D. Supporting Powers

Author:Steve Coughlan
Profession:Professor of Law. Dalhousie University
Pages:199-202
 
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Page 199

A number of provisions in the Code provide additional power or protection to peace officers or others performing arrests. Anyone making a lawful arrest, for example, is justified in using as much force as necessary to do so, provided she is acting on reasonable grounds.62This power is set out in the Criminal Code for arrests under that Act, but the use of reasonable force is incidental to arrests in any case, such as those carried out under some provincial Act.63Latitude is permitted, since peace officers have a duty to act, sometimes in difficult and exigent circumstances.64Nonetheless, an officer is criminally responsible for using excessive force.65A special rule applies to the use of force likely to cause death or grievous bodily harm to effect an arrest. Such action is only permitted when: even if there is a warrant, a warrantless arrest would be allowable; the person has taken flight to avoid arrest; the person using the force believes on reasonable grounds it is necessary for the purpose of protecting the officer or some other person from imminent or future death or grievous bodily harm; and finally that the flight of the person cannot be prevented in a less violent manner.66

Anyone arresting the wrong person under a warrant is not criminally responsible, provided he believed in good faith and on reasonable grounds that the correct person was being arrested. This same protection also applies to anyone called on to assist in the arrest.67

Police also have the power to search a person who has been arrested (this issue is discussed in Chapter 4).

Page 200

Special rules apply when the police enter a dwelling house to make an arrest because of the increased privacy interest in that situation. At common law, relatively little additional protection was provided to a suspect in this situation, but the Court held in R. v. Feeney that some of the common law rules did not pass Charter scrutiny.68Therefore, some of those common law rules have now been overridden by statute.69In essence, the judicial pre-authorization requirement that applied to entry to conduct a search now also applies to entry to effect an arrest.

Peace officers are now required to obtain specific authorization on an arrest warrant if they wish to enter a dwelling house in order to effect the arrest. The person issuing the warrant must be satisfied on reasonable grounds that the person to be arrested will be present in the dwelling house. In addition, the officer executing the warrant must have grounds to believe that the person to be arrested is present immediately before entering the dwelling house.70Similarly, a separate warrant that simply authorizes peace officers to enter a dwelling house can be issued if an arrest warrant already exists, or the person can be arrested without...

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