power to make such an arrest is provided by statute. Section 2 of the Criminal Law Act 1967, 1967 (U.K.), c. 58 provides that:
2.‑‑...
(4) Where a constable, with reasonable cause, suspects that an arrestable offence has been committed, he may arrest without warrant anyone whom he, with reasonable cause, suspects to be guilty of the offence.
...
(6) For the purpose of arresting a person under any power conferred by this section a constable may enter (if need be, by force) and search any place where that person is or where the constable, with reasonable cause, suspects him to be.
29. It was the explicit statutory demarcation of the scope of arrest powers on private premises which prevented the House of Lords from interpreting the Road Traffic Act 1972 as implying a power to arrest on private premises. The Parliament of the United Kingdom in s. 2 of the Criminal Law Act 1967 clearly stated that arrest without a warrant could take place on private premises with respect to "arrestable offences". It followed that arrest without a warrant for offences which were not "arrestable offences" for the purpose of the Act could not take place on private premises.
30. In Lord Diplock's words (Morris v. Beardmore at p. 757):
...if Parliament intends to authorise the doing of an act which would constitute a tort actionable at the suit of the person to whom the act is done, this requires express provision in the statute, as is exemplified by s 2(6) of the Criminal Law Act 1967....
Similarly, in Finnigan v. Sandiford, Lord Keith of Kinkel stated (at p. 270):
It may confidently be stated as a matter of general principle that the mere conferment by statute of a power to arrest without warrant in given circumstances does not carry with it any power to enter private premises without the permission of the occupier, forcibly or otherwise. Section 2 of the Criminal Law Act 1967 creates a category of `arrestable offence' in respect of which the power of arrest without warrant may be exercised.... The proper inference, in my opinion, is that, where Parliament considers it appropriate that a power of arrest without warrant should be reinforced by a power to enter private premises, it is in the habit of saying so specifically, and that the omission of any such specific power is deliberate. It would rarely, if ever, be possible to conclude that the power had been conferred by implication.
31. In both Morris v. Beardmore and Finnigan v. Sandiford the cautious attitude towards the question of arrest powers on private premises without a warrant is compelled by the existence of clear statutory regulation of the matter. In the United Kingdom, Parliament has dealt with the issue and the House of Lords has refrained from going beyond what is the clear intent of Parliament.
32. In Canada, on the other hand, Parliament has remained silent on the question of whether a police officer can arrest without a warrant on private premises. It is for this reason that we must interpret the text of s. 450(1)(a) with regard to the principles of the common law; accordingly Morris v. Beardmore and Finnigan v. Sandiford do not provide support for the respondent's position.
IV
Conclusion
33. A peace officer making an arrest on private premises without a warrant is in the execution of his or her duty for the purposes of s. 450(1) (a) of the Criminal Code if the criteria of that section and the standards enunciated in Eccles v. Bourque has been satisfied. The proper questions to be asked are:
1. Is the offence in question indictable?
2. Has the person who is the subject of arrest committed the offence in question or does the peace officer, on reasonable and probable grounds, believe he or she has committed or is about to commit the offence in question?
3. Are there reasonable and probable grounds for the belief that the person sought is within the premises?
4. Was proper announcement made before entry?
An affirmative answer to all of these questions will mean that the arrest is lawful.
34. Both Eccles v. Bourque and the present case are concerned with the scope and nature of the spatial limits with respect to the power of arrest under s. 450(1) (a) of the Criminal Code . I refrain from making any determination on the nature and scope of the spatial limits of arrest without a warrant under any of the other sections or subsections of the Code.
35. I should also like to note that this case arose before the Canadian Charter of Rights and Freedoms came into effect.
36. In the present case the trial judge and the Court of Appeal erred in finding that an arrest pursuant to s. 450(1)(a) would not be lawful if on private premises in any circumstances other than hot pursuit.
37. Accordingly, this appeal is allowed on the point of law and a new trial is ordered.
The reasons of Beetz, Estey and McIntyre JJ. were delivered by
38. Estey J.‑‑This appeal raises once again the question of the right of the citizen to insist on the inviolability of his home from invasion in the name of law enforcement. The facts are set forth fully in the judgment of the Chief Justice; the issue arises because of the respondent's assault of a police officer who entered an apartment in order to arrest the respondent without warrant. The principles governing this appeal are contained in recent decisions of this Court; Eccles v. Bourque, [1975] 2 S.C.R. 739, Wiretap Reference, [1984] 2 S.C.R. 697, and Lyons v. The Queen, [1984] 2 S.C.R. 633. In all these decisions, this Court has acknowledged that the ancient principle, "That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose" (Semayne’s Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194), must yield to the legitimate requirements of law enforcement. In Lyons, supra, the majority wrote (at p. 657):
The invasion here is of privacy and this concerns both the personal aspects and the property aspects of privacy. The inviolable nature of the private dwelling is a basic part of our free society. This concept has long been a bulwark against tyranny of the state be it organized as an absolute monarchy or as a democratic state under a constitutional monarch. Indeed for three hundred years the concept that a person's home is his castle has been the defence of the citizen in an endless variety of challenges brought against him in the name of the state. Semayne has been the shrine of his or her privacy. The concept recognizes an internal security but also an external dependence. The home is not a castle in isolation; it is a castle in a community and draws its support and security of existence from the community. The law has long recognized many compromises and outright intrusions on the literal sense of this concept: for example, the right of the community to search on proper authorization; the right of pursuit; the right of eminent domain; the right of the community in applying zoning restrictions and safety standards; the compulsory participation in community established health facilities including sewer and water systems; and many more. Most of these intrusions carry inspection rights of varying modes and degrees. As Dickson J. (as he then was) put it in Eccles v. Bourque, [1975] 2 S.C.R. 739, at p. 743:
...there are occasions when the interest of a private individual in the security of his house must yield to the public interest, when the public at large has an interest in the process to be executed.
39. Eccles v. Bourque, supra, establishes that a peace officer has authority at common law to enter private premises to effect an arrest without warrant pursuant to s. 450(1) (a) of the Criminal Code if he has reasonable and probable grounds to believe that an indictable offence has been committed or is about to be committed, and if two further criteria are met. First, the peace officer must have reasonable and probable grounds to believe that the person sought is on the private premises, and secondly, he must make a proper announcement of his presence and purpose before entering. The disposition of this appeal is governed by those criteria, and I would accordingly agree with the Chief Justice that the appeal should be allowed.
The following are the reasons delivered by
40. Le Dain J.‑‑I agree with the Chief Justice that the authority of a police officer to enter private premises without the consent of the occupant in order to effect an arrest without warrant was affirmed, with the conditions on which it may be exercised, in Eccles v. Bourque, [1975] 2 S.C.R. 739, and that there are sound reasons of policy for adhering to that decision. I do not wish, however, to be understood as necessarily subscribing to the distinction which the Chief Justice draws with reference to the judgments of the majority of the Court in Wiretap Reference, [1984] 2 S.C.R. 697, Lyons v. The Queen, [1984] 2 S.C.R. 633, and Dedman v. The Queen, [1985] 2 S.C.R. 2. I agree that the appeal should be allowed and a new trial ordered.
The following are the reasons delivered by
41. La Forest J. (dissenting)‑‑
A Man's Home is His Castle
42. The sanctity of the home is deeply rooted in our traditions. It serves to protect the security of the person and individual privacy. The same thought was expressed as early as 1604 in the language of the day in the first proposition of the celebrated Semayne’s Case (1604), 5 Co. Rep. 91 a, at p. 91 b, 77 E.R. 194, at p. 195 as follows:
1. That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose....
Qualifications
43. The judges in Semayne’s Case, of course, realized that the principle that a man's home is his castle must be subjected to certain limitations to secure the proper administration of justice. Though it was a civil case, it discusses the limitations then recognized by the common law in both civil and criminal matters. That discussion makes clear that an arrest could be made by breaking into a house if the arrestor was armed with a warrant, or again if he was in hot pursuit of an offender. But some have argued that the third proposition in the case goes further. So far as relevant, it reads as follows (5 Co. Rep. 91 b, 77 E.R. 195):
3. In all cases when the King is party, the sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the K.'s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors....
44. There is some ambiguity in the first sentence of this proposition which has led some to read it as permitting the "breaking" of a party's house even without a warrant. I do not, however, think this interpretation does justice to the latter part of that sentence. It should be remembered that in Semayne's Case, a legal process had been issued. What is more, the sentence we are considering, after mentioning arrest, immediately speaks of other execution of the King's process, the ordinary meaning of which is a writ or other judicial order; see Black’s Law Dictionary (5th ed. 1979), p. 1085; Jowitt’s Dictionary of English Law, vol. 2 (2nd ed. 1977), at pp. 1438‑39. These two facts strongly imply that the writer had in mind an arrest pursuant to process, in that situation a warrant. A similar view has recently been expressed by Stevens J., giving the judgment of the Supreme Court of the United States in Payton v. New York, 445 U.S. 573 (1980), at p. 593, as follows:
The context strongly implies, however, that the court was describing the extent of authority in executing the King's writ. This reading is confirmed by the phrase "either to arrest him, or to do other execution of the K.'s process" and by the further point that notice was necessary because the owner may "not know of the process."
45. Nor should the passage be read without regard to the character of Coke's Reports or of the man who compiled them. Plucknett in his A Concise History of the Common Law (5th ed. 1956), at p. 282 tells us that Coke's Reports were not like modern reports containing verbatim accounts of what the judges had said but rather, that along with his Institutes, they were used by Coke to set forth his view of restatement of the law. Plucknett says this at p. 281:
A case in Coke's Reports, therefore, is an uncertain mingling of genuine report, commentary, criticism, elementary instruction, and recondite legal history. The whole is dominated by Coke's personality, and derives its authority from him.
That being so, it is useful to examine what Coke has said elsewhere to determine the real meaning of the equivocal statement in the third proposition in Semayne's Case. Now Coke in his Fourth Institute went so far as to say that justices of the peace had no power to issue a warrant that would permit the arrest of a man in his own house until he had been indicted; see Coke, The Fourth Part of the Institutes of the Laws of England (London: 1817), pp. 176‑77. If in Coke's view a justice could not issue such a warrant on the basis of real and probable cause, it follows that he would not have countenanced a constable's breaking into a house without a warrant. The majority judges in Payton v. New York, supra, at pp. 594‑95, and seemingly the minority too (see p. 611), were of this view.
46. If I am correct in my view that Semayne’s Case is no authority for the proposition that a man can be arrested in his own home without a warrant, (apart from hot pursuit and other narrow exceptions to prevent the commission of an offence to be mentioned later), it follows that the comments there made about informing the person sought to be arrested and requesting entry were confined to arrest with a warrant.
47. What speaks even more eloquently is the silence of the law reports on the issue. For over two hundred years after Semayne’s Case, there was not a single reported case holding that a constable may enter a man's house to arrest him without a warrant on the basis of reasonable and probable cause. Given the stout opposition Englishmen have traditionally displayed in the face of even marginal intrusions by state authority, it seems unlikely that the police purported to act on the basis of such power in those years. Stevens J. in Payton v. New York, supra, at pp. 596‑98, had this to say on the matter:
The zealous and frequent repetition of the adage that a "man's house is his castle," made it abundantly clear that both in England and in the Colonies "the freedom of one's house" was one of the most vital elements of English liberty.
Thus, our study of the relevant common law does not provide the same guidance that was present in Watson. Whereas the rule concerning the validity of an arrest in a public place was supported by cases directly in point and by the unanimous views of the commentators, we have found no direct authority supporting forcible entries into a home to make a routine arrest and the weight of the scholarly opinion is somewhat to the contrary. Indeed, the absence of any 17th‑ or 18th‑ century English cases directly in point, together with the unequivocal endorsement of the tenet that "a man's home is his castle," strongly suggests that the prevailing practice was not to make such arrests except in hot pursuit or when authorized by a warrant.
48. There were, it is true, respected commentators, some relying on an early Yearbook case, who took a different view. As to this it is sufficient to cite Stevens J.'s view in Payton v. New York, supra, at pp. 593‑97, which I make mine:
The common‑law commentators disagreed sharply on the subject. Three distinct views were expressed. Lord Coke, widely recognized by the American colonists "as the greatest authority of his time on the laws of England," clearly viewed a warrantless entry for the purpose of arrest to be illegal. Burn, Foster, and Hawkins agreed, as did East and Russell, though the latter two qualified their opinions by stating that if an entry to arrest was made without a warrant, the officer was perhaps immune from liability for the trespass if the suspect was actually guilty. Blackstone, Chitty, and Stephen took the opposite view, that entry to arrest without a warrant was legal, though Stephen relied on Blackstone who, along with Chitty, in turn relied exclusively on Hale. But Hale's view was not quite so unequivocally expressed. Further, Hale appears to rely solely on a statement in an early Yearbook, quoted in Burdett v. Abbot, 14 East 1, 155, 104 Eng. Rep. 501, 560 (K. B. 1811):
" ‘that for felony, or suspicion of felony, a man may break open the house to take the felon; for it is for the commonweal to take them.’ "
Considering the diversity of views just described, however, it is clear that the statement was never deemed authoritative. Indeed, in Burdett, the statement was described as an "extrajudicial opinion."
49. The only case since Semayne’s Case I have found in favour of the view that a policeman may without consent or a warrant enter into a dwelling and arrest a person there solely on the basis that he reasonably believes the person has committed an offence is Davis v. Russell (1829), 5 Bing. 355, 130 E.R. 1098. There the plaintiff sued a constable for false imprisonment. The constable had entered the plaintiff's lodgings and taken her out of bed at night to prison. He had no warrant but was acting on the information given by an informant to the effect that the plaintiff had robbed the informant. Though the principal question appears to have been whether the constable had reasonable cause, Best C.J., who gave the major judgment, certainly made it clear (5 Bing. 365, 130 E.R. 1102) that, "We cannot uphold the notion that a constable is not permitted to go into a house at night to apprehend a person suspected."
50. The case, however, is not one calculated to encourage granting the police power to enter into private dwellings without a warrant. As it turned out the informant had lied to the constable. The court's recognition of this fact, however, afforded cold comfort to the plaintiff, described in the report as a respectable inhabitant of Cheltenham. The constable was held to have had reasonable grounds for what he did and her action against him consequently failed.
51. The treatment accorded this case is interesting. I have not found a single reference to it in any English criminal law text. Nor is it to be found in Halsbury’s Laws of England, 4th ed., where in vol. 11, paragraph 122, the common law is set forth in this fashion:
A constable has no general right of entry into private property for the purpose of obtaining evidence, questioning persons or effecting an arrest; every invasion of private property, however slight, is a trespass, and no person has the right to enter property except by consent or strictly in accordance with some lawful authorisation. A constable is in this regard in no better position than any member of the public and is not entitled to enter premises merely because he suspects that something is amiss even though a reasonable householder might not object to his doing so if the entry were bona fide and no damage was caused. A constable may, however, enter premises to prevent a breach of the peace, and probably to prevent the commission of any offence which he believes to be imminent or likely to be committed.
Davis v. Russell did appear in Halsbury’s Laws of England, 3rd ed., vol. 10, paragraph 636f where it is relegated to a footnote to support the proposition that a policeman, unlike a private person, may arrest on reasonable suspicion of felony. It is not cited, nor is the proposition it supports stated, in the part of that volume dealing with entry on private property to effect arrest (paragraph 647). I would gather the authors of that learned work did not think the case should be followed on that point. Certainly they knew it existed.
52. Halsbury’s account is in accord with more recent interpretations of the common law. Thus even in Thomas v. Sawkins, [1935] 2 K.B. 249 (Div. Ct.), itself strongly criticized (see, inter alia, A. L. Goodhart (1936), 6 Camb. L.J. 22) for extending the law to permit entry by police onto private premises other than a dwelling in cases where they apprehend a breach of the peace, Avory J. at p. 256, carefully distinguished that case from those where a breach of the peace was not involved; the latter in his view requires express statutory authority to empower the police to enter.
53. How fully this view of the common law is accepted in England today is evident from the concession in the recent case of Swales v. Cox, [1981] 1 All E.R. 1115 (Q.B. Div.), regarding the limits of the power of the police to enter private premises. Donaldson L.J., speaking for himself and Hodgson L.J., thus put it, at p. 1118:
...there was power of entry into premises at common law and, if necessary, power to break doors to do so in four cases, but in four cases only, that is to say by a constable or a citizen in order to prevent murder, by a constable or a citizen if a felony had in fact been committed and the felon had been followed to a house, by a constable or a citizen if a felony was about to be committed, and would be committed, unless prevented, and by a constable following an offender running away from an affray. In any other circumstances there was no power to enter premises without a warrant, and, even in these four cases where there was power not only to enter but to break in in order to do so, it was an essential precondition that there should have been a demand and refusal by the occupier to allow entry before the doors could be broken.
54. Until recently, then, the better view, as it seems to me, was that at common law entry into private dwellings without a warrant was not permitted to effect an arrest apart from the instances I have mentioned. Both in Canada and in England, however, there had been some extensions to the right of constables to go on private property, other than dwellings, in the exercise of their duty to preserve the peace and to conduct investigations into crimes; see Thomas v. Sawkins, supra; R. v. Stenning, [1970] S.C.R. 631.
55. But no significant change in the common law right of a policeman to enter into a home took place until Eccles v. Bourque, [1975] 2 S.C.R. 739, to which I now turn.
The Recent Decisions
56. Eccles v. Bourque was decided at a time when the law in countries with traditions similar to our own was being modified to accord greater police powers. In the United Kingdom, the Criminal Law Act 1967 significantly extended the powers of police officers to enter private premises. In the United States, too, a footnote to Payton v. New York, supra, p. 598, n. 46, tells us, no less than twenty‑three states, including New York, had enacted statutes authorizing police entry into dwellings without a warrant. I might note, however, that the New York statutes were recently declared unconstitutional by the Supreme Court of the United States in Payton v. New York, supra, which held that under the Constitution of that country entry into a private dwelling for the purpose of arresting a person can only be effected by virtue of a warrant or in exigent circumstances. As I will explain, however, I do not think Eccles v. Bourque went as far as these statutory provisions.
57. Eccles v. Bourque was a claim in trespass. The circumstances there were thus described by Dickson J. (now C.J.C.) at p. 741:
The claim of the appellant, Mr. Eccles, is against the respondents, three constables on the Vancouver Police Force, for damages for trespass alleged to have been committed when the police officers entered the apartment occupied by Mr. Eccles in the City of Vancouver at about 4:00 p.m. on August 12, 1971. The constables were in plain clothes but were armed. The purpose of the entry was to apprehend one Edmund Cheese, also known as Billy Deans, for whom there were three outstanding Montreal warrants. Cheese was not found in the apartment. The trial judge, Wootton J., concluded he had not been there or had successfully made his escape, by climbing to the roof of the building from one of the two balconies adjoining the apartment, at the moment of or immediately after the police officers entered. Mr. Eccles was successful at trial. Mr. Justice Wootton awarded him $300 damages and costs. The Court of Appeal for British Columbia by a majority (Robertson and Taggart JJ.A., with Nemetz J.A. dissenting) reversed. Leave to appeal to this Court was granted by the Court of Appeal for British Columbia.
(Emphasis added.)
This Court dismissed the appeal, holding the constables' entry to be justified.
58. It must be observed that in that case there were warrants for the arrest of the fugitive, a point that is repeatedly made throughout the case. It is set forth at the very beginning of the judgment in the statement of the facts already given. It is reiterated at p. 743, where after stating the principle in Semayne’s Case that a man's house is his castle, the qualifications to that principle are stated in the following words:
But there are occasions when the interest of a private individual in the security of his house must yield to the public interest, when the public at large has an interest in the process to be executed. The criminal is not immune from arrest in his own home nor in the home of one of his friends.
(Emphasis added.)
Again, at p. 745, the folowing passage appears:
If the police officer has reasonable and probable cause to believe that the person named in the warrant for arrest is in the home of a stranger he has the right, after proper demand, to enter the home forcibly, to search and to arrest. In the present case there can be no doubt the police officers believed and in my view had reasonable and probable grounds for believing that Cheese, or Deans as he was known to Mr. Eccles, was in the Eccles apartment.
(Emphasis added.)
59. This constant repetition of the existence of a warrant indicates the importance of this fact to the coram that decided the case. As I read it, then, the manner in which Eccles v. Bourque really differs from other cases of entry on the basis of a warrant is that the attempted arrest occurred in British Columbia but the warrants had been issued in Montreal and were not endorsed for use in British Columbia as required by the Criminal Code . As well, the warrants were not in the possession of the constables when the entry was made.
60. The case, therefore, undoubtely constituted an extension of the law by ignoring some of the requirements for the arrest of a person against whom a warrant has been issued. But these in the context may have been looked upon by the court as technical omissions. It anticipated in a sense the recent recommendation of the Law Reform Commission of Canada that there should be Canada‑wide warrants; see Arrest, Working Paper 41, p. 118, Recommendation 20. There was no question raised in that case that an offence had been committed or that warrants has been issued. The real question, as the last cited passage seems to denote, was whether there were reasonable and probable grounds for believing the fugitive was in Mr. Eccles' house.
61. Justification for overlooking some of the technical requirements of the Code may be found in the fact that, as the judgement states on several occasions, the person sought was a fugitive. Fugitives from justice are frequently treated differently from other offenders. The most obvious example is arrest on hot pursuit. Reference may also be made to extradition law where, in addition to the relaxation of rules required by statutes regarding the form of evidence, the courts have frequently stated that the technical rules of criminal law should apply only in a limited sense. This approach has been followed in various areas seriously affecting the liberty of the subject, including the more ready refusal to grant bail, among others.
62. Two Canadian Courts of Appeal have understood the application of Eccles v. Bourque to be limited to arrest by warrant. The majority of the Court of Appeal of Ontario obviously did so in the present case. And in R. v. Custer, [1984] 4 W.W.R. 133, at p. 142, Bayda C.J., giving the unanimous opinion of the Saskatchewan Court of Appeal, had this to say:
It is plain that the case does not fall within the common law exception applied by the Supreme Court of Canada in Eccles, the ratio decidendi of which I understand to be this: if a police officer has reasonable and probable cause to believe that the person named in a warrant for arrest is in the home of a stranger, the officer has the right, after proper demand, to enter the home forcibly, to search and to arrest.
63. I agree with the members of these courts that Eccles v. Bourque simply gives a restricted power to police officers to enter a person's home when they reasonably believe a person for whom a warrant of arrest has been issued is there. I do not think it should be broadly interpreted so as to authorize entry into a dwelling whenever the police believe on reasonable grounds that a person has committed an offence and that he is in that dwelling. Several cases decided in this Court underline that the principle that a man's home is his castle remains solidly imbedded in the law; see Colet v. The Queen, [1981] 1 S.C.R. 2; Lyons v. The Queen, [1984] 2 S.C.R. 633, esp. at p. 657; Wiretap Reference, [1984] 2 S.C.R. 697, esp. at pp. 707‑09. And, as I will attempt to demonstrate, if the broad view of Eccles v. Bourque is taken, that principle is fatally weakened.
64. Of the cases just mentioned, only Colet needs attention here. It highlights the importance we attach to the integrity of the home in this country. There police officers were authorized by warrant to seize certain weapons in the possession of Colet who had made it known that he would forcefully resist entry by city employees to "clean up" his property, including the destruction of a rudimentary shelter he called his home. Armed with the warrant, the police attempted to enter his home but they were met with strong resistance, which culminated in Colet's being charged with five counts, including attempted murder and intending to cause bodily harm. Colet was, however, acquitted. The Court, inspired by the principle in Semayne's Case, interpreted the relevant provisions of the Code restrictively to hold that the authorization to seize did not include the right to enter and search Colet's home even though it was obvious from the facts that the firearms sought were known to be there.
65. The case was not, of course, dealing with precisely the same subject‑matter as Eccles v. Bourque but (if one adopts a broad view of Eccles) one must agree with the comment of the Law Reform Commission in Arrest, supra, at p. 114:
While the court was dealing with very different factual situations and was applying different sources of law in each case, allowing them to be distinguished for these reasons, the approaches to the problem of the power of police forcibly to enter private premises to carry out duties are based on widely diverging premises, methods and values.
Indeed, as it further noted at p. 116:
Entry to effect an arrest has potentially geater repercussions for the liberty of the individual than does entry for the purposes of searching for evidence of offences, and it is difficult to see how the protections surrounding the former should be less stringent than those for the latter as is presently the case.
66. The underlying values in the two judgments become reconcilable and more coherent if one adopts the view of Eccles v. Bourque I have advanced in the present case.
67. The Colet case itself contains statements that may conceivably be interpreted as supportive of a broad as well as a restrictive view of Eccles. Thus the following passage at the top of p. 9 may possibly be looked upon as supporting a broad approach:
This makes it clear that Mr. Justice Dickson was limiting his remarks to occasions when the house of the individual is entered against his will by police officers in search of a fugitive from justice whose arrest they consider to be justified.
But even here, it should be observed, Ritchie J. confined his remarks to a fugitive from justice. And later on the same page, he adds the following passage that denotes the restrictive attitude towards entry into a person's home that prevailed in that case:
All sections of the Criminal Code are presumably enacted "in the public interest" and it would in my view be dangerous indeed to hold that the private rights of the individual to the exclusive enjoyment of his own property are to be subject to invasion by police officers whenever they can be said to be acting in the furtherance of the enforcement of any section of the Criminal Code although they are not armed with express authority to justify their action.
68. That approach is, of course, relevant here, given the vagueness of the Criminal Code regarding the spatial limits of the power to arrest.
Policy Considerations
69. As has been seen the common law sets a high value on the security and privacy of the home. The situations where it permitted entry by police without the consent of the owner or occupier were all demonstrably compelling. For example, entry to prevent murder is obviously justified. So too is entry on hot pursuit. Apart from the obvious practicality of that approach, in the case of hot pursuit the police officer is himself cognizant of the facts justifying entry; he acts on the basis of personal knowledge. Obviously, too, entry on the basis of a warrant is essential to a properly functioning system of criminal justice. The state must in the end have power to prevent criminals from eluding justice by retreating to a private home.
70. The latter reasoning can, of course, be used to support the thesis that a police officer may enter, break into and stay in a private home uninvited and without warrant on the basis of reasonable and probable cause. But it fails to consider the advantage of a warrant which interposes a judicial officer‑‑a person not professionally interested in law enforcement and not directly involved in the particular issue‑‑into the process. The scrutiny exercised by the judicial officer may not be extensive, but the mere fact that a police officer must attempt to persuade a third party that he has a reasonable and probable cause to effect entry into a private dwelling requires some reflection on the necessity of breaching such a fundamental tenet of our society as the sanctity of the home.The warrant also announces in a symbolic way, one traditionally recognized by the public, that it is the state that authorizes entry under law. In Eccles v. Bourque, a warrant for the fugitive had been issued even though it may not have met the endorsement requirements of the Code.
71. From the Eccles case, we are asked to take a further step and hold that when a police officer has reasonable and probable cause to believe a person has committed an indictable offence, he may enter into a private home, apparently at any time of day or night, if he also has reasonable and probable cause to believe a suspect is there.
72. Let me first say something about the vagueness of the proposed test of "reasonable and probable cause" and the consequential danger of giving the police power to enter into a private dwelling on that basis. The expression, no doubt, comprises something more than mere surmise, but determining with any useful measure of precision what it means beyond that poses rather intractable problems both for the police and the courts. If the principle in Eccles v. Bourque is to be extended to permit forcible entry into private homes, for the purpose of making arrests simply on the basis that a police officer has reasonable and probable cause, then as the Law Reform Commission put it in its working paper on Arrest, supra, at p. 115, it would allow him a "wide latitude based on vague, sometimes contradictory statements which provide police with few guidelines, individuals with few definable rights, and courts with little means of control"; see also John Manley's comment on Eccles v. Bourque in (1975), 7 Ottawa L. Rev. 649, at p. 656. I have found nothing in the cases or in learned commentaries that gives much assistance in giving more precision to the concept, the situations being so various. Because of the vagueness of the discretion it gives a police officer, that discretion is virtually uncontrollable. Small wonder, then, that the Law Reform Commission recommended the statutory reaffirmation of the traditional position.
73. I shall attempt to underline the inherent difficulties of the situation by reference to the facts of this case. The police had no personal knowledge of the alleged crime. They received a phone call from a public transit officer who had seen two youths enter a parked jeep, one of whom the informant alleged was drunk. He later reported he saw them walking through a parking lot, trying to open car doors. He parked his car, called the police on his car radio and then saw the youths enter an apartment building nearby. On arrival, the police found the jeep had backed down a hill and was standing against a retaining wall with the lights on.
74. On the basis of this, how can a court at third hand do anything but hold that there were reasonable and probable grounds to believe the youths may have committed attempted theft? How can one second‑guess the policemen on such matters, for example, as the reliability and credibility of the informant? Informants can be unreliable; indeed as Davis v. Russell, supra, shows, they can be relating false tales for their own purposes.
75. Apart from flagrant cases, I seriously doubt that the courts can exercise any effective control over the exercise of police discretion in such cases. So far as arrests in public places are concerned, I do not quarrel with the existence of this discretion. The police's job of maintaining the peace and enforcing the criminal law is difficult enough without fearing being regularly "second‑guessed" about every mistake of judgment in such circumstances. But if I agree that a police officer should be able on evidence such as existed here to arrest a suspect in a public place, I do not think it reasonable that he should be permitted to enter a private home without consent unless he has a warrant permitting him to do so. Invasion of a person's home, in circumstances like these, is too high a price to pay to prevent the possible escape of some criminals, especially for non‑violent crimes like the one alleged in the present case. Not only would such a practice invade the owner's security and privacy; it would often lead to violence as the facts of this case attest. This can, in my view, be even more likely where the owner of the home is not the suspected offender. All the more so if, as happened in Eccles v. Bourque, the police are not in uniform.
76. The danger is not lessened by the fact that despite reasonable and probable belief on the part of the police that an offence has been committed, there may not have been any offence committed at all, a matter that may, if his home is broken into, make the homeowner all the more irate. That police intrusion may occur when no offence has in fact been committed is evident from Davis v. Russell, supra. Indeed, in the present case it is far from clear that the accused had committed attempted theft. The account by the two youths under oath that they were walking home from an entertainment establishment and went into the jeep out of curiosity while walking home is not implausible. They were quite close to home. They were seventeen or eighteen, they had been drinking and, they said, they had never seen a jeep like the one in question and wanted to see what it looked like. They denied having attempted to open cars in the parking lot and said they were merely walking between them through the parking lot. It is interesting that they were never charged with the alleged attempted theft for which entry was made into the apartment.
77. What of the identification of the accused and the place where they were going? The informant had advised the police that the accused had walked into an apartment building nearby, but did not identify the apartment. One of the police, Constable Handy, testified that as he approached the front door of the building, he saw two individuals matching the description of the two youths in a basement apartment. And what was that description? According to the informant, the persons concerned were about eighteen, one was dark and was noticeably drunk (though the police testified that this was not so), one wore a denim jacket and the other a dark one (the police said it was red). I have no doubt from this that the police officer could have reasonable grounds for believing that the youths were the suspects and, as it turned out he was right. But with that description, the chances of a mistake are not inconsiderable.
78. Those chances are too great for one to support the rule of law argued for in this case. From the vantage of a court, which is supposed to exercise control over police discretion, the identification is extremely vague. The number of youths who could answer that description must be very high. Only those present at the time can really make an assessment. Control by the courts under those circumstances, therefore, becomes very limited.
79. I draw no comfort from the fact that the proposed extension of Eccles v. Bourque could be limited to indictable offences. As anyone familiar with the criminal justice system knows, even serious indictable offences can arise out of fact situations that are not really that serious. So far as the crime alleged here, which is non‑violent, the Code itself (s. 450(2)(a)) attempts to discourage arrest without warrant by enjoining police officers not to do so unless the public interest otherwise requires it. I might also add that a number of crimes can be prosecuted by indictment or on summary conviction at the option of the prosecutor. The choice could be made with a view to making a previous entry into a private dwelling legal.
80. Another type of problem has been suggested by Professor Alan Grant in a comment on "The Supreme Court of Canada and the Police: 1970‑76" (1978), 20 Crim. Law Q. 152, at p. 163. If the decision is given a broad meaning, he states:
...then it may herald an end to the police ever seeking search warrants, for example, to look for stolen property. There can be few cases where there are reasonable and probable grounds to believe that stolen property is being kept at premises which will not at the same time be capable of supporting a belief that someone on the premises is reasonably and probably believed to be committing the offence of being in possession of stolen property (Code ss. 312 and 313) for which there will be a power of arrest under Cr. Code s. 450(1).
81. The truth is that to extend the rule in Eccles to a case like the present would amount to giving the police an almost unfettered discretion to break into a home by day or night whenever they seriously suspect an indictable offence has been committed and that the perpetrator is there.
82. But, it may be countered, the alternative is that a house may become a permanent sanctuary for a criminal, since there are no search warrants for persons as opposed to things. There are several answers to this. To begin with, I doubt if there would be many cases where a person would remain indefinitely in a house, thereby creating a prison of his own making. And if there is need to have search warrants for persons, the answer is simple: Parliament can provide for it as several commentators have suggested; see, for example, Grant, supra, p. 164. Finally, good police work can easily overcome the problems in most cases. In the present case, for example, one of the youths was at home. It would not have required very sophisticated police work to locate the other the next day, and their identification as the persons who committed the alleged attempted theft could not have been more unreliable than it is at present. Such an approach would obviate the temptation that a suspected person and others may have to resist when disturbed at home; the not unlikely violent consequences that can ensue would thus be avoided.
83. In truth, though, there is a fallacy in approaching the matter on the basis of a single case. Even if one concedes that some suspects may escape owing to the principle that a man's home is his castle, this has to be weighed against the danger of giving up a well‑known and long recognized right devised for the protection of individual security and privacy against state power. The wide, vague, and virtually uncontrollable discretion one would be giving police officers creates a greater danger to the sanctity of the home than the danger that criminals would otherwise escape. For my part, I share the skepticism of the Supreme Court of the United States in Payton v. New York, supra, at p. 602 that law enforcement has suffered because the police have been unable to enter a home to effect arrest apart from the narrow common law exceptions. No evidence to establish this point was forthcoming in the Payton case, although it has long been the practice of the Supreme Court of the United States to consider evidence of this nature.
84. On the other hand, on the basis of the limited experience we have had with entries into homes without warrant, we know that errors are inevitable. In Davis v. Russell, we saw, no crime had been committed. That may well be so in the present case. Only in Eccles v. Bourque can we be certain a crime had been committed before entry, but then there was a warrant in that case. We daily permit accused who are almost certainly guilty to go free in the interest of ensuring that no innocent person shall be punished. The procedure argued for would inevitably result in some people who are certainly innocent bearing the burden of a rule which it has yet to be demonstrated would achieve any measurable improvement in law enforcement.
85. I do not think we would be assisting the police in the difficult task they are faced with by increasing their rights of entry into private homes in the manner contended for here. We would be giving them a very vague rule for action. In situations like this, they need the clearest possible rules. At present the rule is clear. Absent well recognized and widely supported exceptions, they may not enter private homes. These exceptions apart, their authority ends at the door. That rule protects them and the public from violence.
86. Moreover, I do not think it is wise to place the police in situations where they are called upon to breach such a deeply cherished community value as the sanctity of the home. It is essential for the police to have the support of the community. With the type of extension argued for, mistakes are bound to happen and I can imagine few breaches of community values more calculated to incense the public than this one; see in this context W. F. Foster and Joseph E. Magnet, "The Law of Forcible Entry" (1977), 15 Alta. Law Rev. 271, at pp. 290‑91.
87. There is another cause for concern in granting such a vague discretion. It is unlikely to be used as much against the economically favoured or powerful as against the disadvantaged. It is interesting that the home in Davis v. Russell, supra, was described as lodgings, and those in Eccles v. Bourque and the present case were apartments. As Professor Paul Weiler has stated, "abuses of police power will rarely affect respectable members of the middle classes", but will instead "focus on the poor and on marginal, minority groups". See Weiler, "The Control of Police Arrest Practices: Reflections of a Tort Lawyer" in Allen M. Linden, ed., Studies in Canadian Tort Law, p. 416, at p. 448; John Manley, case comment on Eccles v. Bourque, supra, at p. 656.
88. Finally, I have mentioned earlier that Parliament may, if it wishes, amend the law of search warrants to permit searches for persons as well as things. It might also wish, under well‑defined circumstances, to extend police powers in respect of dangerous situations and dangerous and elusive criminals (which is not the case here). I would now add some general observations about the respective roles of Parliament and the courts in situations like that in the present case. In my view, if incursions are to be made upon a legal and political value so deeply inbred in our society as the sanctity of the home, it is for Parliament to do so and not for the courts. While the courts must attempt to give reasonable and practical effect to attempts by Parliament to meet the challenge of widespread criminal activity, the duty of the courts has always been to act as a brake against laws that either directly or because of over‑zealous enforcement encroach upon the liberty of the subject. It would be an ironic reversal of roles if Parliament was required to act to protect the sanctity of the home from possible excesses flowing from the application of a judicially created rule. Courts undoubtedly have a creative role in developing the law, but they must be extremely wary of widening the possibility of encroaching on our personal liberties; they are the protectors of our rights. Parliament has the primary duty to respond to the challenge of criminal activities. The courts should no doubt view their efforts sympathetically but be forever diligent to prevent undue intrusions on our liberty.
89. It may in the past have been tempting at times for courts to extend rules in flagrant circumstances to forestal more general action by Parliament, then supreme, in response to a transient wave of public opinion. But the constitutional environment has now changed. The Canadian Charter of Rights and Freedoms clearly tells us that certain fundamental rights, including the security of the person, fall within the constitutional protection of the courts. That is, I think, the proper role of the courts. Seemingly minor intrusions on fundamental principles of the type they might have been tempted to make in the past are dangerous. Walter Gellhorn has said it well:
In every society, in every age, and certainly in our own there are multitudes who, in Archibald MacLeish's phrase, "fear freedom or are frightened of the loneliness it implies." For the most part, however, inroads on freedom are not initiated by those who prefer that others assume responsibility for directing their lives; these flabby folk become the hordes that sustain dictatorships, but they themselves are too inert to bring it to pass. We need not worry, in my estimation, that freedom will be brought low upon their initiative. Nor do I think that evilly motivated men will successfully trick us into surrendering one after another bastion in a heedless quest for an unattainably perfect security. The real danger lies among those of us who genuinely desire to protect freedom, and who think that this can best be done by limiting it. They propose to give a little here to protect a lot there. The motive is admirable, but the judgment is unsound. The very amplitude of our American brand of freedom sometimes seduces us into believing that a good deal of it can be spent without anyone's really noticing the difference‑‑that we can afford, as Carl Becker put it, "to take liberties with our liberty." But the trouble is that small restrictions accumulate into large restrictions and, in the process, may become as habitual as, before, freedom was. Restrictions justified as necessary safeguards of freedom may in fact safeguard freedom out of existence altogether.
See W. Gellhorn, Individual Freedom and Governmental Restraints (1956), pp. 39‑40; quoted by Arthur Maloney, "Law Enforcement and The Citizen's Liberty" (1966), 9 Can. Bar J. 168, at p. 170.
Conclusion
90. For my part, I am firm that the principle that a man's home is his castle along with the demonstrably justifiable exceptions developed under the old common law have together constituted an excellent balance between the security and privacy of the individual and the needs of law enforcement from their enunciation in Semayne's Case over three hundred and eighty years ago. I am confident this arrangement can continue to be an adequate balance for four hundred years after Semayne's Case and beyond. If Parliament in its wisdom finds it necessary to adjust the balance, it can do so. It is in a better position to provide for the precise balance and has a far better access to the knowledge required to achieve that balance than the courts. The courts can then perform their duty of scrutinizing Parliament's laws both in their general tenor and in their particular application to safeguard our traditional values. That as I understand it is the role the courts in both Great Britain and the United States, in their different constitutional environments, play; for Great Britain, see Morris v. Beardmore, [1980] 2 All E.R. 753 (H.L.); Finnigan v. Sandiford, [1981] 2 All E.R. 267 (H.L.); for the United States, see Payton v. New York, supra.
91. I would dismiss the appeal.
Appeal allowed, La Forest J. dissenting.
Solicitor for the appellant: Ministry of the Attorney General, Toronto.
Solicitor for the respondent: Scott Milloy, Ottawa.
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