BC Court of Appeal Declines to Expand Scope of Confessions Rule: R v Paterson
R v Paterson, 2015 BCCA 205 raised an evidentiary issue concerning the confessions rule that has not previously been contemplated at the appellate level: whether the voluntariness of statements made by the accused need to be proved beyond a reasonable doubt before they can be relied upon during a voir dire on a Charter issue.
Brendan Paterson was convicted of several offences, including possession of illicit drugs, possession of illicit drugs for the purpose of trafficking and unlawful possession of firearms. Mr. Paterson appealed these convictions to the BC Court of Appeal.
The charges stemmed from an abandoned 911 call from a cell phone used by Mr. Paterson’s partner, Ms. Wallace. Ms. Wallace’s mother had informed the police that Mr. Paterson had a shotgun and that there was “previous history” between the couple. The police interpreted that statement to mean a previous assault.
When the police arrived at Mr. Paterson’s apartment, they discovered that Ms. Wallace had been taken to the hospital by ambulance as a result of an injury, but her condition was unknown.
The police knocked on Mr. Paterson’s door several times and announced “police.” One of the constables unlocked Mr. Paterson’s apartment with a key given to him by the apartment manager. As the constable tried the lock, Mr. Paterson opened the door. The police officers testified at trial that they could smell marijuana in the apartment. The officers then questioned Mr. Paterson about the 911 call. Mr. Paterson initially said that he did not know anything about it and that they should ask Ms. Wallace. However, he later explained that he had found her on the floor, and helped her to get up and leave the apartment.
The police testified that it was the smell of marijuana that led them to continue to question Mr. Paterson. Although he first denied it, Mr. Paterson later admitted that he had smoked marijuana and that there was still more, partially smoked, in his apartment. The police said that they would seize this and leave, however, when Mr. Paterson attempted to close his apartment door to go get it, one of the officers put his foot in the door. The officer said that he did not want to let Mr. Paterson out of his sight out of concern for preserving evidence and for officer safety. Mr. Paterson then told one of the officers that he could enter the apartment and the other followed. Mr. Paterson picked up the bag of marijuana and handed it to the officers.
At that point, the officers noticed a bulletproof vest, a gun and a bag of pills. Mr. Paterson was arrested and searched. The officers then “cleared the area” to determine if there was another person in the apartment. During this “clearing” a large amount of cash, pills, and what appeared to be crack cocaine were found in the apartment. One of the officers transported Mr. Paterson to the RCMP station and the other officer went to get a search warrant to search the apartment. Once the warrant was obtained, and upon searching the apartment, more guns and large amounts of illegal drugs were found inside.
The Charter Voir Dire
The distinction made in this case between the “clearing” and the “searching” of the apartment is important to consider in questioning when State action becomes a search, thus entitling the individual the protection of the Charter. The difference also ties into the amount of privacy from the State that an individual can expect in certain areas. For example, there is a high degree of privacy to be expected in one’s home, but less so while driving in a car. The high expectation of privacy in the home is said to originate from Seymane’s Case,  All ER Rep 62 (Ct of KB) where it was noted, “the house of everyone is to him as his castle and fortress.”
Given the high expectation of privacy an individual can expect in the home, Mr. Paterson argued at trial that the police entry into the apartment building and suite was a violation of his section 8 Charter right to be free from unreasonable search and seizure. In addition, Mr. Paterson challenged the validity of the warrant on the grounds that the information used in obtaining the warrant was misleading.
A voir dire was held to determine the admissibility of the evidence stemming from the police entry to the building. The trial judge determined that the police had the right to enter the building based on their common law duty to protect life and public safety. In addition, the trial judge concluded that they were entitled to enter the apartment as a result of exigent circumstances.
Section 489.1(3) of the Criminal Code is the requirement that an officer who executes a search warrant submit a timely report after the fact and include the time the warrant was executed, the items seized in the execution of the warrant, the location where they are being held, and the grounds for seizing the items.
However, the report was not filed in a timely way and contained incomplete information, as the grounds for seizing the items were not noted in the warrant. As a result, the trial judge ruled that Mr. Paterson’s section 8 Charter right had been breached.
In spite of these violations, the evidence was admitted under section 24(2) of the Charter, the provision that allows for the admittance of evidence despite a Charter breach if its admission would not bring the administration of justice into disrepute.
The main issue on appeal concerned the trial judge’s obligation to determine whether the statements made by Mr. Paterson to the police, regarding the remaining marijuana in the apartment, were voluntary before those statements could be relied upon in the Charter voir dire. As it currently stands, it is not required for the Crown to prove anything beyond a reasonable doubt at the Charter voir dire.
In addressing this issue, the Court went on to define and explain the history of the confessions rule. The confessions rule necessitates that the Crown prove the voluntariness of any and all statements or utterances made by an accused to a person in authority beyond a reasonable doubt. The Court noted that in Erven v The Queen,  1 SCR 926, it was confirmed that there must be a voir dire as to whether a statement by the accused sought to be introduced into trial is voluntary, as the purpose of the confessions rule is to prevent false confessions and ensure trial fairness (929).
The Court contrasted the confessions rule with that of the situation before them, a statement of an accused admitted on a Charter voir dire. Justice Bennett explained that these are statements that are used to assess the subjective beliefs of the officer who conducted the search. Statements made during a voir dire may never be heard by a trier of fact. Furthermore, in a Charter voir dire, the burden is normally born by the accused to demonstrate a Charter breach, except in the context of a warrantless search. Regardless, the burden is assessed on a balance of probabilities. However, during a Charter voir dire, the issue is State conduct and whether the admission of the evidence would bring the administration of justice into disrepute.
Justice Bennett reasoned that the risk of State misconduct in obtaining evidence is not significant enough to extend the protection of the confessions rule to the use of a statement in a Charter voir dire. In making this determination, Justice Bennett noted that there are other protections against State misconduct in the Charter, such as the section 7 right to liberty and security of the person. This interaction between the Charter and the confessions rule was also contemplated in R v Hebert,  2 SCR 151, as it was held that an accused’s right to silence is a principle of fundamental justice under section 7 of the Charter.
The Court in the instant case held that the purpose of the confessions rule is to address statements made by the accused that go to proving one of the elements of the offence that the accused was charged with. As such, it was reasoned that the protections of the confessions rule and the necessity to show that statements are voluntary do not extend to statements introduced at a Charter voir dire.
Leave to appeal to the Supreme Court of Canada (“SCC”) has been filed and it seems likely that the SCC will grant it to clarify the scope of the confessions rule and its interaction with the Charter. This will be an interesting case to watch out for at the SCC level.