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Justice Russell Brown said the law was long settled on warrantless home entries, such as the one in Paterson's case.

Wesley VanDinter/Getty Images

In a strong defence of privacy rights in the home, the Supreme Court of Canada has thrown out convictions against a man caught with four loaded guns and a large stash of ecstasy, cocaine and methamphetamine in his apartment because police entered the man's home without a warrant.

The case highlights the demands on police to make prompt decisions in complex areas of law, and the high stakes when they do so. And it echoes a case from 20 years ago in which police entered a man's trailer shortly after a murder and found Michael Feeney in a bloody shirt and with the victim's money under his mattress. Mr. Feeney was found guilty of second-degree murder, but the Supreme Court set aside the conviction, saying police should have obtained a warrant.

The current case, as with the earlier one, highlights an important but little-known role of judges. Under the Charter of Rights and Freedoms, evidence that police obtain from an illegal search may still be used in a trial, but the judge must decide whether allowing it or keeping it out would do more harm to public confidence in the justice system.

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Justice Russell Brown, writing for the majority in the 5-2 ruling and citing the Feeney case, said the law was long settled on such warrantless home entries. "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." Police should have known better, he said, and the evidence had to be excluded.

But the two dissenters, while agreeing with the majority that the search had been illegal, said police had done what they had thought was legally allowed in a case that raised novel questions of law, and that the evidence should therefore be allowed. After all, said the dissenters, both the trial judge and the British Columbia Court of Appeal had ruled the search of Brendan Paterson's apartment in Langley to be legal. So how could police be expected to know?

"In other words, the police should have known what the trial judge and three judges of the Court of Appeal did not know," Justice Michael Moldaver, joined by Justice Clément Gascon, wrote in dissent, summing up, with a touch of sarcasm, their view of the majority's argument.

Justice Moldaver then lectured the majority on "the function of the Court:" to clarify the law for police, prosecutors, judges and defence lawyers, rather than "to judge the police conduct against a standard that exceeds the wisdom and training of experienced trial and appellate judges."

The case began with a chain of circumstances 10 years ago that led the police, in good faith, according to all the judges on the Supreme Court, to enter Mr. Paterson's apartment without a warrant. First, a woman called 911, crying and hurt. Next, the woman's mother told police to go see the woman's boyfriend, Mr. Paterson. (The woman herself said she had fallen.) Police knocked at his door, and when he answered, they smelled marijuana; asked about it, he said he would fetch three roaches and turn them over. Police said they would not charge him if he did so, in what is known as a "no-case" seizure.

But because the woman's mother had told police the man owned a shotgun, and because they were worried he would destroy the marijuana, two officers refused to let him close the front door, and instead entered his apartment, where they saw guns and drugs. (In his dissent, Justice Moldaver listed the seized items: cocaine valued at $31,200 wholesale; $5,800 of methamphetamine; 9,000 ecstasy pills valued at $17,466; a loaded Smith and Wesson .38 special revolver, which is prohibited even to gun-club members; and three other loaded guns.) They arrested him, and obtained a warrant by telephone to search his home.

Justice Moldaver said there had not been a single precedent involving a "no-case" seizure, leaving the police to try to work out matters on the spot. He also suggested that, some day, the courts could discuss whether, instead of taking the drastic step of throwing out the evidence that led to a conviction, courts could reduce the sentence.

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Justice Brown was prime minister Stephen Harper's last, and most conservative, appointee to the court. The ruling provides a clue to where he will stand on some criminal matters. As a law professor, he had written strongly, from a conservative perspective, against government expropriations of private land; and now he seems to be extending the defence of civil liberties and the private sphere to criminal law.

Steven Penney, who teaches law at the University of Alberta, has studied the issue of exclusion of evidence; in about two-thirds of illegal-search cases, courts toss out the evidence, he said in an interview. The Paterson case "sends a message to the police that if you're going to enter somebody's home without a warrant, then you have to have very strong reasons to believe there's either a safety issue or that if you take the time to get a warrant, valuable evidence will be lost or destroyed."

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