Exigent circumstances denote circumstances requiring immediate police action
By Mike Novakowski
Exigent circumstances are more about urgency than about police convenience,’ Canada’s top court has said. In R. v. Paterson, 2017 SCC 15, the police responded to a dropped 911 call from a cellphone. A woman was crying and apparently injured. The cellphone belonged to the caller’s mother and she was contacted. The mother told police that she thought her daughter was with her boyfriend, Paterson, who lived in a nearby apartment. The mother also said he had a shotgun. The police went to the apartment building and learned that the daughter had been transported by ambulance to the hospital with unknown injuries. The police knocked several times at Paterson’s apartment and announced “police,” and the door was eventually opened.
By Mike Novakowski
An officer immediately smelled a fairly strong odour of raw and smoked marijuana when the door was opened. Police questioned Paterson about the 911 call and satisfied themselves that no one needed assistance. When questioned about the marijuana smell, Paterson denied its source but then admitted that he still had some “roaches” lying around. The police decided to seize the marijuana and “be on their way” without charging Paterson with drug offences. He agreed to hand over the “roaches” but attempted to close the door. An officer used his foot to prevent the door from closing, fearing that Paterson would destroy evidence and for officer safety (they had been told he had a shotgun).
Police followed Paterson into the residence. When Paterson picked up a baggie containing roaches on the kitchen counter to hand over, an officer saw a bullet-proof vest on a couch, a handgun on an end table and a bag of pills on a speaker stand. Paterson was immediately arrested and searched. A Blackberry cellphone and $4,655 in cash was found on him. The premises was “cleared” for officer safety purposes and two large bags of orange and blue pills (ecstasy), and a bag of crack cocaine was found on a closet shelf. The apartment was secured, Paterson was transported to the police station and a search warrant under the Controlled Drugs and Substances Act (CDSA) was obtained. When police attended the hospital, the injured woman said she slipped, hit the back of her head and called 911. When the search warrant was executed, three more handguns were found in a bedroom drawer as well as another bag of drugs in the kitchen. Paterson was charged with several offences.
In B.C. Supreme Court, Paterson argued his rights under s. 8 of the Charter had been violated and sought the exclusion of the evidence. In his view, the warrantless entry into his residence breached s. 8 of the Charter because there were no exigent circumstances within the meaning of s. 11(7) of the CDSA making it impracticable for the police to obtain a warrant.
The judge disagreed, concluding that the police were entitled to enter the apartment based on exigent circumstances. The judge found the police had reasonable grounds to believe that there was a quantity of marijuana in Paterson’s apartment and therefore grounds to obtain a search warrant under s. 11(1) of the CDSA but by reason of exigent circumstances it was impracticable to do so. The exigent circumstances resulted from the belief by police that Paterson would likely have destroyed the evidence while a warrant was obtained since the police were not going to arrest him. The judge did find, however, that a delay in filing an incorrectly completed Form 5.2 report constituted a stand-alone breach of s. 8. He nevertheless admitted the evidence under s. 24(2). Paterson was convicted of several offences related to possessing drugs and guns. He was sentenced to four and a half years in prison, given a 10-year mandatory firearms prohibition, ordered to provide a DNA sample and all items seized except for the money found on his person were ordered forfeited.
Paterson then challenged his convictions to the B.C. Court of Appeal, arguing, in part, that the trial judge erred in finding that the entry and search of his apartment was justified based on exigent circumstances. He also suggested that the trial judge failed to determine the voluntariness of his statement that he had roaches in his apartment before relying on these statements in determining the lawfulness of the police entry and search.
Justice Bennett, speaking for the unanimous Court of Appeal, agreed with the trial judge that it was impracticable for the police to obtain a warrant by reason of exigent circumstances. As for proving Paterson’s statement, the Crown was not required to prove voluntariness for it to be used at the voir dire. The rationale of the common law confessions rule in proving voluntariness is to ensure reliability and trial fairness in determining guilt, which does not apply where the inquiry is into state conduct. Furthermore, the Court of Appeal was of the view that the police should be allowed to rely on statements to justify an investigation, even where such statements are not the product of an operating mind or are otherwise involuntarily made. Finally, the judge made no error in his s. 24(2) analysis and Paterson’s appeal was dismissed.
Paterson again appealed to Canada’s highest court suggesting that the confessions rule did apply to the statements he made for the purpose of determining the reasonableness of police conduct. He also asserted the police entry into his apartment was not justified on the basis of exigent circumstances that made it impracticable to obtain a warrant. All seven Supreme Court judges hearing the case agreed on the exigent circumstances and voluntariness issue, but the Court was divided on the s. 24(2) Charter remedy.
Under the common law, a statement made to a person in authority will be admissible at trial (to support a finding of guilt) only if the Crown proves the statement was voluntary. The Supreme Court concluded that this rule does not apply, however, to statements used for all purposes during a trial such as establishing a police officer’s reasonable grounds for a search during a Charter voir dire. First, the rationale for the confessions rule is not engaged by admitting a statement by an accused for the purpose of assessing the constitutionality of police action. A criminal trial focuses on guilt or innocence. A Charter voir dire focuses on whether constitutional
rights were infringed and a statement admitted in this context goes only to the police officer’s state of mind and conduct, and not to the ultimate reliability of the evidence in determining guilt. Second, other legal protections, such as ss. 7, 8 and 9 of the Charter, address situations where the police may be seen to coerce information from vulnerable people. Finally, if the confessions rule applied to statements adduced at a Charter voir dire, legitimate and necessary police investigative powers could be inhibited. Thus, the Crown was not required to prove the voluntariness of Paterson’s statement about the presence of the roaches in his apartment prior to the statement being admitted during the Charter voir dire.
Exigent circumstances & urgency
The Supreme Court rejected Paterson’s submission that the definition of “exigent circumstances” found in s. 529.3(2) of the Criminal Code (Feeney provisions) defined the meaning of exigent circumstances found in s. 11 of the CDSA, although they may be similar. After reviewing different cases involving exigent circumstances, Justice Brown stated:
The common theme emerging from these descriptions of “exigent circumstances” in s. 11(7) denotes not merely convenience, propitiousness or economy, but rather urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety. This threshold is affirmed by the French version of s. 11(7), which reads “l’urgence de la situation”.
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 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. [paras. 33-34]
This requirement of impracticability, however, does not mean that it would be impossible to obtain a warrant. Nor does it mean that not obtaining a warrant would be realistic or merely practical. Rather, “‘impracticability’ suggests a more stringent standard requiring that it is impossible in practice or unmanageable to obtain a warrant”:
… “[I]mpracticable” 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 sum, I conclude that, 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. [paras. 36-37]
Were there exigent circumstances?
Having defined exigent circumstances and the meaning of impracticable, the Supreme Court found exigencies did not exist in this case such that obtaining a warrant was impracticable. Justice Brown rejected the notion that the police intention of only wanting to seize the drugs and not arrest Paterson, thereby leaving him at the apartment, created exigent circumstances such that the warrantless entry was justified:
With respect, the prospect of the [accused] destroying roaches which the police officers hoped to seize on a “no case” basis and destroy themselves, with no legal consequences to the [accused] whatsoever, did not remotely approach s. 11(7)’s threshold of exigency. No urgency compelled immediate action in order to preserve evidence. Nor, just as importantly, did the circumstances presented by the [accused’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. Inconvenient or impractical, perhaps. But s. 11(7) is not satisfied by mere inconvenience, but impracticability. In this case, the police had a practicable option: to arrest the [accused] and obtain a warrant to enter the residence and seize the roaches. If, as the Crown says, 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. [para. 39]
As for the safety concern arising from the possibility of the presence of a shotgun, the Supreme Court found this concern to be well-founded. However, this concern did not prompt the entry. Destruction of evidence was the basis for the entry. “In other words, concern for officer safety did not drive the decision to proceed with warrantless entry; rather, warrantless entry gave rise to concern for officer safety,” said Justice Brown. “While [the officers’ concern] was well-founded, it was not the basis for the decision to enter, but the result of the decision to enter. These facts, therefore, do not qualify as exigent circumstances making it impracticable to obtain a warrant, within the meaning of s. 11(7) of the CDSA.”
Although the evidence was highly reliable and essential to the Crown’s case such that society’s interest in adjudicating the case on its merits supported admitting the evidence found in this case, the five member majority concluded that the evidence was inadmissible under s. 24(2). The Charter-infringing state conduct was sufficiently serious to favour exclusion. No urgency for the entry was demonstrated and a high privacy interest attaches to a person’s home. Furthermore, the impact on Paterson’s Charter-protected interests was considerable and strongly favoured exclusion of the evidence. The intrusion into one’s home, with its high expectation of privacy, was serious. Having considered the three admissibility factors separately and together, the majority concluded that the admission of the evidence would bring the administration of justice into disrepute.
Paterson’s appeal was allowed, his convictions were set aside and acquittals were entered.
A slightly different view
Justice Moldaver, speaking for himself and Justice Gascon, agreed with the majority on the voluntariness issue and with the finding that the police breached s. 8 of the Charter. He agreed that the requirements of s. 11(7) of the CDSA were not satisfied such that the police could enter without a warrant. However, Justice Moldaver, unlike the majority, would have admitted the firearms and drugs as evidence under s. 24(2). In his view, the law was not so clear. After all, a Supreme Court judge and three judges of the B.C. Court of Appeal found the warrantless entry lawful!
Mike Novakowski is Blue Line’s case law columnist. He can be contacted at firstname.lastname@example.org.