R. v. Macooh, [1993] 2 S.C.R. 802
Douglas John Macooh Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Macooh
1993: February 26.*
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ.
on appeal from the court of appeal for alberta
Criminal law ‑‑ Police ‑‑ Powers of arrest ‑‑ Provincial offences ‑‑ Peace officer entering private home without a warrant to arrest accused for a provincial offence ‑‑ Common law traditionally recognizing hot pursuit exception to principle of sanctity of home ‑‑ Whether exception should be extended to arrests for provincial offences ‑‑ Whether entry by peace officer lawful.
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Arbitrary detention ‑‑ Peace officer entering private home without a warrant to arrest accused for a provincial offence ‑‑ Accused's rights under ss. 7 and 9 of Canadian Charter of Rights and Freedoms not infringed.
A police officer observed the accused going through a stop sign and began to follow him with the emergency signals on the cruiser activated. The accused accelerated, drove through two more stop signs and then stopped at an apartment parking lot. The officer, who recognized him, saw the accused get out of his car and run toward the back door of an apartment. He yelled at him to stop running and come back, but the accused entered the apartment. The police officer called out through the door but received no answer. He identified himself as being a member of the RCMP and, still receiving no answer, entered the apartment. He found the accused in bed and told him he was under arrest for failure to stop for a police officer. The accused repeatedly refused to follow the officer. An altercation took place, during which the officer could observe the usual signs of impairment. The accused was arrested. He refused a demand for a breath sample and was charged with impaired driving, failing to stop for a peace officer, failing to submit to a breathalyser test and assaulting a peace officer with intent to resist arrest.
The trial judge held that the officer's entry into the dwelling house in hot pursuit of a person suspected of a breach of summary legislation contained in a provincial enactment, as opposed to an indictable offence, was unlawful, and that the arrest of the person within the premises was therefore also unlawful. The resisting arrest charge was accordingly dismissed. As the evidence crucial to the impaired driving and breathalyser charges was gathered during the unlawful arrest, the trial judge refused to admit it on the basis that the administration of justice would be brought into disrepute and the accused was acquitted on these charges as well. The summary conviction appeal judge upheld the acquittals. The Court of Appeal found that the right of arrest on private property was not limited to indictable offences and that the arrest was therefore lawful. It set aside the acquittals and entered convictions.
Held: The appeal should be dismissed.
It is well settled at common law that police officers have the power to enter private premises to make an arrest in hot pursuit. This exception to the principle of sanctity of the home can easily be justified. It would be unacceptable for police officers who were about to make a completely lawful arrest to be prevented from doing so merely because the offender had taken refuge in his home or that of a third party. From a more practical standpoint, significant danger may be associated with the flight of an offender and the pursuit that may result. Further, in a case of hot pursuit the police officer may have personal knowledge of the facts justifying the arrest, which greatly reduces the risk of error. Flight also usually indicates some awareness of guilt on the part of the offender. As well, it may often be difficult to identify the offender without arresting him on the spot. Evidence of the offence leading to the pursuit or a related offence may also be lost. Finally, the offender may again flee or continue to commit the offence and the police cannot be required to keep an indefinite watch on the offender's residence in case he should decide to come out. If an arrest without a warrant is permissible at the outset, the offender's flight into a dwelling house thus cannot make it unlawful.
A right of entry to make an arrest in hot pursuit exists at common law both for indictable offences and for other types of offence, and there are strong policy considerations against altering this rule. Unlike the division which existed at common law between felonies and misdemeanours, the division which currently exists in our law between indictable offences and other categories of offence only very imperfectly reflects the severity of the offence. Most importantly, there is no logical connection between the fact that an offence falls in one or other of these categories and the need there may be to make an arrest in hot pursuit in residential premises. Even where there is no arrest warrant, there is thus in a case of hot pursuit a right to enter residential premises to make an arrest both for provincial offences and for indictable offences, provided the circumstances justify an arrest without a warrant. The entry by the police was accordingly authorized in this case.
The accused's rights under ss. 7 and 9 of the Canadian Charter of Rights and Freedoms have not been infringed. With respect to s. 9, the police had reasonable grounds to stop and detain the accused, and the detention was therefore not arbitrary. So far as s. 7 is concerned, even assuming that this provision implies protection of a right to privacy, there can be no question of such a right being infringed in this case. A person who enters his house or that of someone else to get away from the police who are pursuing him in connection with an offence he has just committed and for which there is a power of arrest without a warrant cannot expect his privacy to be protected in such circumstances so as to prevent the police from making an arrest.
Cases Cited
Considered: R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145; Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739; referred to: Semayne's Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194; Swales v. Cox, [1981] 1 All E.R. 1115; Miller v. Stewart, [1991] O.J. No. 2238 (Q.L.); R. v. Wilson, 1990 CanLII 109 (SCC), [1990] 1 S.C.R. 1291; R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7, 9.
Constitution Act, 1867, s. 92(15).
Criminal Code, R.S.C. 1970, c. C‑34, s. 450(1)(a).
Criminal Code, R.S.C., 1985, c. C‑46, s. 495(1)(a) [am. c. 27 (1st Supp.), s. 75].
Highway Traffic Act, R.S.A. 1980, c. H‑7, ss. 119, 120.
Authors Cited
Foster, W. F., and Joseph E. Magnet. "The Law of Forcible Entry" (1977), 15 Alta. L. Rev. 271.
Halsbury's Laws of England, vol. 10, 3rd ed. London: Butterworth & Co., 1955.
Salhany, R. E. Canadian Criminal Procedure, 5th ed. Aurora: Canada Law Book, 1989.
APPEAL from a judgment of the Alberta Court of Appeal (1991), 1991 ABCA 235, 117 A.R. 312, 2 W.A.C. 312, reversing a decision of the Court of Queen's Bench affirming the accused's acquittal by Staples Prov. Ct. J. (1990), 114 A.R. 314, on charges of impaired driving, assaulting a peace officer with intent to resist arrest and failing to comply with a demand for a breath sample. Appeal dismissed.
R. Peter Newton, for the appellant.
Bart Rosborough, for the respondent.
//Lamer C.J.//
The judgment of the Court was delivered by
Lamer C.J. -- This appeal again raises the question of the territorial limits imposed on powers of arrest, this time in the context of a provincial offence. A peace officer entered a private home to arrest the appellant for an offence under a provincial statute. The peace officer's authority to arrest the appellant without a warrant is not disputed here. The only question is whether the peace officer was authorized to enter a dwelling house in order to arrest the appellant.
Facts
At 3:45 a.m. on December 3, 1989, the appellant was observed by police going through a stop sign in the small town of Spirit River, Alberta. The police began to follow the appellant with the emergency signals on the cruiser activated. The appellant then accelerated and drove through two more stop signs. He stopped at an apartment parking lot, where he was followed by police. The police officer, who then recognized the appellant, saw him rapidly getting out of his car and running towards the back door of an apartment. The policeman stepped out of his car and screamed, "Doug Macooh, stop running. Get back here. We'd like to speak to you." The appellant entered the apartment. The police officer went to the back door of the apartment and called Doug Macooh inside the apartment. He received no answer. He identified himself as being a member of the RCMP and still receiving no answer, he entered the apartment. From the bedroom, the police officer heard a male voice whispering, "Tell him that I was here all night long with you". A woman answered, "No, Doug". The policeman proceeded into the bedroom and found the accused in bed with Miss Kimberley Pack. The appellant was told he was under arrest for failure to stop for a police officer. The appellant repeatedly refused to follow the officer and also refused to get dressed. As the police officer was forcing the appellant to get dressed, an altercation took place, during which the policeman could observe the usual signs of impairment. The appellant was arrested. A demand for a breath sample was made and was refused. The appellant was charged with impaired driving, failing to stop for a peace officer, failing to submit to a breathalyser test, and assaulting a peace officer.
Judgments
Provincial Court (1990), 114 A.R. 314
The trial judge held, at p. 315:
I am satisfied that the constable had the right to arrest the accused in the circumstances of this case, pursuant to the provisions of s. 495 of the Criminal Code. The issue, however, is whether he had the right to enter the dwelling house in question, uninvited, for the purpose of effecting the arrest for a breach of a provincial statute.
He then turned to a consideration of R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145, and held that the police constable's entry "into the dwelling house in hot pursuit of a person suspected of a breach of summary legislation contained in a provincial enactment, as opposed to an indictable offence, was unlawful, and that the arrest of the person within the premises was therefore also unlawful" (p. 316). Thus, the resisting arrest charge was dismissed. As the evidence crucial to the drinking and driving related charges was gathered during the unlawful arrest, the trial judge refused to admit it on the basis that the administration of justice would be brought into disrepute.
Court of Queen's Bench
The summary conviction appeal judge agreed with the trial judge's interpretation of the effect of Landry, and dismissed the appeal.
Court of Appeal (1991), 1991 ABCA 235, 117 A.R. 312
Irving J.A. for the court held that the lower court judges had erred, at p. 313:
The Landry case does not limit the right of arrest on private property to indictable offences as the courts below seem to have concluded. Indeed, the arresting constable in this case fully satisfied the requirements of the Landry and the Eccles cases in effecting the arrest of the [appellant]. Counsel for the [appellant] very fairly conceded that the acquittals of his client would have to be set aside and convictions entered if we have found the arrest lawful as we do.
Relevant Statutory Provisions
Criminal Code, R.S.C., 1985, c. C-46:
- (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable 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 in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.
(2) A peace officer shall not arrest a person without warrant for
(a) an indictable offence mentioned in section 553,
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or
(c) an offence punishable on summary conviction,
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.
Highway Traffic Act, R.S.A. 1980, c. H-7
119 A driver shall, immediately on being signalled or requested to stop by a peace officer in uniform, bring his vehicle to a stop and furnish any information respecting the driver or the vehicle that the peace officer requires and shall not start his vehicle until he is permitted to do so by the peace officer.
120 A peace officer who on reasonable and probable grounds believes that any person has committed an offence against any of the following provisions may arrest the person without warrant:
(b) section 119 relating to the requirement that drivers stop when so requested by a peace officer in uniform;
Canadian Charter of Rights and Freedoms
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Everyone has the right not to be arbitrarily detained or imprisoned.
Analysis
(a) Introduction
(i) Eccles and Landry
This appeal again raises the question of the spatial limits imposed on powers of arrest, this time in the context of a provincial offence. Two judgments of this Court are particularly relevant to this question, namely Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739, and R. v. Landry, supra.
In Eccles v. Bourque, an action for damages for trespass was brought by the appellant against three police officers who entered his apartment to apprehend a person against whom there were outstanding warrants issued in another jurisdiction. This Court had to decide whether or not the police were authorized by law to commit a trespass in such circumstances. Dickson J. (as he then was) first noted that there was nothing on the subject in the Criminal Code and accordingly concluded that if such authorization existed, it had to be found in the common law. Examining the common law, and in particular Semayne's Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194, Dickson J. concluded that, though fundamental, the principle of sanctity of the home set forth in that decision had always been subject to certain exceptions, including the right to enter to make an arrest. He stated, at p. 743:
. . . there are occasions when the interest of a private individual in the security of his house must yield to the public interest, when the public at large has an interest in the process to be executed. 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.
Dickson J. noted, however, at p. 744, that this was not an unrestricted right to enter, as the right was subject to certain conditions:
Entry can be made against the will of the householder only if (a) there are reasonable and probable grounds for the belief that the person sought is within the premises and (b) proper announcement is made prior to entry.
In R. v. Landry, this Court had to decide whether the power to enter private premises also existed in connection with an arrest without a warrant under s. 450(1)(a) of the Criminal Code, R.S.C. 1970, c. C-34 (now s. 495(1)(a)). That paragraph provides for a power to make an arrest without a warrant in the case of an indictable offence. Dickson C.J. (Chouinard, Lamer and Wilson JJ. concurring) first noted that as the authority to enter is not provided for in the Criminal Code, it had to be found in the common law. Examining the common law, he held that neither Semayne's Case nor Eccles v. Bourque indicated that the power to enter by force to make an arrest had to be limited to cases where a warrant had been issued. He added that there were policy reasons for not imposing on the police the requirement that they obtain a warrant to make an arrest in residential premises. He stated, at pp. 160‑61:
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.
Dickson C.J. therefore concluded that a right to enter existed in the context of an arrest without a warrant under s. 450(1)(a) (now 495(1)(a)) of the Criminal Code provided the criteria of that paragraph and the standards set out in Eccles v. Bourque are met. He stated, at pp. 164‑65:
The proper questions to be asked are:
Is the offence in question indictable?
Has the person who is the subject of arrest committed the offence in question or does the peace officer, on reasonable and probable grounds, believe he or she has committed or is about to commit the offence in question?
Are there reasonable and probable grounds for the belief that the person sought is within the premises?
Was proper announcement made before entry?
An affirmative answer to all of these questions will mean that the arrest is lawful.
(ii) Issue Raised by this Appeal
In the present appeal the appellant did not dispute the peace officer's authority to make an arrest without a warrant. He argued, however, that the principles set out in Landry applied exclusively to arrests without a warrant for an indictable offence and should accordingly not apply to provincial offences. He therefore argued there was no power to enter in the case of an arrest without a warrant for a provincial offence.
In my opinion, that is not exactly the issue here. Although the lower courts decided this case on the basis of the applicability of Landry to a provincial offence, the question this Court has to decide is actually more narrow. It was admitted that the entry of the police officers into Miss Pack's residence took place here in hot pursuit, which is an exception traditionally recognized by the common law to the principle of the sanctity of the home, and this is therefore a case where there is at common law a right to enter to make an arrest without a warrant. This Court must therefore only decide whether there is any basis for extending the hot pursuit exception to arrests for provincial offences. Before moving on to consider this question, however, it is worth making a few remarks of a more general nature on the concept of hot pursuit.
(b) Hot pursuit
(i) Right to Enter in Hot Pursuit: the Common Law
It is well settled at common law that police officers have the power to enter private premises to make an arrest in hot pursuit. This exception is mentioned in Halsbury's Laws of England, 3rd ed., vol. 10, at p. 354:
If a felony has been committed and the felon is followed to a house, and there is no other means of entering, any person may, it seems, break open the door of the house, to arrest the offender. This may also be done if a felony will probably be committed unless some person interferes to prevent it.
If an affray occurs in the presence of a constable, and the offenders run away and are immediately pursued by the constable and they enter a house, then the doors may be broken open by the constable to apprehend them in the course of the immediate pursuit.
Before doors are broken open to effect an arrest, due notice must be given and admission be demanded and refused.
The right of police officers to enter private premises in hot pursuit is also confirmed by Donaldson L.J.'s statement of the common law on these matters in Swales v. Cox, [1981] 1 All E.R. 1115 (Q.B. Div.), at p. 1118:
. . . there was power of entry into premises at common law and, if necessary, power to break doors to do so in four cases, but in four cases only, that is to say by a constable or a citizen in order to prevent murder, by a constable or a citizen if a felony had in fact been committed and the felon had been followed to a house, by a constable or a citizen if a felony was about to be committed, and would be committed, unless prevented, and by a constable following an offender running away from an affray. [Emphasis added.]
This Court referred to the right to enter in hot pursuit in the two judgments dealing with the territorial limits imposed on powers of arrest. In Eccles v. Bourque, Dickson J. suggested, at p. 747, that the requirement of a warning might not apply in a hot pursuit situation:
. . . 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. [Emphasis added.]
This passage was cited with approval by Dickson C.J. in R. v. Landry (at p. 157). I note that the point raised by Dickson J. in this passage does not have to be decided in the present appeal, since the pursuit which took place here did not prevent the police officer from giving notice of his intention to enter.
La Forest J., dissenting in Landry, also ‑‑ and more explicitly ‑‑ recognized the exception to the principle of sanctity of the home for cases of hot pursuit. His reasons contain several references to this exception. Thus, he states (at p. 168) that the discussion of the limitations on the principle of sanctity of the home by the judges in Semayne's Case "makes clear that an arrest could be made by breaking into a house if the arrestor was armed with a warrant, or again if he was in hot pursuit of an offender" (emphasis added). Commenting on Eccles v. Bourque, La Forest J. also noted the fact that the person sought in that case was a fugitive. He said (at p. 176): "Fugitives from justice are frequently treated differently from other offenders. The most obvious example is arrest on hot pursuit" (emphasis added). Finally, La Forest J. summarizes the common law on the power of the police to enter as follows, at p. 179:
As has been seen the common law sets a high value on the security and privacy of the home. The situations where it permitted entry by police without the consent of the owner or occupier were all demonstrably compelling. For example, entry to prevent murder is obviously justified. So too is entry on hot pursuit. Apart from the obvious practicality of that approach, in the case of hot pursuit the police officer is himself cognizant of the facts justifying entry; he acts on the basis of personal knowledge. Obviously, too, entry on the basis of a warrant is essential to a properly functioning system of criminal justice. The state must in the end have power to prevent criminals from eluding justice by retreating to a private home. [Emphasis added.]
It can therefore be said that at common law the police had a power to enter in hot pursuit, and that this power also exists in our law. This exception to the principle of sanctity of the home can easily be justified.
(ii) Right to Enter in Hot Pursuit: Justifications
To begin with, it would be unacceptable for police officers who were about to make a completely lawful arrest to be prevented from doing so merely because the offender had taken refuge in his home or that of a third party. In Eccles v. Bourque, supra, Dickson J. said that "[t]he criminal is not immune from arrest in his own home nor in the home of one of his friends" (p. 743). He added: "I know of no place that gives a criminal fugitive sanctuary from arrest" (p. 744). These concerns are nowhere as relevant as in the case of hot pursuit. The offender is then not being bothered by the police unexpectedly while in domestic tranquility. He has gone to his home while fleeing solely to escape arrest. In such circumstances, the police could not be obliged to end the pursuit on the offender's doorstep, without making his residence a real sanctuary, contrary to the principles stated by this Court in Eccles. The flight of the offender, an act contrary to public order, also should not be thus rewarded.
From a more practical standpoint, it is not desirable for offenders to be encouraged to seek refuge in their homes or those of third parties. Significant danger may be associated with such flight and the pursuit that may result. Thus, in the present case the appellant by his flight unnecessarily threatened the safety of those who might have been in his way.
Other reasons may be cited in support of an exception in hot pursuit cases to the principle of sanctity of the home. As La Forest J. pointed out in Landry, in a case of hot pursuit the police officer may have personal knowledge of the facts justifying the arrest, which greatly reduces the risk of error. Flight also usually indicates some awareness of guilt on the part of the offender. Then too, it may often be difficult, even if that was not the case here, to identify the offender without arresting him on the spot. And evidence of the offence leading to the pursuit or a related offence may be lost; in the present case, for example, when the accused was apprehended, it was found that there was evidence of impairment. Finally, the offender may again flee or continue to commit the offence and the police cannot be required to keep an indefinite watch on the offender's residence in case he should decide to come out.
In short, the basis for this exception is common sense, which is opposed to the offender being able to escape arrest by fleeing into his home or that of a third party. This is why if an arrest without a warrant is permissible at the outset, the offender's flight into a dwelling house cannot make it unlawful. The entry of the police in hot pursuit is then perfectly justified.
(iii) Hot Pursuit: Definition
This Court, which has several times referred to this exception to the principle of sanctity of the home, has never had occasion to define hot pursuit. In Miller v. Stewart, [1991] O.J. No. 2238 (Q.L.), Chadwick J. of the Ontario Court (General Division) noted in this regard, at p. 25:
Various authorities refer to the words "hot pursuit" but there is no real definition to these words. In my view it requires a common sense approach as to what is hot pursuit.
In general, and subject to further clarification which may be necessary in the particular factual situations before the courts, I consider that the approach suggested by R. E. Salhany in Canadian Criminal Procedure (5th ed. 1989), at p. 44, adequately conveys the meaning of hot pursuit:
Generally, the essence of fresh pursuit is that it must be continuous pursuit conducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction.
Using this approach, there is no doubt that there was hot pursuit in the circumstances of this case. The pursuit which took place here is a classic example of what is generally meant by hot pursuit. Indeed, the appellant admitted that there had been a hot pursuit.
The appellant nonetheless argues that there should be no right to enter private property, even in a case of hot pursuit, except with respect to indictable offences, and so not with respect to provincial offences. I shall therefore now consider this question, which is the main issue raised in this appeal.
(c) Whether the Application of this Exception Should be Extended to Arrest for Provincial Offences
The appellant accordingly maintained that the police power to enter in hot pursuit should be reserved for arrest for indictable offences. I cannot accept this distinction.
(i) The Common Law
To begin with, it does not appear that at common law the right to enter in hot pursuit was limited to arrest for felonies. As Donaldson L.J. noted in Swales v. Cox, supra, at p. 1118, there was also at common law a right to enter in the case of a "constable following an offender running away from an affray". This situation is also mentioned in Halsbury's Laws of England, 3rd ed., vol. 10, at p. 354:
If an affray occurs in the presence of a constable, and the offenders run away and are immediately pursued by the constable and they enter a house, then the doors may be broken open by the constable to apprehend them in the course of the immediate pursuit.
According to the authors W. F. Foster and Joseph E. Magnet ("The Law of Forcible Entry", (1977) 15 Alta. L. Rev. 271), the common law also more generally recognized a right to enter in hot pursuit for any misdemeanour provided it was committed in the presence of a police officer. They state, at p. 279: "A peace officer may make a forcible entry without a warrant for a misdemeanour committed in his presence. An entry for misdemeanour not committed in his presence is not justified."
It is interesting to note that the offence here was committed in the presence of the police, thus meeting the requirement referred to by Foster and Magnet. I do not think, however, that this condition should be strictly imposed on the right to enter for offences other than indictable offences. This condition is too strict. Police who arrive shortly after the offence is committed and see the offender fleeing should be able to follow him into private premises, for a provincial offence as well as for an indictable offence. This power of entry should also be enjoyed by police continuing a pursuit already begun. The requirement that there really be hot pursuit is in my opinion sufficient and is an answer to the concerns which led to the requirement described by Foster and Magnet. This assumes, as I said earlier, real continuity between the commission of the offence and the pursuit undertaken by the police.
(ii) Policy Considerations
Accordingly, a right of entry to make an arrest in hot pursuit exists at common law, both for indictable offences and for other types of offence. In my opinion, there is no need to alter this rule. There are strong policy considerations against retaining the distinction between indictable offences and other categories of offence in determining the spatial limits on the power of arrest in hot pursuit. Unlike the division which existed at common law between felonies and misdemeanours, the division which currently exists in our law between indictable offences and other categories of offence only very imperfectly reflects the severity of the offence. Most importantly, there is no logical connection between the fact that an offence falls in one or other of these categories and the need there may be to make an arrest in hot pursuit in residential premises.
This is due in part to the constitutional division of powers between Parliament and the provincial legislatures. Under s. 92(15) of the Constitution Act, 1867, provincial legislatures have jurisdiction to create offences, which often prove to be more serious than many of the offences falling in the category of indictable offences, and which may much more urgently require arrest in hot pursuit. Such offences can however never be classified as indictable offences, which are exclusively within the jurisdiction of the federal Parliament. This special characteristic of our legal system makes the distinction between indictable offences and other categories of offence especially inadequate for determining police powers of entry in hot pursuit. In some situations, too, it is not clear, as this case reveals, what the ultimate charge may be. Denying the existence of this power in the case of all offences which are not indictable, and consequently in the case of all provincial offences, would in my opinion be an excessive and unwarranted limitation on police powers, and that is why I feel that the distinction between indictable offences and other types of offence should not be retained in this context. I would add that the principal reasons justifying the entry of the police in hot pursuit, namely the need to avoid making the home a real sanctuary against arrest and the risk of encouraging individuals to flee the police, apply both in the context of provincial offences (as well as federal offences punishable on summary conviction) and in the context of indictable offences.
This does not mean, however, that the police can enter residential premises in hot pursuit in order to make an arrest for any kind of offence. Clearly, the police have this power when a warrant has been issued against the offender; but if there is no warrant, there must always be an offence or circumstances which will allow the police to make an arrest without a warrant. This requirement, which was not discussed in connection with the present appeal because the power to make an arrest without a warrant was not challenged, is essential. It ensures that the right to enter applies only to offences or in circumstances which the legislature has considered sufficiently serious to justify a power of arrest without a warrant. By way of illustration I note in this regard that the Highway Traffic Act, which the appellant contravened here, provides for a power of arrest without a warrant only for a limited number of offences.
(d) Summary
In summary, I conclude that even where there is no arrest warrant, there is in a case of hot pursuit a right to enter residential premises to make an arrest both for provincial offences and for indictable offences, provided the circumstances justify an arrest without a warrant. Accordingly, the entry by the police was authorized in the case at bar.
The Court does not have to decide here on the existence of a general power to enter private premises in order to make an arrest without a warrant for a provincial offence in situations that do not involve hot pursuit.
(e) The Charter
The appellant also raised arguments based on the Canadian Charter of Rights and Freedoms. He argued that his rights under ss. 7 and 9 of the Charter had been infringed. These arguments are devoid of merit.
With respect to s. 9, this Court in R. v. Wilson, 1990 CanLII 109 (SCC), [1990] 1 S.C.R. 1291, considered the constitutionality of a stop under s. 119 of the Highway Traffic Act. A police officer had stopped a motorist after observing him at night in the vicinity of a bar in a vehicle with out‑of‑province plates. Cory J. was of the view that in the setting of a rural community the police could be regarded as having offered reasonable grounds for stopping the motorist. He accordingly concluded, at p. 1297, that although the appellant had been detained, the detention was not arbitrary:
In a case such as this, where the police offer grounds for stopping a motorist that are reasonable and can be clearly expressed (the articulable cause referred to in the American authorities), the stop should not be regarded as random. As a result, although the appellant was detained, the detention was not arbitrary in this case and the stop did not violate s. 9 of the Charter.
In the circumstances of this case the police, who had seen the appellant drive through a red light, then refuse to stop at their request and flee into Miss Pack's apartment, had even more reasonable grounds than those relied on in Wilson to stop and then detain the appellant. The argument that in such circumstances the detention may have been arbitrary is on its very face totally devoid of merit.
So far as s. 7 is concerned, even assuming that this provision implies protection of a right to privacy, something which we do not have to decide here, there can be no question of such a right being infringed in this case. In R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, La Forest J. stated, at p. 412:
Assuming section 7 includes a right to privacy such as that inhering in the guarantee against unreasonable searches and seizures in s. 8 of the Charter, a proposition for which I have considerable sympathy, it must be remembered that the present Chief Justice in Southam was careful to underline that what the Constitution guaranteed was a "reasonable expectation" of privacy....
In the appellant's situation, it is impossible to speak of a reasonable expectation of privacy. The appellant went into Miss Pack's apartment when he knew he was being pursued by a peace officer, for the specific purpose of escaping him. He must reasonably have expected to be followed. It goes without saying that a person who enters his house or that of someone else to get away from the police who are pursuing him in connection with an offence he has just committed and for which there is a power of arrest without a warrant cannot expect his privacy to be protected in such circumstances so as to prevent the police from making an arrest.
(f) Conclusion
For all these reasons the appeal is dismissed.
Appeal dismissed.
Solicitors for the appellant: Campbell & Company, Edmonton.
Solicitor for the respondent: Bart Rosborough, Edmonton.
- Reasons delivered June 30, 1993.
