A Review of the Exclusion of Evidence in R v Paterson
The 2017 Supreme Court of Canada case of R v Paterson served to clarify the interpretation of exigent circumstances making it impracticable to obtain a warrant pursuant to s. 11(7) of the Controlled Drugs and Substances Act. Based on the s. 8 Charter violation, the Court needed to determine whether the evidence should be excluded under s. 24(2). It could be argued that the majority may not have properly balanced the three inquires required to be examined pursuant to R v Grant when determining that the evidence should be excluded.
Facts
The facts of the case involved police officers responding to a dropped 911 call. Once officers arrived at Mr. Paterson’s doorstep and were satisfied that there were no injured persons inside, the conversation turned to the odor of marijuana coming from the apartment. Mr. Paterson admitted to having roaches. The officers explained that they would conduct a no case seizure of the roaches. A no case seizure occurs when officers address illegal activity by confiscating an illegal substance without charging the individual, akin to a liquor pour out. Mr. Paterson attempted to close the door, but one officer prevented it from closing by putting his foot in the door for reasons of officer safety and evidence preservation. Mr. Paterson then said “you may come in”, and officers entered without a warrant. Once inside, the officers observed a bullet proof vest, an unlawfully stored handgun, and a bag of pills believed to be ecstasy. The officers arrested Mr. Paterson, and obtained a warrant.1
The Supreme Court of Canada determined that there was a s. 8 Canadian Charter of Rights and Freedoms violation, and that the evidence should be excluded under s. 24(2). The trial and appeal judges found that there was no s. 8 breach, and had there been one, that the evidence would not be excluded.2
Grant Analysis
The test to determine whether or not the evidence should be excluded when a Charter breach is found is set out in R v Grant. The three factors the court must considered when determining whether evidence should be excluded are:
Seriousness of the -infringing state conduct;
Impact on the -protected rights of the accused; and
Society’s interest in adjudicating the case on its merits.3
The courts must balance these factors to determine whether the exclusion of the evidence would bring the administration of justice into disrepute. Justice Brown of the Supreme Court of Canada, who wrote the decision for the majority, indicated that the s. 24(2) analysis in this case was a “close call”, but did not give deference to the trial judge as the courts arrived at different findings for s. 24(2).4 Though the Supreme Court came to a different conclusion on s. 8 than the trial judge, the fulsome s. 24(2) done by trial judge Justice Blok in contemplation of a violation should be given deference.5
The first Grant inquiry is one which is primarily contentious in this case, and may tip either in favour of exclusion or inclusion of the evidence. The second factor weighs in favour of the exclusion, and the final factor favours not excluding the evidence. The balancing of factors is not one of “mathematical precision”; rather, the factors must be weighed having regard for all the circumstances of the case.6
The seriousness of the infringing state conduct
Justice Brown at the Supreme Court of Canada stated that “officers were not operating in unknown legal territory” regarding the application of s. 11(7) of the CDSA in the context of a no case seizure.7 Legal uncertainty and police good faith are two factors at this state of analysis which may render the seriousness of police conduct low.
Justice Moldaver in dissent argued that “it is not to judge police conduct against a standard that exceeds the wisdom and training of experienced trial and appellant judges”.8 The police, trial judge, and appellant judges believed that the police had been acting lawfully. The disagreement between these individuals on the one hand, and the Supreme Court of Canada on the other, in and of itself, indicates that there is some degree of legal uncertainty present.
R v Cole stated that police should have leeway when the “law is unsettled”.9 This was the case in R v Paterson, as there was no precedent governing the application of s. 11(7) in the context of a no case seizure. Cole served to clarify the law surrounding searches of computers, and the unsettled area of the law at the time influenced the s. 24(2) analysis. The court in Paterson should have applied a similar standard as the law was unsettled.
The majority asserted that principles surrounding s. 8 were not unclear, and police should have ruled on the side of caution before stepping into Mr. Paterson’s home.10 The trial judge found that any errors which may have been made by the officers were done in good faith. Justice Brown stated that “good faith errors must be reasonable” and that “negligence in meeting Charter standards cannot be equated to good faith”.11
Police believed that they were authorized to behave as they did. They were not negligent, willfully blind, or ignorant of the law. Officer Dykeman stated that obtaining a warrant was “not worth going through all that procedure”.12 This does not speak to police negligence, but instead to the commonality of cannabis related offenses in British Columbia and the police desire to pursue the most efficient method for themselves and the accused of seizing the substance without charge.
A no case seizure was the most minimally intrusive method available to police in the circumstances. Other alternatives were available to the police, such as walking away. This option is not practical as police cannot turn a blind eye to an admission of criminal activity.
Another alternative would have been arresting the accused to obtain a warrant. Had the police done this, the evidence would have been otherwise discoverable. R v Cote stated that where police do not contemplate a warrant, nor have reasonable and probable grounds to conduct a search, a Charter breach will be very serious. In the case at bar, police did indeed contemplate a warrant and have reasonable and probable grounds. Additionally, had police waited for a telewarrant to enter before arresting the accused, the evidence likely could have been destroyed.
R v Grant encourages “understandable errors” to be forgiven in a s. 24(2) analysis. At the time, the law surrounding s. 11(7) of the CDSA was “unsettled”. Based on their understanding of s. 11(7), police did what they believed they were authorized to do in good faith. This prong of the Grant analysis weighs in favour of not excluding the evidence.
The impact on the -protected rights of the accused
Justice Brown found that this factor favoured exclusion due to the high privacy interest in the home. Though this is true, the mere fact that a s. 8 breach occurred cannot be permitted to overwhelm a s. 24(2) analysis. The factors outlined by Justice Blok at the voir dire were not paid enough attention by the majority of the Supreme Court. A more fulsome analysis of the conduct of the police when attending to Mr. Paterson’s home may serve to lessen the impact of s. 8 breach.
The primary attenuating factor is the manner in which police entry was gained. It was a finding of the trial judge that police had the “apparent consent” of Mr. Paterson.13 This means that though the entry may not have met the legal definition of consent, the belief of the officers was that they did have consent which must be considered in a s. 24(2) analysis. When Mr. Paterson said “you may come in”, officers had reason to believe that their entry was valid. Once inside, officers’ showed a “degree of deference” for Mr. Paterson’s privacy rights by only going where they were led.
Officers in R v Silveria entered the home without invitation and guns drawn.14 In Paterson, officers believed they had an invitation and entered with respect for Mr. Paterson. The court should have acknowledged that s. 8 is a spectrum, and that this case fell on the lower end of intrusion. The difference between a toe in a door, and busting in with guns out, should have been considered in the s. 24(2) analysis of the majority.
This prong of Grant weighs in favour of exclusion, though not as strongly as the Supreme Court of Canada suggested.
Society’s interest in adjudicating the case on its merits
The exclusion of four loaded firearms, a bulletproof vest, $31,200 worth of cocaine, $5,850 worth of methamphetamine, $30,000 worth of cash in the apartment, and $5,000 worth of cash on Mr. Paterson would surely bring the administration of justice into disrepute.15 Courts are cautious to not put too much emphasis on this last stage, to prevent the ends from justifying the Charter-infringing means.
This prong of Grant clearly weighs in favour of not excluding the evidence, as doing so would be fatal to the Crown’s case.
Weighing the Factors
The Supreme Court of Canada may have erred in their s. 24(2) analysis by allowing the simple fact that a s. 8 breach had occurred to overwhelm their analysis. The Court believed that any s. 8 breach in the context of warrantless searches being prima facie unreasonable was enough to warrant the exclusion of evidence. I would argue that the balancing of the Grant factors appropriately, especially in light of a “close call”, should have resulted in the exclusion of evidence in R v Paterson and been given deference to the finding of the trial judge.16
Endnotes
1 R v Paterson, 2011 BCSC 1782 at 3- 34.
2 R v Paterson, [2017] 1 SCR.
3 R v Grant, 2009 SCC 32 at 71.
4 Supra note 2 at 54.
5 Supra note 1 at 136.
6 R v Harrison, 2009 SCC 34 at 36.
7 Supra note 2 at 146.
8 Supra note 2 at 72.
9 R v Cole, 2012 SCC 53 at 114.
10 Supra note 2 at 46.
11 Ibid.
12 Supra note 1 at 23.
13 Supra note 1 at para 121.
14 R v Silveria, [1995] 2 SCR 297 at 128.
15 Supra note 1 at 34.
16 Supra note 2 at 54.
