R. v. Landry

R. v. Landry
Collection
Supreme Court Judgments
Date
1986-02-28
Report
[1986] 1 SCR 145
Case number
16848
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 16848
Decision Content
R. v. Landry, [1986] 1 S.C.R. 145
Her Majesty The Queen Appellant;
and
Paul Landry Respondent.
File No.: 16848.
1985: March 15; 1986: February 28.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Arrest without warrant ‑‑ Spatial limits ‑‑ Private home ‑‑ Extent of police power to effect arrest without warrant in private home ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 450(1)(a).
A transit inspector saw two youths in a shopping centre parking lot opening the driver's door of a truck and trying the doors of cars. He called the police, gave them a description, and advised that they had entered an apartment building. Two young men fitting the description were seen by a constable through an apartment window. The constable stood at the doorway of the apartment and subsequently tried to effect an arrest inside the apartment in relation to an attempted car theft. An altercation occurred giving rise to a charge of assaulting a police officer in the execution of his duty contrary to s. 246(1) of the Criminal Code . Respondent was acquitted, on a directed verdict subsequently upheld by a majority of the Ontario Court of Appeal because the arrest was found to be unlawful. At issue was whether a peace officer, acting pursuant to s. 450(1) (a) of the Criminal Code , can lawfully arrest a person on private premises.
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 L