Warrantless searches: A high threshold
Just what are “exigent circumstances,” anyway?
Turns out, they’re pretty specific.
“‘Exigent circumstances’ denotes not merely convenience, propitiousness or economy, but rather urgency,” wrote the majority of the Supreme Court in a decision passed down on Friday. “Even where exigent circumstances are present, however, they are not, on their own, sufficient to justify a warrantless search of a residence.”
The ruling, R. v. Paterson, offers new guidance and framework on when police can enter and search a private residence without a warrant. What’s clear is that it’s a very high bar.
The case before the justices involved a slew of drug charges that came as a result of a search of a Langley, B.C. man’s home. Police had followed up on a 911 call that appeared to be a domestic disturbance, and began questioning the man about marijuana after they noticed the particular odour emanating from his apartment.
The man confessed to having the remnants of a few joints, and offered to go retrieve them for the RCMP officers, who promised to simply destroy the marijuana and leave without charging him.
When the man went to grab the marijuana, however, two of the officers followed him into the residence and found a litany of drugs and loaded weapons.
The officers later returned to the detachment to get a warrant for the evidence, but did not file the required paperwork about that seizure until months later.
The Crown later argued at trial that the warrantless search was justified for three main reasons: Obtaining the warrant at that moment would have been impractical; leaving the man alone in his home would have given him a chance to destroy the drugs; and because they suspect he had weapons inside, it presented an officer safety issue.
While the two lower courts accepted those arguments, in a majority ruling penned by Justice Russell Brown, the top court held that there was a section 8 Charter violation.
Obtaining a warrant is not, in and of itself, an exigent circumstance, the court wrote: “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 ... on the basis that it constitutes an exigent circumstance. Rather, exigent circumstances must be shown to cause impracticability.”
There has been mounting jurisprudence over exactly what constitutes “exigent” in recent years. The Controlled Drugs and Substances Act does permit warrantless searches “if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.”
According to the Supreme Court, the “common theme emerging from these descriptions of ‘exigent circumstances’ … 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.” The decision points to the French version of the act, which translates the notion as “L’urgence de la situation.’”
It’s no small decision, though it may not come as a surprise to many who figured that section 8 already protected Canadians from a warrantless search, regardless of inconvenience or impracticability.
The BC Civil Liberties Association contended in its factum that there could simply be no “exigent circumstances” that would apply in a situation where police were effecting a “no case seizure” — where they opted to seize and destroy the drugs, but did not intend to file charges.
“Alternatively, if the meaning of ‘exigent circumstances’ in section 11(7) is considered ambiguous, the ‘Charter values’ presumption supports an interpretation that does not permit warrantless searches for the purpose of conducting a ‘no case’ seizure,” the factum reads.
The top court didn’t quite side with the BCCLA, but it did find that the entry and search violated the accused’s section 8 rights, ordered the evidence found during the search excluded, and approved the appeal.
The minority dissent also accepted that “the police entry into the apartment was unlawful” and held that there was no exigent circumstances that allowed the search. Justices Moldaver and Gascon, however, argued that the case was novel in many ways, and that the police could not have been expected to know the legal threshold for their search, as it hadn’t been settled — an argument the majority court disagreed with.
The minority contended that the “no case” nature of the search was relevant — that the officers believed their intent not to lay charges made their entry more lawful — while the majority found it largely irrelevant.
Annamaria Enenajor, a lawyer with Ruby & Schiller focusing on criminal and constitutional law, says the case is a good buttress for what the Supreme Court has already said about Canadians’ section 8 rights in their own home.
“It’s not ground-breaking, but it is a reinforcement of the principle that the home is a milieu that should be protected from police encroachment,” she told CBA National.
She also noted that the court seemed to draw a line between the accused’s invitation to confiscate his marijuana and an invitation to enter the home.
“It’s interesting to see that an invitation for one purpose does not equate to an invitation for all purposes,” she said.
While the decision definitely clears up the legal basis for searches of a private dwelling, it also brings some clarity to the confessions rule.
The accused in the case argued on appeal that the Crown must prove that his admission that he had roaches in his apartment was voluntarily offered to police in order to establish the evidence in voir dire. The appeal court found that the Crown didn’t need to prove voluntariness for the purpose of voir dire.
The accused, for his part, responded that the voluntariness of the statement “should be determined prior to the voir dire on the lawfulness of the search,” especially given that the statement was ultimately the catalyst for the search.
The Supreme Court ultimately rejected that approach.
“In my view, the confessions rule should not be expanded as proposed by the appellant,” they wrote, adding: “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 him or her to rely upon the statement as forming grounds for the action under scrutiny.”
This, Enenajor says, is a problem.
“It is disturbing or distressing to me that the issue of reliability is not addressed up front when considering when that statement should go in,” she says.
The court very clearly said that an accused’s statement needs to be tested for its voluntariness and reliability before it is presented in open court, but that it needn’t be for the purposes of voir dire. Put another way: A coerced confession can’t be used to secure a conviction, but it could be used to obtain a warrant to secure evidence that can be used to obtain a conviction.
Enenajor says that evidence, of course, could be excluded in a variety of different ways later in voir dire, but she says it simply “sends the wrong signals.”
The origin of the statement, after all, is relevant, she says.
“The purpose for which the statement would’ve been tendered was to demonstrate that the police had reasonable and probable grounds,” she added, offering an extreme hypothetical: What if the police had beaten the confession out of the suspect? The evidence would, almost certainly, be excluded later in the voir dire, but why not exclude the evidence from the outset by tossing the confession? Why not look at the reliability of a confessional statement in order to establish the reasonableness of a search warrant?
Ultimately, the ruling doesn’t close the door on this issue, as the treatment of the confessions rule was made in obiter. The door is open for another challenge to the exact logic that was behind the decision in Paterson.
“There is a window to argue it,” Enenajor says. “But who knows?”