Exigent circumstances in s. 11(7) CDSA denotes urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety, or public safety, and those circumstances must render it “impracticable” to obtain a warrant.

R. v. Paterson 2017 SCC 15 – three officers responded to a 911 call from a woman, C.W., who was crying and apparently injured. After speaking to the caller’s mother who directed them to Paterson (C.W.’s boyfriend), the officers attended at Paterson’s apartment building. C.W.’s mother also told the officers that Paterson had a shotgun. The building manager gave them Paterson’s apartment number, and told them that C.W. had been taken to the hospital with unknown injuries (C.W. would later tell police that she had accidentally slipped and hit the back of her head, and that Paterson did not cause her injury). After police repeatedly knocked on Paterson’s apartment door and announced their presence, he opened the door. As he did so, one of the officers noticed the odour of raw and smoked marihuana.

After questioning Paterson about the 911 call and satisfying themselves that no one was in need of assistance, the officers asked him about the odour. He first denied its source, then acknowledged possessing some unconsumed portions of marihuana “roaches” in his residence (three roaches). The officers explained that they would have to seize the roaches, but that they would treat this as a “no case” seizure, meaning that they intended to seize the roaches without charging him. One officer testified to considering obtaining a warrant, but decided not to and instead simply seize the roaches so that he and the other officers could be on their way. Paterson agreed to hand over the roaches and attempted to close the door, but an officer blocked the door with his foot and said he would not let Paterson out of his sight. He testified having done so out of concern that Paterson would destroy the roaches, and for “officer safety”. One officer followed Paterson into his residence, and another officer followed out of a concern that it was unsafe for one officer to be alone with Paterson.

Once inside, Paterson grabbed a bag containing the roaches to hand over to the officers. As he did so, an officer observed a bulletproof vest on a couch, a handgun on an end table, and a bag of pills (which he believed to be ecstasy) on a speaker stand. The officers immediately arrested and searched Paterson, finding a cell phone and a large amount of cash. A sweep of the residence revealed two large bags of pills (also believed to be ecstasy) and a bag of what appeared to be crack cocaine on a closet shelf. After securing the residence, telewarrants were obtained under s. 11(1) and (2) of the CDSA and s. 487.1 of the Criminal Code.  From the arrest and search, police found 825 grams of cocaine, 200 grams of methamphetamine, 9,000 ecstasy pills, a small amount of marihuana (simple possession), a small amount of oxycodone (simple possession), a loaded Smith and Wesson 38 special revolver (a prohibited firearm), a loaded Ruger P85 9-millimeter semi-automatic pistol (a restricted firearm), a loaded Ruger P90 45-calibre semi-automatic pistol (a restricted firearm), a loaded 1M1 Desert Eagle 44-calibre Remington Magnum semi-automatic pistol (a restricted firearm), $4,655 in cash on his person, $30,000 in cash was found in a box located underneath a couch in the living room area, and a bulletproof vest on the same couch.

The trial judge convicted Paterson on all counts, and the BCCA upheld the decision. The SCC reviewed existing jurisprudence in this area and said the common theme emerging from these descriptions of “exigent circumstances” in s. 11(7) 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. Even where exigent circumstances are present, however, they are not, on their own, sufficient to justify a warrantless search of a residence under s. 11(7), said the SCC. Those circumstances must render it “impracticable” to obtain a warrant. At para. 34:

…exigent circumstances must be shown to make it impracticable to obtain a warrant. In other words, “impracticability”, howsoever understood, cannot justify a warrantless search under s. 11(7) on the basis that it constitutes an exigent circumstance. Rather, exigent circumstances must be shown to cause impracticability.

Defence submitted that the definition of “exigent circumstances” found in s. 529.3(2) of the Criminal Code should be applied to define “exigent circumstances” as it appears in s. 11(7) of the CDSA. This would have the effect of requiring police to demonstrate either that entry was necessary to prevent imminent bodily harm or death, or that entry was necessary to prevent the imminent loss or destruction of evidence relating to the commission of an indictable offence — neither of which could have been established on the facts known to the officers prior to entry in this case. The SCC rejected that submission, ruling instead that in order for a warrantless entry to satisfy s. 11(7), the Crown must show that the entry was compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety. Further, this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives.

According to the SCC, the officers could have (1) tried to obtain Paterson’s lawful consent to enter his apartment and seize the roaches; (2) arrested Paterson and obtained a warrant to search his apartment and seize the roaches; or (3) thrown up their hands and walked away, in dereliction of their duty to seize illicit drugs, even if only to catalogue and destroy them. At para. 39:

With respect, the prospect of the appellant destroying roaches which the police officers hoped to seize on a “no case” basis and destroy themselves, with no legal consequences to the appellant whatsoever, did not remotely approach s. 11(7)’s threshold of exigency. No urgency compelled immediate action in order to preserve evidence. Nor, just as importantly, did the circumstances presented by the appellant’s admission to having some partially consumed roaches, coupled with the police officers’ wish to seize them on a no case basis, make it impracticable to obtain a warrant. Inconvenient or impractical, perhaps. But s. 11(7) is not satisfied by mere inconvenience, but impracticability. In this case, the police had a practicable option: to arrest the appellant and obtain a warrant to enter the residence and seize the roaches. If, as the Crown says, the situation was not serious enough to arrest and apply for a warrant, then it cannot have been serious enough to intrude into a private residence without a warrant.

As for the matter of officer safety (one officer following the other officer into the apartment), the SCC said given the report from C.W.’s mother about the possibility of Paterson having a shotgun, this concern was well-founded. It was not, however, that concern which prompted the first officer’s entry itself. At para 40:

…”really related to [the two officers] attempt to carry out the seizure in a less intrusive way”. In other words, concern for officer safety did not drive the decision to proceed with warrantless entry; rather, warrantless entry gave rise to concern for officer safety.

In the end, the SCC ruled that the warrantless entry by the police into Paterson’s residence was not authorized by s. 11(7) of the CDSA, and infringed his right under s. 8 of the Charter to be secure against unreasonable search:

The evidence obtained as a result of the entry and search of P’s residence should be excluded under s. 24(2) of the Charter as its admission would bring the administration of justice into disrepute. The police conduct, while not egregious, represented a serious departure from well-established constitutional norms. These 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.

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