Exigent Circumstances: The Demand for Fiercer Protection of Privacy Interests - Brittney Macht

Introduction

Privacy and Peril: Hunter v Southam and the Drift from Reasonable Search Protections (“Privacy in Peril”) provides readers a thorough understanding of how integral the case of Hunter v Southam is in establishing a base line of the scope of s 8 search and seizure rights, and more specifically, the thresholds that need to be passed to justify searches and seizures of such.[1] As the Court noted here, warrantless searches are presumptively unreasonable.[2] However, a way to justify warrantless searches exist through the use of a variety of mechanisms such as exigent circumstances.[3] Exigent circumstances were defined and clarified by the Supreme Court of Canada in R v Paterson and had important implications for privacy interests in one’s home.[4] However, as we will see, there are some issues that arise from the use of exigent circumstances. The following blog will outline the case of R v Paterson and the court’s definition of exigent circumstances, followed by a scholarly opinion on the problems stemming from exigent circumstances. Finally, I will discuss my opinion on the problems that may arise in using exigent circumstances to justify a warrantless seizure, and where I anticipate the law is going in the future.

R v Paterson

On November 30, 2007, RCMP constables were dispatched to Brendan Paterson’s apartment after a report of an injured person.[5] When Paterson opened the door, Constable Dykeman noticed the odour of marijuana. After questioning him about the odour, Paterson acknowledged possessing some unconsumed portions of marijuana roaches.[6] The constables decided that they would seize the roaches but would treat this as a “no case” seizure meaning they intended to seize the roaches without charging Paterson.[7] Paterson agreed to hand over the roaches and attempted to close the door to go get them, but Constable Dykeman blocked the door with his foot and proceeded to follow him inside as he was concerned Paterson would destroy them.[8]Once inside the apartment, Constable Dykeman observed a bulletproof vest, a handgun, and a bag of pills. The constables immediately arrested Paterson.[9]

The Court here was left to determine whether exigent circumstances existed to justify the warrantless search of the apartment.[10] The Court determined exigent circumstances allow police to enter a dwelling house for the purposes of search and seizure without a warrant as long as exigent circumstances exist.[11] To satisfy this threshold, the circumstances must require immediate attention due to the potential for imminent danger or loss, removal, destruction or disappearance of evidence if the search or seizure is delayed or is required to protect the safety of the police or public.[12] The Court noted there must be urgency arising from the circumstances, and the exigent circumstances must render the ability of the officers to obtain a warrant as impracticable, impossible, or unmanageable.[13]

In considering exigent circumstances on the present facts, the Court held there was no urgency here to compel immediate action.[14] Instead, they noted it was merely an inconvenience for the officers to obtain a warrant, but it was not impracticable for them to do so.[15] Since the officers didn’t find it serious enough to arrest Paterson, then it cannot have been serious enough to intrude into his private residence; therefore, the officer’s conduct violated section 8 of the Charter.[16]

As noted in Privacy and Peril, this decision affirmed that warrantless searches through exigent circumstances are high threshold searches. The authors noted that this decision in fact clarified that “…exigency, especially in highly private spaces such as homes… provides a fierce protection of private spaces even when prior authorization was not feasible.”[17] However, as I will discuss, although the intent of the courts was to create a fierce protection of private spaces, the framework that resulted and the current execution of the law creates some uncertainty.

Problems with the Exercise of Discretion

Problems exist with the exercise of discretion left in police officers’ hands, and ultimately, the differing of opinion and application of this doctrine in court. When authorities are left with too much discretion to determine if something is at risk of being destroyed or is in fact a public safety concern, differing results can occur depending on the officer who is knocking on your front door or the judge presiding in the court room.

As discussed in the article Creating Exigent Circumstances, Hendrie discussed the spectrum of results that could occur depending on a judge’s focus. Although they specifically apply this to cases involving the fourth amendment in the United States, the conclusions reached are relevant to our discussion on exigent circumstances under section 8 of the Charter. Hendrie notes that when a court scrutinizes the investigative tactics of police, they will likely disapprove of the search if the officers have conducted a warrantless search based on the foreseeable exigency that arises from their actions.[18] Basically, treating the ability to obtain a warrant as a dispositive issue.[19] However, if the courts focus instead on the intent of the officers in determining if they deliberately created exigency, they would view the ability to obtain a warrant as a factor and not a dispositive issue.[20] This conclusion brings up a number of issues. First, it acknowledges the likelihood of police in falsifying or creating exigency in a set of circumstances. An example of such circumstances would be police aimlessly walking around an apartment complex where they are frequently called, in hopes of smelling marijuana to justify knocking on a door and searching a residence.[21] Actions such as this are problematic, as they would unjustifiably engage individuals’ privacy interests and ultimately result in further apprehension around the presence of police.

Additionally, this article brings up the issue of too much discretion being left to the courts.[22] Although in Canada it is necessary for there to be an impracticability to obtain the warrant so the argument of Hendrie would fail here, this differing of opinion presented by judges can be analogized to situations in Canada where a judge has to determine if urgency exists or if police conducted a seizure to preserve evidence or public safety. Although judges are viewed as impartial figures, they still present differing opinions. What one judge would considers a public safety concern may certainly differ from the perception of another judge. This could potentially create uncertainty in the application of exigent circumstances amongst the courts.

Solutions

It is important to frame this section in the view that warrantless searches are presumptively unreasonable. The purpose behind why such searches are presumptively unreasonable is to highlight the importance of an individual’s right to be free from intrusion in their own privacy. Therefore, exigency in justifying a warrantless search or seizure is a problematic doctrine as it stands. It is understandable why Paterson has tried to implement a high threshold test; however, I am concerned the threshold may not be high enough given the type of right at stake; the right to privacy and freedom from search and seizure in your own home.

In looking at solutions to fix the issues I have laid before us, it is difficult to comprehend a way to adjust the framework to restrict exigent circumstances justifications to very limited circumstances without further convoluting the framework by adding additional requirements on top of the substantial test in place. However, it might be beneficial for courts to clarify and really stress the importance of only relying on this exception in extremely limited circumstances. The way the framework currently works and the way it has been perceived by police officers is insufficient, as clearly there is a lack of understanding around how wide officers’ scopes really are in conducting a warrantless search, given the number of section 8 violations brought before the court. By specifying in the framework that this exception is only to be utilized in extremely limited circumstances, it would not only make police officers maybe reflect and think about their ability to obtain a warrant, but more importantly, solidify the high right to privacy individuals have in their dwelling houses.

Richard Williamson, in his paper on exigent circumstances, has stated that typically when exigent circumstances are argued in front of the court to justify a warrantless search, there are in fact “presumptive categories” of what usually would be considered as exigent.[23] In this sense then, although these categories are not necessarily in the exigent framework, police have a general idea for when and where they would likely find exigent circumstances to exist. I argue that such categories being presented as a guideline would be beneficial in narrowing down officers’ understandings of what constitutes an appropriate circumstance to search without a warrant.

Therefore, by courts stressing that exigent circumstances should only be used in extremely limited circumstances and by putting forth a list of categories where exigent circumstances are often justified, this would help narrow the framework. Additionally, by creating a categorical list, this mechanism would combat the confusing nature of adjusting the original framework by adding additional factors.

Conclusion

Despite Privacy in Peril noting that R v Paterson created a high threshold test to justify a warrantless search, I think there is still some room for improvement to protect privacy interests. It will be interesting to see how exigent circumstances are interpreted in the future and whether courts will agree that the test does require alterations to ensure privacy interests are upheld. By adjusting the current framework to integrate my suggestions, I believe this could narrow the police and court’s discretion, and ultimately result in fewer section 8 violations.

[1] Richard Jochelson & David Ireland, Privacy in Peril (Vancouver: UBC Press, 2019) at 128-130 [Richard]. [2] Ibid. [3] R v Paterson, 2017 SCC 15 at para 25 [Paterson]. [4] Ibid at para 46. [5]Ibid at para 5. [6] Ibid at para 6. [7] Ibid. [8] Ibid. [9] Ibid at para 7. [10] Ibid at para 25. [11] Ibid at para 2. [12] Ibid at para 32. [13]Ibid at para 33. [14] Ibid at para 39. [15] Ibid. [16] Ibid at para 58. [17] Richard, supra note 1 at 128-130. [18] E M Hendrie, Creating Exigent Circumstances (Rockville: NCJRS, 1996) at 25-32 [Hendrie]. [19] Ibid. [20] Ibid. [21] Kentucky v King, 131 S Ct 1849 (2011). [22] Hendrie, supra note 18 at 25-32. [23] Richard A Williamson, The Supreme Court, Warrantless Searches, and Exigent Circumstances (Williamsburg: Faculty Publications, 1978) at 112.