Supreme Court Judgments

Supreme Court of Canada

Eccles v. Bourque et al., [1975] 2 S.C.R. 739

Date: 1974-10-11

John Kenneth Eccles (Plaintiff) Appellant;

and

L. Bourque, G.E. Simmonds and E.J. Wise (Defendants) Respondents.

1974: May 24; 1974: October 11.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Trespass—Police officers forcibly entering appellant’s apartment in search of wanted person—Trespass justified on common law principles—Criminal Code, R.S.C. 1970, c. C-34, ss. 25, 450 [re-en. R.S.C. 1970, c. 2 (2nd Supp.), s. 5].

An action was brought by the appellant against the respondents, three constables on the Vancouver Police Force, for damages for trespass alleged to have been committed when the police officers entered the appellant’s apartment to apprehend one C, for whom there were three outstanding warrants. The officers were in plain clothes but were armed. They gave notice of presence by knocking on the door of the apartment and after it was opened notice of identity was given. An officer then told the appellant the reason for the entry. C was not found in the apartment. The appellant was successful at trial, but, on appeal, the Court of Appeal by a majority reversed. Leave to appeal to this Court was granted by the Court of Appeal.

Held: The appeal should be dismissed.

Per Laskin C.J. and Judson, Spence and Dickson JJ.: The submission that a person who is by s. 450 of the Criminal Code authorized to make an arrest is, by s. 25, authorized by law to commit a trespass with or without force in the accomplishment of that arrest, provided he acts on reasonable and probable grounds, was not accepted. Section 25 merely affords justification to a person for doing what he is required or authorized by law to do in the administration or enforcement of the law, if he acts on reasonable and probable grounds, and for using necessary force for that purpose. The question was whether the respondents were required or authorized by law to commit a

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trespass, not whether they were required or authorized to make an arrest. If they were authorized by law to commit a trespass, the authority for it must be found in the common law for there is nothing in the Criminal Code.

Unlike civil process, in the execution of criminal process the test is whether there are reasonable and probable grounds for acting. If the police officer has reasonable and probable cause to believe that the person named in the warrant for arrest is in the home of a stranger he has the right, after proper demand, to enter the home forcibly, to search and to arrest. In the present case the police officers had reasonable and probable grounds for believing that C was in the appellant’s apartment.

Except in exigent circumstances, the police officers must make an announcement prior to entry. In the ordinary case, before forcing entry, they 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. On the facts of this case, proper notice was given.

Per Martland, Ritchie, Pigeon, Beetz and de Grand-pré JJ.: No view was expressed with respect to the application of s. 25(1) of the Criminal Code to the circumstances of this case. Subject to this, agreement was expressed with the reasons delivered by Dickson J.

Semayne’s Case (1604), 5 Co. Rep. 91a; Johnson v. Leigh (1815), 6 Taunt. 246; Morrish v. Murrey (1844), 13 M. & W. 52; Southam v. Smout, [1964] 1 Q.B. 308; Davis v. Lisle, [1936] 2 K.B. 434; Thomas v. Sawkins, [1935] 2 K.B. 249; Re Curtis (1756), Fost, 135; Burden v. Abbott (1811), 14 East.1, referred to; Mathews v. Dwan, [1949] N.Z.L.R. 1037, not followed.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], allowing an appeal from a judgment of Wootton J. Appeal dismissed.

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W.A.M Stewart, for the plaintiff, appellant.

A. McEachern, for the defendants, respondents.

The judgment of Laskin C.J. and Judson, Spence and Dickson JJ. was delivered by

DICKSON J.—The claim of the appellant, Mr. Eccles, is against the respondents, three constables on the Vancouver Police Force, for damages for trespass alleged to have been committed when the police officers entered the apartment occupied by Mr. Eccles in the City of Vancouver at about 4:00 p.m. on August 12, 1971. The constables were in plain clothes but were armed. The purpose of the entry was to apprehend one Edmund Cheese, also known as Billy Deans, for whom there were three outstanding Montreal warrants. Cheese was not found in the apartment. The trial judge, Wootton J., concluded he had not been there or had successfully made his escape, by climbing to the roof of the building from one of the two balconies adjoining the apartment, at the moment of or immediately after the police officers entered. Mr. Eccles was successful at trial. Mr. Justice Wootton awarded him $300 damages and costs. The Court of Appeal for British Columbia by a majority (Robertson and Taggart JJ.A., with Nemetz J.A. dissenting) reversed. Leave to appeal to this Court was granted by the Court of Appeal for British Columbia.

There are two issues: (1) Were the respondents authorized by s. 25 of the Criminal Code forcibly to enter and search the appellant’s apartment pursuant to their right of arrest without warrant under s. 450 (then s. 449) of the Code? (2) If not, were their actions justified on common law principles? On the first issue, s. 450(1)(a) of the Code provides that any one may arrest without warrant a person who, on reasonable and probable grounds, he believes has committed a criminal offence. There were reasonable and probable grounds for believing that Cheese had committed a criminal offence

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and had the respondents found him in the apartment or elsewhere there is no doubt they would have been authorized by s. 450(1)(a) to arrest him. Section 25(1) of the Code then provides that:

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

is, if he acts on reasonable and probable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

It is the submission of counsel for the respondents that a person who is by s. 450 authorized to make an arrest is, by s. 25, authorized by law to commit a trespass with or without force in the accomplishment of that arrest, provided he acts on reasonable and probable grounds. I cannot agree with this submission. Section 25 does not have such amplitude. The section merely affords justification to a person for doing what he is required or authorized by law to do in the administration or enforcement of the law, if he acts on reasonable and probable grounds, and for using necessary force for that purpose. The question which must be answered in this case, then, is whether the respondents were required or authorized by law to commit a trespass; and not, as their counsel contends, whether they were required or authorized to make an arrest. If they were authorized by law to commit a trespass, the authority for it must be found in the common law for there is nothing in the Criminal Code. The first issue, therefore, depends upon the second issue, videlicet, can the trespass be justified on common law principles? For these principles, we go back to vintage common law, to 1604, and Semayne’s

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Case[2], in which the principle, so firmly entrenched in our jurisprudence, that every man’s house is his castle, was expressed in these words: “That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose…”. That, then, is the basic principle, as important today as in Biblical times (Deuteronomy 24:10) or in the 17^th 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…

See also, a century later, to the same effect, Hale, Pleas of the Crown (1736), 582; Foster, Crown Law (1762), 320. Thus it will be seen that the broad basic principle of sanctity of the home is subject to the exception that upon proper demand the officials of the King may break down doors to arrest. The incidental point was made in Semayne’s Case that “the house of any one is not a castle or privilege but for himself, and shall not extend to protect any person who flies to his house…”

The Criminal Code empowers a justice, on proper grounds being shown, to issue a warrant authorizing a search for things but there is no power to issue a warrant to search for persons.

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Counsel for Mr. Eccles advanced the argument that if a fugitive was in the home of a friend a police officer could not enter to arrest him unless the homeowner gave consent. I cannot agree that this properly expresses the position in law. If that be right, a fugitive could obtain permanent sanctuary merely by residing with a friend. I know of no place that gives a criminal fugitive sanctuary from arrest.

In some of the American jurisdictions a distinction is drawn between entering to arrest a fugitive in his own home and entering the home of another person to arrest the fugitive. I am unable to find any Anglo-Canadian authority supporting a distinction of this nature and in principle it seems to me to be wrong. The fact that the premises to be entered are those of a third person may have a bearing in the determination of reasonable and probable cause. There may be less likelihood of a fugitive being in the home of another than in his own home, but otherwise I can see no good reason for distinguishing between the two types of case.

I would wish to make it clear, however, that there is no question of an unrestricted right to enter in search of a fugitive. 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.

(a) Reasonable and probable grounds.

In the case of civil process the rule is that if a sheriff’s officer enters the house of A to execute process against the goods of B or to arrest B he enters at his peril and if the goods or B, as the case may be, are not present, he is guilty of trespass. It is said the entry can be justified only by the event: Johnson v. Leigh[3]; Morrish v.

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Murrey[4]; Southam v. Smout[5]. But in the execution of criminal process the test is whether there are reasonable and probable grounds for acting. If so, the entry does not become unlawful if the fugitive is not found on the premises. The entry of the police is legal or illegal from the moment of entry and does not change character from the result. The only case which would seem to run counter to this principle is Mathews v. Dwan[6], in which Gresson J. concluded that the justification for entry and arrest is the presence on the premises of the individual sought and there is no authority to the police forcibly to enter premises to effect the arrest of a named person upon a “mere suspicion, however well based” that the person is upon the premises. The learned judge referred to Davis v. Lisle[7], and Thomas v. Sawkins[8]. In the Davis case police officers had entered a garage to make inquiries and were told by the proprietor to “get out” and it was held they thereafter were trespassers. The case did not involve entry to make an arrest. The Thomas case concerned the right of a police officer to remain on premises in which a public meeting was being held, contrary to the wishes of the convenors, to prevent a possible breach of the peace. I find little support in these cases for the proposition that entry against the will of the owner will always be a trespass unless the person sought is apprehended on the premises. In my opinion that is not the principle which emerges from the earlier cases. If the police officer has reasonable and probable cause to believe that the person named in the warrant for arrest is in the home of a stranger he has the right, after proper demand, to enter the home forcibly, to search and to arrest. In the present case there can be no doubt the police officers believed and in my view had reasonable and probable grounds for believing that Cheese, or Deans as he was known to Mr. Eccles, was in the Eccles apartment. Constable Simmonds had

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been told by one of his superiors that Eccles was the closest known associate of Cheese. That this information was hearsay does not exclude it from establishing probable cause. Additionally, both Eccles and Cheese had informed Constable Simmonds prior to the entry that Cheese had been staying in the Eccles apartment. On August 12, 1971, the day of the alleged trespass, Cheese had been in the apartment, he had been seen entering and leaving the building and just prior to the impugned entry had been seen to enter the building. Constable Bourque had seen police department bulletins pertaining to both Eccles and to Cheese.

(b) Announcement.

Except in exigent circumstances, the police officers must make an announcement prior to entry. There are compelling considerations for this. An unexpected intrusion of a man’s property can give rise to violent incidents. It is in the interests of the personal safety of the householder and the police as well as respect for the privacy of the individual that the law requires, prior to entrance for search or arrest, that a police officer identify himself and request admittance. No precise form of words is necessary. In Semayne’s Case it was said he should “signify the cause of his coming, and to make request to open doors”. In Re Curtis[9], nine of the judges were of opinion that it was sufficient that the householder have notice that the officer came not as a mere trespasser but claiming to act under a proper authority, the other two

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judges being of opinion that the officers ought to have declared in an explicit manner what sort of warrant they had. In Burden v. Abbott[10], Bayley J. was content that the right to break the outer door should be preceded simply by a request for admission and a denial. The traditional demand was “Open in the name of the King”. 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. Was proper notice given in this case? The police officers gave notice of presence by knocking on the door of the apartment. After a pause it was opened and an officer gave notice of identity by production of his badge and the words “Vancouver City Police”. On August 10th, two days before the alleged trespass, Mr. Eccles had been stopped and searched by two of the respondents. One of the respondents had stopped him on two earlier occasions, so the identity of two of the three persons who appeared at the door of the apartment on August 12th could hardly have been a matter of which Mr. Eccles was ignorant. Whether notice of purpose was given is more difficult. Mr. Eccles testified that when the door was opened one man stood there while the other two ran into different rooms without identifying themselves or their purpose. In his evidence-in-chief, Constable Simmonds, after referring to

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the opening of the door, said:

I don’t recall if Mr. Eccles answered, I don’t recall if he said: “What do you want”, or something like that, he probably did and Constable Bourque said: “We’re looking for a wanted man and we want to search the premises”, so forth—

Constable Wise testified, “Constable Bourque told Mr. Eccles that we were looking for a man wanted on a warrant”. Constable Bourque said that when the door opened he observed Mr. Eccles standing in the doorway and he, Bourque, entered the apartment. In reply to the question by Mr. Eccles, “What do you want?” Constable Bourque replied, according to his evidence, “I told him that I had reason to believe a man wanted by our department had just entered this apartment.” In my view, the police officers, on the facts of this case, discharged the duty which rested upon them to give notice before forcing entry.

I would, accordingly, dismiss the appeal with costs.

The judgment of Martland, Ritchie, Pigeon, Beetz and de Grandpré JJ. was delivered by

MARTLAND J.—I do not wish to express any view with respect to the application of s. 25(1) of the Criminal Code to the circumstances of this case. Subject to this, I agree with the reasons of my brother Dickson and I would dispose of this appeal in the manner which he proposes.

Appeal dismissed with costs.

Solicitors for the plaintiff, appellant: Wing, Stewart, Allin & Good, Vancouver.

Solicitors for the defendants, respondents: Russell & DuMoulin, Vancouver.