R v Patterson

R. v. Paterson
R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202
Appellant Brendan Paterson
Judges: McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Brown, Russell
Appeal from British Columbia
Constitutional law and Criminal Law

The long anticipated ruling in Patterson has tied up loose ends. It created a paradigm where Police Discretion has been limited by excluding evidence and narrowing circumstances where Police are able to conduct warrantless searches, using scapegoats in order to invade one’s private home. There is a long standing history of privacy especially when it pertains to one’s house; in Seymane’s case Coke famously stated that “the house of everyone is to him as his castle and fortress.”[1]

Judgements Made in Supreme Court

The Supreme Court justices were unanimous when considering the legality of Police conduct, but the difference of opinion arose when determining the admissibility of the evidence.

Confession Rule

The right of silence is put in place to protect vulnerable people from coercion, whereas the confession rule determines the voluntariness of a statement made by the accused. The Confession rule has been limited in its application by this case by clearly defining its application to both Criminal trial and Voir Dire proceedings, and when it is applicable during Police interaction.

The evidential requirement differs from a Voir Dire proceeding to a criminal one. Charter Voir Dire test requires that the evidence would bring the administration of justice into disrepute whereas criminal trials test is on the balance of probability that the Charter right was infringed.[2] It creates a higher threshold for judicial inquiry through voir dire as it focuses on State actors as opposed to criminal trials that address the guilt of an accused. Drawn to its conclusion, voluntariness of the confession would not be within the jurisdiction of voir dire as no State actor exceeded their mandate within this context.

Mr. Paterson tried to use Section 7 of the Charter in order to have a right to silence as known as a principle of fundamental justice. The limitation comes when the court recognizes the right of silence enforced through Section 7 of the Charter, and allows it to operate only after a person is “detained”[3], but no right exists before or during the ‘investigation stage’. The Court went so far to state that in the investigation stage, not only do you not have the section 7 Charter right to silence, but you may also be compelled to directly participate. The Court had used the case of R v Orbanski [4]where drivers were compelled to actively communicate when Police asked if they had been impaired during an approved screening, which could only be used to justify further investigation and not be used as evidence in trial itself.[5] This has formally liberated Police investigative powers by solidifying it the Supreme Court. This pivotal shift prevents the floodgates of any other frivolous claim being brought to Charter Voir Dire during simple questioning. 

Courts show that they do not want to overburden Police interactions with individuals until further investigation is required, where a certain level of privacy is assumed. So asking Mr. Paterson about the smell of cannabis is seen as investigative, but entering his home is seen as breaking this wall of privacy. However, the court will still compel the Crown to prove voluntary statement beyond a reasonable doubt at trial, but not necessary at the Charter Voir Dire, as it would be premature to discuss the confession rule. It is ideal to allow Police more freedom in investigation, and establish its admission by the Crown at trial.

 

Exigent Circumstance and Impracticable

Officer Dykeman and Bell argued that they entered Mr. Paterson’s residence without a warrant due to exigent circumstances that would make getting a warrant impracticable. Section 11 (7) of the Controlled Drugs and Substance Act was the test for allowing a warrantless entry of a residence, and if it did not fit within this exception it would have been a violation of Section 8 right to privacy in the Charter. The supreme Court of Canada had gone through a Patchwork approach to defining the term ‘exigent’ to be synonymous with ‘urgency’, where the test is “the crown must show immediate police action was required to preserve evidence, police protection, or public safety.”[6]

Interestingly, courts refused to define Impracticable in the scope of a ‘Last Resort’ but rather on the balance of “impossible in practice or unmanageable to obtain a warrant.”[7] Although this distinction may seem trivial, it prevents the argument that in hindsight it was the final course of action when all else fails; however, in reality Police are not gifted with hindsight and must make practical decisions that must be beyond mere convenience. Important to note that the exigent circumstances and impracticable are not mutually exclusive requirements, but rather in conjunction with one another. An important aspect not considered in the Paterson rule was timing which could have been the umbrella that both requirements fell under; the standard would be considered on Time Sensitivity.

Along with the Supreme Court’s new definition of Exigent and Impracticable; the judgement was unanimous that the Police did not pass the test for a warrantless entry. By going through this simple exercise of defining terms, the Court has simplified the vernacular used in legislation that is archaic. The Paterson rule is a common law rule that determines when a warrantless entry is lawful. It would be rather ideal for an Act of Parliament to crystalize this in the Criminal Code where it could be read as scripture.

Majority and Minority Decision

The Minority decision was held by Moldaver and Gascon, however, aforementioned the Supreme Court was in agreeance of everything except for whether or not to admit the evidence for trial. The Minority decision held that the evidence be admitted, but surprisingly lacked the underlying theme of public interest in their dissent which was prevalent factor considered in the majority decision. The Majority’s decision shows that the court sided with protecting Charter rights, especially when it was to such a significant degree. 

The Minority decision was delivered by Moldaver J, where he believed legal uncertainty in this area of law cannot hold Police conduct that was in good faith, to a higher degree of clarity above that of the lower courts or Court of Appeal. The English case of Entick v Carrington where Chief Justice Camden created the rule where Search and Seizure of public authority without a warrant would be seen as trespassing; quoting his famous dictum “if it was a law, it will be found in our books.”[8] This case is more than a persuasive authority as it was the ancestral precedent of these scenarios; not to mention, Paterson was also argued to be a case of first Impression where a clarification of law as both Police officers and Lower courts are unsure what the law dictates in these scenarios. Lack of clarity should not justify these actions as the laws governing them are clear. If the No-case seizure is not found in any legal construct but is more a Police procedure, then the legal standard in which it operates will be held to be illegal. This can only be undone by Parliament, and not through loopholes created by an excuse of an unregulated Police conduct. A good rule of thumb to come out of this case is that when in doubt to always favour individual privacy within the home.

Moldaver J. also dissents in believing that the balancing act that tipped into excluding evidence should not be adulterated by a late and incomplete form 5.2 report to justice. Moldaver J believed it “had no impact on the appellant’s privacy interest,”'[9]'and in no way could have breached his Section 8 right to an unreasonable search and seize.  This form may not in fact breach someone’s privacy, however, this is a question of law where Section 489(1) of the Criminal code requires compliance with these forms to have a reasonable search and seize ensuring transparency and accountability.

Justice Brown states that Justice Moldaver assessment “involved hindsight reasoning on a matter of complexity.”[10]The decision in the court through Doherty’s statement showed that the courts were conflicted with a tough decision between “enhancing social justice” or “dissociating themselves from the Police conduct.”[11] The latter was chosen to show enforcement of the rule of law, and prevent loopholes from existing.

Legality of Police Conduct

Police conduct must be scrutinized as they are the first point of contact upon entering the criminal justice system. The ‘knock and talk’ is seen as a legitimate police investigative tool required when responding to a 911 call. The Crown must later prove that the confession given by the accused was voluntary. R v Oickle states, Police cannot obtain a confession of guilt through the lack of operating mind, trickery, promises or threats to encroach the right to silence enjoyed by the appellant. [12] Cops were not knocking with the intent to ‘smell’ marijuana, so the sniff was in good faith, a result of interaction and not premeditated in cases where there is a drug sniffing dog.[13] The Court allowed the exception of sniffing during an ongoing investigation, because preventing it would inhibit the police from doing their job through legitimate and necessary police investigative powers. [14] There was no quasi-quid quo pro with the use of “no case” seizure where cops encouraged the dialogue by way of avoiding a charge.

Warrantless entry

The moment Officer Dykeman’s foot went beyond the threshold of the door, he exceeded his mandate of investigation and into the s.8 Charter right of privacy of someone’s home.[15] The purpose of having a warrant is to establish pre authorization from an impartial arbiter on reasonable grounds; Police have a conflict of interest where their preference would be in favour of warrantless entry over individual privacy.[16] However, after this point the police argue for an exigent circumstance for going into the house without a warrant, as it would not be impracticable to obtain one.

Reasoning of Warrantless entry

The threshold for a warrantless entry requires ‘urgency’ in immediate police action, making it impossible in practice to obtain a warrant due to preservation of evidence, police, and public safety.

Officer Dykeman’s reasoning for warrantless entry was to preserve evidence as he thought the roaches may be destroyed. Threshold of exigency is not passed by the possibility that the appellant would destroy the roaches when faced with a no legal recourse police seizure.[17] Officer Dykeman’s reasoning for an exigent circumstance is seen as a fallacious argument or deceptive in nature. The accused lacks the motive to destroy the roaches, as no charges would be laid. A deceptive argument: if there are no charges laid, then there would be no need for preservation of evidence in which would be the basis of an exigent circumstance for a warrantless search. If the Police are unwilling to charge Paterson for possession, then there is definitely not enough to invade his privacy in the highest degree. Also, considering that the end goal for the Police was to destroy the roaches themselves with no legal recourse toward the accused, the possibility of accused doing it himself doesn’t seem plausible.

Officer Bell’s reasoning for warrantless entry was for Police protection, as the 911 call warned of a ‘shotgun’. Bell’s reasoning creates a Paradox because an exigent circumstance must arise before the warrantless entry, and not due to it. Therefore, the officer’s safety had to be endangered outside the dwelling to justify going in at all.   Hindsight cannot play a role; where reasonable grounds are necessary before entry.

The reasoning’s don’t pass the smell test of either officer entering the dwelling without a warrant upon exigent circumstances, and suggests that these had been artificial reasons.  

Impracticable: this means that it was impossible in practice to obtain a warrant; showing that Police considered all other avenues and deemed them impossible in practice. The police are not considered to exhaust all other avenues which would be an overburden on Police to apply the exception at all. This step was not satisfied either because the accused had agreed to hand over the roaches, showing no reasonable grounds to consider otherwise. Finally, Officer Dykeman admitted in his testimony that he considered obtaining a warrant but felt a simply seize of the roaches would be ideal so that they could “be on their way”[18]; showing that their conduct was motivated by convenience and not urgency. 

Evidence Admissibility

Was the Verdict made by the Supreme Court of Canada for acquitting Brendan Paterson well-founded, on the basis of excluding evidence based on section 24(2) and S.11(7) of the controlled Substance and Drugs act.

Include evidence

Section 24(1) of the Charter could have been used to mitigate the exclusion of evidence; where it specifies that remedies must be just in the circumstance where a person’s rights have been infringed. This could have been the basis for reducing the sentence, instead of excluding the evidence.  

Moldaver’s main argument for allowing the evidence at trial was there had been legal uncertainty shown through lower courts improperly applying the law. However, “the 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.”[19] This shows that there was no lacuna or gap in the law as Moldaver suggested. Moldaver also considers the Police acting in good faith as a major factor in allowing the evidence, by going so far to say that they had no ulterior motives. Although, one could imply that the Police had not acted in good faith by infringing on a person’s right to privacy out of mere inconvenience. This case had wrongly defined good faith to mean that no legal recourse would be taken, when it should have been based on the honesty of their conduct.  

Moldaver’s activist reasoning for allowing evidence can be seen as a disincentive for Police to follow procedure. Given a no lose situation where cases that bear no fruit won’t go to trial, but cases that due will only result in a reduction of sentence. It would be disingenuous to believe that such a loophole would only exist to infringe the rights of the guilty. 

Plain View Doctrine allows the evidence be included if collected during a lawful search or seizure; or the person willingly allowed the police to come into his home, and they saw the other offences by their naked eye. [20] The lower courts tried to suggest that during clearing search for police safety, they saw the hand gun, pills, and vest in ‘Plain view’.[21] This argument was struck down, because the search was unlawful and the accuse had not waived his right to privacy by consensually letting them in.

Exclude Evidence

Would allowing the evidence bring the justice into disrepute more than allowing a person to be acquitted for very serious crimes going against public safety. The Counter-argument is that the  “Admission of evidence obtained through inadvertent or minor violations… may minimally undermine public confidence in the rule of law,” [22] however, this was a violation of a fundamental right to privacy. Also, Charter Voir Dire is a preliminary hearing with a limited purpose of assessing whether evidence may be used (speaking volumes only on State of mind and conduct) not to be used to determine the guilt of the accused. This hearing is to be considered independent from the trial, not injunction with one, because regardless of whether the evidence received from infringing the accused rights is essential for the Crown’s case, the Charter Voir Dire is to be an actor of neutrality.

By only allowing to a reduced sentence when it was unanimously agreed among the Supreme Court that the accused’s rights were infringed, would run contrary to the remedy of infringement and be counterintuitive to the purpose of protecting these rights. Moldaver suggestion of sentence reduction in the circumstance would appear to compromise his credibility as an impartial judge that is not supposed to be concerned with the strength of the Crown’s case in order to “promote public confidence.”[23]  The court role is not to consider whether the evidence in question is vital for the Crown prosecution, it has to apply the rules retrospectively to ensure trial fairness.

Moldaver agrees with the majority judgement except for the exclusion of evidence, where he believes that given the good faith of the Police conduct and importance of Public Policy that the person should rather get a reduction in their sentence. However, if Moldaver’s reasoning was applied, it would lead to half-way solutions where it does not unequivocally deny Police from this conduct of warrantless searches. The Judiciary’s only tool to keep the Executive branch of Police officers in check is by not allowing evidence that is collected unlawfully. If the Supreme Court of Canada allowed the evidence but took the alternative Moldaver suggested by reducing his sentence, then it would jeopardize the importance of the right of one’s privacy in their home.

The overwhelming reasoning would suggest that exclusion of evidence was the ideal choice due to a question of law, and not fact. It is important that the Supreme Court play guardians to individual’s fundamental rights; they are difficult to establish but easy to infringe.

Sources

[1] Seyman (1604) ALL ER REP 195

[2] R v Paterson, 2017 S.C.J No.15 at para 19

[3] Ibid at para 15

[4] R v Orbanski (2005) SCC 37, (2005) 2 S.C.R.3

[5] Paterson, supra note 1 at para 23

[6] Ibid at para 33

[7] Ibid at para 36

[8] Entick v Carrington (1765), 19 St. Tr. 1029

[9] Paterson, supra note 1 at para 60)

[10] Ibid at para 76

[11] Ibid at para 55

[12] R v Oickle 2000) S.C.C 38

[13] R v Evans (1996) S.C.R.8 ;R v Kang-Brown (2008) S.C.J 569

[14] R v Orbanski (2005) SCC 37, (2005) 2 S.C.R. 3

[15] R v Law (2002) S.C.J. 227

[16]  Hunter v Southam Inc., (1984) S.C.R.145 at para 161

[17] Patterson, supra note 1 at para 39

[18] Ibid at para 6

[19] Ibid at para 46

[20] R. v. Weetaltuk, [2000 Q.J. No. 3803, [2000] R.J.Q. 3081, J.E. 2000-2079] (1) Normand Bonin J.

[21] Paterson, supra note 1 at para 67

[22] R v Grant 2009 2 S.C.R 353 para 74

[23] Paterson, supra note 1 at para 97