THE Supreme Court of Canada on Friday issued its decision in R. v. Paterson. Among other issues, the case considered whether there were sufficiently exigent circumstances when police are effecting a “no case” seizure to justify the warrantless search of a home. The B.C. Civil Liberties Association (BCCLA) was an intervener in the case and made oral submissions urging the court to safeguard the right to privacy and freedom from government intrusion.
A “no case” seizure is where drugs are seized by police in circumstances where the police have no intention of pursuing charges against the person for possession. In this case, police decided to undertake a “no case” seizure after smelling marihuana coming from Mr. Paterson’s apartment. As Mr. Paterson was retrieving the marihuana from his kitchen, the police officers entered and searched his home.
Under s. 11(7) of the Controlled, Drug and Substances Act, police may perform a warrantless search only if exigent or urgent circumstances make it impracticable to obtain a warrant. Exigent circumstances include where a person’s life may be at risk, in cases of “hot pursuit” or where there is imminent danger that evidence will be destroyed.
The BCCLA argued that a “no case” seizure does not justify a warrantless search. Canadians have the Charter-protected right to be free from unreasonable search and seizure, particularly in their homes. When police seize drugs in a “no case” seizure, they do so for the sole purpose of destroying them. Accordingly, preservation of evidence cannot justify a warrantless search in those circumstances. Unless there is a sufficiently pressing justification for the warrantless search, such as a risk to a person’s life, such a search should not be permitted.
In Friday’s decision, the Supreme Court of Canada agreed that a “no case” seizure does not justify a warrantless search. A majority of the Court clarified that exigent circumstances arise only in cases of urgency, where taking the time to obtain a warrant would seriously risk the ability of the police to preserve evidence or protect officer or public safety.
Caily DiPuma, BCCLA Acting Litigation Director: “Today’s decision by a majority of the Supreme Court of Canada upholds the rights of Canadians to be free from warrantless search and seizure. The Court confirmed that police cannot rely on ‘exigent circumstances’ where no urgency exists and reminded police that obtaining a warrant is a matter of necessity, not convenience.”
The BCCLA was represented by Roy Millen and Rebecca Spigelman of Blakes LLP.