R. v. Macooh [1993] 2 S.C.R. 802: Arbitrary detention -- Peace officer entering private home without a warrant to arrest accused for a provincial offence-- Common law traditionally recognizing hot pursuit exception to principle of sanctity of home -- Whether exception should be extended to arrests for provincial offences -- Whether entry by peace officer lawful.

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Criminal law -- Police -- Powers of arrest -- Provincial offences -- Peace officer entering private home without a warrant to arrest accused for a provincial offence -- Common law traditionally recognizing hot pursuit exception to principle of sanctity of home -- Whether exception should be extended to arrests for provincial offences -- Whether entry by peace officer lawful.

Constitutional law -- Charter of Rights -- Fundamental justice -- Arbitrary detention -- Peace officer entering private home without a warrant to arrest accused for a provincial offence -- Accused's rights under ss. 7 and 9 of Canadian Charter of Rights and Freedoms not infringed.

A police officer observed the accused going through a stop sign and began to follow him with the emergency signals on the cruiser activated. The accused accelerated, drove through two more stop signs and then stopped at an apartment parking lot. The officer, who recognized him, saw the accused get out of his car and run toward the back door of an apartment. He yelled at him to stop running and come back, but the accused entered the apartment. The police officer called out through the door but received no answer. He identified himself as being a member of the RCMP and, still receiving no answer, entered the apartment. He found the accused in bed and told him he was under arrest for failure to stop for a police officer. The accused repeatedly refused to follow the officer. An altercation took place, during which the officer could observe the usual signs of impairment. The accused was arrested. He refused a demand for a breath sample and was charged with impaired driving, failing to stop for a peace officer, failing to submit to a breathalyser test and assaulting a peace officer with intent to resist arrest.

The trial judge held that the officer's entry into the dwelling house in hot pursuit of a person suspected of a breach of summary legislation contained in a provincial enactment, as opposed to an indictable offence, was unlawful, and that the arrest of the person within the premises was therefore also unlawful. The resisting arrest charge was accordingly dismissed. As the evidence crucial to the impaired driving and breathalyser charges was gathered during the unlawful arrest, the trial judge refused to admit it on the basis that the administration of justice would be brought into disrepute and the accused was acquitted on these charges as well. The summary conviction appeal judge upheld the acquittals. The Court of Appeal found that the right of arrest on private property was not limited to indictable offences and that the arrest was therefore lawful. It set aside the acquittals and entered convictions.

Held: The appeal should be dismissed.

It is well settled at common law that police officers have the power to enter private premises to make an arrest in hot pursuit. This exception to the principle of sanctity of the home can easily be justified. It would be unacceptable for police officers who were about to make a completely lawful arrest to be prevented from doing so merely because the offender had taken refuge in his home or that of a third party. From a more practical standpoint, significant danger may be associated with the flight of an offender and the pursuit that may result. Further, in a case of hot pursuit the police officer may have personal knowledge of the facts justifying the arrest, which greatly reduces the risk of error. Flight also usually indicates some awareness of guilt on the part of the offender. As well, it may often be difficult to identify the offender without arresting him on the spot. Evidence of the offence leading to the pursuit or a related offence may also be lost. Finally, the offender may again flee or continue to commit the offence and the police cannot be required to keep an indefinite watch on the offender's residence in case he should decide to come out. If an arrest without a warrant is permissible at the outset, the offender's flight into a dwelling house thus cannot make it unlawful.

A right of entry to make an arrest in hot pursuit exists at common law both for indictable offences and for other types of offence, and there are strong policy considerations against altering this rule. Unlike the division which existed at common law between felonies and misdemeanours, the division which currently exists in our law between indictable offences and other categories of offence only very imperfectly reflects the severity of the offence. Most importantly, there is no logical connection between the fact that an offence falls in one or other of these categories and the need there may be to make an arrest in hot pursuit in residential premises. Even where there is no arrest warrant, there is thus in a case of hot pursuit a right to enter residential premises to make an arrest both for provincial offences and for indictable offences, provided the circumstances justify an arrest without a warrant. The entry by the police was accordingly authorized in this case.

The accused's rights under ss. 7 and 9 of the Canadian Charter of Rights and Freedoms have not been infringed. With respect to s. 9, the police had reasonable grounds to stop and detain the accused, and the detention was therefore not arbitrary. So far as s. 7 is concerned, even assuming that this provision implies protection of a right to privacy, there can be no question of such a right being infringed in this case. A person who enters his house or that of someone else to get away from the police who are pursuing him in connection with an offence he has just committed and for which there is a power of arrest without a warrant cannot expect his privacy to be protected in such circumstances so as to prevent the police from making an arrest.

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