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| 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.
The Judge or Justice shall include in the warrant any terms and conditions that the judicial officer considers advisable to ensure that the entry into the house is reasonable in the circumstances.3 Otherwise, a peace officer entering a dwelling house to arrest a person without a warrant will likely have to establish later that he had reasonable grounds to believe that the person was present and that the conditions for obtaining a warrant under section 529.1 existed, but by reason of exigent circumstances, it was impracticable to obtain that warrant. The peace officer may not enter the dwelling house, even pursuant to a warrant, unless the officer has immediately before entering the house, reasonable grounds to believe that the person to be arrested is present in the house.
The search of a home incidental to arrest is only permitted in very exceptional circumstances. It requires that the investigating officers have such compelling reasons for the search of the home that it overrides an individual’s right to privacy within his home. Usually those requirements include the need to secure the arrested person, preserve evidence or protect others at the scene of the arrest. Even these circumstances, however, do not necessarily lead to a finding that appropriate circumstances exist. The court must consider the claim of the investigating officers that there was a reasonable apprehended risk, the potential consequences of which would significantly outweigh the requirement of obtaining a search warrant.
When it is feasible for a police officer to possess a warrant, generally, failure to do so will be treated as an unlawful arrest and the fruits of the investigation may be excluded.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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