Exigence - How Roaches Led to Clarity in the Paterson case
In an interesting development on March 17, 2017, the Supreme Court of Canada released its decision in R. v. Paterson, 2017 SCC 15. The decision provides a long awaited clarification on the constitutional limits of exigent circumstance searches by state actors, usually police. Section 11(7) of the Controlled Drug and Substances Act (“CDSA”) provides that:
"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 section, in effect, dispenses with warrant requirements which would provide permission to search and seize in respect of property pertaining to drug crime. Section 11(8) then allows additional seizures, noting that:
"A peace officer ...may seize...any thing that the peace officer believes on reasonable grounds has been obtained by or used in the commission of an offence or that will afford evidence in respect of an offence."
In the context of an exigent search, this codifies a type of plain view doctrine allowing the police to obtain other crime-related property for the purposes of investigation and evidence. The main issue I will focus on in this blog is the Court's answer to whether exigent circumstances existed in the case so as to render the circumstances such that it was "impracticable to obtain a warrant before entering and searching the appellant’s residence", and whether this violated the Charter standard against unreasonable search and seizure (Paterson at para. 1).
The facts were uncomplicated. After a 911 call from an injured and crying woman's mother, police were directed to the apartment of Paterson. Police knocked repeatedly on his door and one of the officers noticed the odour of pot. Ultimately, Paterson admitted that there were some unconsumed pot roaches in the domicile. Police entered Paterson's apartment without a warrant when they told him that they just wanted him to surrender some "roaches" from pot being smoked, assuring him it was a "no charge" seizure, meaning that his freedom from criminal liability would be ensured. Once inside though, officers saw a bulletproof vest, a firearm and drugs. They arrested Paterson, received a telewarrant and then found more firearms and drugs (cocaine, methamphetamine, ecstasy pills, marijuana and oxycodon; Paterson at paras. 1, 5, 6, 7, and 8).
Both the trial judge and Court of Appeal of British Columbia thought that the exigence criteria were met and that, though the post -seizure reporting was unconstitutional, it was not a serious enough breach to militate exclusion of the evidence at trial (Paterson at para. 3).
The majority of the Court (McLachlin C.J. and Abella, Karakatsanis, Wagner and Brown JJ) declined to inform the criteria of exigent circumstances by using indicia from the Criminal Code of Canada. Instead, they elected to consider their own jurisprudence and concluded that exigent circumstances might occur when there is (Paterson at para. 32):
-imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed;
-immediate action is required for the safety of the police; or
-“hot pursuit” of a suspect
The majority noted that, thematically, exigence seems to require "urgency, arising from circumstances calling for immediate police acts to preserve evidence, officer safety or public safety (Paterson at para. 33)." However, this alone will not suffice. In addition, the circumstances must make it “impracticable” to obtain a warrant: that is- "exigent circumstances must be shown to cause impracticability"(Paterson at para. 34). The urgency of exigent circumstances must "must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives" (Paterson at para. 37).
The majority found that the warrantless entry by the police in this case was not authorized by section 11(7) of the CDSA. The warrant would have been an inconvenience and was not an impracticable get. Evidence destruction was not a viable exigent reason as this was dubbed by police a "no charge" seizure. The fear of officer safety could only have plausibly arose after the entry and therefore could not have been a triggering exigent circumstance. Given that for a search to be constitutional it must be authorized by law, the manner of the search must be reasonable and that the law must be reasonable, the majority found this failure amounted to violation of the Paterson's s.8 Charter guarantee (Paterson at paras. 38-41).
After a robust Charter exclusion of evidence analysis under section 24(2) the majority noted that "that the importance of ensuring that such conduct is not condoned by the court favours exclusion" (Paterson at para. 56). The dissent (Moldaver and Gascon JJ) saw this police conduct as a series of good faith mistakes in an area of considerable legal uncertainty. Given the reliability and discoverability of the evidence, they would have included the evidence in the interests of the administration of justice (Paterson at para. 96).
The majority's holdings give contour and directionality to the notion of exigent circumstances in warrantless searches. More importantly, police will know longer be able to conduct such warrantless searches outside of the articulated limits of the decision, nor will they be able to argue that emerging circumstances after the search, justify the claims of exigence. This has the most consequential implications when courts weigh whether to include or exclude evidence under s.24(2) of the Charter, and assess whether exclusion of key evidence brings the administration of justice into disrepute (see R. v. Grant, 2009 SCC 3). Officers will no longer be able to argue that the murkiness as to the limits of exigence is suggestive of good faith error, which is one of the indicia that favours evidence inclusion in the s.24(2) calculus (see R. v. Harrison, 2009 SCC 34). When novel and creative warrantless search requirements become necessary, police and courts will likely continue to rely on the doctrine of common law ancillary powers which allows the finding of new common law police powers on a case by case basis (see R. v. Kang‑Brown, 1 S.C.R. 456). The legal criteria for establishing such powers remain relatively stringent as compared to mere assertions of exigence.
In short, the Paterson decision provides welcome clarity in an area where police enjoyed a certain degree of discretion. The criteria are flexible, but the impracticability of getting a warrant will need to be triggered by evidential preservation, pursuit-based and saftey-based justification as opposed to ex post facto police excuse-making. Most advocates that believe in the sanctity of the home and in the shrinking delineations of privacy in an ever connected world will be pleased to see this enhanced clarity.