Wednesday, 19 April 2017

Are illegal items found by the police in a warrantless search valid as evidence in a trial? 

This article deals with an appeal in the Supreme Court of Canada that raised three distinct issues: (1) the applicability of the common law confessions rule to statements tendered in a voir dire (1) under the Canadian Charter of Rights and Freedoms; (2) whether, on the facts of this case, exigent circumstances, within the meaning of s. 11(7) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 made it impracticable to obtain a warrant before entering and searching the appellant’s residence; and (3) whether the failure by police to comply with post-seizure reporting requirements constituted an infringement of s.8 of the Charter. In addition, and depending on its determination of the second and third issues, the Court may have to consider whether the evidence obtained as the result of a warrantless entry and search of the appellant’s residence should be excluded under s. 24(2) of the Charter.

(1)  a trial within a trial to make a determination of some issue that was raised   during the trial.

 On November 30th, 2007, in Langley, British Columbia, RCMP (2) officers Warner, Bell and Dykeman were assigned to respond to a 911 call from a woman, C.W., who was crying and apparently injured. After speaking to C.W’s mother, she directed them to the apartment building of Brendan Paterson (her daughter’s boyfriend). The officers then went to Paterson’s apartment building. The building manager gave them Paterson’s apartment number and told them that C.W (3) had been taken to the hospital with unknown injuries. After police repeatedly knocked on Paterson’s apartment door and announced their presence, Paterson opened the door. As he did so, Constable Dykeman noticed the odour of raw and smoked marihuana.  
(2)  The RCMP (Royal Canadian Mounted Police) are the federal police in Canada but they are also the provincial police in British Columbia.

(3)  C.W. would later tell police that she had accidentally slipped and hit the back of her head, and that her boyfriend did not cause her injury.

Once inside the apartment, Paterson grabbed a bag containing roaches (4) to hand over to the officers. As he did so, Constable Dykeman 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. He and Constable Bell immediately arrested and searched Paterson and finding a cell phone and a large amount of cash in his pockets. A further search 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.

  (4)  butts of marijuana cigarettes

After securing the residence, Constable Dykeman returned to his detachment and applied for and obtained a telewarrant under s. 11(1) and (2) of the CDSA (5) and s. 487.1 of the Criminal Code, R.S.C. 1985, c. C-46. The officers enforced the warrant that same day. They subsequently found quantities of cocaine, methamphetamine, ecstasy pills, marihuana and oxycodone, drug paraphernalia, four loaded weapons, a bulletproof vest as well as a large amount of cash.

(5) Controlled Drugs and Substances Act 

He was arrested and after all the evidence was presented at his trial and the court heard his explanations to the police as to what had been discovered in his apartment, Paterson was convicted of four counts of possession of a prohibited or restricted firearm, three counts of possession of a controlled substance for the purpose of trafficking, and two counts of simple possession of a controlled substance.

Now let’s face it. This man was unquestionably a criminal. But the real issue with respect to his appealing the convictions was not whether or not he had all that illegal stuff in his apartment but instead—was the search in his apartment done legally?

If Patterson hadn’t handed over the bag of roaches to the officers and had the officers not seen the bulletproof vest on a couch, a handgun on an end table, and a bag of pills (which they believed to be ecstasy) on a speaker stand, the police would not have sought a search warrant to search everywhere in Paterson’s apartment since their original purpose of their visit was merely to enquire about Paterson’s girlfriend’s injuries.

A voir dire hearing was conducted before the trial judge to determine the admissibility of evidence obtained by the police as a result of their search of the appellant’s (6) residence. After hearing and the testimony of the officers, the trial judge concluded that the common law (7) duty upon police to protect life and public safety, as well as exigent circumstances within the meaning of s. 11(7) of the CDSA, justified their entry and search of the residence. While the late and incomplete filing of the form 5.2 report constituted a breach of the appellant’s right to be secure against unreasonable search or seizure under s. 8 of the Charter, he refused to exclude the evidence under s. 24(2), since the breach was inadvertent and not serious, the impact on the appellant’s rights was limited, and the evidence gathered therefrom was highly reliable and crucial to the Crown’s case for conviction for those serious offences. The trial judge ultimately convicted the appellant on all counts.

(6)    Person who is appealing a court decision    
 (7)    Previous court decisions

Section 487.1(9) of the Criminal Code requires a peace officer to whom a warrant is issued to file a report (a “form 5.2 report”) to the clerk of the court, “as soon as practicable but within a period not exceeding seven days after the warrant has been executed”, containing (among other things) a list of things seized and the grounds for seizing anything that was not listed on the Information to Obtain a Search Warrant. In this case, while the warrant was executed on November 30, 2007, the form 5.2 report was not filed until February 13, 2008. Moreover, the form 5.2 report was incomplete, omitting many of the items seized and stating no grounds for the seizure.

Those omissions were the direct result of stupidity on the part of the officer who prepared the report.

  A voir dire hearing was conducted before the trial judge to determine the admissibility of evidence obtained by the police as a result of their search of the Paterson’s residence. The trial judge concluded that the common law duty upon police to protect life and public safety, as well as exigent circumstances within the meaning of s. 11(7) of the CDSA, justified their entry and search of the residence. While the late and incomplete filing of the form 5.2 report constituted a breach of Paterson’s right to be secure against unreasonable search or seizure under s. 8 of the Charter, (8) he refused to exclude the evidence under s. 24(2), (9) since the breach was inadvertent and not serious, the impact on the Paterson’s rights was limited, and the evidence gathered therefrom was highly reliable and crucial to the Crown’s case for conviction for serious offences. The trial judge ultimately convicted Paterson on all counts

 (8) Everyone has the right to be secure against unreasonable search or seizure.

 (9) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

On appeal before the Court of Appeal of British Columbia, Paterson’s lawyer  argued  (for the first time) that the trial judge had erred by failing to determine the voluntariness of Paterson’s statement to the police about having roaches in his residence before relying on Paterson’s statements in a voir dire. Additionally, he argued that the trial judge erred in finding that exigent circumstances justified police entry into his residence, and in finding that the late and incomplete filing of the form 5.2 report did not justify exclusion of the evidence under s. 24(2).

The appeal was dismissed. On the matter of voluntariness, the Appeal Court said that the Crown (Prosecutor) was not required to prove the voluntariness of an accused’s statement for it to be admitted at a voir dire. The Court of Appeal said that from the primary rationale of the common law confessions rule, it ensures reliability and trial fairness. That rationale does not apply where the evidence may never be heard by the trier of fact and where the inquiry is into state’s conduct, not the guilt of the accused. Further, police should be entitled to rely upon a statement to justify an investigation, even where that statement is not the product of an operating mind or is otherwise involuntarily made. Finally, imposing an onus upon the Crown in a voir dire would operate in tension with the prevailing burden upon the accused to demonstrate a breach against his rights.

As to the entry by police into the residence, the Court of Appeal agreed with the trial judge that, as it was “impracticable” for the police to obtain a warrant since the police officers were confronted with exigent circumstances. Constable Bell’s entry into the apartment behind Constable Dykeman was also reasonable, having occurred out of concern for officer safety. Finally, the Court of appeal said that the trial judge’s conclusion under s. 24(2) to admit the evidence obtained from the warrantless entry and subsequent search was entitled to deference. (consideration)  In the result, it was unnecessary to decide whether the trial judge correctly found that the mishandling of the form 5.2 report constituted a breach of s. 8.

Paterson’s appeal before the Court of Appeal was dismissed. His lawyer subsequently appealed to the Supreme Court of Canada. 

The law’s concern for “voluntariness” of confessions in relation to police investigative techniques is embodied in the Confessions Rule. That rule prohibits the admission at trial of any statements made by suspects to police or to other persons in authority, unless the Crown proves beyond a reasonable doubt that such statements were voluntary. The courts have also recognized, that concern for the untrustworthiness of involuntary confessions does not entirely capture the rationale for excluding evidence caught by the Confessions Rule. 

The rule has been said to rest on fundamental notions of trial fairness and the concept that a person who is involuntarily in the power of the state’s criminal process has the right to freely choose whether or not to make a statement to the police, coupled with a “concern for the repute and integrity of the judicial process.  

Those same concerns, underlay the privilege against self-incrimination, and supported recognition of a detainee’s right to silence as a principle of fundamental justice under s. 7 of the Charter. “Voluntariness” then, as a concept designed to limit the scope of police investigative techniques, has been broadly associated with the principle that the Crown must, to maintain the repute and integrity of the trial process, establish guilt without the assistance of the accused.

It is suffice to observe that the Crown must prove the voluntariness of an accused’s statement before it can rely upon that statement at trial as supporting a finding of guilt, and that this Rule applies to ensure trial fairness and to preclude conviction of an accused based upon compelled statements by the accused and as such it is inherently unreliable evidence. While the Rule’s application had been confined to trial, its “broad purpose” should operate to require the Crown to prove the voluntariness of such statements for any purpose — “even for the limited purpose of establishing reasonable grounds for a search” in a voir dire. To confine the judicial inquiry into the voluntariness of a statement to trial evidence, allows police to take “unfair advantage” of mentally ill and disabled persons”, (which Patterson was not ether) thereby “engendering systemic imbalance against those in need of the highest legal protections”. Further, Patterson’s lawyer viewed any evidence assisting the Crown in any way as “incriminating”, such that a statement which justifies a search ought to be shown to have been voluntarily made. It follows, he argued, that unreliable evidence such as an involuntary confession cannot be relied upon to justify a search.

As to the procedure to be followed, the lawyer’s argument was that the voluntariness of a statement — such as his client’s statement regarding the roaches — that led to a police search should be determined prior to the voir dire on the lawfulness of the search. Alternatively, he argued that a blended voir dire could occur. In this case, since neither the trial judge nor counsel addressed the voluntariness of Paterson’s statement to the police and since there was a possibility that his statements could have been ruled involuntary, the lawyer argued for a new trial.

In the Supreme Court’s ruling, the court said; “ First, the appellant’s submissions (that of Paterson’s lawyer) fail to account for the purpose of the judicial inquiry in a Charter voir dire, (10) and its distinction from the purpose of a criminal trial. A criminal trial is concerned with determining whether the accused is guilty of an offence. In a Charter voir dire, however, the focus is not on the accused’s guilt, but on whether the accused’s constitutional rights were infringed. A Charter voir dire therefore involves a review of the totality of the circumstances known to, and relied upon by the trial judge at the time of the impugned action. To be clear, only the trial judge’s contemporary state of mind and conduct was at issue, and not the truthfulness of the statement of the accused upon which he relied. It was for this reason that the truthfulness of a statement had no bearing upon its admissibility; rather, the inquiry was focused upon whether it was reasonable for the judge to rely upon the statement as forming grounds for the action under scrutiny.” Unquote

(10)  a separate hearing during the trial dealing only  with Charter arguments)

The significance of this distinction between the purpose of a Charter voir dire and a trial also governs the admissibility of other forms of evidence, such as hearsay, evidence of bad character or of past discreditable conduct, information obtained from confidential informants, information protected by privilege or, personal opinion informed by prior training and experience.

Each of these forms of evidence raises either reliability or policy concerns and is therefore subject to strict evidentiary rules which restrict or preclude altogether admissibility for substantive use at the trial proper. Such concerns do not, however, arise at a Charter voir dire, because of the limited purpose for which this evidence may be used therefore going only to the judge’s state of mind and conduct, and not to the ultimate reliability of the evidence in determining the guilt of the accused. It follows that admitting a statement made by an accused for that limited purpose without first establishing its voluntariness does not offend the rationales underlying the Confessions Rule. That Rule’s driving concern for trial fairness and avoiding conviction upon inherently unreliable evidence simply does not arise at the voir dire stage.

Admitting a statement by an accused for the purpose of assessing the constitutionality of state action, as opposed to the purpose of determining the accused’s guilt, does not engage the rationale for the Confessions Rule. To apply the Rule to evidence presented at a Charter voir dire would distort both the rule and its purpose.

 Second, the appellant’s arguments regarding the ability of police officers to coerce information from vulnerable witnesses were already addressed by Canada’s criminal procedure. A substantial distinction separates, on one hand, allowing the Crown to adduce statements at a Charter voir dire without proving voluntariness and, on the other hand, condoning police conduct which coerces involuntary statements. The appellant’s submissions construct a false choice by failing to account for other legal protections against abusive state conduct. For example, the appellant’s concern that police might ignore obvious indicia of unreliability such as an operating mind was addressed by the requirement that the Crown demonstrate that police reasonably relied on an accused’s statement and that it provided the requisite grounds to act. Similarly, coercive or otherwise abusive tactics by police designed to extract information involuntarily from an accused would be subject to scrutiny under ss. 7, 8 or 9 of the Charter, with a view to possible exclusion of such evidence under s. 24(2) or a stay of proceedings. In brief, the appellant’s submissions offer no good reason for concern that the rights of the accused are not entirely reconcilable with the state’s reliance on an accused’s statement to demonstrate the constitutionality of its investigative steps.

 “Finally, applying the confessions rule to statements adduced in a Charter voir dire would lead to undesirable consequences, inhibiting legitimate and necessary police investigative powers. For example, and as the intervener, (11) the Attorney General of Ontario stated that requiring the police to prove the voluntariness of an accused’s statement would contradict one of this Court’s earlier direction that police may rely, for the limited purpose of forming grounds for an approved screening device demand, upon answers given roadside by drivers in response to questions about alcohol consumption. To be clear, such evidence entails, as the Court in the earlier decision said, “compelled direct participation” by the driver which would be inadmissible at trial to prove impairment. The limited purpose of justifying further investigation, however, coupled with the absence of concern for trial fairness and reliability, supports its admissibility at a Charter voir dire considering the constitutionality of the investigation itself and, in particular, of the reasonableness of the officer’s grounds for demanding a breath sample.

(11) Any person who can be effected by the court’s decisions

Indeed, in some instances, application of the Confessions Rule to statements adduced at a Charter voir dire would lead to absurdities. Police officers would be required to positively ascertain voluntariness in respect of almost every person they encounter in responding to an emergency, when receiving a 911 call or at other early points in an investigation, where it may be unclear who is a suspect and who is a mere witness. In dynamic and emergent circumstances, police officers must be permitted, within constitutional bounds, to respond and conduct investigations with dispatch. Taken to its logical extension, the appellant’s submission would cast doubt on basic and uncontroversial police practices which are dependent upon statements made by suspects. It would stifle police investigations, compromise public safety and needlessly lengthen and complicate voir dire proceedings. The procedures outlined in the Canadian Criminal Code  already affords protections for accused persons.

 It follows from the foregoing that the Court of Appeal correctly decided that the Crown was not required to prove the voluntariness of the appellant’s statement regarding the roaches in his residence prior to its admission at a Charter voir dire.

Apparently, no one disputed that the police officers’ warrantless entry into the appellant’s residence constituted a search. At issue, however, was whether it was justified by “exigent circumstances” making it, within the meaning of s. 11(7) of the CDSA, “impracticable” to obtain a warrant. (12)

(12) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.

As to the meaning of “exigent circumstances”, the appellant pointed to s. 529.3 of the Criminal Code, subs. (1) of which authorizes a peace officer to enter a dwelling-house without a warrant for the purpose of arresting or apprehending a person reasonably believed to be present therein, where “the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant”. Subsection (2) of s. 529.3 defines “exigent circumstances” as including circumstances in which the peace officer:

(a)   has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or

(b)  has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.

The appellant’s submission was that none of those two exigent circumstances existed when the police entered Paterson’s apartment since they entered for the sole purpose of making inquiries about his girlfriend.

The Court rejected that submission because  Section 11 of the CDSA lacks the express language of s. 529.3(2) limiting its scope, where applied to the preservation of evidence, with respect to  indictable  offences. Parliament, which regularly and expertly legislates pursuant to its criminal law power, could have easily conditioned warrantless searches under s. 11(7)  in precisely the same terms as contained in s. 529.3(2). That it chose not to do so is not surprising, when s. 529.3(2) is considered alongside other provisions in the Criminal Code authorizing warrantless entry which is an important consideration, given that statutory interpretation entails discerning Parliament’s intent by examining the words of a statute in their entire context and in their grammatical and ordinary sense, in harmony with the statute’s intentions. 

For example, the general provision on warrantless entry by reason of exigent circumstances (s. 487.11) and the provision authorizing warrantless entry to search for and seize firearms or other weapons in exigent circumstances (s. 117.02(1)) contain no statutory definition of “exigent circumstances”. In light of those provisions, there is no good reason to believe that Parliament intended the definition of “exigent circumstances” in s. 529.3(2) of the Criminal Code to be read into s. 11(7) of the CDSA.

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.

The Court declined the appellant’s invitation to “do by ‘interpretation’ what Parliament chose not to do by enactment.

The Court ruled 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.

 The Court was satisfied that the trial judge had correctly concluded in his mind that “exigent circumstances” were presented by two factors in this case. First, the police officers had “reasonable grounds to believe that there was a quantity, albeit a small quantity, of a controlled substance in the accused’s apartment.

Second, the police reasonably believed  that the controlled substance would be lost, destroyed or consumed given that they did not intend to arrest the accused for possession of this small amount of marihuana and accordingly he would have remained in the apartment” Those circumstances, the trial judge said made it impracticable (understood as “something less than impossible and importing a large measure of practicality to obtain a warrant, such that the police officers’ actions were justified by s. 11(7). The Court of Appeal, in reaching the same conclusion, noted the appellant’s admission to having marihuana in his residence, that the police had no intention of arresting him but only wanted to seize the roaches and be on their way, and that, had they left the appellant to obtain a warrant, “he could have easily destroyed the roaches”

    However, the prospect of the appellant destroying roaches which the police officers hoped to seize on a “no charge” 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 charge basis, make it impracticable to obtain a warrant. Inconvenient or impractical, perhaps, however s. 11(7) is not permitted by mere inconvenience, but by 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 argued, 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.

 There remains the matter of officer safety. As the Court of Appeal observed, Constable Bell’s entry behind Constable Dykeman was motivated out of concern for Constable Dykeman’s safety. Given the report from C.W.’s mother about the possibility of the appellant having a shotgun in his residence, this concern was well-founded. It was not, however, that concern which prompted Constable Dykeman’s entry itself. While he testified to his concern for officer safety as well as his fear that the appellant might destroy the roaches, the trial judge saw officer safety as being “really related to Constables Dykeman’s and Bell’s 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. While Constable Dykeman’s concern, like Constable Bell’s, was well-founded, it was not the basis for the decision to enter, but the result of the decision to enter. These facts, therefore, do not qualify as exigent circumstances making it impracticable to obtain a warrant, within the meaning of s. 11(7) of the CDSA.

 In the course of the trial judge’s voir dire ruling on the admissibility of the evidence seized from the appellant’s apartment, he ruled that the police were acting in good faith when they entered the appellant’s apartment. He specifically rejected the defence’s suggestion that their entry into the apartment was a ruse. There is no suggestion in the evidence presented of bad faith or ulterior motive such as might be the case if the stated intention of the police was a mere excuse or ruse to gain entry for the purpose of having a look around. Nothing of that sort was made out on the evidence presented during the trial. Rather, the trial judge accepted that the police were engaged in a “no charge” seizure, meaning that they simply wanted to retrieve the marijuana roaches and leave, without arresting the appellant or charging him with an offence.

 In concluding that the police were acting throughout in good faith, the trial judge observed that in their dealings with the appellant, they conducted themselves in a way which “demonstrated a measure of respect for his privacy rights”; that initially, the officer’s entry was “very brief and relatively non-intrusive”; and that once they observed the handgun and ecstasy pills in plain view, “no further search was done (other than a clearing search or searches for officer safety purposes) until a search warrant was sought and obtained” Finally, the trial judge accepted the police evidence that valid safety concerns prevented them from waiting outside the door, in the hallway, while the appellant retrieved the roaches on his own.

 It is legally excepted that the police had lawful authority to seize the roaches and that the conditions for obtaining a warrant existed. The lawfulness of the police entry without a warrant and the admissibility of the seized evidence under s. 24(2) of the Charter were the central issues in this particular appeal.

The lawfulness of the police entry hinges on whether the requirements of “exigent circumstances” were satisfied. Contrary to the findings of the trial judge and three judges of the British Columbia Court of Appeal, these requirements were not met and the police entry into the appellant’s apartment breached his s.8 privacy rights. In so concluding that the police entry was not just unlawful; they knew or should have known as much. In other words, the police should have known what the trial judge and three judges of the Court of Appeal also did not know that the police search was unlawful.

The function of the Supreme Court, in a case like this one, is to clarify the law so that police officers, defence and Crown counsel, trial and appellate judges and the public at large can know what the law is and how it is to be applied in future cases. It is not to judge the police conduct against a standard that exceeds the wisdom and training of experienced trial judges.

The Supreme Court said in its ruling;  It follows that the warrantless entry by the police into the appellant’s residence was not authorized by s. 11(7) of the CDSA, and as such, their entry infringed on his right under s. 8 of the Charter to be secure against unreasonable search.” unquote

The Appeal was allowed, convictions were set aside and acquittals entered.

This doesn’t mean that he was innocent of the crimes he was arrested for. It simply means that he won his appeal because the police screwed up—a common occurrence that unfortunately happens all over the world.  

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