SCC clarifies exigent circumstances, confessions rule

A B.C. man convicted of drug and firearms offences based on seizure of evidence during a warrantless entry into his apartment has had his appeal to the Supreme Court of Canada allowed, his convictions set aside and acquittals entered.

At issue before the court was the voluntariness of the appellant’s self-incriminating statements, the entry into the appellant’s home using the common law power under exigent circumstances, and admissibility of the evidence seized.

In Brendan Paterson v. Her Majesty the Queen, the majority of the Supreme Court found that warrantless entry into Brendan Paterson’s apartment “was not justified by ‘exigent circumstances’ making it ‘impracticable’ to obtain a warrant” within the meaning of s. 11(7) of the Controlled Drug and Substances Act.

“Even where exigent circumstances are present, however, they are not, on their own, sufficient to justify a warrantless search of a residence under s. 11(7),” Justice Russell Brown wrote for the majority. “In order for a warrantless entry to satisfy s. 11(7), the Crown must show that the entry was compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety.”

In November 2007 RCMP in Langley, B.C. received a 911 call from a woman who was crying and apparently injured. Arriving at her boyfriend’s apartment, they satisfied themselves that no one in the home needed help, having learned that the 911 caller had already been taken to hospital.

However, when the caller’s boyfriend, the appellant Paterson, opened the door, police noticed an odour of marijuana. Paterson eventually acknowledged having marijuana “roaches” (butts) in his residence. Police officers then told Paterson that they would have to seize the roaches, but that they would treat this as a “no case” seizure, meaning they intended to seize the roaches without charging him. They then prevented Paterson from closing the door to his apartment, and followed him inside, where they noticed a bulletproof vest, a firearm and drugs.

Police then arrested Paterson and obtained a telewarrant to search his apartment, which led to the discovery of other guns and drugs, and to criminal charges. British Columbia’s appellate court upheld Paterson’s convictions at trial and rejected Paterson’s argument that the common law confessions rule should have precluded the admission of his statement about the roaches at the voir dire, as the Crown did not prove beyond a reasonable doubt that his statement was voluntarily made.

“The confessions rule should not be expanded to apply to statements tendered in the context of a voir dire under the Charter,” the majority of the court found. “Admitting a statement by an accused for the purpose of assessing the constitutionality of state action, as opposed to the purpose of determining the accused’s guilt, does not engage the rationale for the confessions rule.”

The court also found no “exigent circumstances” to justify the warrantless entry. “Here, the police had a practicable option: to arrest P and obtain a warrant to enter the residence and seize the roaches,” Justice Brown wrote. “If the situation was not serious enough to arrest and apply for a warrant, then it cannot have been serious enough to intrude into a private residence without a warrant. Further, concern for officer safety did not drive the decision to proceed with warrantless entry; rather, warrantless entry gave rise to concern for officer safety.”

The evidence obtained as result of the entry and search of Paterson’s apartment therefore needed to be excluded, the majority of the court found.

In dissenting reasons Justice Michael Moldaver, also writing for Justice Clément Gascon, agreed with the majority on the voluntariness issue, and that the police entry into Paterson’s apartment was unlawful and in breach of his s. 8 privacy rights. But the firearms and drugs seized by the police from the apartment were properly admitted into evidence, he wrote, and the appeal should be dismissed.

“In these circumstances, it is the exclusion of reliable and crucial evidence implicating P in very serious gun and drug offences that is far more likely to cause the public to lose faith and confidence in our criminal justice system,” the minority of the court found.

The decision is important in presenting an opportunity for the Supreme Court to rule on whether the Crown must prove a statement is voluntary in order to rely on it in a constitutional application before it can be considered in Charter voir dires, Toronto criminal lawyer Daniel Brown told Legal Feeds.

“The Crown must always prove statement is voluntary to use at trial, but not as evidence to be heard at a pretrial or voir dire hearing,” Brown says.

According to this decision, “it isn’t a concern whether a statement is reliable at the pretrial stage; the truthfulness of the statement is less important than whether the officer had good reason to rely on it. So, the voluntariness rule isn’t engaged at that stage of the proceeding.”

Brown also notes that “the pendulum seems to be swinging back to the exclusion of evidence [in cases] where police act negligently,” such as this one, even if they are seen to be acting in good faith. “The Supreme Court is saying that negligence is almost as bad as deliberately violating Charter rights.

Also, “the pendulum seems to be swinging back to excluding evidence even where the charges are serious,” he adds, noting the recent decision in Jordan v. R. in where the SCC decided that admitting guns and drugs into evidence would do more harm to the justice system than excluding them.

The decision “helps clarify the scope of what is meant by ‘exigent circumstances’ in future,” says Brown; “what’s meant by good faith and bad faith in the context of a Charter violation; what the remedy should be when the charges are serious, involving firearms, etc., in an area where there seems to be a lot of inconsistent application of this principle.

“Every case will be decided on its own facts, but this decision indicates that even in the absence of bad faith on the part of police officers, it can still result in exclusion of evidence for serious offences.”

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