Patrick J Ducharme

Patrick Ducharme

A peace officer must orally identify herself before entering a private residence, unless there are exigent circumstances. A proper announcement is necessary even when the door is open, unless it can be said that the open door, in all the circumstances, represented an express or implied invitation to the peace officer to enter. Otherwise, the peace officer becomes a trespasser.1 A Judge who authorizes a peace officer to enter a dwelling house may also authorize the peace officer to enter the dwelling house without prior announcement if the Judge is satisfied, by information on oath, that there are reasonable grounds to believe the prior announcement of the entry would expose the peace officer or other person to imminent bodily harm or death or result in the imminent loss or imminent destruction of evidence relating to the commission of an indictable offence.2 Section 529.4 provides as follows:
Continue reading “Proper Announcements”

Patrick Ducharme

Either a Judge or Justice may issue a warrant authorizing a peace officer to enter a dwelling house for the purpose of arresting a person. The issuing judicial officer must be satisfied that the person will be present in the dwelling house.1 Arrests within a dwelling house require additional authorization in the form of a warrant, or, exigent circumstances.
Continue reading “Entry into Dwelling Houses with Warrant”

Patrick J Ducharme

…The trial Judge noted that “the connection of the search to the arrest is not disputed” (para. 27).  Notwithstanding Berger J.A.’s view to the contrary, we conclude that the trial Judge made no error in concluding that the search was properly incidental to arrest, and did not violate s. 8 of the Charter. 
Continue reading “Lawfulness of the Search Incident to Arrest “

Patrick Ducharme

In R. v. Loewen the Supreme Court of Canada dealt with the following circumstances as given by the investigating officer:

After stopping the accused for speeding, the police officer smelled freshly burnt marijuana coming from the vehicle and found $5,410 in the accused’s pocket. He arrested the accused for possession of a controlled substance, searched the vehicle, and found 100 grams of crack cocaine. The trial Judge admitted the evidence of cocaine.  The accused was convicted of possession of cocaine for the purpose of trafficking. A majority of the Court of Appeal upheld the conviction.
Continue reading “Grounds of Arrest – R. v. Loewen”

Patrick J Ducharme

The arresting person must have both “objective” and “subjective” grounds to arrest an accused for the commission of an indictable offence. Consequently, a court reviewing the grounds of arrest must conclude that the person making the arrest believes objectively that the grounds exist and that a reasonable person, in the position of the arresting person, would objectively believe that reasonable and probable grounds exist to justify the arrest. The absence of either objective or subjective grounds renders the arrest unlawful.
Continue reading “Grounds of Arrest”

Patrick Ducharme

Private citizens who witness a breach of the peace are justified in preventing its continuation or renewal and may arrest the person breaching the peace for the purposes of surrendering that person to a peace officer.1 The common law concept of “breach of the peace” is not statutorily defined. It is usually an act or actions that result in actual or threatened harm to another person. Consider sections 30 and 31 of the Code:
Continue reading “Preventing a Breach of the Peace”

Patrick Ducharme

Section 495 demonstrates that the powers of arrest for indictable offences and the powers of detention of an arrestee are appreciably greater than those same powers in relation to summary conviction offences.
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,
Continue reading “Powers of Arrest/Detention Greater for Some Indictable Offences”

Patrick Ducharme

In Feeney, the Supreme Court of Canada reviewed the activities of the police during a murder investigation in 1991. The police had entered the accused’s house, and equipment trailer, without permission. When they received no answer at the door, they entered and awakened the accused. They ordered him to get up and they looked into the front of the trailer for better lighting. The police arrested him after seeing blood on a shirt. Following a caution with respect to the right to counsel but not the right to execute the right to counsel, the police asked the accused a couple of questions. They seized his shirt and he was taken to the police department. Further statements were taken from the accused without the accused having an opportunity to speak to counsel. The police seized cash, cigarettes and shoes under a warrant obtained on the basis of the initial search of the trailer.
Continue reading “The Birth of “Feeney” Warrants”

Patrick J Ducharme

In R. v. Godoy1 the Supreme Court of Canada considered the police powers to enter a residence forcibly to investigate an apparent emergency. In Godoy the police received a disconnected 911 call. Police were able to determine the location by the call. The police arrived at the apartment and knocked on the door. A male answered the door and told the police that there was “no problem” and invited them to leave. When the officers asked if they could enter the apartment to investigate, the male tried to close the door. The officers forced their way into the apartment. Once inside, they heard a woman crying.
Continue reading ““Apparent Emergency” Calls to 911”

Patrick Ducharme

Section 494 of the Code prescribes the powers all persons have, including police officers, to make an arrest of a person without an arrest warrant. Subsection (2) was recently amended to permit an arrest without a warrant if the person making the arrest either finds the person committing a criminal offense in relation to or on that property provided the arrest is made at a time when the person is found committing the offense, or, “within a reasonable time after the offense is committed, and, it is believed on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.
Continue reading “Power of Arrest (Part 2)”