R. v. Feeney [1997] 2 S.C.R. 13: Search and seizure -- Police looking for suspect in serious crime -- Police entering home uninvited and without warrant -- Whether accused's privacy interest violated -- Canadian Charter of Rights and Freedoms, s. 8.

Constitutional law -- Charter of Rights -- Admissibility of evidence

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

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law -- Arrest -- Warrantless arrest occurring at home -- Police entering home forcibly -- No subjective or objective reason for concluding suspect had committed indictable offence -- Arrest effected after evidence found -- Conditions required for valid arrest.

Constitutional law -- Charter of Rights -- Right to counsel -- Caution read on arrest but no mention made of right to immediate legal counsel or of toll-free telephone to duty counsel -- Whether accused's rights to immediate legal counsel violated -- Canadian Charter of Rights and Freedoms, s. 10(b).

Constitutional law -- Charter of Rights -- Search and seizure -- Police looking for suspect in serious crime -- Police entering home uninvited and without warrant -- Whether accused's privacy interest violated -- Canadian Charter of Rights and Freedoms, s. 8.

Constitutional law -- Charter of Rights -- Admissibility of evidence -- Statement given by accused on questioning after caution read but before opportunity to consult legal counsel given -- Finger prints taken on arrest -- Objects seized from home -- Charter breaches serious -- Whether admission of evidence bringing administration of justice into disrepute -- Canadian Charter of Rights and Freedoms, s. 24(2).

The police, during a murder investigation in 1991, entered the accused's house (an equipment trailer) without permission. When they received no answer at the door, they entered, roused the accused, touched his leg, ordered him to get up and took him to the front of the trailer for better lighting. The police arrested him after seeing blood on his shirt. Following a caution with respect to the right to counsel but not the right to immediate counsel, the police asked the accused a couple of questions which he answered. The accused's shirt was seized and he was taken to the police detachment where, before the accused had consulted with counsel, further statements and the accused's fingerprints were taken. The police seized cash, cigarettes and shoes under a warrant obtained on the basis of the initial search of the trailer (the shirt and shoes), the initial interview (the shoes) and the later interview at the detachment (the cash under the mattress).

The accused was convicted of second degree murder and his appeal was unanimously dismissed. At issue here are whether the police violated the Charter right to be secure from unreasonable search or seizure (s. 8) and the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right (s. 10(b)) in their investigation of the accused and, if so, what evidence, if any, should be excluded under s. 24(2).

Held (Lamer C.J. and L'Heureux-Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be allowed.

Per La Forest, Sopinka, Cory, Iacobucci and Major JJ.: Under the pre-Charter common law, a warrantless arrest following a forced entry into private premises is legal if: (a) the officer has reasonable grounds to believe that the person sought is within the premises; (b) proper announcement is made; (c) the officer believes reasonable grounds for the arrest exist; and (d) objectively speaking, reasonable and probable grounds for the arrest exist. Except in exigent circumstances, police should give notice of presence by knocking or ringing the doorbell, give notice of authority by identifying themselves as law enforcement police officers and give notice of purpose by stating a lawful reason for entry. Furthermore, before forcing entry, police should, at minimum, request admission and have admission denied.

The subjective requirement for arrest was not met and its absence rendered the arrest unlawful even under the pre-Charter common law. The arresting officer did not believe he had reasonable grounds to arrest prior to the forcible entry. The police officer's testimony and the fact that he did not arrest the accused until after he saw the blood-stained shirt support this conclusion. An objective standard cannot be exclusively relied on because its addition to the requirements for valid arrest at common law did not displace the subjective requirement. Indeed, it would be inconsistent with the spirit of the Charter to permit a police officer to make an arrest without a warrant even though he or she does not believe reasonable grounds for the arrest exist.

The question of whether, objectively speaking, reasonable and probable grounds to arrest existed prior to the entry into the trailer is open to review by this Court. The trial judge erred in law by considering an irrelevant factor (the preservation of evidence) and by failing to explain why the officer in charge was incorrect in his conclusion that grounds to arrest did not exist prior to entry into the trailer.

The objective test is that a reasonable person, standing in the shoes of the officer, would have believed that reasonable and probable grounds to make the arrest existed. Any finding that the subjective test is not met will generally imply that the objective test is not met, unless the officer is to be considered to have an unreasonably high standard. An arrest cannot be made solely for the purpose of investigation but, if grounds exist on a subjective and objective basis, the fact that police intend to continue the investigation and do so does not invalidate the arrest. The objective test was not met regardless of the officer's views.

The Landry test for warrantless searches, essentially a balancing between aiding the police in their protection of society on the one hand and the privacy interests of individuals in their dwellings on the other, no longer applies. It must be adjusted to comport with Charter values which, notwithstanding the high value on the security and privacy of the home at common law, significantly increase the importance of the legal status of the privacy of the home. In general, the privacy interest now outweighs the interest of the police and warrantless arrests in dwelling houses are prohibited.

Generally a warrant is required to make an arrest in a dwelling house. There are exceptions with respect to the unreasonableness of warrantless searches for things. A warrantless search will respect s. 8 if authorized by law, and both the law and the manner in which the search is conducted are reasonable. In cases of hot pursuit, the privacy interest must give way to the interest of society in ensuring adequate police protection.

An arrest warrant alone is insufficient protection of the suspect's privacy rights. Even though the Criminal Code is silent on prior authorization of a search for persons, warrantless searches for persons are not permissible. Privacy rights under the Charter demand that the police, in general, obtain prior judicial authorization of entry into the dwelling house in order to arrest the person. If the Code currently fails to provide specifically for a warrant containing such prior authorization, such a provision should be read in. While the absence of such a provision could have a profound influence on the common law power of arrest, its absence cannot defeat a constitutional right of the individual. Once a procedure to obtain such prior authorization is created, the concern that suspects may find permanent sanctuary in a dwelling house disappears.

Warrantless arrests in dwelling houses are in general prohibited. Prior to such an arrest, the police officer must obtain judicial authorization for the arrest by obtaining a warrant to enter the dwelling house for the purpose of arrest. Such a warrant will only be authorized if there are reasonable grounds for the arrest, and reasonable grounds to believe that the person will be found at the address named, thus providing individuals' privacy interests in an arrest situation with the protection this Court has required with respect to searches and seizures. Requiring a warrant prior to arrest avoids the ex post facto analysis of the reasonableness of an intrusion and invasive arrests without a basis of reasonable and probable grounds are prevented, rather than remedied after the fact.

The protection of privacy does not end with a warrant; before forcibly entering a dwelling house to make an arrest with a warrant for an indictable offence, proper announcement must be made. An exception occurs where there is a case of hot pursuit. Whether or not there is an exception for exigent circumstances generally has not been fully addressed by this Court.

The arrest was unlawful both because the requirements for a warrantless arrest under s. 495 of the Code were not met, and, in any event, the police cannot make warrantless arrests in private dwellings unless exceptional circumstances, which were not present here, exist. Consequently, the entry into the trailer and the search and seizure of the accused's clothing violated s. 8 of the Charter.

The requirement that a person be informed of his or her s. 10(b) rights begins upon detention or arrest. Detention under s. 10 of the Charter occurs when a peace officer assumes control over the movement of a person by a demand or direction. Here, detention began once the officer touched the accused's leg and ordered him to get out of bed. The accused was not given any caution at this time and his s. 10(b) rights were therefore violated.

The accused was not given adequate opportunity to secure counsel. He was not given access to a telephone before being questioned; the police gave him the caution in the trailer, where no telephone existed. The police simply asked him whether he understood his rights, and given an indication that he did, proceeded to ask him questions about the blood on his shirt and his shoes. These police actions violated the accused's s. 10(b) rights.

The police came to know about the cash, the cigarettes and the shoes as the result of violations of ss. 8 and 10(b) of the Charter and would not have had grounds for a warrant supporting the second search without the violations. Consequently, the search and seizure under the warrant also violated s. 8. It would be artificial to distinguish the constitutionality of the second search from that of the initial entry into the trailer.

Fingerprinting as an incident to a lawful arrest has been held not to violate the Charter. Here, however, the arrest was unlawful and involved a variety of Charter breaches. Compelling the accused to provide fingerprints in this context was a violation of s. 8 of the Charter for it involved a search and seizure related to the accused's body for which, absent a lawful arrest, there is clearly a high expectation of privacy. Procedures that are taken incidental to and following an unlawful arrest and which impinge on the arrestee's reasonable expectation of privacy breach s. 8 of the Charter.

The first step in the trial fairness analysis is to consider whether the particular evidence is conscriptive or non-conscriptive. Evidence will be conscriptive when an accused, in violation of his or her Charter rights, is compelled to incriminate him- or herself at the behest of the State by means of a statement, the use of the body or the production of bodily samples.

The statements in the trailer, at the detachment, and the fingerprints were conscriptive and therefore inadmissible as affecting the fairness of the trial. The bloody shirt, the shoes, the cigarettes and the money were not conscriptive evidence, and this evidence, while its admission would not affect trial fairness, must be analysed in light of the second and third branches of the Collins test which may require its exclusion.

The violations were very serious in the present case. One of the indicia of seriousness is whether the violations were undertaken in good faith. One indication of bad faith is that the Charter violation was undertaken without any lawful authority. In light of a pattern of disregard for the accused's rights, the seizure of the shirt, shoes, cigarettes and money was associated with very serious Charter violations. The serious disregard for the accused's Charter rights suggests that the admission of the evidence would bring greater harm to the repute of the administration of justice than its exclusion.

Neither of the judgments below should be afforded particular deference with respect to their s. 24(2) findings. First, neither found a breach with respect to the taking of the evidence in question and this error in law likely influenced their alternative conclusion that the breaches, if they existed, were not serious. Second, the trial judge erred in concluding that the police acted in good faith. Third, the reasons of the trial judge and the Court of Appeal were so brief and conclusionary that it was difficult to say whether other errors were made.

Per L'Heureux-Dubé, Gonthier and McLachlin JJ. (dissenting): A warrantless entry is presumed to be unreasonable and in contravention of s. 8 of the Charter but this presumption can be rebutted (a) if the search was authorized by law, (b) if the law authorizing the search was reasonable, and (c) if the manner in which the search was conducted was reasonable.

The entry was authorized as an incident to a lawful arrest. Four requirements necessary to effect a lawful arrest on private premises are: (1) the offence must be indictable; (2) the person who is the subject of the arrest must have committed the offence in question, or the peace officer, on reasonable and probable grounds, must believe that the person has committed the offence; (3) there must be reasonable and probable grounds for the belief that the person sought is within the premises; and (4) there must be a proper announcement before entry. That criteria 1 and 3 were fulfilled was not contested here.

In order to arrest, the officer must have a subjective belief in these reasonable and probable grounds, and this belief must be justifiable objectively as well. A reasonable person with the officer's knowledge would have had little difficulty in believing that the accused had committed the offence in question. The combined effect of the facts in light of the particular context of this case must be taken into account.

Different standards may apply to rural and urban settings. The trial judge demonstrated he was sensitive to the nature of the information received, and to the setting in which it was discovered.

A peace officer, before arresting without a warrant, must possess a subjective belief that reasonable and probable grounds to arrest exist. The evidence indicates that the officer held this subjective belief. A police officer seeking to apply this standard should not be held to the strict exactitude of a lawyer or of a justice swearing out a warrant. The existence of reasonable and probable grounds is a legal standard and subject to interpretation and at its core a "common-sense" concept which should incorporate the experience of the officer.

The police, upon entrance into a private dwelling, do not have to focus solely upon arrest and can enter, as here, with the subsidiary intention of investigating to either clear or implicate the suspect. The key element of an arrest is the existence of reasonable and probable grounds. The police are not obliged to arrest in all situations. On the contrary, it is perfectly acceptable for the police to enter for the purpose of arrest, while recognizing that evidence discovered within may well dispel their reasonably held belief. By seeking to confirm the reasonable belief they held, the police are able to avoid using the more intrusive procedure (an arrest) by substituting the less intrusive procedure first (the search). Continuing an investigation after an arrest is made is not improper.

No notice of purpose was given prior to entry. Such a shortcoming is not necessarily fatal to the arrest. If the ability of the officers to make an announcement is frustrated by the refusal of the person sought to come to the door, the officers' obligation to provide complete notice is suspended, and they may enter the premises. The duty to announce their purpose is re-engaged when it becomes feasible to do so, that is, once they encounter someone to whom notice can be given. The only effective way to satisfy the notice requirement here was to suspend its delivery until the accused was in a position to receive it. The arresting officer informed the accused of his purpose for entry, and restated his identity the moment it was feasible to do so.

The law permitting warrantless arrests in a dwelling house is reasonable in certain circumstances. The power of arrest is a crucial part of law enforcement. It is unrealistic to suggest that the police can never enter private premises without a warrant for the purposes of arrest. The ability of police to capture persons suspected of criminal activity and to preserve evidence necessary to convict them would be severely impeded. Further, hot pursuit is not the only circumstance in which the police are permitted to enter a dwelling house. Other situations will arise in which the threat to society and the danger of having important law enforcement aims frustrated will outweigh concerns about privacy.

Exigent circumstances have always been held to constitute an exception to the notion that "a man's home is his castle". A genuine fear that evidence of the crime will be lost can constitute the necessary exigent circumstances for a warrantless entry. Whether these exigent circumstances exist is a finding of fact for the trial judge. Here, the trial judge and the Court of Appeal were of the view that a serious danger existed that evidence would have been destroyed had the police not immediately entered the trailer to arrest the accused.

The suggestion that the police could have simply watched the trailer while waiting for a warrant, failed to recognize the distance and consequent time constraints for obtaining a warrant here. The nature of the crime is also an important factor to consider. There is a greater urgency to investigate quickly in a case of violence.

The police lawfully entered the trailer to effect an arrest of the accused; they accordingly were entitled to search incident to arrest and to seize evidence. The authority to search incident to arrest is well established at common law and has withstood Charter scrutiny as well. Similarly, fingerprinting as an incident of a legal arrest does not violate the Charter.

The warrant was properly obtained, even assuming the original entry was unlawful. Where a warrant is obtained partially on the strength of tainted evidence, and partially on evidence which was properly obtained, the role of the court is to consider whether the warrant would have been issued solely on the strength of the evidence which was properly obtained. Here, the trial judge ruled that before the officers entered the trailer and arrested the accused there existed reasonable and probable grounds to believe the accused was the culprit. This ruling is sufficient to infer that the search warrant could properly have been issued based solely on the strength of the information which was obtained prior to the arrest.

Given the finding that the arrest was lawful, ss. 7 and 9 of the Charter were not violated.

The police fulfilled their s. 10(b) obligations. They are not obliged to read an accused his or her s. 10(b) rights at the moment of arrest or detention. Rather, they must be permitted the latitude to assess and gain control of the situation and determine whether a potentially dangerous situation exists. The delay here was minimal. A Charter breach could not be said to have occurred as the result of this short delay.

Section 10(b) imposes the following duties on law enforcement agents: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she had that reasonable opportunity (again, except in cases of urgency or danger). The second and third duties are implementational duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel. This duty, therefore, does not come into existence until the detainee asserts it.

It was unnecessary to consider s. 24(2). Had it been necessary, however, excluding this evidence would clearly bring the administration of justice into disrepute in light of the exigent circumstances and seriousness of the crime.

Per Lamer C.J. (dissenting): Substantial agreement was expressed with the reasons of Lambert J.A. in the Court of Appeal. The reasons and conclusion were not to be taken as a disagreement with the principles of R. v. Stillman as expressed in the reasons of Sopinka J.

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