Brendan Paterson v. Her Majesty the Queen, 2017 SCC 15 – Constitutional law — Charter of Rights — Search and seizure

On appeal from a judgment of the British Columbia Court of Appeal (2015 BCCA 205), affirming the convictions for possession of controlled substances, possession of controlled substances for the purpose of trafficking and possession of prohibited or restricted firearms entered by Blok J. (2012 BCSC 1680).

This case arises from a warrantless entry by police officers into the apartment of the accused, P, which followed his agreement to surrender several marihuana roaches. The police told P they would treat this as a “no case” seizure, meaning that they intended to seize the roaches without charging him. Once inside, the police observed a bulletproof vest, a firearm and drugs. They arrested P and obtained a telewarrant to search his apartment, which led to the discovery of other firearms and drugs and to charges against P. P was convicted at trial and the Court of Appeal of British Columbia upheld the convictions. The Court of Appeal rejected P’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.

Held (7-2): The appeal should be allowed, the convictions set aside and acquittals entered.

Per McLachlin C.J. and Abella, Karakatsanis, Wagner and Brown JJ.:

The confessions rule should not be expanded to apply to statements tendered in the context of a voir dire under the Charter. 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. The purpose of the judicial inquiry in a Charter voir dire is distinct 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. 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 the state actor to rely upon the statement as forming grounds for the action under scrutiny. 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.

The warrantless entry by the police into P’s residence 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 (“CDSA”). It therefore infringed P’s rights under s. 8 of the Charter. “Exigent circumstances” denotes not merely convenience, propitiousness or economy, but rather urgency. 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.

In this case, no urgency compelled immediate action in order to preserve evidence. Nor, just as importantly, did the circumstances presented by P’s admission to having some partially consumed roaches, coupled with the police officers’ wish to seize them on a no case basis, make it impracticable to obtain a warrant. Section 11(7) is not satisfied by mere inconvenience, but impracticability. Here, the police had a practicable option: to arrest P and obtain a warrant to enter the residence and seize the roaches. 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 a result of the entry and search of P’s residence should be excluded under s. 24(2) of the Charter as 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. 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. The balancing of the relevant factors — seriousness of state conduct, seriousness of the infringement of Charter rights and the impact upon society’s interest in adjudication — will never be an entirely objective exercise. While the effective destruction of the Crown’s case weighs heavily, so does the warrantless entry into a private residence, having occurred to prevent P 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 P’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.

Per Moldaver and Gascon JJ. (dissenting):

The majority analysis and conclusion on the voluntariness issue is agreed with. Contrary to the findings of the trial judge and three judges of the Court of Appeal, it is agreed that the police entry into P’s apartment was unlawful and in breach of his s. 8 privacy rights. However, the firearms and drugs seized by the police from P’s apartment were properly admitted into evidence and the appeal should be dismissed.

The function of this Court, in a case like the present one, is to clarify the law so that police officers, defence and Crown counsel, trial and appellate judges and the public at large can know what the law is and how it is to be applied in future cases. It is not to judge the police conduct against a standard that exceeds the wisdom and training of experienced trial and appellate judges. In an effort to clarify the law, it is accepted that s. 11(7) of the Controlled Drug and Substances Act was not available to the police on the facts of this case. Rather, in the circumstances, the police had three options available to them. They could have (1) tried to obtain P’s lawful consent to enter his apartment and seize the roaches; (2) arrested P and obtained a warrant to search his apartment and seize the roaches; or (3) thrown up their hands and walked away, in dereliction of their duty to seize illicit drugs, even if only to catalogue and destroy them. That said, 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. One need only look to the lower court decisions to realize this.

This Court has consistently held that legal uncertainty is a factor which a court may take into account in assessing the seriousness of a Charter breach occasioned by police conduct. Where the law is evolving or in a state of uncertainty, and where the police are found to have acted in good faith, without ignorance or wilful or flagrant disregard of an accused’s Charter rights, the seriousness of the breach may be attenuated.

In this case, the seriousness of the breach is clearly attenuated by the uncertainty surrounding the interpretation of s. 11(7) of the CDSA in the context of a “no case” seizure, and the strong findings of the trial judge that the police were acting in good faith throughout. The impact of the police entry on P’s privacy interest is also attenuated because the evidence was lawfully discoverable if the police had obtained a warrant.

In sum, the police, acting in good faith, made a mistake about their authority to enter P’s apartment under the auspices of s. 11(7) in a “no case” seizure — the same mistake that the lower courts made. 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 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. 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.

Reasons for judgment by Brown J. (McLachlin C.J. and Abella, Karakatsanis and Wagner JJ. concurring)

Dissenting reasons by Moldaver J. (Gascon J. concurring)

Neutral Citation: 2017 SCC 15

Docket Number: 36472