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Supreme Court shuts door on warrantless searches

Ruling clarifies strict standard police must meet
By Cristin Schmitz
March 31 2017 issue

Roy Millen, in the Vancouver offices of Blake, Cassels & Graydon, said the ruling means it will be very rare for police to be able to ‘justify a warrantless search of someone’s home.’  [Alistair Eagle for The Lawyers Weekly]

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A person’s home remains his or her castle, the Supreme Court of Canada has reaffirmed in a Charter judgment which reins in warrantless searches, while also deciding that the confessions rule does not apply in Charter voir dires.

Seven judges split 5-2 on March 17 to enter acquittals in allowing the appeal of Brendan Paterson from drug and weapons convictions in the B.C. courts below: R. v. Paterson 2017 SCC 15.

Justice Russell Brown’s majority judgment not only clarifies the strict standard police have to meet to justify warrantless drug searches on the basis of “exigent circumstances,” it also adds to the law on exclusion of evidence under s. 24(2) of the Charter.

“The court has affirmed the high privacy interest Canadians have in their homes,” remarked Roy Millen of Vancouver’s Blakes, who represented the intervener B.C. Civil Liberties Association (BCCLA).

“As a result of this case, it will be very rare that the police can justify a warrantless search of someone’s home,” Millen predicted.

He explained “a warrantless search will only be permissible under the Charter where there are truly urgent circumstances requiring the preservation of evidence or safety, which make it impracticable for police to obtain a warrant. The court expressly rejected the Crown’s argument that a warrantless entry is justified where it is inconvenient to get a warrant.”

Millen noted the ruling marks the first time the court has ruled on a so-called “no-case” seizure, i.e. when police intend to seize something illegal — in this case the marijuana roaches — to destroy it, but not to charge the person in possession.

“Those circumstances, the court held, ‘did not remotely approach’ the level of exigency required by the law,” Millen explained by e-mail. “Given the police admission that the situation was not serious enough to justify arresting the appellant, the court held it also did not justify a warrantless home search.”

The judgment sheds light on what amounts to “exigent circumstances” that make it “impracticable” under s. 11(7) of the Controlled Drugs and Substances Act to obtain a warrant before entering and searching residence, he said.

“On exigent circumstances, there have been a variety of cases over the years … but this is the first to have brought all of the principles together into one judgment.”

Paterson was found guilty at trial in 2012 of possession of illegal firearms and possession for the purposes of trafficking, after police seized guns and illegal drugs from his Langley, B.C., residence.

Officers entered his home and conducted the search, without a warrant, after they smelled marijuana emanating from Paterson’s apartment and he admitted, under questioning at his front door, that he had a few marijuana roaches inside which he agreed to hand over to them for destruction, not prosecution.

The top court was unanimous that there was no urgency in the circumstances, and that the police failed to meet the high threshold for justifying a warrantless search on the basis of exigent circumstances.

“ ‘Exigent circumstances’ denotes not merely convenience, propitiousness or economy, but rather urgency,” Justice Brown held.

“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). Those circumstances must render it ‘impracticable’ to obtain a warrant. 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. Further, this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives.”

Justice Brown noted that not only was there no urgency to compel immediate action in order to preserve evidence, “just as importantly” the circumstances did not make it impracticable to obtain a warrant. “Here, the police had a practicable option: to arrest [Paterson] and obtain a warrant to enter the residence and seize the roaches,” the judge explained. “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.”

The seven judges parted ways on whether the real evidence of the seized drugs and guns should be excluded — with Justice Brown acknowledging for the majority it was “a close call.”

He held that the evidence had to be excluded under s. 24(2) of the Charter because its admission would bring the administration of justice into disrepute.

“The police conduct, while not egregious, represented a serious departure from well-established constitutional norms,” he reasoned. “These police officers were not operating in unknown legal territory: their intention to effect a seizure on a ‘no case’ basis was legally insignificant, in light of the well-established legal principles governing the authority of police to enter a residence without a warrant,” he explained. “While the effective destruction of the Crown’s case weighs heavily, so does the warrantless entry into a private residence, having occurred to prevent [Paterson] from destroying three roaches which the police themselves intended to destroy. It is important not to allow the third factor of society’s interest in adjudicating a case on its merits to trump all other considerations, particularly where, as here, the impugned conduct was serious and worked a substantial impact on [the accused’s] Charter right. Considering all these factors separately and together, the importance of ensuring that such conduct is not condoned by the court favours exclusion.”

Justices Michael Moldaver and Clément Gascon, in dissent, concluded excluding the evidence would be more likely to bring the administration of justice into disrepute. “The police, acting in good faith, made a mistake about their authority to enter [the accused’s] apartment under the auspices of s. 11(7) in a ‘no case’ seizure — the same mistake that the lower courts made,” explained Justice Moldaver. “The cumulative effect of legal uncertainty, police good faith and the discoverability and reliability of critical evidence needed for there to be a trial on the merits resolves the balance in favour of admitting the evidence. In these circumstances, it is the exclusion of reliable and crucial evidence implicating [the accused] 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,” he argued. “That said, in a case like this one, it is possible that an alternative remedy short of the exclusion of evidence, such as a sentence reduction, might be available under s. 24(1) of the Charter. Since this was not argued, it must be left for another day.”

The judges were unanimous, however, that the confessions rule should not be expanded to apply to statements tendered in the context of a voir dire under the Charter. (At trial, the Crown must prove the voluntariness of an accused’s statement before it can rely upon that statement at trial as supporting a finding of guilt.) Justice Brown explained that the purpose of the judicial inquiry in a Charter voir dire is distinct from the purpose of a criminal trial. “In a Charter voir dire … the focus is not on the accused’s guilt, but on whether the accused’s constitutional rights were infringed,” he wrote.

“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. To apply the confessions rule to evidence presented at a Charter voir dire would distort both the rule and its rationale. It would stifle police investigations, compromise public safety and needlessly lengthen and complicate voir dire proceedings.”

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