Is the smell of marijuana emanating from a home enough evidence to allow police to enter without a search warrant and uncover a trove of guns and illegal drugs?
On Friday, the Supreme Court of Canada, in a strong defence of privacy rights in the home, said no, dismissing convictions against Langley, B.C., resident Brendan Patterson, who was caught with four loaded guns and large stashes of cocaine, methamphetamine and ecstasy.
Although two of the seven judges disagreed, the majority ruled in favour of the sanctity of the home.
Smell of pot alerts police
Writing for the majority, Justice Russell Brown described how on Nov. 30, 2007, Langley RCMP were directed to Paterson's home after responding to a 911 call from a woman who was "crying and apparently injured."
When they arrived, one of the constables noted the smell of "raw and smoked" marijuana.
Paterson eventually admitted to having three roaches on hand.
"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," wrote Justice Brown.
Brown goes on to explain that Paterson then tried to close the door before getting the roaches for the officers, but one of them blocked it with his foot "out of concern that the appellant would destroy the roaches, and for 'officer safety."'
According to the judgment, this last concern was driven in part by the 911 call, during which the crying woman's mother had warned police Paterson had a shotgun.
Drugs, guns and cash
Two officers followed Paterson into his home, wrote Brown, and saw a bulletproof vest on the couch, a handgun on an end table, and a bag of pills one of them believed was ecstasy.
The officers then phoned for a warrant and later discovered more drugs, more guns and tens of thousands of dollars in cash.
Paterson was convicted on nine charges in 2012. He appealed that decision in B.C. Supreme Court, but the appeal was dismissed.
Brown points out in his judgment, police can enter a home without a warrant if there are "exigent circumstances" that make it impractical to get a warrant, if there is a need for urgency, or if there is a risk of evidence being destroyed or a risk to officer or public safety.
But in this case, the officers stated they intended to destroy the evidence anyway, thereby removing that urgency, according to the judgment.
"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," wrote Brown.
"Concern for officer safety did not drive the decision to proceed with warrantless entry; rather warrantless entry gave rise to concern for officer safety."
Supt. Murray Power, the officer in charge of Langley RCMP, says he respects the court's decision but understands why the officers made the decision that they did.
"As soon as I read [the decision] and I was reading the circumstances, I could put myself in our members' position and knew exactly why they did what they did," Power said.
Police officers often have to quickly make decisions, Power says, and part of the job is those decisions later being analyzed in court — in this case, over a 10-year period.
The judges did highlight, as did Power, that the officers appeared to be operating in good faith.
Part of the reason for that emphasis, which was also highlighted in the judgment, is the fact that the case is a first of its kind — with "no case" seizures being a bit of a grey zone.
Sanctity of the home
Caily DiPuma with the BCCLA says the case sets an important precedent.
"The BCCLA is very pleased that the court has clarified the law around no-case seizures and affirmed the sanctity of Canadians' homes when it comes to police searches of their property," said DiPuma.
While no one disputes the severity of the charges, she says, the officers "need to do their job within the confines of the Charter."
In the judgment, Brown admits the decision was a close call, given the charges.
"While the effective destruction of the Crown's case weighs heavily, so does the warrantless entry into a private residence," he wrote.
"The police conduct, while not egregious, represented a serious departure from well established constitutional norms."