2010 QCCA 2235, 2010 QCCA 2235

Tétard c. R. 2010 QCCA 2235 COURT OF APPEAL CANADA PROVINCE OF QUEBEC MONTREAL REGISTRY NO: 500-10-004577-100 (500-36-005066-090) (M.C.M: 106-093-107) DATE: DECEMBER 6, 2010 CORAM: THE HONOURABLE FRANCE THIBAULT J.A. JACQUES DUFRESNE J.A. GUY COURNOYER J.A. (AD HOC) BENOIT TÉTARD APPELLANT - Appellant - Accused v.

HER MAJESTY THE QUEEN RESPONDENT - Respondent - Prosecutrix JUDGMENT [ 1 ] The appellant appeals from a conviction of operating a motor vehicle with a blood alcohol level exceeding the legal limit handed down on May 20, 2009, by the Honourable Judge Richard Chassé of the Municipal Court of Montreal and upheld by the Honourable Judge Michel Delorme of the Superior Court on January 28, 2010. [1] [ 2 ] The appeal calls for an analysis of the application of the hot pursuit exception when arresting a suspect, “ an exception traditionally recognized by the common law to the principle of the sanctity of the home”. [2] I – The facts [ 3 ] On April 5, 2006, the appellant was involved in a minor accident while driving his Toyota Highlander vehicle.

The front left bumper of his vehicle hit the back right door of a vehicle that was turning right at an intersection. [ 4 ] At the next traffic light, the driver of the other car involved exited his vehicle and walked towards the appellant. The appellant had difficulty lowering the window of his vehicle. The driver told him that he had been hit and that a joint report of automobile accident had to be made. The appellant refused. [ 5 ] The driver smelled a strong odour of alcohol and asked him if he had been drinking. The appellant answered, [ translation ] "Yes, a lot".

The driver told him he was calling the police. While he did so, the appellant left the scene. [ 6 ] The driver followed the appellant and took down his licence number. He called 911 on his cell phone. The appellant stopped at his residence at ... The time elapsed between the accident and the arrival at said address was between five and ten minutes. [ 7 ] The driver, still in contact with 911, spoke to the appellant. The appellant answered, but the driver did not understand what he said.

The 911 dispatcher informed the driver that he was sending a police car. [ 8 ] The driver saw the appellant enter the building and come back out with a woman and a young girl. A discussion ensued and the appellant went back into the residence. [ 9 ] A police officer arrived on the scene about five minutes later and met the driver, who showed him the damage and gave him a description of the appellant. The appellant came out on the balcony and looked in their direction. [ 10 ] The driver identified the appellant as being the driver of the vehicle that had hit him.

The police officer identified himself and asked the appellant to come to him. The appellant went back into his residence. The police officer ran towards the door of the residence and saw the appellant enter a room. The entrance door was not locked. He opened it and entered the residence. Two other police officers who arrived on the scene followed him. They noted the appellant's highly impaired state.

[ 11 ] The appellant claims that the trial judge and the Superior Court judge erred in finding that the police officers had the right to enter his residence without a warrant because of the powers they have in cases of hot pursuit. II – Analysis A – Error as to the existence of reasonable grounds [ 12 ] The appellant first raises some points that call into question the factual findings of the trial judge as to the existence of reasonable grounds, including the driver’s doubt when he identified the appellant to the police officer. [ 13 ] The standard applicable to such findings, as stated in R. v.

Shepherd , [3] warrants mention here: While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law. As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at first blush as though the issue of reasonable and probable grounds is a question of fact.

However, this Court has repeatedly affirmed that the application of a legal standard to the facts of the case is a question of law: see R. v. Araujo , 2000 SCC 65 , [2000] 2 S.C.R. 992 , at para. 18 ; R. v. Biniaris , 2000 SCC 15 , [2000] 1 S.C.R. 381 , at para. 23 . In our view, the

summary conviction appeal judge erred in failing to distinguish between the trial judge’s findings of fact and his ultimate ruling that those facts were insufficient, at law , to constitute reasonable and probable grounds. Although the trial judge’s factual findings are entitled to deference, the trial judge’s ultimate ruling is subject to review for correctness. [4] [ 14 ] The appellant invoked no grounds that would justify the Court’s intervention with regard to the factual findings of the trial judge or his determination that those facts constitute reasonable grounds.

B – Warrant requirement and hot pursuit [ 15 ] In R. v.

Macooh , [5] Lamer C.J. adopted the following definition of hot pursuit: Generally, the essence of fresh pursuit is that it must be continuous pursuit conducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction. [6] [ 16 ] The exception to the principle of sanctity of the home in cases of hot pursuit is based on a number of justifications that explain its raison d’être. [ 17 ] In Macooh , Lamer C.J. provided these justifications, which can be summarized as follows: 1.

It is unacceptable for police officers about to make a completely lawful arrest to be prevented from doing so merely because the offender takes refuge in his home or that of a third party. The police cannot be obliged to end a pursuit on the offender's doorstep, without making his residence a real sanctuary. 2. It is not desirable for offenders to be encouraged to seek refuge in their homes or those of third parties, as significant danger may be associated with such flight and the pursuit that may result. 3.

In a case of hot pursuit, the police officer may have personal knowledge of the facts justifying the arrest, which greatly reduces the risk of error. 4. Flight also usually indicates some awareness of guilt on the part of the offender. 5. It may be difficult to identify the offender without arresting him on the spot. 6. Evidence of the offence leading to the pursuit or evidence of a related offence may be lost (for example, evidence of impairment). 7.

The offender may again flee or continue to commit the offence and the police cannot be required to keep an indefinite watch on the offender's residence in case he should decide to come out. [7] [ 18 ] The appellant claims that this is not a case of hot pursuit, that the requirements of

section 529.3 Cr.C . were not met and that, consequently, an entry warrant pursuant to

section 529.1 Cr.C. was necessary to authorize the arrest of the appellant in his residence.

[ 19 ] In R. v. Feeney , [8] the Supreme Court held “ that generally a warrant is required to make an arrest in a dwelling house”. [9] However, the Court also affirmed that the hot pursuit exception remains valid. [10] Sopinka J. wrote: 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. [11] (Emphasis added.) [ 20 ] Contrary to the appellant’s implicit claim, the enactment of sections 529 and following of the Criminal Code did not result in the abolition of the hot pursuit exception. Renee Pomerance (before she became a judge) explains why: The drafters of Bill C-16 were careful not to oust or limit other authority which would permit warrantless entry of a dwelling. The

preamble explicitly declares that "nothing in this Act is intended to limit or restrict the circumstances under which peace officers may be justified in entering a dwelling-house for the purposes of arrest or apprehension, in the absence of prior judicial authorization, under this or any other Act or law". [46] Thus, while the Bill makes no reference to hot pursuit, the police have authority to enter on this basis, as a result of the decision in Feeney .

Similarly, the legislation leaves it open to the courts to consider and recognize other types of exigent circumstances, on a case-by-case basis. [12] (Emphasis added.) [ 21 ] The hot pursuit exception must therefore be analyzed. [ 22 ] In the present case, the main feature is that the perpetration of the offence by the appellant was noted by a citizen who contacted the police, who then followed the appellant in hot pursuit. [ 23 ] Did this affect the finding that the appellant was arrested in the context of a hot pursuit, within the meaning of Macooh ?

To answer this question, we must examine the powers of arrest of citizens and police officers, as provided in the Criminal Code . [ 24 ] Subsection 494(1) of the Criminal Code provides: Arrest without warrant by any person 494.

(1) Any one may arrest without warrant (

a) a person whom he finds committing an indictable offence; or (

b) a person who, on reasonable grounds, he believes (

i) has committed a criminal offence, and (ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person. [ 25 ] In accordance with paragraph (

a) of subsection 494(1) Cr. C. , the driver involved in the accident with the appellant could have arrested him because he found the appellant committing an indictable offence, i.e., operating a motor vehicle with impaired faculties (section 253 Cr. C. ) and failing to stop a motor vehicle that is involved in an accident (section 252 Cr. C. ). [13] [ 26 ] In addition, the police officers called to the scene had the power to arrest the appellant under either paragraph (

b) of subsection 494(1) Cr.C . or paragraph (

a) of subsection 495(1) Cr.

C. [ 27 ] First, the information communicated by the driver gave the police officers reasonable grounds to believe that the appellant had committed an indictable offence, that he was escaping from a person legally authorized to arrest him, and that the driver was in hot pursuit. [ 28 ] Second, the police officers had reasonable grounds to believe that the appellant had committed an indictable offence. [14] The arrest of the appellant without a warrant was authorized because of the need to establish his identity, secure or preserve evidence of or relating to the offence, and prevent the continuation or repetition of the offence. [15] [ 29 ] The only question is whether a distinction must be drawn in cases where the initial hot pursuit was undertaken by a citizen rather than by a police officer.

Making such a distinction would be artificial and illogical. [ 30 ] It does not matter that the pursuit was initiated by a witness before the police arrived on the scene. In Macooh , Lamer C.J. states in this regard that police officers can continue a pursuit already engaged: It is interesting to note that the offence here was committed in the presence of the police, thus meeting the requirement referred to by Foster and Magnet. I do not think, however, that this condition should be strictly imposed on the right to enter for offences other than indictable offences. This condition is too strict.

Police who arrive shortly after the offence is committed and see the offender fleeing should be able to follow him into private premises , for a provincial offence as well as for an indictable offence. This power of entry should also be enjoyed by police continuing a pursuit already begun. [16] (Emphasis added.) [ 31 ] According to the Court of Appeal of British Columbia in R. v. Haglof , [17] a situation of hot pursuit may exist even when the police officers did not witness the events giving rise to the offence:

In my opinion, the case at bar represents a situation of hot pursuit notwithstanding that the officers did not in fact see the accident occur or the appellant enter the house. The time between the accident and the arrest was only some 35 minutes. Within approximately fifteen minutes of the accident, Constable King arrived at the Ethel Residence. This represented the length of time it took to locate the suspect. The remaining 20 minutes were spent at the premises of the appellant attempting to and finally succeeding in effecting an arrest.

In my view, these events are sufficiently proximate to be considered as forming part of a single transaction . (Emphasis added.) [ 32 ] Unlike the situation in R. v. Van Puyenbroek , [18] rendered by the Court of Appeal of Ontario and cited by the appellant, the hot pursuit here was continuous and conducted with reasonable diligence, in a factual chronology that can be regarded as constituting a single transaction.

In Van Puyenbroek , the police officers, who did not see the offence, arrived at the suspect’s domicile more than 90 minutes after the initial call. [ 33 ] Insofar as we are dealing with a single transaction, the hot pursuit exception to the arrest warrant rule applies even if the pursuit was initiated by a citizen and taken over and concluded by a police officer.

In such a case, an entry warrant is not required to arrest a suspect in a dwelling house. [ 34 ] In the case at bar, the need to prevent the destruction of evidence was a legitimate concern. [19] The arrest of the appellant was necessary to promptly administer a blood alcohol test, avoid further absorption of alcohol, and prevent him from getting back behind the wheel. [ 35 ] The conclusion is the same if we apply paragraph (

b) of subsection 529.3(2) Cr. C. [20] The situation the police officers were facing made it difficult to obtain an entry warrant, and immediate intervention was required to preserve the evidence. III - Conclusion [ 36 ] The police officers could arrest the appellant in his domicile without obtaining an arrest warrant. The arrest of the appellant was not arbitrary within the meaning of

section 9 of the Canadian Charter of Rights and Freedoms . Even if it were, the stay of proceedings he seeks could not be granted. [21] [ 37 ] FOR THESE REASONS, THE COURT: [ 38 ] DISMISSES THE APPEAL. FRANCE THIBAULT, J.A. JACQUES DUFRESNE, J.A. GUY COURNOYER, J.A. (AD HOC) Mtre Jean Poletto For the appellant Mtre Suzanne Béchard Municipal Court of Montreal For the respondent Date of hearing: October 20, 2010