R. v. Feeney, [1997] 2 S.C.R. 13
Michael Feeney Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Feeney
File No.: 24752.
1996: June 11; 1997: May 22.*
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Criminal law ‑‑ Arrest ‑‑ Warrantless arrest occurring at home ‑‑ Police entering home forcibly ‑‑ No subjective or objective reason for concluding suspect had committed indictable offence ‑‑ Arrest effected after evidence found ‑‑ Conditions required for valid arrest.
Constitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Caution read on arrest but no mention made of right to immediate legal counsel or of toll‑free telephone to duty counsel ‑‑ Whether accused’s rights to immediate legal counsel violated ‑‑ Canadian Charter of Rights and Freedoms, s. 10(b).
Constitutional law -- Charter of Rights -- Search and seizure -- Police looking for suspect in serious crime -- Police entering home uninvited and without warrant -- Whether accused’s privacy interest violated -- Canadian Charter of Rights and Freedoms, s. 8.
Constitutional law ‑‑ Charter of Rights ‑‑ Admissibility of evidence ‑‑ Statement given by accused on questioning after caution read but before opportunity to consult legal counsel given ‑‑ Finger prints taken on arrest ‑‑ Objects seized from home ‑‑ Charter breaches serious ‑‑ Whether admission of evidence bringing administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2).
The police, during a murder investigation in 1991, entered the accused’s house (an equipment trailer) without permission. When they received no answer at the door, they entered, roused the accused, touched his leg, ordered him to get up and took him to the front of the trailer for better lighting. The police arrested him after seeing blood on his shirt. Following a caution with respect to the right to counsel but not the right to immediate counsel, the police asked the accused a couple of questions which he answered. The accused’s shirt was seized and he was taken to the police detachment where, before the accused had consulted with counsel, further statements and the accused’s fingerprints were taken. The police seized cash, cigarettes and shoes under a warrant obtained on the basis of the initial search of the trailer (the shirt and shoes), the initial interview (the shoes) and the later interview at the detachment (the cash under the mattress).
The accused was convicted of second degree murder and his appeal was unanimously dismissed. At issue here are whether the police violated the Charter right to be secure from unreasonable search or seizure (s. 8) and the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right (s. 10(b)) in their investigation of the accused and, if so, what evidence, if any, should be excluded under s. 24(2).
Held (Lamer C.J. and L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be allowed.
Per La Forest, Sopinka, Cory, Iacobucci and Major JJ.: Under the pre-Charter common law, a warrantless arrest following a forced entry into private premises is legal if: (a) the officer has reasonable grounds to believe that the person sought is within the premises; (b) proper announcement is made; (c) the officer believes reasonable grounds for the arrest exist; and (d) objectively speaking, reasonable and probable grounds for the arrest exist. Except in exigent circumstances, police should give notice of presence by knocking or ringing the doorbell, give notice of authority by identifying themselves as law enforcement police officers and give notice of purpose by stating a lawful reason for entry. Furthermore, before forcing entry, police should, at minimum, request admission and have admission denied.
The subjective requirement for arrest was not met and its absence rendered the arrest unlawful even under the pre-Charter common law. The arresting officer did not believe he had reasonable grounds to arrest prior to the forcible entry. The police officer’s testimony and the fact that he did not arrest the accused until after he saw the blood‑stained shirt support this conclusion. An objective standard cannot be exclusively relied on because its addition to the requirements for valid arrest at common law did not displace the subjective requirement. Indeed, it would be inconsistent with the spirit of the Charter to permit a police officer to make an arrest without a warrant even though he or she does not believe reasonable grounds for the arrest exist.
The question of whether, objectively speaking, reasonable and probable grounds to arrest existed prior to the entry into the trailer is open to review by this Court. The trial judge erred in law by considering an irrelevant factor (the preservation of evidence) and by failing to explain why the officer in charge was incorrect in his conclusion that grounds to arrest did not exist prior to entry into the trailer.
The objective test is that a reasonable person, standing in the shoes of the officer, would have believed that reasonable and probable grounds to make the arrest existed. Any finding that the subjective test is not met will generally imply that the objective test is not met, unless the officer is to be considered to have an unreasonably high standard. An arrest cannot be made solely for the purpose of investigation but, if grounds exist on a subjective and objective basis, the fact that police intend to continue the investigation and do so does not invalidate the arrest. The objective test was not met regardless of the officer’s views.
The Landry test for warrantless searches, essentially a balancing between aiding the police in their protection of society on the one hand and the privacy interests of individuals in their dwellings on the other, no longer applies. It must be adjusted to comport with Charter values which, notwithstanding the high value on the security and privacy of the home at common law, significantly increase the importance of the legal status of the privacy of the home. In general, the privacy interest now outweighs the interest of the police and warrantless arrests in dwelling houses are prohibited.
Generally a warrant is required to make an arrest in a dwelling house. There are exceptions with respect to the unreasonableness of warrantless searches for things. A warrantless search will respect s. 8 if authorized by law, and both the law and the manner in which the search is conducted are reasonable. In cases of hot pursuit, the privacy interest must give way to the interest of society in ensuring adequate police protection.
An arrest warrant alone is insufficient protection of the suspect’s privacy rights. Even though the Criminal Code is silent on prior authorization of a search for persons, warrantless searches for persons are not permissible. Privacy rights under the Charter demand that the police, in general, obtain prior judicial authorization of entry into the dwelling house in order to arrest the person. If the Code currently fails to provide specifically for a warrant containing such prior authorization, such a provision should be read in. While the absence of such a provision could have a profound influence on the common law power of arrest, its absence cannot defeat a constitutional right of the individual. Once a procedure to obtain such prior authorization is created, the concern that suspects may find permanent sanctuary in a dwelling house disappears.
Warrantless arrests in dwelling houses are in general prohibited. Prior to such an arrest, the police officer must obtain judicial authorization for the arrest by obtaining a warrant to enter the dwelling house for the purpose of arrest. Such a warrant will only be authorized if there are reasonable grounds for the arrest, and reasonable grounds to believe that the person will be found at the address named, thus providing individuals’ privacy interests in an arrest situation with the protection this Court has required with respect to searches and seizures. Requiring a warrant prior to arrest avoids the ex post facto analysis of the reasonableness of an intrusion and invasive arrests without a basis of reasonable and probable grounds are prevented, rather than remedied after the fact.
The protection of privacy does not end with a warrant; before forcibly entering a dwelling house to make an arrest with a warrant for an indictable offence, proper announcement must be made. An exception occurs where there is a case of hot pursuit. Whether or not there is an exception for exigent circumstances generally has not been fully addressed by this Court.
The arrest was unlawful both because the requirements for a warrantless arrest under s. 495 of the Code were not met, and, in any event, the police cannot make warrantless arrests in private dwellings unless exceptional circumstances, which were not present here, exist. Consequently, the entry into the trailer and the search and seizure of the accused’s clothing violated s. 8 of the Charter.
The requirement that a person be informed of his or her s. 10(b) rights begins upon detention or arrest. Detention under s. 10 of the Charter occurs when a peace officer assumes control over the movement of a person by a demand or direction. Here, detention began once the officer touched the accused’s leg and ordered him to get out of bed. The accused was not given any caution at this time and his s. 10(b) rights were therefore violated.
The accused was not given adequate opportunity to secure counsel. He was not given access to a telephone before being questioned; the police gave him the caution in the trailer, where no telephone existed. The police simply asked him whether he understood his rights, and given an indication that he did, proceeded to ask him questions about the blood on his shirt and his shoes. These police actions violated the accused’s s. 10(b) rights.
The police came to know about the cash, the cigarettes and the shoes as the result of violations of ss. 8 and 10(b) of the Charter and would not have had grounds for a warrant supporting the second search without the violations. Consequently, the search and seizure under the warrant also violated s. 8. It would be artificial to distinguish the constitutionality of the second search from that of the initial entry into the trailer.
Fingerprinting as an incident to a lawful arrest has been held not to violate the Charter. Here, however, the arrest was unlawful and involved a variety of Charter breaches. Compelling the accused to provide fingerprints in this context was a violation of s. 8 of the Charter for it involved a search and seizure related to the accused’s body for which, absent a lawful arrest, there is clearly a high expectation of privacy. Procedures that are taken incidental to and following an unlawful arrest and which impinge on the arrestee’s reasonable expectation of privacy breach s. 8 of the Charter.
The first step in the trial fairness analysis is to consider whether the particular evidence is conscriptive or non‑conscriptive. Evidence will be conscriptive when an accused, in violation of his or her Charter rights, is compelled to incriminate him- or herself at the behest of the State by means of a statement, the use of the body or the production of bodily samples.
The statements in the trailer, at the detachment, and the fingerprints were conscriptive and therefore inadmissible as affecting the fairness of the trial. The bloody shirt, the shoes, the cigarettes and the money were not conscriptive evidence, and this evidence, while its admission would not affect trial fairness, must be analysed in light of the second and third branches of the Collins test which may require its exclusion.
The violations were very serious in the present case. One of the indicia of seriousness is whether the violations were undertaken in good faith. One indication of bad faith is that the Charter violation was undertaken without any lawful authority. In light of a pattern of disregard for the accused’s rights, the seizure of the shirt, shoes, cigarettes and money was associated with very serious Charter violations. The serious disregard for the accused’s Charter rights suggests that the admission of the evidence would bring greater harm to the repute of the administration of justice than its exclusion.
Neither of the judgments below should be afforded particular deference with respect to their s. 24(2) findings. First, neither found a breach with respect to the taking of the evidence in question and this error in law likely influenced their alternative conclusion that the breaches, if they existed, were not serious. Second, the trial judge erred in concluding that the police acted in good faith. Third, the reasons of the trial judge and the Court of Appeal were so brief and conclusionary that it was difficult to say whether other errors were made.
Per L’Heureux-Dubé, Gonthier and McLachlin JJ. (dissenting): A warrantless entry is presumed to be unreasonable and in contravention of s. 8 of the Charter but this presumption can be rebutted (a) if the search was authorized by law, (b) if the law authorizing the search was reasonable, and (c) if the manner in which the search was conducted was reasonable.
The entry was authorized as an incident to a lawful arrest. Four requirements necessary to effect a lawful arrest on private premises are: (1) the offence must be indictable; (2) the person who is the subject of the arrest must have committed the offence in question, or the peace officer, on reasonable and probable grounds, must believe that the person has committed the offence; (3) there must be reasonable and probable grounds for the belief that the person sought is within the premises; and (4) there must be a proper announcement before entry. That criteria 1 and 3 were fulfilled was not contested here.
In order to arrest, the officer must have a subjective belief in these reasonable and probable grounds, and this belief must be justifiable objectively as well. A reasonable person with the officer’s knowledge would have had little difficulty in believing that the accused had committed the offence in question. The combined effect of the facts in light of the particular context of this case must be taken into account.
Different standards may apply to rural and urban settings. The trial judge demonstrated he was sensitive to the nature of the information received, and to the setting in which it was discovered.
A peace officer, before arresting without a warrant, must possess a subjective belief that reasonable and probable grounds to arrest exist. The evidence indicates that the officer held this subjective belief. A police officer seeking to apply this standard should not be held to the strict exactitude of a lawyer or of a justice swearing out a warrant. The existence of reasonable and probable grounds is a legal standard and subject to interpretation and at its core a “common-sense” concept which should incorporate the experience of the officer.
The police, upon entrance into a private dwelling, do not have to focus solely upon arrest and can enter, as here, with the subsidiary intention of investigating to either clear or implicate the suspect. The key element of an arrest is the existence of reasonable and probable grounds. The police are not obliged to arrest in all situations. On the contrary, it is perfectly acceptable for the police to enter for the purpose of arrest, while recognizing that evidence discovered within may well dispel their reasonably held belief. By seeking to confirm the reasonable belief they held, the police are able to avoid using the more intrusive procedure (an arrest) by substituting the less intrusive procedure first (the search). Continuing an investigation after an arrest is made is not improper.
No notice of purpose was given prior to entry. Such a shortcoming is not necessarily fatal to the arrest. If the ability of the officers to make an announcement is frustrated by the refusal of the person sought to come to the door, the officers' obligation to provide complete notice is suspended, and they may enter the premises. The duty to announce their purpose is re‑engaged when it becomes feasible to do so, that is, once they encounter someone to whom notice can be given. The only effective way to satisfy the notice requirement here was to suspend its delivery until the accused was in a position to receive it. The arresting officer informed the accused of his purpose for entry, and restated his identity the moment it was feasible to do so.
The law permitting warrantless arrests in a dwelling house is reasonable in certain circumstances. The power of arrest is a crucial part of law enforcement. It is unrealistic to suggest that the police can never enter private premises without a warrant for the purposes of arrest. The ability of police to capture persons suspected of criminal activity and to preserve evidence necessary to convict them would be severely impeded. Further, hot pursuit is not the only circumstance in which the police are permitted to enter a dwelling house. Other situations will arise in which the threat to society and the danger of having important law enforcement aims frustrated will outweigh concerns about privacy.
Exigent circumstances have always been held to constitute an exception to the notion that “a man’s home is his castle”. A genuine fear that evidence of the crime will be lost can constitute the necessary exigent circumstances for a warrantless entry. Whether these exigent circumstances exist is a finding of fact for the trial judge. Here, the trial judge and the Court of Appeal were of the view that a serious danger existed that evidence would have been destroyed had the police not immediately entered the trailer to arrest the accused.
The suggestion that the police could have simply watched the trailer while waiting for a warrant, failed to recognize the distance and consequent time constraints for obtaining a warrant here. The nature of the crime is also an important factor to consider. There is a greater urgency to investigate quickly in a case of violence.
The police lawfully entered the trailer to effect an arrest of the accused; they accordingly were entitled to search incident to arrest and to seize evidence. The authority to search incident to arrest is well established at common law and has withstood Charter scrutiny as well. Similarly, fingerprinting as an incident of a legal arrest does not violate the Charter.
The warrant was properly obtained, even assuming the original entry was unlawful. Where a warrant is obtained partially on the strength of tainted evidence, and partially on evidence which was properly obtained, the role of the court is to consider whether the warrant would have been issued solely on the strength of the evidence which was properly obtained. Here, the trial judge ruled that before the officers entered the trailer and arrested the accused there existed reasonable and probable grounds to believe the accused was the culprit. This ruling is sufficient to infer that the search warrant could properly have been issued based solely on the strength of the information which was obtained prior to the arrest.
Given the finding that the arrest was lawful, ss. 7 and 9 of the Charter were not violated.
The police fulfilled their s. 10(b) obligations. They are not obliged to read an accused his or her s. 10(b) rights at the moment of arrest or detention. Rather, they must be permitted the latitude to assess and gain control of the situation and determine whether a potentially dangerous situation exists. The delay here was minimal. A Charter breach could not be said to have occurred as the result of this short delay.
Section 10(b) imposes the following duties on law enforcement agents: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she had that reasonable opportunity (again, except in cases of urgency or danger). The second and third duties are implementational duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel. This duty, therefore, does not come into existence until the detainee asserts it.
It was unnecessary to consider s. 24(2). Had it been necessary, however, excluding this evidence would clearly bring the administration of justice into disrepute in light of the exigent circumstances and seriousness of the crime.
Per Lamer C.J. (dissenting): Substantial agreement was expressed with the reasons of Lambert J.A. in the Court of Appeal. The reasons and conclusion were not to be taken as a disagreement with the principles of R. v. Stillman as expressed in the reasons of Sopinka J.
Cases Cited
By Sopinka J.
Considered: Cloutier v. Langlois, [1990] 1 S.C.R. 158; Eccles v. Bourque, [1975] 2 S.C.R. 739; R. v. Landry, [1986] 1 S.C.R. 145; R. v. Storrey, [1990] 1 S.C.R. 241; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Macooh, [1993] 2 S.C.R. 802; R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Stillman, [1997] 1 S.C.R. 607; referred to: R. v. Collins, [1987] 1 S.C.R. 265; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Burns, [1994] 1 S.C.R. 656; R. v. R. (D.), [1996] 2 S.C.R. 291; Harper v. The Queen, [1982] 1 S.C.R. 2; Dumbell v. Roberts, [1944] 1 All E.R. 326; Colet v. The Queen, [1981] 1 S.C.R. 2; Semayne’s Case (1604), 5 Co. Rep. 91a, 77 E.R. 194; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Pozniak, [1994] 3 S.C.R. 310; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Burlingham, [1995] 2 S.C.R. 206; R. v. Black, [1989] 2 S.C.R. 138; R. v. Genest, [1989] 1 S.C.R. 59; R. v. Silveira, [1995] 2 S.C.R. 297.
By L’Heureux-Dubé J. (dissenting)
R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Edwards, [1996] 1 S.C.R. 128; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Debot, [1989] 2 S.C.R. 1140, aff’g (1986), 30 C.C.C. (3d) 207; Eccles v. Bourque, [1975] 2 S.C.R. 739; R. v. Landry, [1986] 1 S.C.R. 145; R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Wilson, [1990] 1 S.C.R. 1291; R. v. Grunwald, [1991] B.C.J. No. 235 (QL); R. v. Zastowny (1992), 76 C.C.C. (3d) 492; R. v. Breton (1994), 74 O.A.C. 99; Illinois v. Gates, 462 U.S. 213 (1983); People v. Simon, 290 P.2d 531 (1955); Rawlings v. Kentucky, 448 U.S. 98 (1980); R. v. Charlton (1992), 15 B.C.A.C. 272; R. v. Miller, [1988] 1 S.C.R. 230, aff’g (1986), 25 C.C.C. (3d) 554; R. v. Jenkins, [1992] O.J. No. 672 (QL); R. v. Bennett, [1996] O.J. No. 4137 (QL); R. v. Dupuis (1994), 162 A.R. 197; R. v. Anderson (1996), 49 C.R. (4th) 305; Payton v. New York, 445 U.S. 573 (1980); R. v. Macooh, [1993] 2 S.C.R. 802; R. v. Silveira, [1995] 2 S.C.R. 297; Lyons v. The Queen, [1984] 2 S.C.R. 633; United States v. Reid, 69 F.3d 1109 (1995); United States v. Scroger, 98 F.3d 1256 (1996); United States v. Wicks, 995 F.2d 964 (1993), cert. denied, 114 S.Ct. 482 (1993); R. v. Grant, [1993] 3 S.C.R. 223; People v. Johnson, 637 P.2d 676 (1981); People v. Williams, 641 N.E.2d 296 (1994); State v. Storvick, 428 N.W.2d 55 (1988); State v. Gonsalves, 553 A.2d 1073 (1989); People v. Smith, 604 N.E.2d 858 (1992); R. v. Kokesch, [1990] 3 S.C.R. 3; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Evans, [1996] 1 S.C.R. 8; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Cobham, [1994] 3 S.C.R. 360; R. v. Latimer, [1997] 1 S.C.R. 217, aff’g (1995), 99 C.C.C. (3d) 481; R. v. Lorincz (1995), 9 M.V.R. (3d) 186; R. v. Louden, [1995] B.C.J. No. 2446 (QL); R. v. Anderson (1984), 10 C.C.C. (3d) 417; R. v. Sabourin (1984), 13 C.C.C. (3d) 68; R. v. Evans, [1991] 1 S.C.R. 869; R. v. Baig, [1987] 2 S.C.R. 537; R. v. Brydges, [1990] 1 S.C.R. 190.
By Lamer C.J. (dissenting)
R. v. Stillman, [1997] 1 S.C.R. 607.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7, 8, 9, 10(b), 24(2).
Criminal Code, R.S.C., 1985, c. C-46, s. 495(1)(a), (b), (c) [rep. & sub. c. 27 (1st Supp.), s. 75] (formerly R.S.C. 1970, c. C-34, s. 450).
Narcotic Control Act, R.S.C., 1985, c. N-1, s. 10.
Authors Cited
Canada. Law Reform Commission. Working Paper 41. Arrest. Ottawa: The Commission, 1985.
Fontana, James A. The Law of Search and Seizure in Canada, 3rd ed. Toronto: Butterworths, 1992.
LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment, vol. 3, 3rd ed. St. Paul, Minn.: West Publishing Co., 1996.
Parker, Graham. “Developments in Criminal Law: The 1985‑86 Term” (1987), 9 Sup. Ct. L. Rev. 247.
Slobogin, Christopher. “Testilying: Police Perjury and What to Do About It” (1996), 67 U. Colo. L. Rev. 1037.
APPEAL from a judgment of the British Columbia Court of Appeal (1995), 54 B.C.A.C. 228, 88 W.A.C. 228, dismissing an appeal from conviction by Leggatt J. sitting with jury. Appeal allowed, Lamer C.J. and L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting.
Charles Lugosi, for the appellant.
William F. Ehrcke, for the respondent.
The following are the reasons delivered by
1 The Chief Justice (dissenting) -- I have had the benefit of the reasons of both of my colleagues, Justice L’Heureux-Dubé and Justice Sopinka, and cannot agree with either of them. I do agree with L’Heureux-Dubé J. in the result, but substantially for the reasons given by Lambert J.A. of the Court of Appeal of British Columbia (1995), 54 B.C.A.C. 228.
2 My reasons and conclusion are not to be taken as disagreeing in any way with the principles of R. v. Stillman, [1997] 1 S.C.R. 607, as expressed in the reasons of Sopinka J. I agree with those principles as stated therein. My disagreement is with their application on the facts of this case.
3 I would accordingly dismiss this appeal.
The judgment of La Forest, Sopinka, Cory, Iacobucci and Major JJ. was delivered by
4. Sopinka J. -- This appeal concerns a number of alleged violations of the Canadian Charter of Rights and Freedoms during the police investigation of the beating death of Frank Boyle in Likely, British Columbia in June, 1991. Acting on tips, the police without permission entered the appellant’s dwelling house, an equipment trailer he occupied by arrangement with his sister and her spouse equivalent, detained the appellant, searched his clothing and, upon seeing blood on his shirt, arrested him. Following a caution with respect to the right to counsel, which the appellant submitted was inadequate, the police asked the appellant a couple of questions which he answered. The appellant’s shirt was seized and he was taken to the Williams Lake RCMP detachment where, before the appellant had consulted with counsel, further statements and the appellant’s fingerprints were taken.
5. The appellant argued that the police violated ss. 7, 8, 9 and 10(b) of the Charter. In my view, the police indeed violated ss. 8 and 10(b) and the evidence gathered as a result of these violations should have been excluded under s. 24(2) of the Charter. Because of these conclusions, it is unnecessary to consider whether other sections of the Charter were also breached.
Facts
6. On Saturday, June 8, 1991, at around 8:20 a.m., the body of Frank Boyle, aged 85 years, was found at his home on Cedar Creek Road in Likely, British Columbia. He had died following a fierce attack involving five blows to the head, each of sufficient force to kill him, with an iron bar or similar object. While the exact time of death could not be ascertained, he was last seen alive the previous evening. The officer in charge of the investigation noted that blood was spattered everywhere at the Boyle residence, and noted also Sportsman brand cigarettes at the scene.
7. As a result of information provided by several bystanders, the three investigating officers went to the scene of a motor vehicle accident, which involved the deceased’s red Datsun pickup truck, about half a kilometre west of the Boyle residence. Two local residents, Kelly Spurn and Cindy Potter, offered new information to the police. Cindy Potter told the police that she had seen Boyle’s truck in the ditch at 6:45 that morning. Furthermore, she stated that she had seen someone she identified as Michael walking in an easterly direction along Cedar Creek Road a few minutes earlier with a beer or a coffee cup in his hand. The officer in charge testified that Kelly Spurn told him that the appellant was living on Spurn’s property which he was renting out to the appellant’s sister, Angela Feeney, and her spouse equivalent, Dale Russell. Spurn suggested that the police go and speak to Russell. Spurn testified that he had told the police that he assumed it was the appellant who had crashed the pickup truck because the skid marks and the location of the accident were in the same place as skid marks from another accident earlier that morning which had involved the appellant and a blue flatbed truck.
8. Upon arrival at the Spurn property where Dale Russell, Angela Feeney and the appellant were living, Russell told police that the appellant had stolen a truck from the Spurn property earlier that morning and that he found it just down from Boyle’s residence, exactly where Boyle’s truck was found later. He also said that the appellant had come home at 7:00 a.m. after a night of drinking and was now asleep in the trailer behind his residence.
9. The officer in charge went to the windowless trailer and knocked on the door and said, “Police”. Receiving no answer, he entered the trailer with his gun drawn and pointing downward, went to the appellant’s bed, shook the appellant’s leg and said “I want to talk to you.” The officer then asked the appellant to get out of bed and move into the better light at the front of the trailer. The officer stated in evidence that he did so in order to inspect the appellant’s clothes for bloodstains. The officer conceded that he may have touched the appellant in leading him to the door. The officer noticed blood spattered all over the front of the appellant and had another officer read the appellant his rights in these terms ((1995), 54 B.C.A.C. 228, at p. 230):
It is my duty to inform you that you have the right to retain and instruct counsel without delay. You may call any lawyer you want. A Legal Aid duty lawyer is available to provide legal advice to you without charge and can explain the Legal Aid plan to you. If you wish to contact a Legal Aid duty lawyer, I can provide you with a telephone number. Do you understand?...You are not obliged to say anything but anything you do say may be given in evidence.
10. The appellant was arrested and asked whether he understood his rights. He did not respond at first, but when asked again he stated (at p. 230), “Of course, do you think I am illiterate?” or words to that effect. The officer in charge immediately asked the appellant how he got blood on himself, to which the appellant replied that he had been hit in the face with a baseball the day before. When asked whether a particular pair of shoes were the shoes he had worn the previous evening, the appellant replied that they were the only shoes he owned. There was also some discussion with him about a package of Sportsman cigarettes observed in the trailer.
11. The appellant was led to the police vehicle where the tee shirt he was wearing was seized. He was taken to the Williams Lake RCMP detachment. At around 12:00 noon the appellant tried unsuccessfully several times to contact a lawyer. At 12:17 p.m. he left a message for the lawyer to call back. At 12:23 p.m. a breathalyzer sample was taken from the appellant, who was not told that he had a choice in the matter. The appellant was kept in an observation cell for over eight hours. At 9:10 p.m. two detectives began questioning the appellant. The appellant stated, at p. 231, “I should have a lawyer”, but the interview continued. The appellant admitted to striking Boyle, stealing cigarettes, beer, and cash from Boyle’s residence and stated that he had put the cash under his mattress in his trailer. The police then obtained a search warrant authorizing them to seize the shoes, the Sportsman cigarettes, and the money under the mattress. The appellant was interviewed again for approximately 1 1/2 hours at 3:05 a.m. on June 9. The appellant had still not seen a lawyer. On Monday, June 10, at 9:25 a.m., and again at 10:54 a.m., the accused was fingerprinted. In between these fingerprinting sessions the appellant met with a lawyer for the first time since he had been arrested.
12. The appellant was ultimately convicted of second degree murder following a jury trial in the Supreme Court of British Columbia. The British Columbia Court of Appeal unanimously dismissed his appeal.
Relevant Legislation
13. Criminal Code, R.S.C., 1985, c. C-46
495. (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;
Canadian Charter of Rights and Freedoms
8. Everyone has the right to be secure against unreasonable search or seizure.
. . .
10. Everyone has the right on arrest or detention
...
(b) to retain and instruct counsel without delay and to be informed of that right; ...
. . .
24. ...
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Prior Judgments
Supreme Court of British Columbia (voir dire)
14. In determining the admissibility of the items seized, Leggatt J. first noted that Likely is a small community of about 300 people. He also noted that there is light to no traffic on Cedar Creek Road “at that time” (presumably in the early morning when Potter observed “Michael” walking along the road), and that it would have been a very unusual occurrence to see an accident and the accused walking away from it. Taking all the circumstances into account, Leggatt J. concluded that, objectively speaking, reasonable grounds to arrest existed and the arrest was lawful under both the Code and the Charter. The arrest being lawful implied that the seizure of the appellant’s shirt was also lawful, as was the search incidental to the arrest. Leggatt J. also held that technical omissions in the search warrant did not justify excluding the evidence later obtained under the warrant.
15. Leggatt J. stated that if his rulings with respect to the entry, arrest, incidental search and search warrant were in error, then the evidence should be admitted under s. 24(2) of the Charter and R. v. Collins, [1987] 1 S.C.R. 265: the exclusion of such evidence would bring the administration of justice into disrepute. In reaching this conclusion, Leggatt J. noted, inter alia, the urgent circumstances, the good faith of the officers and the fact that real evidence was at issue.
16. The trial judge then turned to the appellant’s initial statements at the time of his arrest. Leggatt J. found that when the appellant was given his s. 10(b) Charter warning he clearly understood his right to counsel but did not assert his right at that time. Consequently, the trial judge held that the initial statements were admissible. If he erred in that holding, Leggatt J. stated that to exclude the statements would bring the administration of justice into disrepute.
17. With respect to the two longer statements given to police while the appellant was detained at Williams Lake, the trial judge noted that the appellant tried three times to invoke his right to counsel (when he arrived at Williams Lake he left a message for a lawyer, and in each of the two later interviews he indicated his desire to have a lawyer present), but the police overrode that right and questioned him despite the continued absence of counsel. Leggatt J. found this breach of the appellant’s right to counsel to be very serious and held that the admission of the longer statements could bring the administration of justice into disrepute. Consequently, he ruled the longer statements inadmissible. However, the real evidence obtained under the search warrant that resulted from information contained in the inadmissible statements was admissible under the real evidence test in Collins. Leggatt J. also found that the breathalyser test was performed after the appellant had attempted to invoke his right to counsel and, since it failed the real evidence test in Collins, was therefore inadmissible. He added that all other evidence was admissible.
British Columbia Court of Appeal (1995), 54 B.C.A.C. 228
18. In dealing with the appellant’s contention that his rights under the Charter were violated by the police, Lambert J.A. stated at p. 234, “I do not think that it is necessary to consider each of the alleged Charter breaches in this case. Each of them attracts a good deal of jurisprudence and some nice analytical concepts. For the reason that it is not necessary to do so, it is not desirable to do so.” The court noted that there had been a savage attack in a small community and that the police had a duty to protect the community. The police thus had a duty to locate and neutralize the killer, as well as to gather evidence to satisfy themselves and others that the killer had been apprehended. Lambert J.A. stated that the police were facing a situation which could be classified as an emergency, or as exigent circumstances which required immediate action. Furthermore, there was a real possibility that evidence, particularly bloodstains, could be destroyed.
19. The court held at p. 234 that the search of the trailer was lawful within “recognized additions” to the rule that a search must be based on reasonable and probable grounds. These additions are where there is an emergency, or where there are exigent circumstances , or where the prevention of the destruction of evidence on an immediate basis is called for. Lambert J.A. stated that it was unnecessary to deal with any particular principle relating to articulable cause creating a basis for entry and search at a level less than reasonable and probable cause. The considerations about emergency, exigency and the potential destruction of evidence also made lawful the detention of the appellant in his bed, if it was a detention, and the requirement that the appellant move to the door of the trailer so that he could be better inspected.
20. Lambert J.A. stated that even if there were Charter breaches, having regard to all the circumstances, he would hold the evidence obtained through the police conduct admissible as its admission would not have brought the administration of justice into disrepute.
21. After considering and rejecting the appellant’s submissions about drunkenness (an issue which is not under appeal here), the court found that the informational component of the warning that was made at the time of arrest was consistent with this Court’s decision in R. v. Bartle, [1994] 3 S.C.R. 173. For these reasons, the court dismissed the appeal. I note here that the respondent did not rely on the Court of Appeal’s reasons in argument. The following analysis will only deal with these reasons to the extent that they overlap with the respondent’s submissions.
Issues
22. 1. Did the police violate s. 8 of the Charter in their investigation of the appellant?
2. Did the police violate s. 10(b) of the Charter in their investigation of the appellant?
3. What evidence, if any, should be excluded under s. 24(2) of the Charter?
Analysis
The Lawfulness of the Arrest
23. In arguing that the police conduct in the present case did not violate the Charter, the respondent relied heavily on the lawfulness of the arrest. Since the arrest was lawful, the argument runs, the search and seizures incidental to the arrest were lawful and complied with the Charter according to Cloutier v. Langlois, [1990] 1 S.C.R. 158. In what follows, I will consider first whether the arrest was lawful under the common law rules relating to arrests in a dwelling house. Subsequently, I will consider whether the common law rules are no longer appropriate in light of the Charter. I conclude that the arrest was unlawful under either the rules of the common law or the Charter.
The Pre-Charter Law of Arrests in Dwelling Houses
24. In setting out the law of arrests in dwelling houses following forcible entry, Eccles v. Bourque, [1975] 2 S.C.R. 739, at p. 744, stated that the following rule applies:
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.
This case, however, pertained only to arrests with a warrant. In R. v. Landry, [1986] 1 S.C.R. 145, a majority of the Court held that police may enter a private dwelling without permission to make a warrantless arrest if the requirements in Eccles, supra, are met and the requirements in s. 450 [now s. 495] of the Code are met. Recall that s. 495(1)(a) states:
495. (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;
Section 495(1)(a) sets out the subjective requirement for a warrantless arrest: the peace officer himself or herself must believe reasonable grounds exist. An objective requirement was added in R. v. Storrey, [1990] 1 S.C.R. 241: objectively there must exist reasonable and probable grounds for the warrantless arrest to be legal. Combining Eccles, Landry, Storrey, and s. 495 leads to the following proposition: a warrantless arrest following a forced entry into private premises is legal if: (a) the officer has reasonable grounds to believe that the person sought is within the premises; (b) proper announcement is made; (c) the officer believes reasonable grounds for the arrest exist; and (d) objectively speaking, reasonable and probable grounds for the arrest exist. I will consider these requirements in turn and apply them to the case at bar.
(a) Reasonable Grounds to Believe the Appellant Was in the Trailer
25. Given that Russell told him that the appellant was in the trailer, the officer had reasonable grounds to believe that the appellant was in the trailer.
(b) Proper Announcement
26. Eccles, supra, set out the following requirement for announcements prior to entry of private premises without permission: except in exigent circumstances, police should give notice of presence by knocking or ringing the doorbell, give notice of authority by identifying themselves as law enforcement police officers and give notice of purpose by stating a lawful reason for entry. Furthermore, before forcing entry, police should, at minimum, request admission and have admission denied. In the case at bar, the police officers knocked and said, “Police”, but were not denied admission nor did they announce their purpose before forcing entry. The respondent defends these apparent defects in the announcement by noting that no response was forthcoming since the appellant was asleep and by arguing that the urgency of the situation and the fear of the destruction of evidence legitimized a relatively brief announcement. In my view, this defence is largely inadequate. As I will conclude below, this situation did not appear to comprise exigent circumstances any more than any other situation following shortly after a serious crime. However, whether or not the announcement requirement was met, in my view the subjective and objective requirements for a legal arrest were not met. The announcement question thus does not need to be finally resolved.
(c) Subjective Grounds
27. In my view, it is clear that the subjective requirement was not met in the case at bar. The officer in charge who knocked and entered, Sgt. Madrigga, testified in cross-examination that he did not believe he had reasonable grounds to arrest the appellant when he entered the trailer. Consider the following testimony:
Q And at that point as you are going to the trailer, you would agree with me you had no intention of arresting Mr. Feeney?
A No, I just wanted to check what he had been doing.
Q And, of course, you didn’t have a warrant for his arrest?
A No, I did not.
Q Because basically there wouldn’t have been enough information to obtain a warrant?
A That’s correct.
Later in the cross-examination, the following exchange took place:
Q And from the time you went into the trailer, there was no suggestion that you were going to let Mr. Feeney walk out of the trailer and go away?
A If I had no further evidence. If I had -- when I went in and talked to him, if I had nothing to indicate that he was involved in this, I would -- it was shaky if I would have had grounds for his arrest at that time, but I had to check it out because I had people ask or tell me that this person was in the area.
Q All right, so let’s see if we agree on something. At the time you went into the trailer, you didn’t feel that you had grounds for his arrest, but when you saw the blood splatter on him after looking at him, that’s why you said --
A I had grounds to suspect that he could have been involved, sir, and I would be negligent in my duty if I did not check that out.
Q Oh, I’m not arguing that point, Sargent [sic]. But you didn’t have grounds for an arrest?
A Not for an arrest at that time.
Such testimony appears to decide the matter, but the respondent claimed that other testimony indicates that Sgt. Madrigga indeed had a subjective belief that he had reasonable grounds to arrest. For example, the respondent referred to the following testimony:
Q On the other hand, what made you think you could walk in?
A Well, I had, in my mind, sir, I had, as far as I was concerned, I had a suspect. If he would have, as I stated, if he would have come out when I knocked on the door, then I wouldn’t have gone in. However, I had two people stating he had been in the area. I had Dale telling me that a vehicle of his had been dumped basically in the same spot that Mr. Boyle’s vehicle had been dumped a short time after, like Mr. [sic] or Dale had moved his vehicle and then this other vehicle was dumped there, puts Mr. Feeney right at the area. I have him walking away from the area a short while later. To me that gave me --
Sgt. Madrigga was interrupted at this point, but the respondent argued that one can infer that he believed he had reasonable grounds to enter the trailer and arrest the appellant.
28. I cannot accept the argument of the respondent on this issue. First, the respondent relies on questionable inferences from the officer’s testimony, whereas the appellant may simply point to the frank testimony of the officer that he did not believe he had reasonable grounds to arrest. On balance, the testimony suggests the absence of a subjective belief. Second, if the officer believed he had reasonable grounds to arrest the appellant prior to entry, why did he not in fact arrest the appellant until after he had seen the bloodstains on the appellant’s shirt? Both the words and actions of the officer suggest that he did not believe he had reasonable grounds to make an arrest when he forcibly entered the trailer.
29. In considering the legality of the arrest in the case at bar under pre-Charter law, the trial judge did not consider adequately the lack of subjective belief in the reasonableness of the grounds to arrest. Leggatt J. set out the reasonableness test as an objective one: so long as there were, objectively speaking, reasonable and probable grounds, the standard is satisfied. He stated:
The test is really this. A reasonable person standing in the shoes of the officer would believe reasonable grounds exist. It is an objective test.
Whether or not the trial judge was correct in concluding that the objective standard was met, a conclusion with which I disagree below, the trial judge erred by relying exclusively on an objective standard. According to the plain wording of s. 495, the peace officer may arrest someone only if, on reasonable grounds, he or she believes the person to have committed an indictable offence. An objective standard was added in Storrey, supra, but this did not displace the subjective requirement: see Storrey, supra, at p. 250. Indeed, it would be inconsistent with the spirit of the Charter to permit a police officer to make an arrest without a warrant even though he or she does not believe reasonable grounds for the arrest exist. The absence of subjective belief, therefore, rendered the arrest in the present case unlawful irrespective of the existence of objective grounds for the arrest and the effect of the Charter on powers of police officers to enter a dwelling house without a warrant in order to effect an arrest.
(d) Objective Grounds
30. The finding by a trial judge of whether, objectively speaking, reasonable and probable grounds for arrest existed clearly has a significant factual element and thus is owed some deference by an appellate court. In the present case, in arriving at his conclusion that objective grounds for arrest existed, in my view the trial judge committed two errors in principle that invite review of his finding. First, he considered factors that are not relevant to the question of reasonable and probable grounds. In considering the objective test, he stated:
As I have said, in my view it is an objective test. Given the surrounding circumstances I have outlined, the need to preserve evidence, the clear indication that the accused was a prime suspect, I believe the arrest took place in compliance with both the Criminal Code and the Charter. [Emphasis added.]
In concluding that reasonable and probable grounds for arrest existed, the trial judge considered the need to preserve evidence. In my view, it was an error of law for the trial judge to consider the need to preserve evidence in considering whether reasonable and probable grounds, objectively speaking, existed. Whether or not there is a need to preserve evidence is logically irrelevant to the question of whether there are reasonable and probable grounds for an arrest. The trial judge thus erred in law and his view on reasonable and probable grounds is open to appellate review.
31. Even if the trial judge did not err in considering the need to preserve evidence, in my view the trial judge erred in failing to appreciate the evidence of the officer in charge at the scene of the trailer. The trial judge noted that Sgt. Madrigga testified that he did not think he had sufficient grounds to arrest until he observed the blood on the appellant, but did not advert to this evidence in concluding that reasonable and probable grounds to arrest existed prior to the entry into the trailer. In order to conclude that, objectively speaking, reasonable and probable grounds for arrest existed, one must conclude that the officer on the scene was unreasonable in reaching a different conclusion. The trial judge, however, did not explain his dismissal of the officer’s evidence in this respect. In my view, such a failure to clarify the basis for his finding that the objective test was satisfied constituted an error of law. In R. v. Burns, [1994] 1 S.C.R. 656, McLachlin J., writing for the Court, stated at p. 665:
This statement should not be read as placing on trial judges a positive duty to demonstrate in their reasons that they have completely appreciated each aspect of relevant evidence. The statement does not refer to the case where the trial judge has failed to allude to difficulties in the evidence, but rather to the case where the trial judge’s reasons demonstrate that he or she has failed to grasp an important point or has chosen to disregard it, leading to the conclusion that the verdict was not one which the trier of fact could reasonably have reached.
Major J. elaborated on this passage in R. v. R. (D.), [1996] 2 S.C.R. 291. On behalf of the majority, he stated at p. 318:
The above-quoted passage does not stand for the proposition that trial judges are never required to give reasons. Nor does it mean that they are always required to give reasons. Depending on the circumstances of a particular case, it may be desirable that trial judges explain their conclusions. Where the reasons demonstrate that the trial judge has considered the important issues in a case, or where the record clearly reveals the trial judge’s reasons, or where the evidence is such that no reasons are necessary, appellate courts will not interfere. Equally, in cases such as this, where there is confused and contradictory evidence, the trial judge should give reasons for his or her conclusions.
32. In the present case, the officer in charge did not believe reasonable grounds to arrest existed prior to entry into the trailer. In order to explain why he ignored this evidence, or why he viewed Sgt. Madrigga to be unreasonable, in my view there was a duty on the trial judge to set out his reasons for his conclusions on reasonable and probable grounds. The trial judge, however, simply stated that “[g]iven the surrounding circumstances”, the objective test was met. In essence, the trial judge simply provided his conclusion, not his reasons. As Harper v. The Queen, [1982] 1 S.C.R. 2, stated at p. 14, “[w]here the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.” Given the testimony of the officer in charge, in my view, the absence of reasons constituted an error of law.
33. I have concluded that the trial judge erred in law by considering an irrelevant factor, the preservation of evidence, and by failing to explain why the officer in charge was incorrect in his conclusion that grounds to arrest did not exist prior to entry into the trailer. Consequently, the question of whether, objectively speaking, reasonable and probable grounds to arrest existed prior to the entry to the trailer is open to review by this Court.
34. In my view, as the lack of subjective belief on the part of the officer would suggest, the requirement that, objectively speaking, reasonable and probable grounds for an arrest exist prior to forcible entry is not met. The objective test as set out in Storrey, supra, is whether a reasonable person, standing in the shoes of the officer, would have believed that reasonable and probable grounds to make the arrest existed. Any finding that the subjective test is not met will generally imply that the objective test is not met, unless the officer is to be considered to have an unreasonably high standard.
35. In any event, in my view the objective test was not met regardless of the officer’s views. An arrest cannot be made solely for the purpose of investigation, but if grounds exist on a subjective and objective basis, the fact that police intend to continue the investigation and do so does not invalidate the arrest: see Storrey, supra. A lawful arrest may be made that allows the police to continue their investigation, such as in Storrey where the police arrested a suspect in order to place him in a police line-up to be identified or not, but it is a fundamental pre-requisite that the police have reasonable grounds to arrest prior to arrest, whether or not the investigation is ongoing, particularly where an arrest is made without the safeguards to the citizen resulting from the warrant process. As Cory J. stated in Storrey, at p. 249:
Section 450(1) [s. 495(1)] makes it clear that the police were required to have reasonable and probable grounds that the appellant had committed the offence of aggravated assault before they could arrest him. Without such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state. In order to safeguard the liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committed the offence. In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest. [Emphasis added.]
Or, as Scott L.J. stated in Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), at p. 329:
The power possessed by constables to arrest without warrant, whether at common law for suspicion of felony, or under statutes for suspicion of various misdemeanours, provided always they have reasonable grounds for their suspicion, is a valuable protection to the community; but the power may easily be abused and become a danger to the community instead of a protection....
The duty of the police when they arrest without warrant is, no doubt, to be quick to see the possibility of crime, but equally they ought to be anxious to avoid mistaking the innocent for the guilty.... I am not suggesting a duty on the police to try to prove innocence; that is not their function; but they should act on the assumption that their prima facie suspicion may be ill-founded.
36. In my view, these admonitions were not heeded by the police when they entered the trailer and arrested the appellant. The salient facts known to the police prior to their entry of the trailer are as follows: (a) it appeared that Boyle’s truck had been stolen before being in an accident, and Cindy Potter claimed to have seen “Michael” walking near the site of the accident; (b) Kelly Spurn told police that he assumed the appellant had crashed Boyle’s truck since the appellant had crashed earlier that morning in about the same place with a different truck; and (c) Dale Russell told police that the appellant came home around 7:00 a.m. after drinking all night and that the appellant had earlier crashed a vehicle at the spot where Boyle’s truck was found. In my view, these facts did not constitute reasonable and probable grounds to arrest the appellant for the murder of Boyle. Whether or not the appellant had been involved in two similar truck accidents, or might have stolen Boyle’s truck, does not raise reasonable and probable grounds to believe that he had murdered Boyle. This evidence may have pointed to the appellant as a suspect, but these facts without more do not justify an arrest. When the police entered the trailer, objectively reasonable and probable grounds for an arrest, as opposed to grounds for prima facie suspicion, did not exist.
(e) Conclusion on Lawful Arrest
37. It is questionable whether the police met the announcement requirement prior to forcibly entering the trailer to make a warrantless arrest. This issue does not need to be settled, in my view, since the requirement that the officer must believe he has reasonable grounds to arrest before forcibly entering private premises was not met. The failure to meet this subjective test is sufficient to render the arrest unlawful. However, even if the subjective test were met, objectively reasonable and probable grounds for the arrest did not exist prior to the forced entry into the trailer. Thus, the arrest was unlawful and could not support the entry into the appellant’s dwelling irrespective of the effect of the Charter on the right to enter dwellings for the purpose of arrest. In any event, even if the police met the standards of Landry and the other cases, a warrantless arrest in the circumstances of the case at bar following a forcible entry is no longer lawful in light of the Charter; I turn to this issue now.
The Post-Charter Law of Arrests in Dwelling Houses
(a) Principles in the Common Law
38. As noted, Landry, supra, set out the law concerning warrantless arrests following forcible entry into a dwelling house. While the case was decided in 1986, it arose before the Charter came into effect, as the majority took care to point out at p. 165. In my view, the Charter suggests that the Landry test for warrantless arrests no longer applies. Before addressing this issue, it is useful first to review extensively the principles underlying the reasons in Landry itself.
39. Dickson C.J., writing for the majority, began his analysis of s. 450 (now s. 495) of the Code by reviewing the case law on warrantless arrests, with particular emphasis on Eccles, supra. Dickson C.J. cited at pp. 156-57 the following passage from Eccles at pp. 742-43, which he relied upon in Landry to help establish the common law’s sanction of warrantless arrests:
For these principles, we go back to vintage common law, to 1604, and Semayne’s Case [(1604), 5 Co. Rep. 91a, 77 E.R. 194], in which the principle, so firmly entrenched in our jurisprudence, that every man’s house is his castle, was expressed.... 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...
In Dickson C.J.’s view, the authorities supported the proposition that a warrantless arrest in a dwelling is legal so long as: the officer believes, on reasonable and probable grounds, the person to be the subject of the arrest to have committed an indictable offence; there are reasonable and probable grounds to believe the person sought is within the premises; and proper announcement is made prior to entry.
40. Dickson C.J. also concluded that there were sound policy reasons to retain the law as it was. One policy reason supporting warrantless arrests in dwelling houses was stated to be the absence of alternative means of arresting a suspect who has taken refuge in a private dwelling house. Dickson C.J. stated, at p. 160, that:
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.
41. Dickson C.J. further held that there were compelling practical reasons not to require the police to obtain always a warrant for arrest prior to entering a private dwelling to make an arrest. He outlined various scenarios, such as where the police officer witnesses a crime or arrives on the scene shortly thereafter and does not know the name of the suspect whom he or she has seen take refuge in a dwelling house, that illustrate the impracticality and undesirability of obtaining a warrant before making a forcible entry. In Landry, as in other cases on the subject, the issue boiled down to a balance between aiding the police in their protection of society on the one hand, and the privacy interests of individuals in their dwellings on the other. Dickson C.J. held at p. 161 that the requirements for warrantless arrest that the majority set out reached the appropriate balance:
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.
(b) The Charter
42. In my view, the conditions set out in Landry for warrantless arrests are overly expansive in the era of the Charter. As noted, Landry was largely based on a balance between privacy and the effectiveness of police protection, but in the Charter era, as I will presently seek to demonstrate, the emphasis on privacy in Canada has gained considerable importance. Consequently, the test in Landry must be adjusted to comport with Charter values.
43. There is no question that the common law has always placed a high value on the security and privacy of the home. This emphasis was illustrated as early as the seventeenth century, as evidenced by Semayne’s Case (1604), 5 Co. Rep. 91a, 77 E.R. 194, and has been illustrated more recently by cases such as Colet v. The Queen, [1981] 1 S.C.R. 2, which held that the police entered Colet’s home, a rudimentary shelter, illegally since they did not have explicit authority to search for weapons, but only to seize them. Indeed, the existing legal protection of the security of the home was the basis for the dissenting opinion of La Forest J. in Landry, supra, which contained an extensive analysis of doctrine that concluded warrantless arrests in dwelling houses were illegal; see also Graham Parker, “Developments in Criminal Law: The 1985-86 Term” (1987), 9 Sup. Ct. L. Rev. 247. Notwithstanding its prior importance, however, the legal status of the privacy of the home was significantly increased in importance with the advent of the Charter. Section 8 prevents all unreasonable searches and seizures. In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, the seminal case on s. 8, Dickson J. (as he then was), writing for the Court, discussed the impact of the Charter on searches and seizure in these terms (at p. 158):
In my view the interests protected by s. 8 are of a wider ambit than those enunciated in Entick v. Carrington [(1765), 19 St. Tr. 1029, 1 Wils. K.B. 275; a common law case on searches and trespass]. Section 8 is an entrenched constitutional provision. It is not therefore vulnerable to encroachment by legislative enactments in the same way as common law protections. There is, further, nothing in the language of the section to restrict it to the protection of property or to associate it with the law of trespass. It guarantees a broad and general right to be secure from unreasonable search and seizure.
The shift in emphasis in the law of searches from trespass and basic property rights to the reasonableness of the search had a significant effect on the disposition of Hunter. In that case, there were provisions in the Combines Investigation Act, R.S.C. 1970, c. C-23, which permitted searches and seizures on the authority of the Restrictive Trade Practices Commission. The Supreme Court held that searches and seizures may only be undertaken after authorization from an independent judicial body, which has considered the reasonableness of the proposed search and seizure, has been granted. Dickson J. stated at p. 160:
If the issue to be resolved in assessing the constitutionality of searches under [the Combines Investigation Act] was in fact the governmental interest in carrying out a given search outweighed that of the individual in resisting the governmental intrusion upon his privacy, then it would be appropriate to determine the balance of the competing interests after the search had been conducted. Such a post facto analysis would, however, be seriously at odds with the purpose of s. 8. That purpose is, as I have said, to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation. [Emphasis in original.]
44. In my view, Hunter is helpful in analyzing the case at bar. The analysis in Landry was based on a balance between the individual’s privacy interest in the dwelling house and society’s interest in effective police protection. This Court held that the latter interest prevailed and warrantless arrests in dwelling houses were permissible in certain circumstances. While such a conclusion was debatable at the time, in my view, the increased protection of the privacy of the home in the era of the Charter changes the analysis in favour of the former interest: in general, the privacy interest outweighs the interest of the police and warrantless arrests in dwelling houses are prohibited.
45. Such a conclusion is consistent not only with the general treatment of privacy in Hunter, but also with the specific implications of the privacy interest found in that case. Hunter held that a search and seizure violated s. 8 unless there was prior authorization. The purpose of the Charter is to prevent unreasonable intrusions on privacy, not to sort them out from reasonable intrusions on an ex post facto analysis. If Landry were to be adopted in the post-Charter era, there would be the anomalous result that prior judicial authorization is required to intrude on an individual’s privacy with respect to a search for things, but no authorization is required prior to an intrusion to make an arrest. The result becomes more anomalous when Cloutier v. Langlois, supra, is considered. Cloutier held that a search incidental to a lawful arrest does not violate s. 8. Putting this proposition together with the proposition that a warrantless arrest in a dwelling house is legal may lead to the conclusion that a warrantless search of a dwelling house is legal so long as it is accompanied by a lawful arrest. Such a conclusion is clearly at odds with Hunter, which held that warrantless searches are prima facie unreasonable. I conclude that generally a warrant is required to make an arrest in a dwelling house.
46. I recognize that there are exceptions with respect to the unreasonableness of warrantless searches for things. A warrantless search will respect s. 8 if authorized by law, and both the law and the manner in which the search is conducted are reasonable. In R. v. Grant, [1993] 3 S.C.R. 223, for example, it was held that s. 10 of the Narcotic Control Act, R.S.C., 1985, c. N-1, which provided that a peace officer may search a place that is not a dwelling house without a warrant so long as he believes on reasonable grounds that a narcotic offence had been committed, was consistent with s. 8 of the Charter if s. 10 were read down to permit warrantless searches only where there were exigent circumstances. In the present context of searches for persons, in my view, there are also exceptions to the Charter prohibition of warrantless arrests in dwelling houses. Indeed, these exceptions answer Dickson C.J.’s policy argument about hampering the effectiveness of police investigations.
47. Dickson C.J. observed that police work might be greatly impeded by a warrant requirement. He provided the example of an officer’s arriving on the scene shortly after an offender has slipped into a private dwelling. By the time the officer has discovered the suspect’s name and has obtained a warrant, the criminal will have sought refuge elsewhere. In my view, in circumstances such as these there is an exception to the general rule that warrantless arrests in private dwellings are prohibited. In cases of hot pursuit, the privacy interest must give way to the interest of society in ensuring adequate police protection. This Court explicitly held this to be true in R. v. Macooh, [1993] 2 S.C.R. 802. In Macooh, a police officer was in hot pursuit of a person he had seen drive through several stop signs when the person sought refuge in a private apartment. The officer announced his presence and eventually entered the apartment without permission and arrested the person. There was a question whether Landry would apply in Macooh given that the suspect was sought pursuant to an offence that was not indictable, but this Court held that the officer was acting under the well-established common law power of the police to enter private premises to make an arrest in hot pursuit. The policy behind such a rule is captured by the following passage from the dissent of La Forest J. in Landry, at p. 179, cited with approval by this Court in Macooh:
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.
In cases of hot pursuit, society’s interest in effective law enforcement takes precedence over the privacy interest and the police may enter a dwelling to make an arrest without a warrant. However, the additional burden on the police to obtain a warrant before forcibly entering a private dwelling to arrest, while not justified in a case of hot pursuit, is, in general, well worth the additional protection to the privacy interest in dwelling houses that it brings. I leave for another day the question of whether exigent circumstances other than hot pursuit may justify a warrantless entry in order to arrest. I do not agree with my colleague L’Heureux-Dubé J. that exigent circumstances generally necessarily justify a warrantless entry -- in my view, it is an open question. As with other matters in her reasons, I note that in reaching her conclusion she cites at paras. 153-54 a dissenting opinion: R. v. Silveira, [1995] 2 S.C.R. 297, per L’Heureux-Dubé J.
48. While I have decided that a warrant is required prior to entering a dwelling house to make an arrest, I have not yet set out the type of warrant that is required. In my view, an arrest warrant alone is insufficient protection of the privacy rights of the suspect. I agree with Dickson C.J. when he stated in Landry at p. 162 that it was questionable whether an arrest warrant would be useful in safeguarding privacy:
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.
Dickson C.J. concluded that since an arrest warrant would not be useful in safeguarding privacy, and since there was (and is) no provision in the Code authorizing a search for persons, warrantless arrests in dwelling houses were permissible; otherwise suspects could take permanent refuge in a dwelling house. While I agree that an arrest warrant fails to safeguard privacy adequately, I disagree that since the Code is silent on prior authorization of a search for persons, warrantless searches for persons are permissible. In my view, privacy rights under the Charter demand that the police, in general, obtain prior judicial authorization of entry into the dwelling house in order to arrest the person. If the Code currently fails to provide specifically for a warrant containing such prior authorization, such a provision should be read in. While the absence of such a provision could have a profound influence on the common law power of arrest, its absence cannot defeat a constitutional right of the individual. Once a procedure to obtain such prior authorization is created, the concern that suspects may find permanent sanctuary in a dwelling house disappears.
49. In my view, then, warrantless arrests in dwelling houses are in general prohibited. Prior to such an arrest, it is incumbent on the police officer to obtain judicial authorization for the arrest by obtaining a warrant to enter the dwelling house for the purpose of arrest. Such a warrant will only be authorized if there are reasonable grounds for the arrest, and reasonable grounds to believe that the person will be found at the address named, thus providing individuals’ privacy interests in an arrest situation with the protection Hunter required with respect to searches and seizures. Requiring a warrant prior to arrest avoids the ex post facto analysis of the reasonableness of an intrusion that Hunter held should be avoided under the Charter; invasive arrests without a basis of reasonable and probable grounds are prevented, rather than remedied after the fact. Such a policy was reflected in the following recommendation of the Law Reform Commission of Canada (Working Paper 41, Arrest (1985), at p. 115):
The sanctity of the family dwelling is such in our legal tradition that, as with search, there ought to be no forcible entry into a private dwelling unless such entry is authorized by judicial authority.
50. I would add that the protection of privacy does not end with a warrant; the other requirements in Landry for an arrest in a dwelling house must be met along with the warrant requirement. Specifically, before forcibly entering a dwelling house to make an arrest with a warrant for an indictable offence, proper announcement must be made. As Dickson C.J. stated in Landry, at p. 161, these additional 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”.
51. To summarize, in general, the following requirements must be met before an arrest for an indictable offence in a private dwelling is legal: a warrant must be obtained on the basis of reasonable and probable grounds to arrest and to believe the person sought is within the premises in question; and proper announcement must be made before entering. An exception to this rule occurs where there is a case of hot pursuit. Whether or not there is an exception for exigent circumstances generally has not been fully addressed by this Court, nor does it need to be decided in the present case given my view that exigent circumstances did not exist when the arrest was made. I will elaborate on this last point presently.
(c) Application to the Case at Bar
52. When the police entered the trailer where Feeney was sleeping, which constituted his dwelling house (recall that Colet, supra, stated that a rudimentary shelter may constitute a dwelling house), they did not have a warrant. Consequently, regardless of whether reasonable and probable grounds existed, or whether proper announcement was made, the arrest was illegal, unless there were exceptional circumstances. This clearly was not a case of hot pursuit, nor, in my view, did exigent circumstances exist. Lambert J.A., for a unanimous Court of Appeal, stated at p. 234 that, “the police were facing a situation which could be classified as an emergency, or as exigent circumstances which would require immediate action, and that in addition they were facing circumstances where the possibility of the destruction of evidence, particularly evidence in relation to bloodstains, was a real one and had to be addressed”. I do not agree with this characterization of the circumstances. According to James A. Fontana (The Law of Search and Seizure in Canada (3rd ed. 1992), at pp. 786-89), exigent circumstances arise usually where immediate action is required for the safety of the police or to secure and protect evidence of a crime. With respect to safety concerns, in my view, it was not apparent that the safety of the police or the community was in such jeopardy that there were exigent circumstances in the present case. The situation was the same as in any case after a serious crime has been committed and the perpetrator has not been apprehended. In any event, even if they existed, safety concerns could not justify the warrantless entry into the trailer in the present case. A simple watch of the trailer in which the police were told the appellant was sleeping, not a warrantless entry, would have sufficiently addressed any safety concerns involving the appellant. With respect to concern about the potential destruction of evidence, at the time the police entered the trailer, they had no knowledge of evidence that might be destroyed; at best, they had a suspicion that the appellant was involved in the murder. Simply because the hunch may have turned out to be justified does not legitimize the actions of the police at the time they entered the trailer. As I stated in R. v. Kokesch, [1990] 3 S.C.R. 3, at p. 29, “[i]t should not be forgotten that ex post facto justification of searches by their results is precisely what the Hunter standards were designed to prevent”.
53. The circumstances surrounding the police entry into the trailer were similar to those following any serious crime: a dangerous person is on the loose and there is a risk that he or she will attempt to destroy evidence linking him or her to the crime. To define these as exigent circumstances is to invite such a characterization of every period after a serious crime. In my view, exigent circumstances did not exist when the police entered the trailer. Consequently, even if there is an exception to the warrant requirement in exigent circumstances generally, rather than only in hot pursuit, which I refrain from deciding in the present case, the forcible entry in this case required a warrant. Given that the police had not obtained a warrant, the arrest was illegal.
The Constitutionality of the Initial Search of the Trailer
54. Hunter held that, under s. 8 of the Charter, there is a presumption that warrantless searches of premises where the occupant has a reasonable expectation of privacy is unreasonable; the onus is on the party who performed the search to prove its reasonableness. Collins, supra, outlined three requirements for a search to be reasonable: (a) the search must be authorized by law; (b) the law itself must be reasonable; and (c) the manner in which the search is carried out must be reasonable. In the specific case of arrest, Cloutier, supra, held that searches incidental to a lawful arrest may comply with s. 8. In the present case, however, the search was performed without a warrant or any other legal authority, and was not incidental to a lawful arrest. The arrest was unlawful both because the requirements for a warrantless arrest under s. 495 of the Code were not met, and, in any event, the police cannot make warrantless arrests in private dwellings unless exceptional circumstances, which were not present here, exist. Consequently, the entry into the trailer and the search and seizure of the appellant’s clothing violated s. 8 of the Charter. The other evidence, the shoes, the cash and the cigarettes, was obtained under a search warrant the following day. I will return below to the question of whether this search and seizure violated the Charter.
Section 10(b)
55. Section 10(b) states that, “[e]veryone has the right on arrest or detention ... to retain and instruct counsel without delay and to be informed of that right.” With respect to the informational component of a proper s. 10(b) caution, R. v. Brydges, [1990] 1 S.C.R. 190, held that the detainee must be informed of the applicable duty counsel and legal aid systems available in the jurisdiction. R. v. Pozniak, [1994] 3 S.C.R. 310, and Bartle, supra, further held that the detainee must be informed of any opportunity to access immediate, free legal advice, such as the existence of a 1-800 telephone number.
56. The requirement that a person be informed of his or her s. 10(b) rights begins upon detention or arrest. According to R. v. Therens, [1985] 1 S.C.R. 613, detention under s. 10 of the Charter occurs when a peace officer assumes control over the movement of a person by a demand or direction. In the case at bar, upon entering the trailer with gun drawn, the police officer shook the appellant’s leg and told him to get out of bed. I agree with the appellant that detention began once the officer touched the appellant’s leg and ordered him to rise. The appellant was not given any caution at this time. Only after the appellant had been escorted to the light, where the bloodstains were seen, and was placed under arrest was any information regarding counsel provided. In my view, the appellant had his s. 10(b) rights violated at the time of his initial detention.
57. Moreover, the majority in R. v. Manninen, [1987] 1 S.C.R. 1233, stated at pp. 1241-43 that:
... [section] 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so.
...
Further, s. 10(b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights.
In the case at bar, the appellant was not given adequate opportunity to secure counsel. He was not given access to a telephone before being questioned; the police gave him the caution in the trailer, where no telephone existed. The police simply asked him whether he understood his rights, to which he replied, “Of course, do you think I am illiterate?”, or words to that effect, and then proceeded to ask him questions about the blood on his shirt and his shoes. The appellant’s s. 10(b) rights were violated by these police actions.
58. While the trial judge found a violation of the appellant’s s. 10(b) rights only after he had been taken to the Williams Lake detachment, in my view these rights were violated from the moment of detention forward. The appellant was not cautioned in any way when he was first detained, and the caution that was eventually given did not satisfy the informational requirements of s. 10(b). Furthermore, the appellant was not given an adequate opportunity to consult with counsel before being questioned. For these reasons, in my view, the statements taken in the trailer (the appellant claimed that he had been hit in the face with a baseball the previous day and stated that he only owned one pair of shoes) were taken in violation of the Charter.
Section 8 and the Search with the Warrant
59. After the initial search of the trailer and during the detention of the appellant, the police obtained a search warrant of the trailer, swearing an information that they believed they would find $300 in cash, Sportsman cigarettes, and the appellant’s shoes. They then found and seized these items in the trailer. According to Kokesch, supra, and Grant, supra, the police cannot constitutionally rely upon a search warrant issued on the basis of information obtained as the result of prior Charter violations. In Kokesch, a warrant was issued on the basis of information obtained in an earlier unconstitutional, warrantless perimeter search; the search under the warrant was held to be in violation of s. 8. In the case at bar, the police obtained a warrant on the basis of the initial search of the trailer (the shirt and shoes), the initial interview (the shoes) and the later interview at Williams Lake (the cash under the mattress). As I have outlined above, in my view the police came to know about these items as the result of violations of ss. 8 and 10(b) of the Charter and would not have had grounds for a warrant supporting the second search without the violations. Consequently, the search and seizure under the warrant also violated s. 8. It would be artificial to distinguish the constitutionality of the second search from that of the initial entry into the trailer.
Section 8 and the Fingerprints
60. After he was taken to the Williams Lake detachment, the appellant was fingerprinted. The fingerprints matched prints found on the deceased’s refrigerator and on an empty beer can in the deceased’s truck. R. v. Beare, [1988] 2 S.C.R. 387, held that fingerprinting as an incident to a lawful arrest did not violate the Charter. In the present case, however, the arrest was unlawful and involved a variety of Charter breaches. Compelling the accused to provide fingerprints in the present context was, in my view, a violation of s. 8 of the Charter, involving as it did a search and seizure related to the appellant’s body, about which, at least in the absence of an lawful arrest, there is clearly a high expectation of privacy. I should add that procedures that are taken incidental to and following an unlawful arrest, which impinge on the reasonable expectation of privacy of the arrestee, will generally constitute a breach of s. 8. Where, however, the arrest is unlawful by reason of a technicality, the product of the search may be admissible under s. 24(2) of the Charter.
Section 24(2)
61. Having found Charter breaches in the gathering of much of the evidence, it remains to determine whether the evidence should be excluded pursuant to s. 24(2). The evidence to consider in the s. 24(2) analysis is comprised of the bloody shirt, the initial statements given in the trailer that the appellant had been bloodied at a baseball game the previous evening and that he owned only one pair of shoes, the shoes themselves, the Sportsman cigarettes, the cash under the mattress and the fingerprints taken at Williams Lake. The inculpatory statements the appellant made at Williams Lake virtually admitting guilt, and the breathalyser sample also taken at Williams Lake, were excluded by the trial judge and these rulings are not before this Court.
Trial Fairness
62. Collins, supra, stated that the first set of factors to be considered under s. 24(2) pertains to the fairness of the trial. The majority in R. v. Stillman, [1997] 1 S.C.R. 607, building on Collins and more recent authorities, refined and clarified the trial fairness aspect of the Collins test. Cory J. provided a helpful summary of trial fairness analysis at para. 119:
1. Classify the evidence as conscriptive or non-conscriptive based upon the manner in which the evidence was obtained. If the evidence is non-conscriptive, its admission will not render the trial unfair and the court will proceed to consider the seriousness of the breach and the effect of exclusion on the repute of the administration of justice.
2. If the evidence is conscriptive and the Crown fails to demonstrate on a balance of probabilities that the evidence would have been discovered by alternative non-conscriptive means, then its admission will render the trial unfair. The Court, as a general rule, will exclude the evidence without considering the seriousness of the breach or the effect of exclusion on the repute of the administration of justice. This must be the result since an unfair trial would necessarily bring the administration of justice into disrepute.
3. If the evidence is found to be conscriptive and the Crown demonstrates on a balance of probabilities that it would have been discovered by alternative non-conscriptive means, then its admission will generally not render the trial unfair. However, the seriousness of the Charter breach and the effect of exclusion on the repute of the administration of justice will have to be considered. [Emphasis in original.]
63. Thus, the first step in the trial fairness analysis is to consider whether the particular evidence is conscriptive or non-conscriptive. In defining non-conscriptive evidence, Cory J. stated at para. 75:
If the accused was not compelled to participate in the creation or discovery of the evidence (i.e., the evidence existed independently of the Charter breach in a form useable by the state), the evidence will be classified as non-conscriptive.
In defining conscriptive evidence, Cory J. stated at para. 80:
Evidence will be conscriptive when an accused, in violation of his Charter rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples.
64. Characterizing the evidence in the case at bar, the first step in the trial fairness inquiry, I conclude that the bloody shirt is non-conscriptive, and thus its admission does not go to trial fairness. The bloody shirt existed in a form useable by the state independent of any actions by the state. Moreover, with respect to the bloody shirt, the appellant was not compelled to incriminate himself by means of a statement, the use of the body, or the production of bodily samples. While the appellant was asked to step into the light in order better to see him, equally the police could have simply turned on a light or inspected the shirt closely in order to examine it. The taking of the shirt did not involve the use of the appellant’s body or bodily samples in a manner that rendered the evidence conscriptive; his body was not integral to the taking of the bloody shirt and thus the shirt is not conscriptive.
65. On the other hand, the statements obtained by the police in the trailer in violation of the appellant’s s. 10(b) rights are clearly conscriptive evidence. By not informing the appellant of his immediate right to counsel, the police in effect compelled the statements, which statements are paradigmatic self-incriminating evidence. Having found the statements conscriptive, the next question set out in Stillman is whether alternative legal means to obtain the conscriptive evidence existed. As the Crown did not attempt to prove that the statements would have been made even in the absence of a violation of s. 10(b) (see Harper, supra, where such proof was tendered), I conclude that the statements were conscriptive and would not have been obtained without breaching the Charter. Thus, following the Stillman analysis, the statements were not “discoverable”. The admission of the statements therefore would affect the fairness of the trial. Given that no exceptional circumstances exist in this case, the admission of the conscriptive, non-discoverable statements would render the trial unfair; thus the statements are inadmissible under s. 24(2).
66. The shoes were observed by the police during the initial unconstitutional search of the trailer. The shoes were later seized in a search which I have concluded violated s. 8. The shoes are clearly non-conscriptive evidence, given that they are not compelled statements or bodily samples, and did not involve the use of the appellant’s body. The admission of the shoes would thus not affect trial fairness.
67. The cigarettes were also observed by the police in the initial unconstitutional search of the trailer. Later, the appellant, in the inadmissible statements given at Williams Lake, told the police that he had stolen both cash and cigarettes from Boyle. While the cigarettes, like the shoes, are facially non-conscriptive, Stillman, following on earlier cases such as R. v. Burlingham, [1995] 2 S.C.R. 206, confirmed that evidence may be considered conscriptive if it was found as the result of other conscriptive evidence, typically a statement. A characterization of such evidence as conscriptive, “derivative evidence” is appropriate where the initial conscriptive evidence is a necessary cause of the obtention of the derivative evidence. In the present case, the statements given to the police at Williams Lake did not indicate the location of the cigarettes; thus the statements could not even have been a sufficient cause for obtaining the cigarettes. While the statements might, if admissible, have added evidentiary significance to the cigarettes, the statements were not related to the discovery and seizure of the evidence; thus the cigarettes are not conscriptive, derivative evidence. Their admission would not affect trial fairness.
68. Also in making a conscriptive statement at Williams Lake, the appellant told police that he had stolen cash and had hidden it under his mattress. In the second unconstitutional search of the trailer, the police seized the cash. Like the cigarettes and the shoes, the cash is facially non-conscriptive evidence. Unlike the statement about the cigarettes, however, the conscriptive statement at Williams Lake about the cash was a sufficient cause for obtaining the cash, stating as it did the location of the cash. However, in my view, the statement was not a necessary cause of the taking of the cash. The police clearly intended to search the trailer again and I am satisfied would have done so even in the absence of the statement as to the location of the money. In conducting a second search, in my view they would have located the cash under the mattress. Given that the conscriptive statement was not a necessary cause of the taking of the money, the money was not conscriptive, derivative evidence. In this respect, this situation is similar to R. v. Black, [1989] 2 S.C.R. 138.
69. It is important to note the distinction between the test for characterizing evidence as conscriptive, derivative evidence and the test for determining whether conscriptive evidence is discoverable. Discoverability is concerned with whether a Charter breach was necessary to the discovery and obtaining of conscriptive evidence. If the conscriptive evidence would have been obtained even if the Charter had not been breached, the evidence is discoverable and its admission, despite the conscription of the accused, would not affect trial fairness. In determining discoverability, therefore, the alternative means to obtain the evidence must comply with the Charter.
70. The derivative evidence inquiry, on the other hand, is directed at determining whether a piece of evidence should be viewed as having a conscriptive nature because of its intimate relationship with other conscriptive evidence. Evidence is derivative evidence if it would not have been obtained but for the conscriptive evidence. In analyzing this question, it is not relevant whether the means by which the evidence would have been discovered in the absence of the conscription were constitutional. The inquiry is directed at whether evidence should be treated as a product of the accused’s mind or body for the purposes of s. 24(2), which treatment does not depend on the constitutionality of the alternative means of discovery. Thus, in the present case, to conclude that the cash is not derivative evidence, it is sufficient to conclude that the police would have discovered the cash even if the conscripted statement at Williams Lake had not been made. It is irrelevant for the purpose of the derivative evidence inquiry that the police would have found the evidence by unconstitutional means such as the second search. Given the probable, although unconstitutional, discovery of the cash even if the conscripted statement had not been made, the cash was not conceptually a product of the appellant’s mind or body. The cash, therefore, should be treated not as derivative evidence, but as non-conscriptive evidence; its admission would not affect trial fairness. I note, of course, that the unconstitutionality of the second search is a factor to be considered under other branches of the Collins test.
71. The fingerprints, as stated above, were taken in violation of the Charter. Moreover, they were conscriptive evidence -- the appellant was compelled to provide evidence from his body, his fingerprints, which incriminated him. The police would not have obtained this evidence without violating the appellant’s Charter rights as they did not have reasonable and probable grounds to arrest him. The fingerprints were not discoverable. The fingerprints were conscriptive, non-discoverable evidence whose admission, given the absence of exceptional circumstances, would render the trial unfair. Consequently, the fingerprints are inadmissible.
72. Summarizing the trial fairness analysis, the bloody shirt, the shoes, the cigarettes and the money were not conscriptive evidence and thus their admission would not affect trial fairness; the statements in the trailer, as well as those at the Williams Lake detachment, and the fingerprints were conscriptive and were not discoverable, thus their admission would affect trial fairness. The statements and the fingerprints are inadmissible. The other evidence which does not affect trial fairness must be analyzed in light of the second and third branches. Analyses under these branches of the Collins test may require exclusion of the evidence.
Seriousness of the Violation
73. The violations were, in my view, very serious in the present case. One of the indicia of seriousness is whether the violations were undertaken in good faith: see Therens, supra, at p. 652; Collins, supra, at p. 285. One indication of bad faith is that the Charter violation was undertaken without any lawful authority. In R. v. Genest, [1989] 1 S.C.R. 59, for example, the Court held that a search in violation of well-known common law principles was performed in bad faith. In the instant case, the police did not even have subjective belief in reasonable and probable grounds for the appellant’s arrest prior to their warrantless, forced entry into his dwelling house where he was sleeping. Aside from the impact of the Charter on the requirements for warrantless arrests in dwelling houses, the absence of subjective belief in reasonable grounds indicated that the police could not have lawfully arrested the appellant under s. 495 of the Code even had he been in a public place. That they flagrantly disobeyed the law of warrantless arrests in dwelling houses as set out in Landry certainly renders the more serious the violation which directly led to the taking of the bloody shirt, and indirectly led to the taking of the shoes, cigarettes and money.
74. The trial judge found that the breach in searching the trailer “was not deliberate, wilful or flagrant and that if it occurred, it was committed in good faith”. In my view, the following passage from the majority in Kokesch, supra, at p. 32, is instructive in the present case:
The police must be taken to be aware of this Court’s judgments in Eccles and Colet, and the circumscription of police powers that those judgments represent.
Either the police knew they were trespassing, or they ought to have known. Whichever is the case, they cannot be said to have proceeded in “good faith”, as that term is understood in s. 24(2) jurisprudence.
In the present case, the police did not have subjective grounds to arrest, and thus the requirements for a warrantless arrest in a dwelling house set out in Landry were not met. Indeed, the statutory requirements to make a warrantless arrest in any location were not met. In these circumstances, as in Kokesch, the police either knew they were trespassing, or they ought to have known. The police could not be held to have acted in good faith and the trial judge erred in this respect.
75. The respondent submits that the seriousness of the violation is mitigated by the fact that if the grounds for arrest fell short of reasonable and probable grounds, they did not fall far short. I disagree that this is a mitigating factor. As discussed above, Sgt. Madrigga himself did not believe that there were reasonable grounds to arrest the appellant. In my view, the absence of a subjective belief that a necessary element of a lawful entry and arrest was present is a strong suggestion of bad faith.
76. The respondent argued that the evidence of the bloody shirt would have been discovered in any event, stating in its factum: “The police could have waited outside the trailer until the appellant eventually came out. At that time they would have observed the bloodstains on him, unless he had destroyed that evidence.” The respondent assumes that the appellant would walk out in broad daylight with bloodstains on his shirt. In my view, this suggestion is unrealistic. Moreover, the appellant need not have destroyed the evidence on the shirt in order to avoid displaying it in public, but simply could have stored the shirt in the trailer. In any event, the availability of alternative constitutional means to discover the shirt does not mitigate the seriousness of the violation even if such means did exist. As Lamer J. (as he then was) stated in Collins, supra, at p. 285, “the availability of other investigatory techniques and the fact that the evidence could have been obtained without the violation of the Charter tend to render the Charter violation more serious”. If other techniques were indeed available, it is demonstrative of bad faith and is particularly serious that the police chose to violate the appellant’s rights.
77. A conclusion that the violations were serious is reinforced by the fact that they involved the unconstitutional entry of the appellant’s dwelling house. The sanctity of the home has been recognized time and again by courts at least since Semayne’s Case, supra. The police in the present case did not have sufficient grounds either to arrest the appellant, or to obtain a search warrant, yet they forcibly entered the sleeping appellant’s one-room dwelling with guns drawn, shook him awake and began questioning him. Such behaviour is antithetical to the privacy interests protected by the Charter and cannot be condoned. I note that the respondent suggested that the police did not know the trailer was a dwelling house, but this is clearly contradicted by the evidence that Spurn had told police that the appellant was living on land he owned and that Russell had told police that the appellant was sleeping in the trailer.
78. The respondent argued that the seriousness of the intrusion into the dwelling house is mitigated by Sgt. Madrigga’s belief that the owner of the trailer had given his tacit consent to enter the trailer. In my view, this submission is unacceptable. First, the owner of the trailer did not consent to the search, but rather did not object when the police stated that they were going to “check it out” at the trailer. An inference of consent to a warrantless, forcible entry from Russell’s silence is dubious. However, even accepting that Russell had consented, this would not have justified the search nor should it mitigate the seriousness of the violation entailed by the search. Hunter, supra, was clear that an ownership interest is unnecessary in invoking s. 8; what is required is a reasonable expectation of privacy. It would be inconsistent with this emphasis on the expectation of privacy to mitigate the seriousness of the violation based on the consent of the owner of the premises rather than the person with the profound expectation of privacy associated with his dwelling house.
79. The respondent also argued that there were exigent circumstances in this case, which, according to Silveira, supra, may be a relevant consideration in a s. 24(2) analysis. As discussed above, in my view exigent circumstances did not exist in this case any more than they would exist in any situation following a serious crime. After any crime is committed, the possibility that evidence might be destroyed is inevitably present. To tend to admit evidence because of the mitigating effect of such allegedly exigent circumstances would invite the admission of all evidence obtained soon after the commission of a crime. In my view, however, there were no exigent circumstances in this case that mitigated the seriousness of the Charter breach. This is not to say that there may not be exigent circumstances arising out of matters other than the recent commission of the offence that serve to mitigate the seriousness of the breach.
80. In summary, the violations in the instant case that were associated with the gathering of the shirt, shoes, cigarettes and money were serious. The police flagrantly disregarded the appellant’s privacy rights and moreover showed little regard for his s. 10(b) rights. Indeed, while such misconduct was not directly responsible for the gathering of the shirt, shoes, cigarettes and money, the fact that the appellant did not speak with a lawyer for two days following his detention, yet the police did not cease in their efforts to gather evidence from him, indicates the lack of respect for the appellant’s rights displayed by the police. In light of this pattern of disregard for the rights of the appellant, in my view the obtention of the shirt, shoes, cigarettes and money was associated with very serious Charter violations.
Effect of Exclusion on the Repute of the Administration of Justice
81. The admission of the conscriptive evidence, the statements and the fingerprints, would, as discussed above, impact on the fairness of the trial. Consequently, the repute of the administration of justice would be harmed by their admission and they are inadmissible. The other evidence, while not conscriptive, was obtained as the result of a very serious intrusion of the appellant’s privacy rights. Moreover, the evidence was associated with serious violations of the appellant’s s. 10(b) rights, indicating a pattern of disregard for the Charter by the police in the present case.
82. While the appellant stood accused of a very serious crime, in my view the following words of Iacobucci J. in Burlingham, supra, at p. 242, apply to the present case:
... we should never lose sight of the fact that even a person accused of the most heinous crimes, and no matter the likelihood that he or she actually committed those crimes, is entitled to the full protection of the Charter. Short-cutting or short-circuiting those rights affects not only the accused, but also the entire reputation of the criminal justice system. It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques are of fundamental importance in applying s. 24(2).
83. The serious disregard for the appellant’s Charter rights in the case at bar suggests that the admission of the evidence would bring greater harm to the repute of the administration of justice than its exclusion. The shirt, shoes, cigarettes and money were inadmissible under s. 24(2), along with the statements and the fingerprints. If the exclusion of this evidence is likely to result in an acquittal of the accused as suggested by L’Heureux-Dubé J. in her reasons, then the Crown is deprived of a conviction based on illegally obtained evidence. Any price to society occasioned by the loss of such a conviction is fully justified in a free and democratic society which is governed by the rule of law.
Conclusion on Section 24(2)
84. As stated, in my view the statements, fingerprints, shirt, shoes and money are inadmissible under s. 24(2). The respondent pointed out that this Court has stated that appellate courts owe deference to lower courts on the question of the admissibility of evidence under s. 24(2): see, e.g., Grant, supra. In the case at bar, both the trial judge and the Court of Appeal held, as alternative holdings, that they would admit the evidence in question even if there had been breaches of the Charter. In my view, both the trial judge and the Court of Appeal erred in these alternative conclusions, and it is difficult to evaluate their reasoning since very little was said in this respect. The trial judge simply listed the factors set out in Collins, supra, with a brief conclusion on each point. The trial judge did not group the points into the three broad factors, nor did he set out his reasons for each conclusion. The Court of Appeal listed the Collins factors and stated its conclusion that, on balance, the evidence should be admitted. In my view, neither of these judgments should be afforded particular deference. First, neither the trial judge nor the Court of Appeal found a breach with respect to the taking of the evidence in question, which error in law likely influenced their alternative conclusion that the breaches, if they existed, were not serious. Second, as noted above, the trial judge erred in concluding that the police acted in good faith. Third, the reasons of the trial judge and the Court of Appeal were so brief and conclusionary that it is difficult to say whether other errors were made. In my view, pursuant to s. 24(2), the shirt, the statements, the shoes, the cigarettes, the cash and the fingerprints should not have been admitted.
Conclusion and Disposition
85. The trial judge erred by failing to find a Charter breach with respect to the taking of the bloody shirt, the statements in the trailer, the shoes, the cigarettes and the fingerprints. Moreover, the evidence was inadmissible according to s. 24(2) of the Charter. I would allow the appeal, set aside the conviction and order a new trial.
The reasons of L’Heureux-Dubé, Gonthier and McLachlin JJ. were delivered by
86. L’Heureux-Dubé J. (dissenting) -- The main issue raised in this appeal concerns the authority of the police to enter a private dwelling without a warrant in order to effect an arrest. I have had the advantage of reading the reasons of my colleague Justice Sopinka, but am unable to agree with his disposition of this case, or with many of his conclusions. Although Sopinka J. has set out the facts and judgments, the particular circumstances of this case are important to the ultimate decision I reach, and I will thus recount the salient facts in some detail and outline aspects of the judgments which I find of particular relevance to the issues.
I. Facts
87. Early on the morning of June 8, 1991, at around 8:20 a.m., 85-year-old Frank Boyle was found dead in his home, the victim of several vicious blows to the head from a blunt, metal instrument. The blows were apparently struck with such force that the pathologist called to give evidence testified that any one of them by itself could have caused death. The murder scene was covered with the deceased’s blood which was spattered over the surrounding walls and furniture. The murder took place near the town of Likely, British Columbia, a small, isolated community with a population of roughly 300 people.
88. The nearest RCMP detachment was in Williams Lake, over one hour’s drive from the Boyle residence. Among the first officers to arrive, at around 9:30 a.m., was Sergeant Madrigga, who took charge of the investigation. After examining the murder scene, the officers learned that the victim’s red Datsun pickup truck had been found abandoned in a ditch, driven off the road that morning about half a kilometer west of the Boyle residence on Cedar Creek Road. The police attended there and were met by a resident of the area, Cindy Potter, who informed them that she had driven along that road near the victim’s home earlier that morning. At that time, she noticed the appellant walking away from the scene of the truck accident toward his home. He had something in his hand which looked like a stick or a beer.
89. The police also spoke with Kelly Spurn, another resident of the area, who informed them that there had been a second accident at exactly the same spot earlier that morning. Spurn had been told by Dale Russell that the appellant, who lived on the property of his sister and Mr. Russell, had stolen a vehicle off Russell’s property that morning and crashed it on the same spot as the pickup truck which was later discovered. Spurn examined the site and assumed that the two accidents were caused by the same person because “the skid marks were the same and it was crashed on the same side of the road”. Neither resident believed Boyle had been driving his vehicle at the time of the crash as he was known to be a slow, extremely cautious driver. Spurn urged the police to speak with Russell who, he said, had some information about the crime. At this point, the police began to proceed on the assumption that whoever had stolen the victim’s vehicle was likely to have been involved in the murder as well. Sgt. Madrigga also suspected that the murderer would likely be covered in blood, given the severity of the crime.
90. When the police arrived at the property where the appellant was living, Russell confirmed that the appellant was staying with them as a guest. He added that earlier that morning the appellant had stolen a vehicle and crashed it into a telephone pole just down from Boyle’s residence, in exactly the same spot as Boyle’s truck was later found. After retrieving the vehicle, Russell returned home. Around 7:00 a.m. he saw the appellant return home and go to bed in a small storage trailer behind the house where he normally slept.
91. After receiving all this information, Sgt. Madrigga, accompanied by two other officers, went to the trailer, knocked on the door and yelled, “Police”. There was no answer. With his gun drawn, but by his side, he opened the door and entered. He saw the appellant lying on a bunk at the back of the trailer, apparently asleep. Sgt. Madrigga walked into the trailer, shook the appellant’s leg and said, “Wake up, police. I want to talk to you.” The officer asked the appellant to step to the entrance because the trailer was dark and he could not see well. They moved toward the door, and the officer saw that the appellant’s shirt was splattered with blood. Sgt. Madrigga then placed the appellant under arrest and advised another officer to read him his rights. The appellant acknowledged that he understood his rights.
92. Sgt. Madrigga then asked the appellant how he got the blood on him. He replied that he had been hit in the face by a baseball the previous day. The appellant had no marks on his face. The police removed the shirt the appellant was wearing and took him to the Williams Lake RCMP detachment. Nothing was seized from the trailer at that time. The police subsequently obtained a search warrant and retrieved a sum of money hidden under a mattress, a package of cigarettes, and the appellant’s running shoes.
93. Once at the police station, the appellant tried several times unsuccessfully to contact a lawyer. A few minutes later, the police administered a breathalyser test without telling the appellant he had any choice in the matter. His alcohol blood readings, taken 17 minutes apart, were .08 and .07.
94. That evening, despite the fact that he wished to speak with a lawyer and had not yet done so, the appellant was questioned. He eventually admitted striking Boyle, and stealing beer, money and cigarettes from his residence. The next morning, the appellant was fingerprinted and photographed and finally spoke with a lawyer.
II. Judgments
Supreme Court of British Columbia
95. During the course of a lengthy voir dire, the appellant challenged the admissibility of most of the evidence sought to be adduced against him, alleging violations of ss. 7, 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms. Essentially, the appellant’s position was that the initial entry into the trailer was an unlawful one as the police officers lacked any legal authority to enter. As such, it was an unreasonable search which contravened s. 8 of the Charter. The arrest which subsequently took place was an arbitrary one as it was not based on reasonable and probable grounds as required by law. The appellant argued that the officer who entered the trailer had only a mere suspicion that the appellant was involved in the crime, which was confirmed when he saw the bloody shirt. As for the statements, breathalyser results and fingerprints, these were the product of the appellant’s not having been properly informed of his right to counsel and being prevented from exercising it. As a result, the appellant asked the court to exclude the evidence pursuant to s. 24(2) as admitting it would bring the administration of justice into disrepute.
96. Leggatt J. made several important findings of fact in making his ruling. At the outset, he stated that “it [was] important to note that Likely is a small community of about 300 people”. He found that normally there tended to be very little traffic on Cedar Creek Road that early in the morning and it was therefore an unusual occurrence to see an accident and the appellant walking away from it at that time. Taking into consideration the totality of the circumstances, it was reasonable to assume that the appellant was a prime suspect in the murder. In addition, he found that the investigating officer “had to be concerned about the destruction of vital evidence” when he went to the trailer and that he was “in active pursuit of what had to be his prime suspect, not long after the alleged crime”. He also accepted the testimony of the investigating officer that a proper announcement was made before entry. Perhaps most importantly, he found that when Sgt. Madrigga entered the trailer, objectively, there were reasonable and probable grounds for the arrest of the appellant.
97. The trial judge found that both the entry and the subsequent arrest were lawful, concluding:
Given the surrounding circumstances I have outlined, the need to preserve evidence, the clear indication that the accused was a prime suspect, I believe the arrest took place in compliance with both the Criminal Code and the Charter. I rule the arrest is lawful.
The arrest being lawful, the action to seize the accused’s shirt was reasonable. That being the case the incidental search to the arrest was also lawful.
He subsequently went on to discuss s. 24(2), and found that in the event he was mistaken with regard to the arrest and entry, he would admit the evidence anyway, as to exclude it would bring the administration of justice into disrepute. Since the initial entry was ruled lawful, it also followed that the search warrant withstood scrutiny.
98. As for the statements, Leggatt J. found that the appellant’s initial response regarding why his shirt was covered with blood was made after the appellant had been properly informed of his rights under s. 10(b) of the Charter and thus, was admissible. He did find, however that both the breathalyser evidence and the statements made at the police station were obtained as a result of a breach of the right to counsel. Pursuant to s. 24(2) of the Charter, this evidence was excluded. The rulings with respect to the statements at the police station and the breathalyser results were not disputed on appeal by the respondent, and are not at issue here.
99. After the impugned evidence was admitted, the appellant was found guilty by a jury of second degree murder.
British Columbia Court of Appeal (1995), 54 B.C.A.C. 228
100. A unanimous court dismissed the appeal. The court refrained from dealing individually with each of the alleged Charter breaches related to the entry of the trailer, as it found that even had the trial judge made an error on the resolution of these issues, the police conduct in question was justified by the existence of exigent circumstances. Lambert J.A. concluded at p. 234:
...in my opinion, the search of the premises constituted by the trailer was lawful within recognized additions to the rule that a search must be based on reasonable and probable grounds. Those additions are that reasonable and probable grounds may not be necessary where there is an emergency or where there are exigent circumstances or where the prevention of the destruction of evidence on an immediate basis is called for. It is therefore not necessary in this case to deal with any particular principle relating to articulable cause creating a basis for entry and search at a level less than reasonable and probable cause.
The same emergency and exigency and fear for the destruction of evidence also made lawful the detention of the appellant in his bed, if it was a detention, and the requirement that he move to the door of the trailer where his clothing and appearance could be seen.
Continuing, Lambert J.A. said inter alia:
Quite separately, even if there could be said to have been a Charter breach or a number of Charter breaches lying in the police conduct before the arrest, it is my opinion that “having regard to all of the circumstances” (to use the words of s. 24(2) of the Charter) the admission of the evidence that was obtained by the police conduct and admitted by the trial judge was not such that its “admission ... in the proceedings would bring the administration of justice into disrepute”.
101. Lambert J.A. went on to address s. 10(b) and concluded that the warning given to the accused was in compliance with the requirements mandated by the decision of this Court in R. v. Bartle, [1994] 3 S.C.R. 173.
III. Analysis
102. The appellant’s position before this Court is that the police investigation included several violations of the Charter. During the course of their inquiries, the police are alleged to have breached ss. 7, 8, 9 and 10(b) of the Charter. Essentially, with the exception of the s. 10(b) argument, with which I propose to deal separately, the allegations focus upon the conduct of the police from the point they entered the trailer where the appellant was sleeping. According to the appellant, the police did not have reasonable and probable grounds to believe that he was the perpetrator of the crime, and thus the entry into the trailer was unlawful. As a result, the entry, along with the search that followed, contravened s. 8 of the Charter. The appellant also maintains that the arrest only occurred after the police officer confirmed his “hunch” by discovering new evidence, and thus violated ss. 7 and 9 of the Charter. Finally, the subsequent search of the trailer was performed on the basis of a search warrant obtained primarily on the strength of unconstitutionally obtained evidence and the resulting evidence should also be excluded.
103. As can be seen, all of these contentions are linked by a common focal point: they stand or fall on the strength of the appellant’s argument that the original entry by the police into the trailer was unlawful. The trial judge, after carefully weighing the evidence, determined that the police entered the trailer in order to arrest the appellant and were justified in so doing. In my view, this finding was a proper one, and this appeal therefore need not be resolved in the manner chosen by the Court of Appeal.
(A) Section 8 of the Charter -- The Initial Entry
104. The appellant has contended that the initial entry by the police trespassed upon his right to privacy under s. 8 of the Charter. In analyzing a potential s. 8 breach, two inquiries must take place. The first is concerned with determining whether the police conduct, taking into account all of the circumstances, interfered with the reasonable expectations of privacy enjoyed by the appellant. If so, the second part of the s. 8 analysis relates to whether this interference was reasonable: R. v. Edwards, [1996] 1 S.C.R. 128, at para. 33.
105. The first inquiry is easily satisfied here. Notwithstanding the fact that he was not the owner of the trailer, the appellant clearly enjoyed a reasonable expectation of privacy there: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 158-59. The facts demonstrate that he was the usual occupant of the premises, paid rent to his sister, and thus, under normal circumstances had a right to be left alone.
106. The second inquiry raises more cause for concern. A warrantless entry such as the one in the case at hand is presumed to be unreasonable and in contravention of s. 8 of the Charter. The Crown can rebut this presumption, and demonstrate that the invasion of privacy was reasonable if:
(a) the search was authorized by law;
(b) the law authorizing the search was reasonable, and;
(c) the manner in which the search was conducted was reasonable.
(See R. v. Collins, [1987] 1 S.C.R. 265, at p. 278, and R. v. Debot, [1989] 2 S.C.R. 1140.)
107. The respondent has argued that the entry in this instance was authorized by law as a valid exercise of the police arrest power. According to this theory, Sgt. Madrigga’s entry into the trailer was justified on the basis of its being necessary to exercise his power of arrest without a warrant under s. 495(1) of the Criminal Code, R.S.C., 1985, c. C-46. In addition, reliance is placed upon the common law authority to enter a private residence for the purpose of arrest as described in the pre-Charter case of Eccles v. Bourque, [1975] 2 S.C.R. 739, and the post-Charter case of R. v. Landry, [1986] 1 S.C.R. 145 (although the offence was committed prior to the advent of the Charter).
108. My colleague Sopinka J. has concluded that the entry and subsequent search in the case at bar did, in fact, violate s. 8 of the Charter. He comes to this conclusion essentially for two reasons: (1) the entry did not comply with the common law and statutory requirements, and hence was not authorized by law and, (2) even assuming the entry was authorized by law, the common law as set out in Landry, supra, and Eccles, supra, cannot withstand Charter scrutiny. With respect, I am unable to agree with either of these conclusions. As will be seen, I am of the view that the officers did, in fact, comply with the legal requirements necessary to effect an arrest upon private premises, and that arrests of this kind maintain the appropriate balance between privacy and the need to enforce the law in the Charter era.
Was the Search Authorized by Law?
109. The Code provides for several situations where a police officer may arrest a suspect without a warrant. These are specifically enumerated in s. 495(1) which states:
495. (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.
110. Aside from these requirements, however, the Code does not offer guidance as to exactly where an arrest can be effected. In the case at bar, the appellant’s concern is that the arrest occurred in a private residence, where, it has been suggested, different rules apply as to exactly when the police may enter without the consent of the occupant.
111. As Sopinka J. sets out, however, the power to arrest without warrant on private premises was confirmed at common law in the cases of Eccles, supra and Landry, supra. In Landry, Dickson C.J., at p. 165, set out four requirements necessary to effect a lawful arrest on private premises:
(1) The offence must be indictable.
.
(2) The person who is the subject of the arrest must have committed the offence in question, or the peace officer, on reasonable and probable grounds, must believe that the person has committed the offence.
(3) There must be reasonable and probable grounds for the belief that the person sought is within the premises.
(4) There must be a proper announcement before entry.
112. I agree with my colleague Sopinka J. that both criteria 1 and 3 were fulfilled in the case at bar. Therefore, the issues remaining to be resolved are whether the requisite reasonable and probable grounds for arrest existed, and whether proper announcement was made prior to entry.
113. The police are never required to demonstrate that they possessed anything more than reasonable and probable grounds prior to making an arrest. It is not necessary to establish that proof of culpability exists beyond a reasonable doubt, or that there is even a prima facie case for conviction: R. v. Storrey, [1990] 1 S.C.R. 241, at p. 250. In Storrey, this Court ruled that in order to arrest, the officer must have a subjective belief in these reasonable and probable grounds, and that this belief must be justifiable objectively as well.
114. The trial judge found that, objectively speaking, there were reasonable and probable grounds to arrest the appellant. In my view, he was justified in coming to that conclusion. A reasonable person with the officer’s knowledge would have had little difficulty in believing that the appellant had committed the offence in question. The reasonable grounds could be based on the following:
(a) the victim had been very recently murdered and his home ransacked;
(b) the killing took place in a small community at a time when there would not be very many people moving around;
(c) the victim’s pickup truck was driven off the road one-half kilometer from his home at some time between 6:20 a.m. and 6:48 a.m.;
(d) the circumstances of the accident made it apparent that the driver of the pickup was not the victim since he was known to be a very slow and cautious driver;
(e) the garage where the pickup was normally kept was left open which, according to one witness, was rather unusual;
(f) the reasonable inference from these facts that someone had stolen the victim’s vehicle and that this person was also the one who had ransacked his home and killed him, or at least had been involved in the crime;
(g) a witness who saw the appellant walking along the road away from the scene of the accident toward his home;
(h) the fact that earlier the same morning, the appellant had stolen another vehicle and had driven it off the road in exactly the same spot;
(I) the statement of a resident of the community who had examined skid marks from both accidents and based on his knowledge of the circumstances of the first accident, believed that the appellant had also taken the victim’s car.
115. My colleague, at para. 36, has concluded that these facts, taken together, do not constitute sufficient reasonable and probable grounds, as all the police were aware of was the following:
The salient facts known to the police prior to their entry of the trailer are as follows: (a) it appeared that Boyle’s truck had been stolen before being in an accident, and Cindy Potter claimed to have seen “Michael” walking near the site of the accident; (b) Kelly Spurn told police that he assumed the appellant had crashed Boyle’s truck since the appellant had crashed earlier that morning in about the same place with a different truck; and (c) Dale Russell told police that the appellant came home around 7:00 a.m. after drinking all night and that the appellant had earlier crashed a vehicle at the spot where Boyle’s truck was found. In my view, these facts did not constitute reasonable and probable grounds to arrest the appellant for the murder of Boyle. Whether or not the appellant had been involved in two similar truck accidents, or might have stolen Boyle’s truck, does not raise reasonable and probable grounds to believe that he had murdered Boyle. This evidence may have pointed to the appellant as a suspect, but these facts without more do not justify an arrest.
116. In my view, this approach, with respect, fails to take into account the combined effect of the facts in light of the particular context of this case. On the contrary, it would seem that my colleague has lifted these circumstances from where they occurred and instead, treated them as if they took place in a vacuum. Once the facts are returned to their proper setting, however, I believe a much different picture emerges.
117. As the trial judge recognized, this crime occurred in a very small community, at a time of day when there was not likely to be a lot of traffic on the road. For the appellant to be seen walking a short distance away from the scene of a motor vehicle accident involving the victim’s car at that time of the morning, was, as three separate witnesses testified, an extremely unusual occurrence. While the mere fact of the appellant’s being present at the scene of an accident involving the deceased’s car might not be particularly probative in a city with thousands of people, it is extremely probative given the location, the time in which it occurred and the remote possibility, given the corroborating evidence to that effect, that someone else in the small community was the person who had driven the car off the road. I find it extremely significant that several officers as well as residents of the area all immediately came to the conclusion that it was the appellant who had taken the victim’s car and driven it off the road. As one witness put it, “A led to B and C and we assumed that it was caused by him.” In my view, it was a logical inference for the police to suppose that whoever had stolen the vehicle was also the person who had committed the murder. Once the police linked the appellant to the accident scene, it was obvious that he was the prime suspect.
118. In this regard, I note that our Court has previously discussed the different standards applicable to rural and urban settings in R. v. Wilson, [1990] 1 S.C.R. 1291. What may not reach the level of reasonable and probable grounds in one place may well in another. Here, the unusual circumstances of the offence that the officers were informed of should not be examined as if they occurred in downtown Vancouver. The trial judge demonstrated that he was sensitive to the nature of the information received and to the setting in which it was discovered. On the basis of these facts, I concur with his finding that there existed reasonable and probable grounds to conclude that it was the appellant who had committed the offence.
119. This finding of objectively reasonable and probable grounds is not determinative, however. As aforementioned, a peace officer, before arresting without warrant, must possess a subjective belief that reasonable and probable grounds to arrest exist. The appellant has alleged that in the case at bar, this subjective belief was manifestly lacking. In support of his argument he has referred to Sgt. Madrigga’s testimony on the voir dire, in which the officer responded to cross-examination as follows:
Q Okay. Now at that point, the three of you were going to see Mr. Feeney?
A That’s correct.
Q Because you wanted to question him about this, right?
A That’s correct.
Q And at that point as you are going to the trailer, you would agree with me you had no intention of arresting Mr. Feeney?
A No, I just wanted to check what he had been doing.
Q And, of course, you didn’t have a warrant for his arrest?
A No, I did not.
Q Because basically there wouldn’t have been enough information to obtain a warrant?
A That’s correct.
A few minutes later, the following exchange occurred:
Q And from the time you went into the trailer, there was no suggestion that you were going to let Mr. Feeney walk out of the trailer and go away?
A If I had no further evidence. If I had -- when I went in and talked to him, if I had nothing to indicate that he was involved in this, I would -- it was shaky if I would have had grounds for his arrest at that time, but I had to check it out because I had people ask or tell me that this person was in the area.
Q All right, so let’s see if we agree on something. At the time you went into the trailer, you didn’t feel that you had grounds for his arrest, but when you saw the blood splatter on him after looking at him, that’s why you said --
A I had grounds to suspect he could have been involved, sir, and I would be negligent in my duty if I did not check that out.
Q Oh, I’m not arguing that point, Sargent [sic]. But you didn’t have grounds for an arrest?
A Not for an arrest at that time.
120. The appellant alleges that these paragraphs support the inference that Sgt. Madrigga, upon entering the trailer, did not have reasonable and probable grounds to arrest. In my view, these paragraphs must be viewed in context and cumulatively with all the evidence of the officer. Later on in Sgt. Madrigga’s testimony, he said the following:
Q On the other hand, what made you think you could walk in [to the trailer]?
A Well, I had, in my mind, sir, I had, as far as I was concerned, I had a suspect. If he would have, as I stated, if he would have come out when I knocked on the door, then I wouldn’t have gone in. However, I had two people stating he had been in the area. I had Dale telling me that a vehicle of his had been dumped basically in the same spot that Mr. Boyle’s vehicle had been dumped a short time after, like Mr. [sic] or Dale had moved his vehicle and then this other vehicle was dumped there, puts Mr. Feeney right at the area. I have him walking away from the area a short while later. To me that gave me --
Q Walking to his home?
A Walking to his home, coming from, basically from the area. Now, in Likely there is not a lot of people walking on the streets maybe at night in Likely but in the morning, I policed this area for seven years and I’m not saying that it is not unusual but when the people first started moving, which Cindy Potter was going to work, and she drives that road quite regular and to her, it was unusual that this person was walking down there because that’s why she mentioned it to us.
. . .
Q Let’s get this plain. You had no permission from anybody to walk into that building? Permission, not somebody stopping you?
A No, not verbal permission as such but, yes, but then I felt a person who was involved in a crime was in that residence.
121. These passages in their totality give a much better impression of the arresting officer’s state of mind leading up to the arrest. What they illustrate is an officer who knew that a suspect, someone involved in a crime, was inside the trailer. These responses demonstrate that, contrary to what some of the earlier passages might suggest, the officer did indeed possess the requisite reasonable and probable grounds to enter the house.
122. Of course, the phrase “reasonable and probable grounds” is not a term of everyday usage and when precisely that threshold is reached is open to some debate. A police officer seeking to apply this standard should not be held to the strict exactitude of a lawyer, or justice swearing out a warrant. Where, as here, a skillful cross-examination elicits the desired responses from an officer, it should not automatically be assumed that the officer lacked the required justification to effect an arrest. The statements of Macfarlane J.A. in R. v. Grunwald, [1991] B.C.J. No. 235, at pp. 19-20, are apposite:
In short, the appellant submits that the police had nothing but suspicion before the vehicle was searched, and that the appellant had the right to be left alone. Reference is made to the cross-examination of Constable McGowan who testified that he “was speculating” that a drug transaction had occurred between Cundict and the appellant and that “I believed there were narcotics in that blue bag and I wanted to confirm my suspicions”.
Taken at face value, these words would support a conclusion that “he did not believe on reasonable grounds” but one must be careful when addressing a question of this kind of proceeding on the footing that police constables use words with the precision of a judge or a professor of classics. [Emphasis added.]
(See also: R. v. Zastowny (1992), 76 C.C.C. (3d) 492 (B.C.C.A.), at p. 499.)
123. I find further support for this conclusion in the decision of the Ontario Court of Appeal in R. v. Breton (1994), 74 O.A.C. 99. In that case, a police officer was questioned on a voir dire as to whether he believed he possessed the requisite reasonable and probable grounds to obtain a search warrant. Under cross-examination, the officer testified that he “suspected” the accused was engaging in criminal behavior. After adopting Grunwald, supra, Morden A.C.J.O., at p. 106, went on to say that the officer “used the term ‘suspected’ to refer to persons whom he believed had committed an offence”. Virtually identical language was used by the arresting officer in this case.
124. The existence of reasonable and probable grounds is a legal standard and is subject to interpretation. Furthermore, I believe that, at its core, reasonable and probable grounds is “a ‘common-sense’ concept which should incorporate the experience of the officer”: Christopher Slobogin, “Testilying: Police Perjury and What to Do About It” (1996), 67 U. Colo. L. Rev. 1037, at p. 1056. There are no absolute magic words necessary to define when this standard has been reached. As the United States Supreme Court stated in Illinois v. Gates, 462 U.S. 213 (1983), at pp. 231-32:
... the central teaching of our decisions bearing on the probable-cause standard is that it is a “practical, nontechnical conception.” Brinegar v. United States, 338 U.S. 160, 176 ... (1949). “In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Our observation in United States v. Cortez, 449 U.S. 411, 418 ... (1981), regarding “particularized suspicion,” is also applicable to the probable-cause standard:
“The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as fact-finders are permitted to do the same -- and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”
As these comments illustrate, probable cause is a fluid concept -- turning on the assessment of probabilities in particular factual contexts -- not readily, or even usefully, reduced to a neat set of legal rules. [Emphasis added.]
125. Here, an officer believed he was legally justified in entering a private dwelling to pursue a suspect whom he felt had been involved in a serious criminal offence. His belief was also supported by an objective assessment of the evidence at hand. The fact that a skillful cross examination elicited a response which could be interpreted as doubt should not detract from this intention. An officer’s inability to articulate the legal terminology properly which granted the authority to enter should not invalidate a proper entry.
126. In summary, I conclude that in effecting the arrest of the appellant, the officer possessed the requisite reasonable and probable grounds. As a result, it is unnecessary for me to consider the suggestion of the Court of Appeal that, had the police not possessed reasonable and probable grounds to arrest, they would have nonetheless been authorized to enter because of the presence of exigent circumstances.
127. As a secondary argument, counsel for the appellant also stressed that upon entry Sgt. Madrigga did not possess an intention to arrest the appellant, and that that shortcoming is fatal to any claim to have entered lawfully on that basis. According to this view, upon entrance into a private dwelling the police must be focused solely upon arrest, and cannot enter, as here, with the subsidiary intention of investigating to either “clear or implicate Mr. Feeney”. I disagree. It is well established that the key element of an arrest is the existence of reasonable and probable grounds. The police are not obliged to arrest in all situations. On the contrary, it is perfectly acceptable for the police to enter for the purpose of arrest, while recognizing that evidence discovered within may well dispel their reasonably held belief. As Traynor J., for a majority of the Supreme Court of California said in People v. Simon, 290 P.2d 531 (1955), at p. 533:
Thus, if the officer is entitled to make an arrest on the basis of information available to him before he searches, and as an incident to that arrest is entitled to make a reasonable search of the person arrested and the place where he is arrested, there is nothing unreasonable in his conduct if he makes the search before instead of after the arrest. In fact, if the person searched is innocent and the search convinces the officer that his reasonable belief to the contrary is erroneous, it is to the advantage of the person searched not to be arrested. On the other hand, if he is not innocent or the search does not establish his innocence, the security of his person, house, papers, or effects suffers no more from a search preceding his arrest than it would from the same search following it. In either case the important considerations are whether the officer had reasonable cause before the search to make an arrest and whether the search and any seizures incident thereto were or were not more extensive than would reasonably be justified as incident to an arrest. [Emphasis added.]
This statement has been approved of by the United States Supreme Court: Rawlings v. Kentucky, 448 U.S. 98 (1980), at pp. 109-110; and by various appellate courts in Canada: R. v. Debot (1986), 30 C.C.C. (3d) 207 (Ont. C.A.), at p. 225, appeal dismissed without reference to this point, [1989] 2 S.C.R. 1140; R. v. Charlton (1992), 15 B.C.A.C. 272, at p. 280.
128. This approach has much to commend it. As Martin J.A. stated in Debot, supra, at p. 225:
The reasoning of Traynor J. contemplates the situation where an officer has probable cause to arrest the suspect but postpones his or her decision to arrest the suspect. The officer, thus, avoids making an actual arrest, if the search proves that his or her belief that there was probable cause was erroneous. In my view, it may also very well be that a police officer, notwithstanding that he or she has reasonable and probable grounds upon which to make an arrest, may decide that, if the search does not disclose evidence of the offence, there would be no chance of obtaining a conviction. Hence, the officer may decide not to proceed further by making an arrest.
129. This type of procedure has the benefit of being less intrusive than an arrest. By seeking to confirm the reasonable belief they held, the police are able to avoid using the more intrusive procedure (an arrest) by substituting the less intrusive procedure (the search) first. There is, of course, nothing improper about continuing an investigation after an arrest is made: Storrey, supra, at pp. 252-55.
130. It follows, therefore, that the arrest in the case at bar complied with the second requirement set out in Landry, supra, in that the necessary reasonable and probable grounds were present. The sole remaining factor to consider is whether a proper announcement was made before the police entered the premises.
131. My colleague Sopinka J. implies, albeit without firmly deciding, that the announcement in this case was somehow deficient by virtue of the fact that the police did not state their purpose prior to entry as required by Eccles, supra. In that case, Dickson J. (as he then was) described the requirements for a proper announcement as follows, at p. 747:
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.
132. It is not contested by the appellant that, in the case at bar, the first two criteria were satisfied. He does submit, however, that the notice of purpose was not properly made. I agree with him to the extent that no notice of purpose was given prior to entry. Nevertheless, in my view, such a shortcoming is not necessarily fatal.
133. This is not the first time this Court has been faced with an allegedly deficient notice requirement. In R. v. Miller, [1988] 1 S.C.R. 230, aff’g (1986), 25 C.C.C. (3d) 554 (Sask. C.A.), the police entered a dwelling house and did not make an announcement of their purpose until they actually encountered the owner of the property. The trial judge found that this late notice of purpose was unlawful. The Saskatchewan Court of Appeal, however, unanimously reversed, making it clear that the exact requirements of an announcement would depend on the unique circumstances of each case. As stated by Vancise J.A., at pp. 565-66:
In the circumstances of this case, I am satisfied that the police officers made “a proper announcement” of their identity and their purpose as soon as possible to the owner and that in these circumstances they discharged their duty to gain entry for the purpose of arresting without warrant.... [Emphasis added.]
134. This Court unanimously dismissed the appeal as of right, Dickson C.J. stating at p. 230 that “We find no error on the part of the Court of Appeal”.
135. In R. v. Jenkins, [1992] O.J. No. 672 (Prov. Div.), a similar situation arose. In that case, the officers had good reason to believe that the subject of the arrest was choosing to ignore the arrival of the officers. After knocking for some time, and aware that the suspect was inside, one of the officers finally entered the apartment. The accused contended that the entry was unlawful as there was no notice of purpose. MacDonnell Prov. Div. J. disagreed, holding:
In my opinion, it follows that while the police must satisfy certain requirements before entering a dwelling house to effect an arrest, and in particular must make a proper announcement, the person sought cannot yet obtain sanctuary by placing him or herself within the house in a position where no proper announcement can be heard and no request for permission to enter can be made. If the ability of the officers to make an announcement is frustrated by the refusal of the person sought to come to the door, the officers' obligation to provide complete notice is suspended, and they may enter the premises. The duty to announce their purpose is re‑engaged when it becomes feasible to do so, that is, once they encounter someone to whom notice can be given. [Emphasis added.]
See also: R. v. Bennett, [1996] O.J. No. 4137 (Gen. Div.).
136. I agree. Simply stated, the notice of purpose requirement would be rather hollow if it had to be made, in all cases, in such a way that the entire reason for giving it would be defeated. As stated by Dickson C.J. in Landry, supra, at p. 161 the notice requirement “permit[s] the offender to maintain his dignity and privacy by walking to the doorway and surrendering himself.” The approach suggested above recognizes that in some cases it would be contrary to common sense to announce the purpose of entry once it was clear that the person inside was refusing or unable to answer the request to enter.
137. In my view, we are clearly faced with such a case here. Before entering, the officers were informed that the appellant was, in all likelihood, sound asleep. After knocking on the door, calling out “police” and receiving no answer, they were perfectly entitled to assume that the appellant was either asleep or ignoring their requests to enter. In either case, it would have been useless for them to have called out their purpose for entry. On the contrary, the only effective way to satisfy the notice requirement was to suspend its delivery until the appellant was in a position to receive it.
138. It is clear from the facts that the arresting officer informed the appellant of his purpose for entry, and restated his identity the moment it was feasible to do so. As he woke the appellant, Sgt. Madrigga stated: “Wake up, it’s the police. I want to talk to you.” While this is not the most complete notice of purpose imaginable, I do not believe this requirement was ever intended to compel the police to make complex legal statements: R. v. Dupuis (1994), 162 A.R. 197 (C.A.), at p. 199. In this light, I agree with the comments of Hill J. in R. v. Anderson (1996), 49 C.R. (4th) 305 (Ont. Gen. Div.), at p. 317, that “[p]rovided that the words of the police bear some rough equivalency in terms of communicating notice of a lawful exercise of duty the announcement is adequate”. In my view, given the circumstances of this case, the wording utilized by the officer was sufficient.
139. I note in passing that my colleague Sopinka J. also appears to suggest that the announcement requirement might not have been met in this case because of the fact that the officers were not denied admission prior to entering. I disagree. Having admission denied does not require a formal refusal by the person within the premises into which entrance is sought. Such a requirement would be completely inconsistent with the entire justification for entry. It would be a rather strange result if a person evading arrest could avoid capture merely by ignoring the request of the police for admission. Surely, where the police have reasonable and probable grounds to believe the person is actually on the premises, silence must be taken to amount to an implied denial of the request to enter.
140. I conclude therefore, that the announcement in this case was properly made. It follows, therefore, that the criteria set out in Landry were indeed met, and correspondingly that the entry into the appellant’s trailer was indeed authorized as part of a lawful arrest. It remains to consider whether or not the law authorizing this entry is reasonable under the Charter.
Is the law reasonable?
141. As my colleague Sopinka J. points out, the law concerning warrantless arrests following forcible entry into a dwelling house was set out in Landry, supra, which was, at least technically, a pre-Charter case. Essentially, Landry stands for the proposition that an entry into private premises is, assuming certain steps are followed, permissible any time the police wish to effect an arrest. Sopinka J. concludes that, at least in the case of a standard arrest in which there is no urgency present, this wide discretion is “overly expansive in the era of the Charter” (para. 42). He explicitly refrains from deciding upon situations in which exigent circumstances exist, as he is of the view that no such circumstances are present in this case.
142. I am unable to agree with my colleague that exigent circumstances were not present here, especially given the conclusions of the trial judge and the Court of Appeal in that regard. As such, it is neither necessary nor desirable for me to make a conclusive determination as to whether Landry is constitutionally sound in all cases in which the police wish to make an arrest in a dwelling house. The reasonableness of the common law was a relatively minor issue at trial and on appeal, and I am wary of addressing such an important question in the absence of argument with regards to the potential impact a change in this area would have upon the police, as well as some context regarding the frequency in which these types of arrests occur. In addition, when this issue was decided by the United States Supreme Court, in Payton v. New York, 445 U.S. 573 (1980), it provoked strong opposing views which are also worthy of consideration. While the majority adopted a solution similar to that of Sopinka J., there was a forceful dissent by White J. who was gravely concerned about the effect this restriction would have upon legitimate law enforcement techniques.
143. I believe it is preferable to deal with each situation as it arises, consistent with the approach taken by this Court in R. v. Macooh, [1993] 2 S.C.R. 802. Therefore, I propose to analyze whether the presence of exigent circumstances, combined with the requirements established by Landry, can be considered “reasonable” for the purposes of s. 8 of the Charter.
144. The common law limitations to the principle of the sanctity of the home have recently been addressed by this Court in R. v. Silveira, [1995] 2 S.C.R. 297. It is well recognized, of course, that a private residence does not guarantee sanctuary from a police investigation. The policy underlying the common law cases is that there should be no place which gives an offender sanctuary. As Dickson J. stated in Eccles, supra, at p. 743: “[t]he criminal is not immune from arrest in his own home nor in the home of one of his friends”.
145. In Landry, supra, Dickson C.J., examining the common law, found no reason to limit the ability of the police to enter a private dwelling to situations where they possessed a warrant. In his view, police officers could not afford to waste valuable time searching out a warrant when a suspect could easily flee the premises and remain at large in a community. While there are obvious privacy interests at issue, these are balanced to a large extent by the requirements set out by the Code and the common law (at p. 161):
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.
146. In concurring reasons, Estey J. added in Landry (Beetz and McIntyre JJ. concurring), at p. 166, that the ancient principle of the inviolability of the home "must yield to the legitimate requirements of law enforcement" and cited the following passage from the case of Lyons v. The Queen, [1984] 2 S.C.R. 633, where for the majority he wrote, at p. 657:
The home is not a castle in isolation; it is a castle in a community and draws its support and security of existence from the community. The law has long recognized many compromises and outright intrusions on the literal sense of this concept. . . . [Emphasis added.]
147. In Macooh, supra, this Court considered the constitutionality of arrests made without warrant in residential premises in cases of “hot pursuit” and concluded that these types of entries were acceptable under the Charter. I would note that, in a real sense, “hot pursuit” is actually nothing more than a variety of exigent circumstances, and not really a separate doctrine. While there are several criteria which must be satisfied for “hot pursuit” to apply, the underlying concern is to prevent the escape of the offender, in the sense that he or she could frustrate a police investigation merely by closing the front door.
148. It is clear from the foregoing that the power of arrest is a crucial part of law enforcement. For that reason, it is unrealistic to suggest that the police can never enter private premises without a warrant for the purposes of arrest. As our jurisprudence has always recognized, this would severely impede the ability of police to capture persons suspected of criminal activity and to preserve evidence necessary to convict them. Neither can I accept that it is only in circumstances of hot pursuit that the police are permitted to enter a dwelling house without a warrant for the purpose of arrest.
149. This conclusion is not unique. In fact, it has been accepted in the United States for some time. While it is recognized that an arrest warrant is the preferable manner to proceed, the American experience clearly demonstrates that it is not always practical or possible for the officers to obtain a warrant. Where these types of exigent circumstances exist, arrests without warrant upon private premises have been deemed lawful: Payton v. New York, supra; United States v. Reid, 69 F.3d 1109 (11th Cir. 1995); United States v. Scroger, 98 F.3d 1256 (10th Cir. 1996). Simply as a matter of logic, it is reasonable to assume that aside from cases of hot pursuit, situations will arise in which the threat to society and the danger of having important law enforcement aims frustrated will outweigh concerns about privacy.
150. What types of circumstances will be considered exigent? While I believe a number of factors can indicate a situation of urgency, it is best not to attempt to define conclusively every possible type of exigent circumstances, as this can preferably be determined on a case by case basis. As stated by Barrett J. of the United States Court of Appeals, in Scroger, at p. 1259, quoting United States v. Wicks, 995 F.2d 964 (10th Cir. 1993), at p. 970, cert. denied 114 S.Ct. 482 (1993):
“(T)here is no absolute test for the presence of exigent circumstances because such a determination depends on the unique facts of each controversy.”
See also United States v. Scroger, supra, and Anderson, supra.
151. In this vein, I do not wish to decide authoritatively upon exactly what is required to constitute exigent circumstances for the purposes of arrest, especially given that this is the first case on this subject to come before this Court. I would prefer to examine the particular factors at issue in the case at bar.
152. The main factor relied upon by the respondent, and also cited by both the trial judge and the Court of Appeal, was that the police were gravely concerned about the potential destruction of evidence. In addition, the Court of Appeal noted the serious and violent nature of the offence, the fact that it had very recently occurred, and that a murderer was likely at large in the community. I propose to examine each of these factors.
153. It has been recognized on more than one occasion that the potential destruction of evidence can constitute exigent circumstances: Silveira, supra; R. v. Grant, [1993] 3 S.C.R. 223; Collins, supra. In Silveira, I stated that this rationale necessitated an exception to the principle of the sanctity of the home at paras. 112 and 114:
Finally, with respect to the American case law, Martin J.A. observed at p. 119 of Rao that a number of American appellate courts have specifically found that an entry and search of premises to prevent the removal or destruction of illicit drugs fall within the "exigent circumstances" exception. (See United States v. Edwards, 602 F.2d 458 (1st Cir. 1979); Commonwealth v. Amaral, 450 N.E.2d 656 (Mass. 1983); for more recent examples, see United States v. Mabry, 809 F.2d 671 (10th Cir. 1987); United States v. Riley, 968 F.2d 422 (5th Cir. 1992).) It therefore appears that exigent circumstances are described by American case law in the same way as they have been defined by this Court, i.e., in terms of imminent loss of evidence, amongst others, notably in the cases of Eccles, Macooh and more recently in Grant, supra.
. . .
Sopinka J. reiterated in Grant, at pp. 241‑42, that exigent circumstances have generally been held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed. Although the case in Grant dealt with warrantless perimeter searches as opposed to warrantless entries into dwelling‑houses, I am of the view that the same reasoning must apply in all cases of exigent circumstances. [Emphasis in original.]
154. As I stated in Silveira, supra, preventing the removal or destruction of evidence is a legitimate law enforcement concern which warrants setting aside the strict rules concerning the sanctity of the home. Frankly, I see no reason why this rationale should be addressed any differently in the context of arrest than it is in the context of a search. Indeed, given the restrictions needed to effect an arrest in a dwelling house, it is arguable that these types of intrusion are in most cases considerably less invasive of privacy than warrantless searches. The announcement requirement, for example, allows the suspect to surrender him- or herself at the door of the residence and prevent any real intrusion of the premises.
155. I also find it instructive that the prevention of the destruction of evidence is part of the basis upon which the “hot pursuit” exception to the arrest warrant requirement is founded. As the Chief Justice stated in Macooh, supra, at p. 816, without such an exception authorizing police entry into private dwellings, “evidence of the offence leading to the pursuit or a related offence may be lost”.
156. In my view, where there is a genuine fear that evidence of the crime will be lost, this can constitute the necessary exigent circumstances for a warrantless entry. Whether these exigent circumstances exist in a given case, is, of course, a finding of fact for the trial judge.
157. In this case, the trial judge, who had the advantage of hearing all the evidence, was of the view that a serious danger existed that had the police not immediately entered the trailer to arrest the appellant, evidence would have been destroyed. As he found, after reviewing the facts:
Were there other investigatory techniques available? The answer is no, when one looks at the bloody shirt evidence. There was a real risk that that shirt would not have been available had they simply sealed the premises.
158. The Court of Appeal came to the same conclusion, as Lambert J.A. stated at p. 234 that the police were “facing circumstances where the possibility of the destruction of evidence, particularly evidence in relation to bloodstains, was a real one and had to be addressed”.
159. My colleague, however, concludes that both the trial judge and the Court of Appeal were in error, and that in actuality there was no fear that evidence would be destroyed. He states, at paras. 52 and 53:
In any event, even if they existed, safety concerns could not justify the warrantless entry into the trailer in the present case. A simple watch of the trailer in which the police were told the appellant was sleeping, not a warrantless entry, would have sufficiently addressed any safety concerns involving the appellant. With respect to concern about the potential destruction of evidence, at the time the police entered the trailer, they had no knowledge of evidence that might be destroyed; at best, they had a suspicion that the appellant was involved in the murder. Simply because the hunch may have turned out to be justified does not legitimize the actions of the police at the time they entered the trailer. As I stated in R. v. Kokesch, [1990] 3 S.C.R. 3, at p. 29, “[i]t should not be forgotten that ex post facto justification of searches by their results is precisely what the Hunter standards were designed to prevent.”
The circumstances surrounding the police entry into the trailer were similar to those following any serious crime: a dangerous person is on the loose and there is a risk that he or she will attempt to destroy evidence linking him or her to the crime. To define these as exigent circumstances is to invite such a characterization of every period after a serious crime.
160. In my view, Sopinka J. has not shown appropriate deference to a factual finding made by the trial judge who was in a much better position to assess the particular circumstances. Furthermore, I find that the trial judge’s assessment was, in fact, the correct one in that there was good reason for the police to believe that absent immediate intervention, crucial evidence would have been destroyed. Several elements point to this conclusion, most importantly the fact that the police were pursuing the offender a short time after the occurrence of the crime. They had every reason to believe that the killer, if apprehended quickly, would still have bloodstains on him, which would be important evidence. I cannot agree with my colleague that “[the police] had no knowledge of evidence that might be destroyed” (para. 52). Sgt. Madrigga clearly testified as to his belief that the perpetrator of the crime would possess clothing with bloodstains on it. It was reasonable for him to fear that if he did not act quickly, the killer would have an opportunity to destroy that vital evidence.
161. As the trial judge stated, not only was there a real fear that evidence would be lost, but it was also crucial evidence which “form[ed] a very important part of the chain of evidence the Crown seeks to introduce”.
162. In any event, I would point out that it was not only the potential destruction of evidence which motivated the actions of the police in the case at bar. As stated by Lambert J.A. in the Court of Appeal, at p. 234, the police were investigating the commission of an extremely violent crime, and they felt an obligation to find out for certain who the offender was as soon as possible:
The fundamental point in relation to the police conduct in this case was that there had been a savage attack on an elderly man in a small community which suggested a killer who was out of control in the community and that the police had a duty to protect the community. They also had a duty to try to locate and neutralize the killer and if possible to gather evidence that would satisfy them then and there that the killer had been apprehended, and that would later tend to establish that the correct person had been apprehended and made to stand trial.
In those circumstances it is my opinion that the police were facing a situation which could be classified as an emergency, or as exigent circumstances which would require immediate action, and that in addition they were facing circumstances where the possibility of the destruction of evidence, particularly evidence in relation to bloodstains, was a real one and had to be addressed.
163. I completely agree. The nature of the crime is an important factor to consider. There can be little doubt that there is a greater urgency to investigate quickly in a case of violence than, for example, a case of theft: see United States v. Scroger, supra, at p. 1260.
164. Additionally, the serious nature of the crime is not a factor to be examined in isolation. It must be recognized that, especially in the case of violent crimes, it is a sound practice for the police to try and apprehend the offender as quickly and with as much certainty as possible. In this regard the learned author of Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (3rd ed. 1996), vol. 3, at p. 271, has noted that the courts should recognize a distinction between a “planned” arrest and one which is the product of an “in the field” investigation. Indeed, he believes, at pp. 271-74, that this should be the defining criterion in making a determination as to whether exigent circumstances are present in a given case:
Although it is not readily apparent how a more workable but yet fair warrantless entry standard could best be expressed, it would seem that a solution is most likely to be found by distinguishing the truly “planned” arrest from the arrest which is made in the course of an ongoing investigation in the field. A “planned” arrest is one which is made after a criminal investigation has been fully completed at another location and the police make a deliberate decision to go to a certain place, either the arrestee’s home or some other premises where he is believed to be in order to take him into custody.... Courts have understandably been reluctant to accept police claims of exigent circumstances in these situations, for it ordinarily appears that whatever exigencies thereafter arose were foreseeable at the time the arrest decision was made, when a warrant could have readily been obtained. In the “planned” arrest situation, then, the only exception to any existing warrant requirement would be the presence of exigent circumstances prior to the time the officers went out into the field for the purpose of making the arrest.
On the other hand, when the occasion for arrest arises while the police are already out in the field investigating the prior or ongoing conduct which is the basis for the arrest, there should be a far greater reluctance to fault the police for not having an arrest warrant. Here, the presumption should be in favor of a warrantless arrest rather than against it, as the probabilities are high that it is not feasible for the police to delay the arrest while one of their number leaves the area, finds a magistrate and obtains a warrant, and then returns with it. [Emphasis added.]
165. This rationale has been accepted in the U.S., and applied in a number of decisions with facts which closely mirror the situation in the case at bar. In People v. Johnson, 637 P.2d 676 (Cal. 1981), for example, the police investigated a shooting in which the accused shot a man whom he believed had kicked his car. Within 75 minutes of the incident, the police located the accused’s car at his girlfriend’s home, entered, and arrested him. The California Supreme Court ruled that this was permissible given the circumstances, concluding at p. 680:
As we ... recently reaffirmed in People v. Escudero (1979) ... 592 P.2d 312, “in appropriate circumstances the fresh pursuit of a fleeing felon may constitute a sufficiently grave emergency to justify an exception to the warrant requirement and make it constitutionally reasonable for the police to enter a private dwelling without prior authorization of a magistrate”. In that case we approved an arrest within a defendant’s residence when he had been surprised in the act of committing a burglary, had escaped, and had been identified through a description and car registration. The police then proceeded directly to the defendant’s residence, made a warrantless entry and arrested him. We observed “that although ‘fresh pursuit’ of a fleeing felon must be substantially continuous and afford the law enforcement authorities no reasonable opportunity to obtain a warrant, it is not necessary that the suspect be kept physically in view at all times.” Here, the officers were in expeditious pursuit which was continuous and direct.
Moreover, as we have stated, defendant was suspected of a violent offense involving the repeated discharge of a firearm. Exigent circumstances validating a defendant’s arrest within a dwelling may be deemed to exist when there is a “likelihood that one of the suspects may have been an armed killer (see James v. Superior Court (1978) ... 151 Cal.Rptr. 270)”.
166. Another decision worthy of consideration is People v. Williams, 641 N.E.2d 296 (Ill. 1994). In that case, the police investigated a murder where a woman was shot to death while in the process of entering her apartment building. After a 27-hour investigation, the officers proceeded to the accused’s residence, and without a warrant forcibly entered and arrested him. Despite argument by the accused that the entry was unconstitutional, the court ruled at pp. 306-7 that in the circumstances, it was entirely proper:
The crime invoked was of the most serious nature, involving unprovoked, deadly violence against the victim. From the time of the murder until defendant’s arrest only 27 hours later, the police conducted an around-the-clock investigation, acting on every lead they received without delay....
Defendant’s argument that, given the time lapse between Golden’s statement and his arrest, the police could have obtained an arrest warrant is unpersuasive.... The officers clearly acted without delay in initiating efforts to apprehend defendant following receipt of information from Golden concerning defendant and his possible whereabouts.
See also: State v. Storvick, 428 N.W.2d 55 (Minn. 1988); State v. Gonsalves, 553 A.2d 1073 (R.I. 1989); People v. Smith, 604 N.E.2d 858 (Ill. 1992).
167. In my view, these cases illuminate the difficulties which can be faced by police when conducting an investigation “in the field”. They also recognize that a finding of exigency will vary depending on the nature of the crime and the manner in which the investigation is conducted as a result of legitimate fears that the suspect will either abscond, commit further violence or otherwise frustrate law enforcement efforts.
168. Furthermore, I believe that many of the factors gleaned from the above noted authorities were present in the case at bar. In particular, I note that:
(a) the police were investigating a very violent murder;
(b) the arrest was made “in the field” in the midst of an ongoing investigation. As LaFave notes, this should lead to the presumption of a lawful arrest;
(c) as set out previously, it was extremely impractical to obtain an arrest or search warrant given the location of the community;
(d) the police were in the midst of a “fresh pursuit” which was continuous and direct;
(e) the police had a reasonable fear that if they did not neutralize the killer, he would commit further violence.
169. This should not be taken as an exhaustive list of factors which are necessary in every case. Nevertheless, when combined with the earlier mentioned concern about the loss of evidence, they leave no doubt in my mind that exigent circumstances existed here. I am further persuaded by the fact that the officers involved, the trial judge and the Court of Appeal were all of the view that an emergency situation existed. This is not a factor which should be discounted lightly. As I stated in my minority reasons in Silveira, supra, at para. 121:
On the facts of this case, the trial judge, with the benefit of having heard the whole of the evidence regarding the circumstances which led the police to enter the appellant's private dwelling, did not find that in so doing, the police had acted in bad faith.... It is not the proper function of this Court to now second‑guess the trial judge on pure findings of fact, particularly when no error of the kind that would attract appellate intervention has been demonstrated with respect to the trial judge's findings of fact on this point (see, e.g., R. v. L. (D.O.), [1993] 4 S.C.R. 419, at p. 467).
170. Sopinka J., however, suggests that simply watching the trailer would have been a sufficient response by the officers and would have prevented the appellant from committing any further harm or destroying evidence. In my view, this conclusion appears to utilize the same sort of ex post facto reasoning of which my colleague so strongly disapproves: R. v. Kokesch, [1990] 3 S.C.R. 3. I agree that this type of reasoning is of little help in determining whether an entry was justified; however, I believe that, in fairness, the same approach should apply to a review of the presence of exigent circumstances. My colleague’s conclusion is dependant upon the fact that the appellant was actually in the trailer and not in the process of committing other harm or destroying evidence. Given the urgency of the situation, if the police had adopted the procedure suggested by my colleague and had been incorrect as to their belief of his presence inside the trailer, this error could have had grave consequences.
171. While it may be true that the appellant at the time of arrest was asleep, in the trailer and not in the process of destroying evidence, this does not displace the legitimate concern the police possessed. It is highly likely that, given enough time, the appellant would have destroyed the evidence.
172. Furthermore, the suggestion that the police could have simply watched the trailer while waiting for a warrant, fails to recognize that the nearest police station was over one hour’s drive away. Even assuming that it would have been possible to see a Justice of the Peace and obtain a warrant at that time, the entire procedure of communicating with the station, conveying the necessary information and arranging for another officer to obtain a warrant and drive to Likely, would probably have taken, at a minimum, close to two hours. This would have given the appellant ample time to destroy evidence. In addition, as stated above, this delay would have had even greater significance if in actuality the police had been incorrect about the appellant’s whereabouts or his involvement in the crime. In that case, the delay likely would have allowed for the offender to escape.
173. For all of the reasons set out above, I believe that exigent circumstances were indeed present in the case at bar. Additionally, I am of the view that where these circumstances exist, the common law authorizing entries onto private premises constitutes a “reasonable” entry for the purposes of s. 8 of the Charter.
Was the search conducted in a reasonable manner?
174. The entry into the trailer was conducted in as non-intrusive a manner as possible. Sergeant Madrigga announced himself and waited for the appellant to answer. As he testified, he would not even have entered had the appellant answered the door. He drew his gun, an entirely reasonable decision given the circumstances, but kept it at his side. Once inside, he woke the appellant, pulled him into the light and immediately arrested him. The search the police eventually conducted was also minimally intrusive. Despite having the legal authority to do so, the officer chose not to search the premises at that time but instead decided to obtain a search warrant. The search was reasonably conducted.
Conclusion
175. It follows that as the police’s entry was for the purpose of effecting an arrest, there was no breach of s. 8 at that time. Given my conclusion that the police lawfully entered the trailer to effect an arrest of the appellant, it naturally follows that they were entitled to search incident to arrest, and to seize the appellant’s shirt as evidence. The authority to search incident to arrest is well established at common law and has withstood Charter scrutiny as well. In Cloutier v. Langlois, [1990] 1 S.C.R. 158, at pp. 180-81, I reviewed the history of this police power and concluded:
In general, despite certain comments in scholarly discussion, it seems beyond question that the common law as recognized and developed in Canada holds that the police have a power to search a lawfully arrested person and to seize anything in his or her possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner’s escape or provide evidence against him. The common thread in this line of authority is the objective of guaranteeing safety and applying the law effectively.
See also: R. v. Beare, [1988] 2 S.C.R. 387, at pp. 403-4; Debot, supra, at p. 1146, per Lamer J. (as he then was).
176. The search of the appellant consisted mainly of the shirt that he was wearing and his immediate surroundings. While the police would have been justified in doing so, they refrained from searching the immediate area and seizing objects which obviously could have been used as evidence. This minimal search incident to arrest did not violate the Charter.
(B) Section 8 -- The Search Warrant
177. The appellant has also submitted that the warrant which was obtained following the arrest was based on information obtained during an unlawful arrest. Given that I do not share the appellant’s conclusion regarding the legality of the arrest, this line of argument must fail as well. In my view, the warrant was properly obtained.
178. Even were I to agree that the arrest which took place in this case was unlawful, I would have no difficulty concluding that the search warrant was properly issued. Where a warrant is obtained partially on the strength of tainted evidence, and partially on evidence which was properly obtained, the role of the court is to consider whether or not the warrant would have been issued solely on the strength of the evidence which was properly obtained: R. v. Evans, [1996] 1 S.C.R. 8, at para. 26; Grant, supra, at pp. 251-52; Kokesch, supra. In the case at bar, the trial judge ruled that before the officers entered the trailer and arrested the appellant there existed reasonable and probable grounds to believe the appellant was the culprit. This ruling is sufficient to infer that a search warrant could properly have been issued based solely on the strength of the information which was obtained prior to the arrest.
(C) Section 8 and the Fingerprints
179. My colleague Sopinka J. has concluded that compelling the appellant to provide fingerprints was, in the circumstances of this case, a violation of s. 8 of the Charter, in that it occurred in the absence of a lawful arrest. As I have set out above, I am of the view that the arrest was, indeed, a lawful one. It is clear that fingerprinting as an incident of a legal arrest does not violate the Charter: Beare, supra. This ground of appeal must also be dismissed.
(D) Sections 7 and 9 of the Charter
180. The appellant has also raised arguments under ss. 7 and 9 of the Charter. His position is predicated on the assumption that the arrest which took place was unlawful. Given my finding that the arrest was not unlawful, it cannot be said that these sections of the Charter have been violated.
(E) Right to Counsel
181. The appellant additionally submits that his right to counsel was violated when the police first entered the trailer. His argument on this point is two-fold. First, he asserts that from the moment Sgt. Madrigga entered the trailer and shook him by the foot in order to wake him up, he was “detained”, and the officer was obliged to inform him of his right to counsel. The second branch of the argument deals with the caution itself, which was given a few minutes later after the appellant was arrested. The appellant asserts that the caution fell short of the standard mandated by this Court in the case of Bartle, supra. In my view, neither of these arguments possesses any merit.
182. Contrary to the appellant’s submissions, the police are not obliged to read an accused his s.10(b) rights the instant he is detained or arrested. The police must be permitted the latitude to assess and gain control of the situation and determine whether a potentially dangerous situation exists: R. v. Strachan, [1988] 2 S.C.R. 980. Here, the appellant was being sought for a very serious and violent crime, and there was no way for the officer entering the premises to know how the appellant might have reacted. In addition, the officer was walking into a dark room and the appellant was sleeping. Surely, the officer was not supposed to read the appellant his rights while he was asleep. The caution was given at the first reasonable opportunity. The delay in this case between the time Sgt. Madrigga grabbed the appellant’s leg to wake him up and the time he was read his right to counsel was no more than a few minutes. It is inconceivable that a Charter breach could be said to have occurred as the result of this short delay alone. I note in passing that a very similar situation occurred in the case of R. v. Manninen, [1987] 1 S.C.R. 1233. In that case, the accused was detained by two officers for approximately five minutes before being formally arrested and given his right to counsel. Despite concluding that there had been a s.10(b) violation owing to other irregularities, this Court found that there was nothing wrong with a short delay prior to reading the accused his or her rights.
183. As to the second concern, there was no indication in the case at bar that the appellant received a deficient s.10(b) warning. After being arrested, the appellant was informed:
It is my duty to inform you that you have the right to retain and instruct counsel without delay. You may call any lawyer you want. A Legal Aid duty lawyer is available to provide legal advice to you without charge and can explain the Legal Aid plan to you. If you wish to contact a Legal Aid duty lawyer, I can provide you with a telephone number. Do you understand?
184. After giving this portion of the warning, the appellant was asked if he understood. He nodded in assent. The officer then proceeded to warn the accused that
he was “not obliged to say anything but anything [he did] say may be given in evidence.”
185. The officer then asked the appellant once again if he understood. After staring blankly at him, the officer repeated the question, to which the appellant replied: “Yes, what do you think, I am illiterate?”
186. The appellant has argued that this caution falls short of the requirements set out by a majority of this Court in Bartle, supra. In that decision, the scope of the right to counsel and the information required to be given to an accused upon arrest was considerably enlarged. Specifically, Lamer C.J. set out the expanded duty of police officers as follows at p. 198:
...police authorities are required to inform detainees about Legal Aid and duty counsel services which are in existence and available in the jurisdiction at the time of detention. In case there is any doubt, I would add here that basic information about how to access available services which provide free, preliminary legal advice should be included in the standard s.10(b) caution. This need consist of no more than telling a detainee in plain language that he or she will be provided with a phone number should he or she wish to contact a lawyer....
At the time, I stated at p. 224, that s. 10(b) should not require the police to inform all detainees of existing duty counsel programs, absent an expression of concern by the detainee regarding his or her ability to afford a lawyer. To require the police to do otherwise is to require a standard of perfection not mandated by s. 10(b) of the Charter.
187. In any event, the warning given in the case at bar clearly satisfied the components set out by the majority of this Court in Bartle. The appellant was informed that free legal advice was available to him and that he could telephone to receive it. In addition, the officer offered to provide the number to the appellant if requested. The appellant was advised that he was under no obligation to say anything at all. As the Chief Justice stated in Bartle, at p. 198, a satisfactory warning “need consist of no more than telling a detainee in plain language that he or she will be provided with a phone number should he or she wish to contact a lawyer”. This requirement was obviously satisfied here. The warning, therefore, was not deficient.
188. I would also note that the retroactive application of Bartle and its companion cases has recently come into question as a result of events following the Court’s decision in those cases. Immediately after the decisions were handed down, the Attorney General for Alberta, who had been a party to the case of R. v. Cobham, [1994] 3 S.C.R. 360, sought a stay of the operation of Cobham for a 21-day period until October 20, 1994. On October 20, 1994, this Court handed down an order which stated:
The application for a re-hearing is granted on the issue of whether there should be a transition period, and the operation of the judgment herein [i.e. Cobham] is stayed for a period of 21 days from the date such judgment was issued, namely September 29, 1994.
There has been some question as to whether this order has the effect of suspending the retroactive application of Bartle throughout Canada to all potential violations which took place prior to October 20, 1994. I note that more than one court has reached exactly this conclusion: R. v. Latimer (1995), 99 C.C.C. (3d) 481 (Sask. C.A.), aff’d without reference to this point, [1997] 1 S.C.R. 217; R. v. Lorincz (1995), 9 M.V.R. (3d) 186 (Alta. C.A.); R. v. Louden, [1995] B.C.J. No. 2446 (S.C.). In Latimer, supra, this issue was raised before this Court but the Chief Justice declined to address the point as it was not necessary to decide it in order to resolve the case. I take a similar position here.
189. Aside from the caution’s actual wording, Sopinka J. finds that the police violated the appellant’s s. 10(b) rights by not affording him a proper opportunity to contact counsel before questioning him. Additionally, the appellant submits that the police erred in merely reading him the standard warning. He asserts that the police were obligated to ensure that he understood exactly what his rights were. In my view, this reasoning is based upon a fundamental misconception of how the right to counsel operates.
190. Contrary to the appellant’s submissions, the police are not under an obligation to assure themselves positively that an accused understands what his right to counsel entails. It was recognized very early in Charter jurisprudence that placing this burden on the police would be prohibitive and would inhibit legitimate police investigative techniques: R. v. Anderson (1984), 10 C.C.C. (3d) 417 (Ont. C.A.); R. v. Sabourin (1984), 13 C.C.C. (3d) 68 (Man. C.A.). This principle has been affirmed numerous times. As McLachlin J. stated in R. v. Evans, [1991] 1 S.C.R. 869, at p. 891:
The purpose of s. 10(b) is to require the police to communicate the right to counsel to the detainee. In most cases one can infer from the circumstances that the accused understands what he has been told. In such cases, the police are required to go no further.... [Emphasis in original.]
See also R. v. Baig, [1987] 2 S.C.R. 537, at p. 540; Bartle, supra, at p. 204; Latimer, supra.
191. Once an accused has indicated that he understands the rights which have been explained to him in plain language, the police are perfectly entitled, in the absence of clear indications demonstrating otherwise, to accept what he says and are not obliged to inquire further. Here, the police had no reason whatsoever to conclude that the appellant did not understand his s.10(b) rights. On the contrary, the appellant expressly responded twice that he did understand them. I see no reason why the police should not have taken him at his word.
192. I am also unable to agree with Sopinka J. that the police were obliged to refrain from questioning the appellant until he had an opportunity to exercise his right to counsel. An accused must indicate a desire to exercise this right before the police are under any obligation to provide an opportunity to do so. As the Chief Justice stated in Bartle, supra, at p. 192, s. 10(b) imposes the following duties on law enforcement agents:
(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger). [Emphasis added.]
(See also Evans, supra, at p. 890; Manninen, supra, at pp. 1241-42; R. v. Brydges, [1990] 1 S.C.R. 190, at pp. 203-4.)
193. Lamer C.J. went on to add that, at p. 192, the second and third duties are “implementation duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel” (emphasis in original). This duty, thus, does not come into existence until the detainee invokes it. Consequently, it cannot be said that the police here were in violation of their s. 10(b) obligations in this regard.
194. The appellant in this case had the benefit of a caution which informed him of all the essential components mandated by Bartle, supra. Prior to their questioning him, the police had no indication from the accused that he wanted to speak with a lawyer or that he was confused as to the scope of his rights. I therefore conclude that at this stage of the investigation there was no breach of s. 10(b) of the Charter.
IV. Conclusion
195. As I have found that the actions of the police in this case did not breach the Charter, it is unnecessary for me to consider s. 24(2). Had it been necessary, however, I would have concurred with the findings of the trial judge and the Court of Appeal that considering the exigent circumstances and seriousness of the crime, excluding this evidence would clearly bring the administration of justice into disrepute, particularly since this result would likely preclude the appellant, who was convicted by a jury, of being brought to justice.
196. This is sufficient to dispose of the appeal. Before concluding, however, I feel compelled to address some of the statements made by my colleague Sopinka J. in his reasons. Reading his assessment of the conduct of the investigation in this case, one might draw the conclusion that the police officers were operating as lawless vigilantes, flagrantly and deliberately violating the Charter at every turn. Frankly, I could not disagree more. As I have described above, I am of the view that this “litany” of Charter abuses does not stand up to close scrutiny.
197. Indeed, although this is in no way determinative, if the conduct of the police was truly of such a horrific nature I find it rather peculiar that neither the trial judge nor three judges of the Court of Appeal had a similar appreciation of the facts. On the contrary, they found that for the most part, the actions of the police were not such as to have been in violation of the appellant’s Charter rights.
198. In my view, from the first stages of the investigation through to the apprehension of the appellant the police proceeded in a forthright and proper manner; indeed, had the police not moved immediately to arrest, it is likely that they would have been criticized for allowing a murderer to continue to remain at large in the community. This was indeed the view of the Sgt. Madrigga, who testified:
... I had to check it out because I had people ask or tell me that this person was in the area.
. . .
I had grounds to suspect he could have been involved, sir, and I would be negligent in my duty if I did not check that out.
199. The police were in the process of investigating a serious crime, one which had recently been committed and involved a savage, physical beating inflicted on a helpless victim for no apparent reason. Given the brutality of the murder scene and the seeming randomness of the act, there is little doubt that the police felt obliged to act quickly in order to prevent any further violence of that nature in the community. For this foresight, they should be commended, not rebuked.
200. I would dismiss the appeal.
Appeal allowed, Lamer C.J. and L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting.
Solicitors for the appellant: Lugosi & Company, Prince George.
Solicitor for the respondent: The Attorney General of British Columbia, Vancouver.