R v Paterson: making waves by guarding civil liberties

R v Paterson was a significant Supreme Court of Canada case about search and seizure. It ultimately reiterated the importance of the presumption set forward in Hunter v Southam where it was held that a warrantless search is presumptively unreasonable by finding a section 8 Charter breach and excluding the evidence as a result.

Disparagement of Paterson is common in the legal community. While there appears to be general agreement that a section 8 breach did occur, there is significant belief that the evidence should have been admitted. On its face, it is easy for it to be argued that the police meant well and in combination with the hundreds of grams of drugs and loaded firearms that were found, that the evidence should not have been excluded.

However, the Supreme Court of Canada made a wise choice by excluding the evidence. By doing so, they continue to hold police to a higher standard of behaviour. The reigns on what police are expected to know and the leniency given to how their discretion can be exercised in the moment have been significantly tightened. Uncertainty on how to act was held to be no excuse under the first prong of the Grant test.

In Paterson, the court blurred the line between good faith and bad faith and determined an absence of bad faith does not equal the presence of good faith. There is a middle ground that police can fall into that will allow the first prong to still favour exclusion of the evidence. As Justice Brown articulated in the majority decision, errors made in good faith must be reasonable. Unreasonable errors by police cannot be considered to be good faith and the Supreme Court of Canada here determined that the police at Mr. Paterson’s doorstep did in fact make unreasonable errors.

This decision by the majority should not be a surprise. It is heavily supported in case law. The decision that the errors made by the police were not reasonable can first be linked to the availability of other avenues that could have been taken by the police but were not. Second, to the casual approach the officers demonstrated towards the accused’s Charter rights in their dismissal of these alternate avenues. And third, to the fact that police are expected to know the extent of the powers and even when they don’t, they are expected to rely on the well known common law principles available to them in the situation.

First, the fact that there were legitimate avenues available that could have been taken to avoid the Charter violation and still collect the evidence and were not taken cannot be indicative of a reasonable good faith error. The court in R v Buhay was particularly concerned about the officers’ “failure to proceed properly” when other legitimate avenues were open to them. Here, the officers could have remained outside the door or obtained a warrant in order to enter Mr. Paterson’s apartment. Police officers cannot operate on a “no-case” basis, which assumes a lower level of seriousness, but then believe the situation is serious enough to call for entry into a private dwelling and then use the less serious “no-case” basis to bypass the requirement of a warrant.

If they wanted to operate on a no-case basis, they should have remained outside the door. If entry was required, a warrant should have been obtained through the legitimate channels. Instead, the officers bypassed these legitimate options and chose the option which violated Mr. Paterson’s rights by entering his home without a warrant. And the court was correct in determining that this cannot be demonstrative of good faith.

The lack of reasonable good faith errors can also be tied to the casual approach demonstrated by the officers in the way that they briefly considered Mr. Paterson’s Charter rights, and how they could abide by these by going through the legitimate channels, but then dismissed them and proceeded to enter his home without a warrant. It has been determined in cases previously, such as R v Buhay and R v Grant, that a “casual approach” or mere negligence or ignorance towards Charter rights is not reasonable. This was demonstrated through one of the officers blatantly stating, “It was not worth going through all that procedure” and the other officer testifying that he “briefly considered to get a search warrant”, but was not about to do so in the scenario.

This kind of unconcerned dismissal of Charter rights cannot be characterized as a reasonable error made in good faith. If it was not worth going through the procedure to obtain a search warrant, why then, was it important enough for them to enter Mr. Paterson’s residence, violating his rights in the process? For example in the case of R v Buhay, the SCC determined that an admission from a police officer that they considered Charter rights only to disregard them as being “fatal to a claim of good faith”. This is because it clearly reveals that “the police officer made the choice to avoid the legal requirements of obtaining a warrant even on his own assumption that one might be required.”

The officers here put their minds to it, but did not consider the legal requirements before them, that protect individuals from Charter violations, which are important enough to abide by and follow. Furthermore, it can be argued that casual dismissals of Charter rights are just as alarming as a breach resulting from egregious behaviour because if not addressed by the court, this behaviour will otherwise go unchecked, unnoticed and is more likely to become habitual among police officers. This kind of cavalier approach towards the standards set out by the Charter cannot be indicative of a reasonable error made in good faith.

Furthermore, any uncertainty surrounding “no case” seizures does not mitigate the conduct of the police, as the Crown and dissent in Patterson argued. This is because police error does not have to be deliberate, as the case of R v Harrison asserted. R v Buhay and R v Silveira held that ignorance or being ill-informed of the scope or extent of officer authority does not allow for a claim of good faith or render Charter violations less serious. It is not a defense to be unfamiliar with that which you are entitled to know for your job and position. This is particularly so in the case of police officers who have a duty to serve and protect the public, which relies on them to execute that position both responsibly and diligently. So by course of their role as police officers, the officers in R v Paterson had to be held to a higher standard and it is enough that, as per R v Kokesch, they ought to have known how to act.

This uncertainty that was relied upon so heavily by the Crown in their arguments in Paterson to justify the actions of the police, means it is even more unreasonable given that there were other well-known principles to be relied on that were still not chosen by the officers. Multiple SCC cases, such as R v Genest and R v Harrison, have demonstrated that a search conducted in violation of well-known common law principles cannot be indicative of good faith. As Justice Brown articulated, the uncertainty of “no case” seizures is insignificant compared to the well-known presumption of unreasonableness when entering a home without a warrant. This should have been the starting point of the officer’s actions and it was not. If the police were so unfamiliar with the situation, why is it that they would default to entering a home without a warrant? Shouldn’t the default, especially when you are uncertain, be to go with the precautionary measure and obtain a warrant through the legitimate procedures? Ultimately, the officers ought to have known when entering a private residence that a warrant was needed, regardless of any minor confusion surrounding the no-case seizure. This would render any misguidance of the police in regards to no-case seizures unreasonable.

Therefore, on the whole, the conduct of the police in Paterson, as articulated by Justice Brown “represented a serious departure from well-established constitutional norms”, even if it does not seem that way at first glance. In making this decision, the Supreme Court of Canada also protected the privacy of the home. When an unreasonable search occurs in a circumstance where there is a “high expectation of privacy,” the evidence simply should be excluded due to the significant impact on the rights of the accused. Time and time again the Court has recognized that there is an extremely high expectation of privacy that an individual expects in the safety and comfort of their own home. This dates all the way back to Semayne’s case in 1604 where it was argued that an individual’s home is their castle and mentioned again in R v Belnavis where it was said, “a person can expect that his home can and should be a safe castle of privacy”. This is because, as R v Silveira stated, “there is no place on earth” where an individual enjoys a higher expectation of privacy. These individuals therefore expect to be safe from unlawful intrusions into the security of their home, especially from the police, and it would have been inappropriate if the Supreme Court of Canada turned a blind eye to this and had admitted the evidence.

The sanctity of Mr. Paterson’s dwelling was eroded when the police didn’t abide by the Charter and entered his home without going through the proper precautions. Protecting the sanctity of the home, as the Justice in Semayne’s case asserted should afford “the individual a measure of privacy and tranquillity against the overwhelming power of the state” and that was not the case for Mr. Paterson.

It also significant that Mr. Paterson tried to assert his right to privacy by closing the door to his apartment, which was abruptly stopped through the physical interference of one of the officers by putting his foot in the door. This gesture from the officers further demonstrates their disregard for the high expectation of privacy in one’s home, which renders the impact that much more significant and justifies the decision of the Supreme Court of Canada that much more.

An interesting element that the dissent raised was that the evidence was otherwise discoverable. However, in this instance, discoverability is not enough to significantly lessen an impact of a serious Charter breach. The case of R v Cote asserted that discoverability is not determinative, especially in light of circumstances involving high privacy interests. So, given the high privacy interest at stake here, because Mr. Paterson was in his own home, the impact on his rights would remain high.

The Supreme Court of Canada was wise to exclude the evidence on these bases. While the evidence is reliable and central to the Crown’s case, this cannot outweigh the importance of the first two inquiries of the Grant test. It has been proven in Supreme Court of Canada cases previously, such as R v McGuffie, that where the first two inquiries favour exclusion of evidence, then the third line of inquiry will rarely “tip the balance in favour of admissibility.” This is especially so, in instances of improper search and seizures in private dwellings as has been demonstrated in the cases of R v Cote and R v Morelli, and now also, in R v Paterson.

When simply trying to answer the question posed by many critics of the result: what about all the guns and drugs? I would direct those critics to remember the long term goals of the justice system. As R v Grant articulated, the short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. The protection of Charter rights needs to be the courts focus in order to avoid condoning severe police conduct that has a significant impact on individuals. The dismissive nature of the police in this instance towards Charter standards and their disregard for the privacy of the home, which severely impacted the rights of Mr. Paterson, cannot be excused. To do otherwise would allow the door to what the court will tolerate to be opened even further to permit not just a foot from an officer, but even more serious police conduct that disregards Charter standards to pass through. The ends here cannot be allowed to justify the means.

If the determining factor is whether the evidence is reliable and serious and will assist in proving the Crown’s case, that is sending the message that law enforcement can do whatever it takes to retrieve evidence, as long as it is crucial and reliable, even if it means enaging in serious conduct that has a significant impact on the Charter rights of individuals. Furthermore, justifying violations of the Charter based on the quality of the evidence and seriousness of the offence is essentially picking and choosing which citizens are deserving of having their Charter rights respected. And as R v Harrison stated, this essentially deprives those charged of crimes of Charter protection, which goes against the very essence of the Charter. To say that the public would lose confidence here if the evidence is admitted, based on the its level of seriousness, is to take, as Justice Brown articulated, a “limited view of public confidence”.

As the court in R v Morelli stated: “justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices”, despite whether the evidence was crucial, reliable or indicative of a serious offence. For these reasons, the Supreme Court of Canada had to be diligent in guarding this profound right to be protected from unreasonable searches from law enforcement within the privacy of one’s home.

The case of R v Mann embodies this idea that some sacrifices need to be made in order to ensure the confidence of the public is maintained long-term. The decision to exclude the evidence in Mann gave Canadian citizens the confidence that they can walk down public sidewalks knowing they are safe from unreasonable search and seizures from police. And if this is what can be expected on public sidewalks, the public should be able to expect this even more so within an individual’s home. If invasions on places with high expectations of privacy must occur, the public has to have confidence that they will occur only when legitimate channels have been respected.

To ensure the confidence of the public is maintained, the Supreme Court of Canada in Paterson had to exclude the evidence. To do otherwise would have set a dangerous precedent that the Charter is not the powerful document Canadians trust to protect them and could have paved the way for progressively worse police behaviour.

Moving forward, because the Supreme Court of Canada chose to exclude the evidence, individuals in Canada can rest easily knowing they are safe within the privacy of their own home. And as for police- get a warrant!

Cases cited

R v Paterson, 2011 BCSC 1728 at para 23.

R v Paterson, 2017 SCC 15 at paras 46, 53, 55.

Hunter et al v Southam Inc [1984] 2 SCR 145.

R v Belnavis [1997] 3 SCR 341 at para 39.

R v Buhay, 2003 SCC 30 at paras 56, 59, 60, 61.

R v Cote, 2011 SCR 46 at paras 69, 73, 88-89.

R v Genest [1989] 1 SCR 59 at para 57.

R v Grant, 2009 SCC 32 at paras 75, 84.

R v Harrison, 2009 SCC 34 at paras 24-25, 40.

R v Kokesch [1990] 3 SCR 3 at para 50.

R v Mann, 2004 SCC 52.

R v McGuffie, 2016 ONCA 365 at para 63.

R v Morelli, 2010 SCC 8 at paras 108-113.

R v Silveira [1995] 2 SCR 297 at paras 66, 140.

Semayne’s Case All ER Rep 62.