DATE: 20010925
DOCKET: C34963
COURT OF APPEAL FOR ONTARIO
OSBORNE A.C.J.O., LASKIN and ROSENBERG JJ.A.
B E T W E E N :
Michael Jaeger, for the appellant
WILLIAM JAMES HUDSON
Plaintiff (Respondent)
- and -
C. Justin Griffin, for the respondent
BRANTFORD POLICE SERVICES BOARD
Defendant (Appellant)
Heard: February 26, 2001
On appeal from the order of Regional Senior Justice Eugene B. Fedak, made in the Divisional Court and dated May 29, 2000.
ROSENBERG J.A.:
[1] This is one of two appeals heard by this court that raise issues concerning civil liability of the Brantford Police Services Board for conduct of police officers employed by the Board. The cases involve entirely different incidents but each turns on the alleged illegality of the arrest of the respective plaintiffs. The reasons in the other case, Collins v. Brantford Police Services Board, are being released concurrently with these reasons.
[2] The Brantford Police Services Board appeals from the decision of the Divisional Court allowing an appeal from the decision of the Brantford Small Claims Court. Deputy Judge Ditchfield had dismissed the plaintiff’s claim for damages for unlawful entry and unlawful arrest. Fedak R.S.J. allowed the appeal, found that there had been an unlawful arrest and detention and remitted the case to the Deputy Judge for determination of damages. This court granted leave to appeal from the decision of Fedak R.S.J. Leave to appeal was limited to the issue concerning the application of s. 25 of the Criminal Code.
THE FACTS
[3] In the early morning hours of Christmas Eve 1997, Constables Wheeler and Stachurski of the Brantford Police Services went to the home of the plaintiff and his mother. They intended to arrest the plaintiff, William James Hudson, for failing to remain at the scene of an accident that had occurred a short time earlier. The officers had ample information to form a reasonable belief that the plaintiff had been involved in a collision with a parked car and had failed to remain. The officers knocked on the door and the plaintiff’s mother answered the door. There was a factual dispute at trial as to whether Mrs. Hudson invited the officers in or whether they entered without permission. The trial judge resolved this issue in favour of the plaintiff and found that Mrs. Hudson did not consent to the officers’ entry into the apartment. She also found the officers were not in hot pursuit at the time, nor were there exigent circumstances that would justify a warrantless entry in accordance with the decision of the Supreme Court of Canada in R. v. Feeney (1997), 1997 CanLII 342 (SCC), 115 C.C.C. (3d) 129 and the applicable provisions of the Criminal Code.
[4] After entering the apartment, the officers went to the plaintiff’s bedroom where they woke him up, and, following a scuffle, handcuffed him and removed him from the bedroom. While the plaintiff was being removed from the apartment he spit at one of the arresting officers. At the police station, he spit at a staff sergeant. The police charged the plaintiff with leaving the scene of an accident, two counts of resisting arrest and two counts of assaulting a police officer (for the spitting incidents).
[5] On June 11, 1998, the plaintiff pleaded guilty to the two counts of assaulting a police officer in the execution of his duty. The Crown withdrew the other charges. On June 15, 1998, the plaintiff brought his claim for damages for unlawful arrest and detention.
THE REASONS OF THE TRIAL JUDGE
[6] As I have indicated, the trial judge found that the police officers’ entry into the plaintiff’s apartment was unlawful. The Board does not dispute this finding. The trial judge then went on to consider the lawfulness of the arrest for failing to remain at the scene of an accident contrary to s. 252 of the Criminal Code. She found that the arrest could have been authorized by s. 495(1)(a) of the Criminal Code, which provides that a peace officer may arrest without warrant a person who has committed an indictable offence. However, she also held that the arrest was unlawful because of the provisions of s. 495(2) which provide as follows:
(2) A peace officer shall not arrest a person without warrant for
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or
in any case where
(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another offence,
may be satisfied without so arresting the person, and
(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law. [Emphasis added.]
[7] The trial judge found that none of the conditions in paragraphs (d) and (e) were satisfied and accordingly, the officers should not have arrested the plaintiff. The trial judge then considered the effect of s. 495(3) which, in the following terms, deems an officer to have acted lawfully even though the officer has failed to comply with s. 495(2):
(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of
(a) any proceedings under this or any other Act of Parliament; and
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).
[8] The trial judge found that the plaintiff had met the burden in paragraph (3)(b) of showing that the officers did not comply with the requirements of s. 495(2) and accordingly, subsec. (3) offered no protection to the officers.
[9] The trial judge then turned to the effect of the guilty plea for assaulting one of the arresting officers. She noted that an element of this offence is that the officer was in the execution of his duty when he was assaulted. She determined that as the officers were in uniform and were transporting the plaintiff to the police station at the time he spit at one of them, they were in the execution of their duty. The trial judge held, however, that this did not bar an action for unlawful entry and false arrest. The trial judge reasoned that the assault to which the plaintiff pleaded guilty was a separate event from the unlawful warrantless entry and arrest and accordingly, the assault did not bar the civil action for those events.
[10] The trial judge then turned to the Board’s claim that the officers were protected by s. 25 of the Criminal Code and the common law. With respect to the common law, the trial judge relied upon Kennedy v. Tomlinson (1959), 1959 CanLII 395 (ON CA), 20 D.L.R. (2d) 273 (Ont. C.A.), leave to appeal to S.C.C. refused, [1959] S.C.R. ix, where it was held that an officer is protected from civil liability if the officer makes an arrest based upon a reasonable person’s “reasonable suspicion” the plaintiff committed an offence. The trial judge found that based upon information supplied by another officer, the arresting officers “acted in good faith and believed that they had reasonable and probable grounds to arrest the plaintiff with leaving the scene of an accident”. She also held that none of the actions by the officers in the apartment could be described as “unreasonable or in bad faith”. She therefore dismissed the claim without costs.
THE REASONS OF THE DIVISIONAL COURT
[11] Fedak R.S.J. found that the trial judge erred in holding that the officers were protected either by s. 25 or the common law. He held that the finding of good faith seems to have been based on the fact that the officers had not had training on the relatively new law as set out in Feeney and the subsequent Criminal Code amendments. However, Fedak R.S.J. found that this finding could not be sustained as one of the officers testified that he had received training on this law before the arrest of the plaintiff. He therefore held that the trial judge erred in finding that the officers were acting in good faith and were protected by s. 25(2) of the Criminal Code.
[12] Fedak R.S.J. also held that the trial judge erred in finding that the officers were protected by the doctrine in Kennedy v. Tomlinson. He pointed out that it was immaterial whether or not the officers had reasonable grounds to believe the plaintiff committed a criminal offence, as this did not meet the issue of the unlawful arrest because of the earlier unlawful entry. He held that the trial judge erred in finding that the officers were acting reasonably and in good faith. He therefore allowed the appeal and, since the trial judge had made no finding respecting damages, remitted the case to the trial judge to determine damages.
THE ISSUES
[13] The appellant Board argues that the Divisional Court judge erred in setting aside the trial judge’s findings of fact that the officers were acting reasonably and in good faith. It also argues that the actions of the officers were justified by s. 25 of the Criminal Code or at common law. Finally, the Board argues that the plaintiff was estopped from arguing that the arrest was unlawful once he pleaded guilty to assaulting a police officer in the execution of his duty.
[14] I have examined the application for leave to appeal to this court. The appellant proposed two bases upon which leave to appeal should be granted. First, that the plaintiff was barred from recovery for wrongful arrest by virtue of his guilty pleas. Second, that, in any event, the officers’ actions were justified pursuant to the common law or s. 25 of the Criminal Code. As I have indicated, this court granted leave only on the s. 25 issue. The other issues are not before this court.
ANALYSIS
The Feeney decision
[15] To understand the application of s. 25 of the Criminal Code to this case it is first necessary to review the decision in Feeney and its aftermath. The Supreme Court of Canada released its decision in R. v. Feeney on May 22, 1997. In that case, a majority of the court overturned the earlier decision in R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145.[^1] In Landry, the court had held that police may enter a private dwelling without permission and without a warrant if there are reasonable and probable grounds to believe that the person sought is within the premises, proper announcement is made prior to entry and a warrantless arrest as authorized by s. 495 of the Criminal Code is met. As indicated, s. 495 authorizes a police officer to arrest without warrant, inter alia, a person who the officer believes on reasonable grounds has committed an indictable offence. In Feeney, the court held that generally a warrant is required to make an arrest in a dwelling house. The court held that there was at least one exception to the warrant requirement, where the police were in hot pursuit of the suspect. The majority left open whether there were other exceptions for exigent circumstances. Finally, the court held that an arrest warrant alone was insufficient authorization to enter a dwelling to make an arrest.
[16] The Feeney decision caused some concern for the government because there was now a gap in the law relating to arrest. The Supreme Court therefore agreed to stay the effect of the decision until December 19, 1997. This gave Parliament time to amend the Criminal Code to add ss. 529 to 529.5. Those provisions allow a judge or justice to include with an arrest warrant an authorization to enter a dwelling house. They also provide for certain defined exceptions for the warrant or authorization requirements. Those amendments came into force on December 18, 1997.
[17] The arrest in this case was carried out on December 24, 1997, after the Feeney stay period had ended and after the new Criminal Code provisions came into force. In this case, the trial judge found that the police, who had no arrest warrant and no authorization to enter the dwelling, were not in hot pursuit and that none of the statutory exceptions in the new Code provisions applied.[^2] The trial judge also found that the police did not have permission to enter the dwelling. It follows from these findings that the police officers committed a trespass when they entered the plaintiff’s home to arrest him without a warrant and authorization to enter. This court has previously held that if police officers have been trespassing at the time they purport to make an arrest in a dwelling house, this renders the arrest unlawful: R. v. Delong (1989), 1989 CanLII 7164 (ON CA), 47 C.C.C. (3d) 402 at 417.
[Section 25](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)
[18] Sections 25(1) and (2) of the Criminal Code provide as follows:
- (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(b) as a peace officer or public officer,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
(2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.
[19] In my view, s. 25(2) has no application in this case. Cory J. described the effect of s. 25(2) in R. v. Finta (1994), 1994 CanLII 129 (SCC), 88 C.C.C. (3d) 417 (S.C.C.) at 518-19:
The purpose of s. 25(2) is to provide legal protection to a police officer, who, acting in good faith and on a reasonable belief that his or her actions are justified by law, later finds out that those actions were not authorized because the law was found to be defective.
Section 25 is akin to the defence of mistake of fact. Unless, the law is manifestly illegal, the police officer must obey and implement that law. Police officers cannot be expected to undertake a comprehensive legal analysis of every order or law that they are charged with enforcing before taking action. Therefore, if it turns out that they have followed an illegal order they may plead the peace officer defence just as the military officer may properly put forward the defence of obedience to superior orders under certain limited conditions. The qualification is that the military officer must act in good faith and must have reasonable grounds for believing that the actions taken were justified. An officer acting pursuant to a manifestly unlawful order or law would not be able to defend his or her actions on the grounds they were justified under s. 25 of the Criminal Code. [Emphasis added.]
[20] This was not a case where the law or the process under which the officers were operating was later found to be defective. The law concerning limits on the powers of arrest has been laid down in s. 495(2) and its predecessors since the Bail Reform Act, R.S.C. 1970, c. 2 (2nd Supp.). The law concerning warrantless entry to effect an arrest was laid down by the Supreme Court of Canada in Feeney, over six months prior to this arrest. This arrest occurred after the Feeney stay period had expired and after the new Criminal Code provisions came into force. If the officers were mistakenly operating on the basis of the pre-Feeney law, that was not because of any defect in the law or process. Section 25(2) can offer them no protection. Also see R. v. Devereaux (1996), 1996 CanLII 11047 (NL CA), 112 C.C.C. (3d) 243 (Nfld. C.A.) at 254 and 256.
[21] This leaves s. 25(1) for consideration. The Supreme Court of Canada considered s. 25(1) in Eccles v. Bourque (1974), 1974 CanLII 191 (SCC), 19 C.C.C. (2d) 129. Eccles was a claim for damages for trespass and bears some similarity to this case. Police officers entered Mr. Eccles’ dwelling in pursuit of another man for whom there were outstanding arrest warrants. The person sought was not in the dwelling. The police defendants relied upon s. 25(1) on the basis that since they were authorized to make an arrest, s. 25(1) authorized the use of any measures necessary to effect the arrest. Dickson J., speaking for four members of the court, disagreed. He held as follows at pp. 130-31:
It is the submission of counsel for [the police] that a person who is by s. 450 [now s. 495] authorized to make an arrest is, by s. 25, authorized by law to commit a trespass with or without force in the accomplishment of that arrest, provided he acts on reasonable and probable grounds. I cannot agree with this submission. Section 25 does not have such amplitude. The section merely affords justification to a person for doing what he is required or authorized by law to do in the administration or enforcement of the law, if he acts on reasonable and probable grounds, and for using necessary force for that purpose. The question which must be answered in this case, then, is whether the respondents were required or authorized by law to commit a trespass; and not, as their counsel contends, whether they were required or authorized to make an arrest. If they 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. The first issue, therefore, depends upon the second issue, videlicet, can the trespass be justified on common law principles?… [Emphasis added.]
[22] The five other members of the court, while agreeing with Dickson J. in the result, expressed no opinion on the effect of s. 25(1). In the result, Dickson J. found that the police were authorized at common law to enter the dwelling to execute an arrest warrant provided certain conditions were met. Thus, at common law, the police were authorized to enter and commit what would otherwise be a trespass, to effect a lawful arrest. That particular holding has been overtaken by Feeney. It seems to me that now, in light of Feeney, Dickson J. would have decided Eccles in favour of the plaintiff and held that the officers were liable in damages for trespass. Section 25(1) would not now protect the officers from a claim for trespass, because they are not authorized to trespass to execute arrest warrants, absent authorization under the Criminal Code.
[23] I would point out one other aspect of Eccles that helps define the limits of the s. 25(1) protection. Dickson J. held, at p. 132, that the police officers were protected from civil liability although the person sought was not within the dwelling. Dickson J. contrasted the case of an officer executing civil process and criminal process:
In the case of civil process the rule is that if a Sheriff's officer enters the house of A to execute process against the goods of B or to arrest B he enters at his peril and if the goods or B, as the case may be, are not present, he is guilty of trespass. It is said the entry can be justified only by the event … But in the execution of criminal process the test is whether there are reasonable and probable grounds for acting. If so, the entry does not become unlawful if the fugitive is not found on the premises. The entry of the police is legal or illegal from the moment of entry and does not change character from the result…. [Emphasis added.]
[24] This corresponds with s. 25(1), which provides that a peace officer who is authorized by law to do something in the enforcement of the law is justified in doing what he or she is authorized to do if the officer “acts on reasonable grounds”. In effect, s. 25(1) protects the officer from civil liability for reasonable mistakes of fact and authorizes the use of force. It does not protect against reasonable mistakes of law, such as mistake as to the authority to commit a trespass to effect an arrest. I have reviewed the trial judge’s reasons for judgment to see whether she found a mistake of fact to which s. 25(1) might apply. It seems to me that it is at least arguable that if the police reasonably believed that they had consent to enter the apartment, this would give them a defence under s. 25(1) even if, in fact, they had no consent. There was a significant factual dispute at trial as to the circumstances surrounding the entry. The trial judge found that Mrs. Hudson did not consent and that at least one of the officers knew this. The trial judge said the following:
The Defendant argues that a valid consent from an occupant of the premises serves as a substitute for obtaining an entry warrant. I cannot on the evidence, however, conclude that Ms. Hudson consented to entry of her apartment by the police. Ms. Hudson is clear that when she answered the door one of the police officers said: “Where’s Bill” to which she replied: “Asleep, just a minute I’ll get him”. This would indicate that Ms. Hudson’s expectation was that the police would wait outside. There was, therefore, no invitation to enter the apartment. This fact was confirmed by Wheeler in cross-examination when he admitted that there was no verbal invitation from Ms. Hudson to enter the residence and follow her to the Plaintiff’s bedroom. [Emphasis added.]
[25] To summarize, the officers had no lawful right to enter to arrest the plaintiff and, assuming Dickson J.’s analysis of s. 25(1) is correct, no defence to a claim for trespass based on the unlawful entry.
[26] Despite her findings of fact and law concerning the illegality of the entry and the arrest, the trial judge dismissed the claim because of her view that under s. 25 and at common law it is a defence if the officers are acting in good faith and on reasonable and probable grounds. The trial judge looked at the overall conduct of the police and concluded that they had reasonable and probable grounds to arrest the plaintiff, that they were not acting in an overzealous manner and therefore none of their actions could be described as “unreasonable or in bad faith”. Leaving aside any common-law defence, which is not in issue any longer, this is too broad an application of s. 25(1). The issue is not whether the officers were acting unreasonably or in bad faith generally but whether they had authorization to trespass. They did not, and s. 25(1) affords them no defence. In view of this court’s decision in Delong, referred to earlier, the trespass rendered the arrest unlawful.
[27] The foregoing conclusion is based on Dickson J.’s interpretation of s. 25(1) in Eccles. I have not found any authority since then that persuades me I should depart from that analysis.
[28] In R. v. O'Donnell; R. v. Cluett (1982), 1982 CanLII 3828 (NS CA), 3 C.C.C. (3d) 333 (N.S.C.A.), Jones J.A., speaking for the court, considered the application of s. 25(1) in the context of criminal charges brought against police officers arising out of the death of a citizen in the course of an arrest. In that case, the trial judge had instructed the jury that under s. 25 of the Code the officers were justified in using as much force as necessary to generally carry out the lawful execution of their duty. Jones J.A. held that this was an error:
If the constables failed to arrest Mr. Hollett when they first approached him and to give him the reasons why he was being arrested the arrest was unlawful and the officers were not acting in the execution of their duty. In the result they were not justified in using force by virtue of s. 25 of the Code. Their apprehension of Mr. Hollett constituted an assault which he was entitled to resist at common law…
[29] In the result, the Nova Scotia Court of Appeal dismissed O’Donnell’s appeal from conviction for manslaughter. If there was misdirection on s. 25(1) it was favourable to the accused. The Court of Appeal allowed the Crown appeal from Cluett’s acquittal because the trial judge had misdirected the jury on s. 25 and on the liability of a party. Cluett appealed to the Supreme Court of Canada, which allowed the appeal and restored the acquittal: (1985), 1985 CanLII 52 (SCC), 21 C.C.C. (3d) 318. In the Supreme Court, counsel for Cluett accepted that the trial judge had misdirected the jury on s. 25, but argued that the error did not affect his client’s liability because he was in a different position from the principal offender, O’Donnell. Cluett had testified that he did not see the initial altercation between the deceased and O’Donnell and only used force in the belief that his partner was being assaulted by the deceased. The Supreme Court of Canada agreed. The court pointed out that Cluett was entitled to use force to arrest the deceased because he reasonably believed the deceased was committing the criminal offence of assaulting a police officer. In those circumstances the direction to the jury that under s. 25 the police are entitled to use as much force as necessary to carry out their duties generally was of no consequence. It seems to me, however, that the court did not disagree with the statements of Jones J.A. as to the scope of s. 25.
[30] This was the view of Williams J.A. in Swansburg v. Canada (Royal Canadian Mounted Police, Constable Smith) (1996), 1996 CanLII 426 (BC CA), 141 D.L.R. (4th) 94 (B.C.C.A.). While the facts of Swansburg are very different, the trial judge’s approach to s. 25(1) in that case bears considerable similarity to the approach of the trial judge in this case. In Swansburg, the police officer purported to arrest the plaintiff for impaired driving although, as he conceded, he did not believe he had reasonable grounds for such an arrest. The trial judge nevertheless dismissed the claim because of his view of the “broad application” of s. 25(1). He held, as quoted by Williams J.A. at p. 103, that in determining the reasonableness of the officer’s actions “the court must look to all the surrounding circumstances and place the officer’s actions within that matrix of circumstance”. He further held that “one of the objects of parliament in enacting s. 25(1) must be taken to have been to protect a policeman who makes a mistake in the performance of his duties but who in acting, did so reasonably”. Williams J.A. emphatically disagreed with this interpretation, which in his view was “contrary to the fundamental principles which protect the citizen from unwarranted or unlawful police action” [at p. 104]. He adopted the view of Jones J.A. in R. v. O’Donnell and Cluett and referred, with approval, to the decision of Sherstobitoff J.A. in R. v. Peters (1990), 1990 CanLII 7719 (SK CA), 84 Sask. R. 231 (C.A.):
The failure of the judge to specifically address the defence that s. 25 of the Criminal Code authorized a police officer to use reasonable force in making an arrest, while not to be condoned, could not change the result, since the evidence of the witnesses which he accepted warranted a finding that the appellant used more force than reasonably necessary to effect the arrest, if the arrest was a lawful one. If the arrest was not a lawful one, there was no justification for use of any force at all. [Emphasis added.]
[31] Goldie J.A. gave separate reasons in Swansburg on another point. I do not understand him to disagree with Williams J.A.’s reasons concerning s. 25(1).
[32] To conclude, s. 25(1) does not provide a defence to a police officer who generally acts reasonably and in good faith. The defence must be related to the specific conduct involved and the legality of the action the officer claims is “authorized by law” within the meaning of s. 25(1).
[33] Relying upon R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), the appellant argues that the officers’ actions in this case were authorized at common law because they met the two parts of the Waterfield test. In that case, the court held that police interference with an individual’s liberty or freedom was authorized at common law if:
(1) the police were acting in the course of their duty when they effected that interference; and
(2) the conduct of the police did not involve an unjustifiable use of powers in the circumstances.
[34] The Supreme Court of Canada has held that the Waterfield test is the accepted test for evaluating the common-law powers and duties of the police: R. v. Godoy (1999), 1999 CanLII 709 (SCC), 131 C.C.C. (3d) 129 (S.C.C.) at 135. In my view, the Waterfield test has no application in this case. The police could not claim any common-law power based on Waterfield to enter the appellant’s dwelling to effect that arrest. The power to enter to effect an arrest has been defined by the Supreme Court of Canada in Feeney and the subsequent Criminal Code amendments. See R. v. Godoy at p. 140. The police cannot ignore the dictates of the Supreme Court of Canada and enter without authorization because they are generally acting in the course of their duties to keep the peace and apprehend perpetrators. They are not protected from civil liability under s. 25(1) because they are unaware of that law or mistaken about its application. In any event, in light of Feeney, the officers’ conduct in this case would have to be found to be an “unjustifiable use of powers in the circumstances” and therefore not authorized by Waterfield.
[35] Accordingly, I agree with the Divisional Court judge that the trial judge erred in holding that the officers’ actions in entering the plaintiff’s dwelling without authorization were protected by s. 25(1).
[36] I have not dealt with the effect of s. 495(2) on the arrest. Since this was another basis for finding the arrest was unlawful and may affect the determination of damages, I will briefly consider that issue. As I have said, the trial judge found that the arrest was not justified because of s. 495(2) and the appellant does not contest that finding. In my view, s. 25(1) has no application in these circumstances. Section 495(3) provides as follows:
(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of
(a) any proceedings under this or any other Act of Parliament; and
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2). [Emphasis added.]
[37] The trial judge found that the plaintiff had met the burden imposed on him by s. 495(3)(b). The arrest was therefore unlawful and, for that reason as well, it could not be said to be “authorized by law” within the meaning of s. 25(1) of the Criminal Code.
DISPOSITION
[38] Accordingly, I would dismiss the appeal with costs.
(signed) “M. Rosenberg J.A.”
(signed) “I agree C. A. Osborne A.C.J.O.”
(signed) “I agree John Laskin J.A.”
RELEASED: September 25, 2001
[^1]: Landry, although decided after the Charter of Rights and Freedoms came into force, was decided without reference to the Charter because it was based upon an incident that occurred prior to that date.
[^2]: In addition to hot pursuit, the appellant had argued before the trial judge that exigent circumstances justified a warrantless entry because the police believed the plaintiff may have been impaired and they needed to arrest him to preserve evidence of his blood alcohol level. The appellant relied upon s. 529.3 of the Criminal Code, which provides as follows:
529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.
(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer
(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.
The trial judge found that the police did not have the requisite reasonable grounds to believe that the appellant was impaired.