R. v. Paterson

R. v. Paterson
Collection
Supreme Court Judgments
Date
2017-03-17
Neutral citation
2017 SCC 15
Report
[2017] 1 SCR 202
Case number
36472
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Brown, Russell
On appeal from
British Columbia
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 36472
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202
Appeal heard: November 2, 2016 Judgment rendered: March 17, 2017 Docket: 36472
Between:
Brendan Paterson
Appellant
and
Her Majesty The Queen
Respondent
- and –
Attorney General of Ontario, Attorney General of Alberta and British Columbia Civil Liberties Association
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Brown JJ.
Reasons for Judgment: (paras. 1 to 59)
Dissenting Reasons: (paras. 60 to 99)
Brown J. (McLachlin C.J. and Abella, Karakatsanis and Wagner JJ. concurring)
Moldaver J. (Gascon J. concurring)
R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202
Brendan Paterson Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario,
Attorney General of Alberta and
British Columbia Civil Liberties Association Interveners
Indexed as: R. v. Paterson
2017 SCC 15
File No.: 36472.
2016: November 2; 2017: March 17.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Brown JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Charter of Rights — Search and seizure — Exclusion of evidence — Accused admitting to police to having marihuana in his residence — Accused allowing police to seize roaches after being told this would be “no case” seizure — Warrantless entry by police into residence resulting in police seeing other drugs and weapon and arresting accused — Whether “exigent circumstances”, within meaning of s. 11(7) of Controlled Drugs and Substances Act , made it “impracticable” to obtain warrant before entering and searching residence — Whether accused’s Charter right to be secure against unreasonable search or seizure infringed — If so, whether evidence obtained from warrantless entry and search of residence should be excluded — Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 11(7) — Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
Criminal law — Evidence — Admissibility — Voir dire — Accused admitting to police to having marihuana in his residence — Whether Crown required to prove voluntariness of accused’s statement prior to its admission at voir dire considering lawfulness of entry and search of accused’s residence — Whether common law confessions rule should apply to statements tendered in context of voir dire under Charter .
This case arises from a warrantless entry by police officers into the apartment of the accused, P, which followed his agreement to surrender several marihuana roaches. The police told P they would treat this as a “no case” seizure, meaning that they intended to seize the roaches without charging him. Once inside, the police observed a bulletproof vest, a firearm and drugs. They arrested P and obtained a telewarrant to search his apartment, which led to the discovery of other firearms and drugs and to charges against P. P was convicted at trial and the Court of Appeal of British Columbia upheld the convictions. The Court of Appeal rejected P’s argument that the common law confessions rule should have precluded the admission of his statement about the roaches at the voir dire, as the Crown did not prove beyond a reasonable doubt that his statement was voluntarily made.
Held (Moldaver and Gascon dissenting): The appeal should be allowed, the convictions set aside and acquittals entered.
Per McLachlin C.J. and Abella, Karakatsanis, Wagner and Brown JJ.: The confessions rule should not be expanded to apply to statements tendered in the context of a voir dire under the Charter . 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. The purpose of the judicial inquiry in a Charter voir dire is distinct 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 state actor at the time of the impugned action. Only the state actor’s contemporary state of mind and conduct is at issue, and not the truthfulness of the statement upon which he or she relied. It is for this reason that the truthfulness of a statement has no bearing upon its admissibility; rather, the inquiry is focussed upon whether it was reasonable for the state actor to rely upon the statement as forming grounds for the action under scrutiny. 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 confessions rule to evidence presented at a Charter voir dire would distort both the rule and its rationale. It would stifle police investigations, compromise public safety and needlessly lengthen and complicate voir dire proceedings.
The warrantless entry by the police into P’s residence was not justified by “exigent circumstances” making it “impracticable” to obtain a warrant, within the meaning of s. 11(7) of the Controlled Drug and Substances Act (“CDSA”). It therefore infringed P’s rights under s. 8 of the Charter . “[E]xigent circumstances” denotes not merely convenience, propitiousness or economy, but rather urgency. 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). Those circumstances must render it “impracticable” to obtain a warrant. 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.
In this case, no urgency compelled immediate action in order to preserve evidence. Nor, just as importantly, did the circumstances presented by P’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. Section 11(7) is not satisfied by mere inconvenience, but impracticability. Here, the police had a practicable option: to arrest P and obtain a warrant to enter the residence and seize the roaches. If 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. Further, concern for officer safety did not drive the decision to proceed with warrantless entry; rather, warrantless entry gave rise to concern for officer safety.
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. The balancing of the relevant factors — seriousness of state conduct, seriousness of the infringement of Charter rights and the impact upon society’s interest in adjudication — will never be an entirely objective exercise. While the effective destruction of the Crown’s case weighs heavily, so does the warrantless entry into a private residence, having occurred to prevent P from destroying three roaches which the police themselves intended to destroy. It is important not to allow the third factor of society’s interest in adjudicating a case on its merits to trump all other considerations, particularly where, as here, the impugned conduct was serious and worked a substantial impact on P’s Charter right. Considering all these factors separately and together, the importance of ensuring that such conduct is not condoned by the court favours exclusion.
Per Moldaver and Gascon JJ. (dissenting): The majority analysis and conclusion on the voluntariness issue is agreed with. Contrary to the findings of the trial judge and three judges of the Court of Appeal, it is agreed that the police entry into P’s apartment was unlawful and in breach of his s. 8 privacy rights. However, the firearms and drugs seized by the police from P’s apartment were properly admitted into evidence and the appeal should be dismissed.
The function of this Court, in a case like the present 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 and appellate judges. In an effort to clarify the law, it is accepted that s. 11(7) of the Controlled Drug and Substances Act was not available to the police on the facts of this case. Rather, in the circumstances, the police had three options available to them. They could have (1) tried to obtain P’s lawful consent to enter his apartment and seize the roaches; (2) arrested P 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. That said, it is hardly fair to castigate the police for their conduct when prior to this case, the legal boundaries of s. 11(7) in the context of a “no case” seizure were at best unclear. One need only look to the lower court decisions to realize this.
This Court has consistently held that legal uncertainty is a factor which a court may take into account in assessing the seriousness of a Charter breach occasioned by police conduct. Where the law is evolving or in a state of uncertainty, and where the police are found to have acted in good faith, without ignorance or wilful or flagrant disregard of an accused’s Charter rights, the seriousness of the breach may be attenuated.
In this case, the seriousness of the breach is clearly attenuated by the uncertainty surrounding the interpretation of s. 11(7) of the CDSA in the context of a “no case” seizure, and the strong findings of the trial judge that the police were acting in good faith throughout. The impact of the police entry on P’s privacy interest is also attenuated because the evidence was lawfully discoverable if the police had obtained a warrant.
In sum, the police, acting in good faith, made a mistake about their authority to enter P’s apartment under the auspices of s. 11(7) in a “no case” seizure — the same mistake that the lower courts made. The cumulative effect of legal uncertainty, police good faith, and the discoverability and reliability of critical evidence needed for there to be a trial on the merits resolves the balance in favour of admitting the evidence. In these circumstances, it is the exclusion of reliable and crucial evidence implicating P in very serious gun and drug offences that is far more likely to cause the public to lose faith and confidence in our criminal justice system. That said, in a case like this one, it is possible that an alternative remedy short of the exclusion of evidence, such as a sentence reduction, might be available under s. 24(1) of the Charter . Since this was not argued, it must be left for another day.
Cases Cited
By Brown J.
Applied: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; referred to: R. v. Hodgson, [1998] 2 S.C.R. 449; Ibrahim v. The King, [1914] A.C. 599; Boudreau v. The King, [1949] S.C.R. 262; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. S. (R.J.), [1995] 1 S.C.R. 451; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250; R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3; R. v. Soules, 2011 ONCA 429, 105 O.R. (3d) 561; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Silveira, [1995] 2 S.C.R. 297; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37; R. v. Macooh, [1993] 2 S.C.R. 802; R. v. Erickson, 2003 BCCA 693, 192 B.C.A.C. 203; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. McGuffie, 2016 ONCA 365, 348 O.A.C. 365.
By Moldaver J. (dissenting)
R. v. Erickson, 2003 BCCA 693, 192 B.C.A.C. 203; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. M. (N.) (2007), 223 C.C.C. (3d) 417; R. v. Silveira, [1995] 2 S.C.R. 297; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 7 , 8 , 9 , 24(1) ,(2) .
Controlled Drugs and Substances Act , S.C. 1996, c. 19, s. 11(1) , (2) , (7) .
Criminal Code , R.S.C. 1985, c. C‑46, ss. 117.02(1) , 184.3(1) , 487.1 , 487.11 , 529.3 .
Narcotic Control Act, R.S.C. 1985, c. N‑1 [rep. 1996, c. 19, s. 94], s. 10.
Authors Cited
Canada. Federal/Provincial Task Force on Uniform Rules of Evidence. Report of the Federal/Provincial Task Force on Uniform Rules of Evidence. Toronto: Carswell, 1982.
Lederman, Sidney N., Alan W. Bryant and Michelle K. Fuerst. The Law of Evidence in Canada, 4th ed. Markham, Ont.: LexisNexis, 2014.
Penney, Steven, Vincenzo Rondinelli and James Stribopoulos. Criminal Procedure in Canada. Markham, Ont.: LexisNexis, 2011.
APPEAL from a judgment of the British Columbia Court of Appeal (Lowry, Frankel and Bennett JJ.A.), 2015 BCCA 205, 372 B.C.A.C. 148, 640 W.A.C. 148, 324 C.C.C. (3d) 305, 340 C.R.R. (2d) 41, [2015] B.C.J. No. 946 (QL), 2015 CarswellBC 1256 (WL Can.), affirming the convictions for possession of controlled substances, possession of controlled substances for the purpose of trafficking and possession of prohibited or restricted firearms entered by Blok J., 2012 BCSC 1680, [2012] B.C.J. No. 2343 (QL), 2012 CarswellBC 3519 (WL Can.). Appeal allowed, convictions set aside and acquittals entered, Moldaver and Gascon JJ. dissenting.
Daniel J. Song, Kenneth S. Westlake, Q.C., and Brent R. Anderson, for the appellant.
W. Paul Riley, Q.C., and Janna Hyman, for the respondent.
Gillian Roberts, for the intervener the Attorney General of Ontario.
Written submissions only by Jolaine Antonio, for the intervener the Attorney General of Alberta.
Roy Millen and Rebecca Spigelman, for the intervener the British Columbia Civil Liberties Association.
The judgment of McLachlin C.J. and Abella, Karakatsanis, Wagner and Brown JJ. was delivered by
Brown J. —
I. Introduction
[1] This appeal raises three distinct issues: (1) the applicability of the common law confessions rule to statements tendered in a voir dire 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 (“CDSA ”), 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 .
[2] These issues arise from a warrantless entry by police officers into the apartment of the appellant, Brendan Paterson, which followed his agreement to surrender several marihuana “roaches”. Once inside, the police observed a bulletproof vest, a firearm and drugs. They arrested the appellant and obtained a telewarrant, which led to the discovery of other firearms and drugs and to charges against the appellant in a nine-count indictment. At trial, the appellant alleged that the warrantless entry into his residence breached his s. 8 Charter right to be secure from an unreasonable search or seizure, as there were no “exigent circumstances” rendering it impracticable to obtain a warrant, within the meaning of s. 11(7) of the CDSA . Additionally, he alleged a further s. 8 breach arising from the police filing a late and incomplete report to the clerk of the court for the telewarrant.
[3] The trial judge held that exigent circumstances justified the entry into the residence. He also, however, found that the late and incomplete report infringed the appellant’s s. 8 right, but he admitted the evidence and convicted the appellant. His decision was affirmed at the Court of Appeal of British Columbia, before which the appellant advanced a new argument. The common law confessions rule should, he said, have precluded the admission of his statement about the roaches at the voir dire considering the lawfulness of the entry and search, as the Crown did not prove beyond a reasonable doubt that his statement was voluntarily made. The Court of Appeal rejected that argument, and upheld the convictions.
[4] For the reasons that follow, I agree with the Court of Appeal that the confessions rule has no application here. I reach a different conclusion, however, on the matter of the police entry into the appellant’s residence which, in my respectful view, was not justified by exigent circumstances making it impracticable to obtain a warrant. As I am also of the view that the evidence obtained therefrom should be excluded under s. 24(2) of the Charter , it is unnecessary to decide whether a late and incomplete report could itself be a ground for a finding of an infringement of s. 8 of the Charter , and whether there was in fact such a breach. I would therefore allow the appeal, set aside the appellant’s convictions and enter acquittals.
II. Overview of Facts and Proceedings
A. Background
[5] On November 30, 2007, in Langley, British Columbia, RCMP 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 the caller’s mother who directed them to the appellant (C.W.’s boyfriend), the officers attended at the appellant’s apartment building. The building manager gave them the appellant’s apartment number, and told them that C.W. had been taken to hospital with unknown injuries. (C.W. would later tell police that she had accidentally slipped and hit the back of her head, and that the appellant did not cause her injury.) After police repeatedly knocked on the appellant’s apartment door and announced their presence, the appellant opened the door. As he did so, Constable Dykeman noticed the odour of raw and smoked marihuana.
[6] After questioning the appellant 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. While the number of roaches was not confirmed, Constable Dykeman understood there to be three. 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. (Constable Dykeman 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.) The appellant agreed to hand over the roaches and attempted to close the door, but Constable Dykeman blocked the door with his foot and said he would not let the appellant out of his sight. He testified having done so out of concern that the appellant would destroy the roaches, and for “officer safety”. Constable Dykeman followed the appellant into his residence. Constable Bell followed out of a concern that it was unsafe for Constable Dykeman to be alone with the appellant. (C.W.’s mother had advised the police that the appellant had a shotgun.)
[7] Once inside, the appellant grabbed a bag containing the roaches 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 the appellant, 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.
[8] 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 and s. 487.1 of the Criminal Code , R.S.C. 1985, c. C-46 . Police executed the warrant that same day, finding 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. Ultimately, Mr. 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.
[9] Section 487.1(9) of the Criminal Code requires a peace officer to whom a warrant is issued to file a report (“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 seizure.
B. Judicial History
(1) British Columbia Supreme Court — Blok J. (2011 BCSC 1728)
[10] 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 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 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 serious offences. The trial judge ultimately convicted the appellant on all counts (2012 BCSC 1680).
(2) Court of Appeal of British Columbia — Lowry, Frankel and Bennett JJ.A. (2015 BCCA 205, 372 B.C.A.C. 148)
[11] On appeal, the appellant argued, for the first time, that the trial judge had erred by failing to determine the voluntariness of his statement about having roaches in his residence before relying on them 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).
[12] The appeal was dismissed. On the matter of voluntariness, the Crown was not required to prove the voluntariness of an accused’s statement for it to be admitted at a voir dire. This followed, the Court of Appeal explained, from the primary rationale of the common law confessions rule — ensuring 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 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.
[13] As to the entry by police into the residence, the Court of Appeal agreed with the trial judge that, as it was “impracticable” for police to obtain a warrant, the police officers were confronted with exigent circumstances. Constable Bell’s entry behind Constable Dykeman was also reasonable, having occurred out of concern for officer safety. Finally, 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. In the result, it was unnecessary to decide whether he correctly found that the mishandling of the form 5.2 report constituted a breach of s. 8.
III. Analysis
A. Voluntariness
[14] The law’s concern for “voluntariness” in relation to police investigative techniques is embodied in the confessions rule. That rule prohibits the admission at trial of 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 (S. Penney, V. Rondinelli and J. Stribopoulos, Criminal Procedure in Canada (2011), at p. 272; R. v. Hodgson, [1998] 2 S.C.R. 449, at para. 17). The Crown’s burden — which is identical to its burden in respect of the accused’s guilt itself — highlights that the rule is linked to the law’s concern that involuntary statements are “unreliable as affirmations of guilt” (S. N. Lederman, A. W. Bryant and M. K. Fuerst, The Law of Evidence in Canada (4th ed. 2014), §8.24; Ibrahim v. The King, [1914] A.C. 599 (P.C.), at p. 609; Boudreau v. The King, [1949] S.C.R. 262; Rothman v. The Queen, [1981] 1 S.C.R. 640, at pp. 653-54, per Estey J., dissenting).[1] As this Court recognized in Hodgson (at para. 19), statements obtained by force, threat or promises are inherently unreliable.
[15] The Court has also recognized, however, that concern for the untrustworthiness of involuntary confessions does not entirely capture the rationale for excluding evidence caught by the confessions rule. In R. v. Hebert, [1990] 2 S.C.R. 151, the rule was said to rest on fundamental notions of trial fairness and (at p. 173) “the idea that a person 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, the Court added (at p. 175), 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 (Hodgson, at para. 23, citing the Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (1982), at p. 175).
[16] The foregoing explanations for the confessions rule are not neatly encapsulated and, as the Court has observed more than once, “a rationale for the confessions rule extending beyond trustworthiness has not always been easy to locate (R. v. S. (R.J.), [1995] 1 S.C.R. 451, at para. 73; Hodgson, at para. 23). It suffices here 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 and as such inherently unreliable evidence. While, therefore, the rule’s application has been confined to trial, the appellant says that 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, he says, allows police to take “unfair . . . advantage” of “mentally ill and disabled” persons, thereby “engender[ing] systemic imbalance against those in need of the highest legal protections”. Further, the appellant views 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 says, that unreliable evidence such as an involuntary confession cannot be relied upon to justify a search.
[17] As to the procedure to be followed, the appellant says that the voluntariness of a statement — such as the appellant’s statement regarding the roaches — leading to a police search should be determined prior to the voir dire on the lawfulness of the search. Alternatively, he says, a blended voir dire could occur. In this case, since neither the trial judge nor counsel addressed the voluntariness of the appellant’s statement, and since there is a possibility that his statements could have been ruled involuntary, he says a new trial is necessary.
[18] In my view, the confessions rule should not be expanded as proposed by the appellant. More particularly, for the following reasons, the confessions rule should not apply to statements tendered in the context of a voir dire under the Charter .
[19] First, the appellant’s submissions fail to account for the purpose of the judicial inquiry in a Charter voir dire, 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 state actor at the time of the impugned action. To be clear, only the state actor’s contemporary state of mind and conduct is at issue, and not the truthfulness of the statement upon which he or she relied. It is for this reason that the truthfulness of a statement has no bearing upon its admissibility; rather, the inquiry is focussed upon whether it was reasonable for him or her to rely upon the statement as forming grounds for the action under scrutiny.
[20] 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, as discussed in R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 61-62, 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 — going only to the state actor’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. The confessions rule’s driving concern for trial fairness and avoiding conviction upon inherently unreliable evidence simply does not arise at the voir dire stage.
[21] In sum, 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 rationale.
[22] Second, the appellant’s arguments regarding the ability of police officers to coerce information from vulnerable witnesses are already addressed by our 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 is 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.
[23] 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, the Attorney General of Ontario observed, requiring police to prove the voluntariness of an accused’s statement would contradict this Court’s direction in R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, 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 said, “compelled direct participation” by the driver (para. 58 (emphasis added)),[2] 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.
[24] 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 investigate 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 — all, it bears reiterating, to secure protections which (as I have explained at para. 22) our criminal procedure already affords accused persons.
[25] It follows from the foregoing that I am of the view 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.
B. Did Exigent Circumstances, Making it Impracticable to Obtain a Warrant, Justify a Warrantless Entry Into the Appellant’s Residence?
(1) The Meaning of “Exigent Circumstances” and “Impracticable”
[26] Before us, no one disputed that the police officers’ warrantless entry into the appellant’s residence constituted a search. At issue, however, is whether it was justified by “exigent circumstances” making it, within the meaning of s. 11(7) of the CDSA , “impracticable” to obtain a warrant.
[27] Section 11(7) states:
(7) 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.
(7) L’agent de la paix peut exercer sans mandat les pouvoirs visés aux paragraphes (1), (5) ou (6) lorsque l’urgence de la situation rend son obtention difficilement réalisable, sous réserve que les conditions de délivrance en soient réunies.
[28] Subsection (1) of s. 11 empowers a peace officer to conduct a warranted search of a place for, inter alia, a controlled substance and to seize it. The relevant effect of s. 11(7) to the facts of this appeal, then, was to empower Constables Dykeman and Bell to conduct a warrantless search of the appellant’s residence for a controlled substance, so long as conditions for obtaining a warrant existed (which is not disputed here), and exigent circumstances made it impracticable for them to obtain a warrant.
[29] As to the meaning of “exigent circumstances”, the appellant points 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.
[30] The appellant’s submission, in essence, is 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