The Feeney Case

Introduction

            In 1997, the Supreme Court of Canada rendered a decision which forced Parliament to either enact a new arrest warrant law or see the courts release thousands of other criminals on grounds that they, too, had been arrested contrary to the Supreme Court’s newly minted legal requirements in this case (Leishman, 1998). The case was Michael Feeney vs. Her Majesty the Queen. The decision was that warrantless arrests in dwelling houses are prohibited. And 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 (R v Feeney).

The Rule Before Feeney

            The rule before the Feeney decision was promulgated was that an arrest without a warrant can be effected in a dwelling place. Section 495(1)(a) of the Criminal Code provides that a peace officer may arrest without warrant a person who has committed an indictable offense or who, on reasonable grounds, he believes has committed or is about to commit an indictable offense. And to effect such warrantless arrest, the police may enter a private dwelling without permission 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 (R v Landry).

The Feeney Ruling

            However, at the time the Feeney case was decided, the governing law was already the Charter. Under the Charter, a warrantless arrest can not be made in the dwelling house of a person. 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 (id.). Moreover, the Supreme Court required that 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 the arrest (R v Feeney).

The Effects of this Ruling

            The political effect of this ruling was that Parliament was forced to amend the Criminal Code in order to accommodate the new interpretation of the Charter. Thus, the Crown sought and obtained a six-month stay of the operation of that aspect of the judgment “relating to the requirement for a warrant to effect an arrest in a dwelling.” The transition period, which would have no application to the Feeney case, was scheduled to expire 22 November 1997 (Pilon).

            The procedural effect of this ruling to the case was that the evidence obtained against Feeney was rendered inadmissible because the arrest was not lawful. Since the arrest was unlawful, the search could not be considered as one incident to a lawful arrest. Thus, it is an illegal search and any evidence made through an illegal search is inadmissible in evidence. Therefore, the order of conviction was set aside and Feeney was held for new trial. However, the evidence obtained during the illegal search was excluded.

Observations

            Basically, the Feeney case made it more difficult for the Crown to apprehend criminals because it  imposes the rigid requirement that a warrant of arrest, with judicial authorization to trespass, must first be obtained before an arrest in a dwelling house can be effected. No arrest can be effected in a dwelling house without such warrant which also must contain a judicial authorization to trespass. The only exception is in case of a hot pursuit. This new requirement actually means that criminals now are better protected.. They could claim “sanctuary” for just being in their own homes and the police could not touch them without a warrant..

            This decision puts shackles on the hands of police officers who are investigating a crime, presumably, to minimize any abuse of authority of the part of the police, or perhaps, just the temptation of it. The restriction on the police made by this case, on the other hand, really impedes law enforcement, apprehension of criminals and the obtaining of evidence against them.

            What this requirement suggests is that when the police determines that a crime has been committed and has reasonable ground to believe that a certain person has committed it and he knows that the perpetrator is in inside his house, the police must first secure a warrant before he can arrest the criminal. Thus, he must first go away to find a judge who will issue such warrant. Unless and until an arrest warrant is issued, the policeman can do nothing. The impracticality of this requirement is immediately apparent. The risk of flight on the part of the criminal is made more risky and the criminal is given more time to dispose of possible evidence against him. Worse, the police can do nothing about it pending the release of the warrant. From a certain perspective, one can consider these all a mockery of justice.

            However, the Supreme Court was quick to add that the additional requirement is mainly to preserve the privacy of persons especially when they are in their own homes. No less than the Constitution guarantees the right of persons to be secure in their own homes. This constitutional right weighs so heavily on the scales of justice that even the Crown is shackled from exercising police power in law enforcement except after compliance with certain requirements. Even the most heinous criminals are afforded this right and the police can not proceed against them in a manner that disregards this right which is most cherished by the Constitution.

            Certainly, a man’s home is his castle. The wind may blow through it and the rain may fall through the roof but the Queen of England may not enter without the permission of the owner. Therefore, we can see that this right is a delimitation on the awesome police power of the state. And I believe that this is rightly so because the right to be let alone is inherent in every man and has existed long before any government or constitution ever existed. This should not be taken from man no matter how vile he is. Scoundrels and charlatans alike must be able to enjoy this right or else the entire humanity will fall to unbridled oppression.

            Moreover, the restriction made by the Feeney case, though not statistically proven, has the effect of minimizing police brutality and abuse of authority. How many times have we heard that a man was man-handled by the police in the privacy of his own home? The picture of that alone mocks our sense of justice. However, there is a strong reason to believe that the decision deterred the occurrence of police brutality and abuse of authority.

            The requirement is not that stringent, as argued by the ponente of the decision. The Supreme Court added that the police could watch the house while a warrant is being secured and should the criminal attempt to escape, then a warrantless arrest could already be effected. The Supreme Court mouthed it this way: once a procedure to obtain such prior authorization is created, the concern that suspects may find permanent sanctuary in a dwelling house disappears.

            However, there is a statement made by the Supreme Court in the case which disturbs me. It was with regard to the judicial authorization requirement about which they said, “if the ‘Criminal Code’ currently fails to provide specifically for a warrant containing such prior authorization, such a provision should be read in”. It seems that the Supreme Court imposed a new requirement of a judicial authorization to trespass which must also be contained in the warrant. If so, this amounts to judicial legislation. However, the end result is the same. The right to privacy must be upheld.

Conclusion

            The inevitable conclusion is that the attitude of the court is to uphold the right to privacy over the right of the state to enforce security within its domain. The mindset of the court is that the people should always be more free. They should be given the greatest leeway possible in the exercise of their rights. The Crown can interfere with these rights only upon compliance with stringent requirements. And this is only proper because the Crown has all the resources to proceed against a private individual and therefore the abuse, or even just the possibility of it, must be curtailed. And as simple citizens, we could always look to the courts to be the bastion which will zealously guarantee us our rights.

References

Leishman, Rory. Robed Legislators: Dictators for Life. Retrieved from the world wide web Nov. 20, 2007. HTTP://www.conservativeforum.org/EssaysForm.asp?ID=6252.

Michael Feeney v Her Majesty The Queen  indexed as R v Feeney 2 S.C.R. 13 . Retrieved from world wide web Nov. 20, 2007. HTTP://csc.lexum.umontreal.ca/en/1997/1997rcs2-13/1997rcs2-13.html.

Her Majesty the Queen v Paul Landry indexed as R v Landry 1 S.C.R 145. retrieved from the world wide web Nov. 20, 2007. HTTP://scc.lexum.umontreal.ca/en/1986/1986rcs1-145/1986rcs1-145.html.

Pilon, Marilyn. Search, Seizure, Arrest, and Detention Under the Charter. Retrieved from the World Wide Web Nov. 20, 2007. HTTP://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/CIR/917-e.htm#3.%20%22Warrantless%22.