- March 24, 2017
- Clayton Rice, Q.C.
On November 30, 2007, the RCMP in Langley, British Columbia, received a 911 call from a woman who was crying and apparently injured. Three officers went to Brendan Paterson’s apartment and knocked on the door. When Paterson opened the door one of the officers smelled marihuana. After the police were satisfied that no one needed help they asked Paterson about the odour.
Paterson said he had some unconsumed marihuana roaches. The officers told him they would have to make a “no case” seizure. There would be no charge. Paterson agreed to get the roaches and tried to close the door. One of the officers blocked it and two of them walked in. Paterson grabbed a bag containing three roaches as the police saw a bulletproof vest, a handgun and a bag of pills. They arrested Paterson and did a sweep of the apartment finding a bag of cocaine. The police then secured the apartment and came back later with a search warrant. They seized a cornucopia of drugs, cash and firearms. Paterson was charged with numerous drug and firearm offences. He moved to suppress.
On September 30, 2011, Justice M.B. Blok in the British Columbia Supreme Court dismissed Paterson’s exclusion motion under ss. 8 and 24(2) of the Charter of Rights in a ruling reported as R v Paterson, 2011 BCSC 1728. Justice Blok held that exigent circumstances under s. 11(7) of the Controlled Drugs and Substances Act justified the police entry and search of the apartment. Paterson appealed.
On May 13, 2015, the British Columbia Court of Appeal released its opinion dismissing the appeal reported as R v Paterson, 2015 BCCA 205. On the appeal, Paterson argued, for the first time, that the trial judge erred by failing to determine the voluntariness of his statement to the police about the roaches before relying on them in the exclusion hearing. Justice E.A. Bennett, writing for the unanimous court, held that voluntariness did not have to be proved. The primary rationale for the common law confession rule is to ensure reliability and trial fairness. That rationale does not apply where the inquiry is into state conduct and not the guilt of the defendant. Justice Bennett also agreed with the trial judge that it was impracticable for the police to obtain a search warrant because the officers were confronted with exigent circumstances. The Supreme Court of Canada granted leave.
On March 17, 2017, the court released its split 5-2 decision reported as R v Paterson, 2017 SCC 15 overturning the court of appeal. The evidence was excluded and Paterson acquitted. I will focus on two things in the majority opinion of Justice Russell S. Brown (a) the application of the common law confession rule in the context of a Charter motion and (b) the doctrine of exigent circumstances.
(a) Confession Rule
Paterson argued that confining the voluntariness inquiry to the trial allows the police to acquire an unfair advantage by fostering a systemic power imbalance between the citizen and the state. An incriminating statement relied upon to justify a search should therefore be tested on a voluntariness voir dire. Justice Brown disagreed relying on the distinction between the purpose of a Charter application and the purpose of a trial, at paras. 18-9:
“…[T]he appellant’s submissions fail to account for the purpose of the judicial inquiry in a Charter voir dire, and its distinction from the purpose of a criminal trial. A criminal trial is concerned with determining whether the accused is guilty of an offence. In a Charter voir dire, however, the focus is not on the accused’s guilt, but on whether the accused’s constitutional rights were infringed. A Charter voir dire therefore involves a review of the totality of the circumstances known to, and relied upon by, the state actor at the time of the impugned action. To be clear, only the state actor’s contemporary state of mind and conduct is at issue, and not the truthfulness of the statement upon which he or she relied. It is for this reason that the truthfulness of a statement has no bearing upon its admissibility; rather, the inquiry is focussed upon whether it was reasonable for him or her to rely upon the statement as forming grounds for the action under scrutiny.
The significance of this distinction between the purpose of a Charter voir dire and a trial also governs the admissibility of other forms of evidence, such as hearsay, evidence of bad character or of past discreditable conduct, information obtained from confidential informants, information protected by privilege or, as discussed in R v MacKenzie, 2013 SCC 50,  3 SCR 250, at paras. 61-62, personal opinion informed by prior training and experience. Each of these forms of evidence raises either reliability or policy concerns and is therefore subject to strict evidentiary rules which restrict or preclude altogether admissibility for substantive use at the trial proper. Such concerns do not, however, arise at a Charter voir dire, because of the limited purpose for which this evidence may be used – going only to the state actor’s state of mind and conduct, and not to the ultimate reliability of the evidence in determining the guilt of the accused. It follows that admitting a statement made by an accused for that limited purpose without first establishing its voluntariness does not offend the rationales underlying the confessions rule. The confessions rule’s driving concern for trial fairness and avoiding conviction upon inherently unreliable evidence simply does not arise at the voir dire stage.”
(b) Exigent Circumstances
The question here was whether the first warrantless search of Paterson’s apartment was justified by exigent circumstances under s. 11(7) of the Controlled Drugs and Substances Act. I will give you the text of the subsection at the heart of the debate:
“(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.”
The effect of the subsection would be to empower the police to conduct a warrantless search of Paterson’s apartment for drugs provided that the conditions for obtaining a search warrant existed and exigent circumstances made it impractical for the police to get one. In Canadian jurisprudence exigent circumstances means urgency and not merely convenience, propitiousness or economy. And the urgency must arise from circumstances calling for immediate police action to preserve evidence, officer safety or public safety. Justice Brown held, at paras. 34 and 36:
“Even where exigent circumstances are present…they are not, on their own, sufficient to justify a warrantless search of a residence under s. 11(7). Those circumstances must render it ‘impracticable’ to obtain a warrant. In this regard, I respectfully disagree with the Court of Appeal’s understanding of s. 11(7) as contemplating that the impracticability of obtaining a warrant would itself comprise exigent circumstances. The text of s. 11(7) (‘by reason of exigent circumstances it would be impracticable to obtain [a warrant]’) makes clear that the impracticability of obtaining a warrant does not support a finding of exigent circumstances. It is the other way around: exigent circumstances must be shown to make it impracticable to obtain a warrant. In other words, ‘impracticability’, howsoever understood, cannot justify a warrantless search under s. 11(7) on the basis that it constitutes an exigent circumstance. Rather, exigent circumstances must be shown to cause impracticability.
While I am not persuaded that the strict condition of impossibility urged by the appellant is denoted by Parliament’s chosen statutory language of impracticab[ility], neither am I satisfied by the Crown’s argument equating impracticability with mere impracticality. Viewed in the context of s. 11(7), however – including its requirement of exigent circumstances – ‘impracticability’ suggests on balance a more stringent standard, requiring that it be impossible in practice or unmanageable to obtain a warrant. The French version of ‘impracticable’ in s. 11(7) – ‘difficlement realisable‘ – is also consistent with a condition whose rigour falls short of impossibility but exceeds mere impracticality of obtaining a warrant. So understood, then, ‘impracticable’ within the meaning of s. 11(7) contemplates that the exigent nature of the circumstances are such that taking time to obtain a warrant would seriously undermine the objective of police action – whether it be preserving evidence, officer safety or public safety.”
In applying the test of exigency, Justice Brown concluded, at para. 39, that the prospect of Paterson destroying roaches that the police officers hoped to seize on a ‘no case’ basis and destroy themselves did not remotely approach the threshold of exigency. There was no urgency compelling immediate action to preserve evidence. The police had the practical option to arrest Paterson and obtain a warrant. “If the situation was not serious enough to arrest and apply for a warrant” Justice Brown wrote, “then it cannot have been serious enough to intrude into a private residence without a warrant.”
Justice Brown emphasized three things in the Grant analysis. First, the court’s task is to situate the state conduct on “a scale of culpability”. The privacy interest in residential premises is high. As Justice Peter Cory said in R v Silveira,  2 SCR 297, at para. 140, “[t]here is no place on earth where persons can have a greater expectation of privacy”. Second, violations arising from a high expectation of privacy tend to favour exclusion. Third, as in most drug cases, the reliability of the evidence and its importance to the Crown’s case favoured admission.
The pull of the Grant factors was elevated by the tension between the high privacy interest and the consequence of gutting the Crown’s case. Justice Brown concluded, at para. 54, that although the destruction of the prosecution weighted heavily in favour of admission, the warrantless entry into a private residence to prevent Paterson from destroying three roaches that the police themselves intended to destroy pulled toward exclusion. In the end, it was critical, as it always is, to prevent the high privacy interest from being overwhelmed by other considerations. The importance of ensuring that police misconduct is not condoned by the courts favoured exclusion. Justice Brown agreed with the conclusion in R v McGuffie, 2016 ONCA 365, at para. 83, where Justice David H. Doherty said that “[t]he court can only adequately disassociate the justice system from the police misconduct and reinforce the community’s commitment to individual rights protected by the Charter by excluding the evidence.”
It is tempting to see the result in Paterson as a good one that protects the privacy rights of all Canadians. But there is a disquieting undercurrent in both the reasons of the majority and the dissent of Justice Michael Moldaver with concurrence by Justice Clement Gascon. In the exclusion analysis, Justice Brown wrote, at para. 54, that this case was a “close call”. In dissent, Justice Moldaver said, at paras. 74 and 87, that “it is hardly fair to castigate the police for their conduct when prior to this case, the legal boundaries of s. 11(7) in the context of a ‘no case’ seizure were at best unclear” even though “the police entry into the apartment was unlawful”. Let’s look at the evidence again put in the language of real time.
Paterson opens the door. There is no urgency about anything. The police smell marihuana. Paterson says he’ll get the three roaches and tries to close the door. One of the officers blocks the door, pushes it open and two of them barge into the apartment. They see the bulletproof vest and the handgun. They sweep the apartment. That means one of the officers does a walk through visual search when the bag of cocaine is seen. All done without a warrant. To minimize that kind of police conduct as a close call undeserving of castigation fosters a law enforcement attitude that rights don’t mean much because the evidence will go in anyway. It fosters a culture of complacency that the court condemned in the context of speedy trial rights. Justices Brown and Moldaver should keep in mind that police officers share a duty with those they investigate – a duty to obey the law – and it is worth saying so.
There is nothing new here. The Charter of Rights wasn’t born yesterday and police power to arrest without a warrant has a long pedigree in the Criminal Code. Both Justice Brown at para. 39, and Justice Moldaver at para. 73, said that the police could have arrested Paterson at the door and applied for a search warrant. They could have obtained a telewarrant on the spot while Paterson sat in the police vehicle. It was that simple. But the police chose to ignore the obligations imposed upon them by well settled constitutional principles. And that’s a close call. Really?