R. v. C, R. v. Côté, 2011 SCC 46, 2011 SCC 46 (2011)

Docket Number:33645
 
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SUPREME COURT OF CANADA

Citation: R. v. Côté, 2011 SCC 46

Date: 20111014

Docket: 33645

Between:

Armande Côté

Appellant and

Her Majesty The Queen

Respondent

- and -

Criminal Lawyers' Association (Ontario)

Intervener

Official English Translation: Reasons of Deschamps J.

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

Reasons for Judgment:

(paras. 1 to 90)

Dissenting Reasons:

(paras. 91 to 119)

Cromwell J. (McLachlin C.J. and Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ. concurring)

Deschamps J.

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

r. v. côté

Armande Côté Appellant v.

Her Majesty The Queen Respondent and

Criminal Lawyers' Association (Ontario) Intervener

Indexed as: R. v. Côté

2011 SCC 46

File No.: 33645.

2011: March 15; 2011: October 14.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

on appeal from the court of appeal for quebec

Constitutional law - Charter of Rights - Enforcement - Exclusion of evidence - Accused charged with second degree murder - Search of accused's home conducted by police without valid warrants - Trial judge finding that police had not acted in good faith and demonstrated blatant disregard for accused's Charter rights throughout investigation - Trial judge concluding that admission of evidence in face of extraordinarily troubling police misconduct, even when decision would lead to acquittal of serious crime, would bring administration of justice into disrepute - Whether Court of Appeal erred in intervening on bases that police had not deliberately acted in abusive manner and that offence was serious - Whether Court of Appeal erred in intervening on basis that evidence could have been obtained legally by warrant without accused's participation - Canadian Charter of Rights and Freedoms, s. 24(2).

Around 9 p.m. on July 22, 2006, C called 9-1-1 to report that her spouse, H, had been injured. The attending physician at the hospital established that H was suffering from head injuries and confirmed the presence of a metal object in H's skull, and communicated this information to the police. The police attended at C's home around midnight. The lights of the house were off and the house was calm. C answered the door in her pyjamas. The police explained that they were there to find out what happened and to make sure the premises were safe, but they did not tell C that they believed that H was suffering from a gunshot wound. The police, accompanied by C, inspected the interior and the exterior of the residence, as well as a gazebo. The police questioned C about the presence of firearms in the house. She confirmed the presence of two firearms but could only locate one, to which she led the police. The police later obtained warrants which were executed at C's residence. A .22 calibre rifle, of the same calibre as the bullet recovered from H's skull, was located by the police.

C was brought to the police station around 3 a.m. but not until 5:23 a.m. was she given a warning as an important witness in the attempted murder of H and advised of her right to counsel. After being warned, C spoke with a lawyer and invoked her right to silence. She then described the events to the police and was placed under arrest for attempted murder. She was cautioned again, advised of her right to counsel, and spoke with a lawyer again. After being placed under arrest, C was interrogated by the police throughout the day. C exhibited extreme anxiety about having the interrogation room closed, seemed to be exhausted and on several occasions told the interrogator that she had had enough, did not want to talk anymore or wanted to go lie down. C's interrogation ended at 8 p.m. on July 23, when she was advised of H's death and charged with second degree murder.

C applied to the trial judge to exclude the evidence against her. The trial judge concluded that the police embarked on a systematic violation of C's rights from the time they first entered onto her property until the end of her interrogation. The trial judge held that the police's entry on C's property, and the search of her house, property and gazebo constituted unreasonable searches and seizures contrary to s. 8 of the Charter. He held that the police detained C without telling her why in violation of s. 10(a) of the Charter, and that the police violated C's right to obtain the assistance of a lawyer and to be advised of that right, in violation of s. 10(b) of the Charter. He also held that the police violated C's right to silence as protected by s. 7 of the Charter and obtained a statement that was not voluntary. The trial judge also found that the investigators had misled a judicial officer to obtain warrants. The trial judge excluded all of the evidence pursuant to s. 24(2) of the Charter, finding that its admission would bring the administration of justice into disrepute, and C was acquitted of the charge. The Court of Appeal found that the trial judge was right to exclude C's statements to police. However, it concluded that the trial judge had erred by excluding the observations the police made of the exterior of C's home before the warrants issued as well as the physical evidence obtained at C's home in execution of the warrants. It ordered a new trial.

Held (Deschamps J. dissenting): The appeal should be allowed and the acquittal restored.

Per McLachlin C.J. and Binnie, LeBel, Fish, Abella, Charron, Rothstein and Cromwell JJ.: The standard of review of a trial judge's s. 24(2) determination of what would bring the administration of justice into disrepute having regard to all of the circumstances is as follows: where a trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination is owed considerable deference on appellate review.

This Court established a revised approach to the exclusion of evidence under s. 24(2) in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. This Court held that three avenues of inquiry were relevant to an assessment of whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute: (1) an evaluation of the seriousness of the state conduct; (2) the seriousness of the impact of the Charter violation on the Charter-protected interests of the accused; and (3) society's interest in an adjudication on the merits. After considering these factors, a court must then balance the assessments under each of these avenues of inquiry in making its s. 24(2) determination to determine whether admission of the evidence would bring the administration of justice into disrepute.

The Court of Appeal erred in intervening on the basis that the police had not deliberately acted in an abusive manner. By its re-characterization of the evidence which departed from express findings by the trial judge which were not tainted by any clear and determinative error, the Court of Appeal exceeded its role. The Court of Appeal also erred in reweighing the impact of the seriousness of the offence. This consideration was fully addressed by the trial judge who was aware of the seriousness of the offence and of the consequences of excluding the evidence.

Furthermore, the Court of Appeal erred by placing undue weight on the "discoverability" of the evidence in its s. 24(2) analysis. Its principal basis for appellate intervention was that the physical evidence could have been obtained legally by warrant, without C's participation. Discoverability is a relevant factor under the current s. 24(2) analysis, however, it is not determinative. A finding of discoverability does not necessarily lead to admission of evidence. In appropriate cases, discoverability may be relevant to the first two branches of the Grant analysis.

In the case at bar, with respect to the first branch of the analysis, it is clear that the trial judge considered the officers' misconduct to be very serious. The collection of the evidence pursuant to the warrants was an extension of the earlier, unlawful warrantless searches. The fact that the police could have demonstrated to a judicial officer that they had reasonable and probable grounds to believe that an offence had been committed and that there was evidence to be found, but did not do so, significantly aggravated the seriousness of their misconduct. The police misconduct in obtaining the warrants further aggravated the seriousness of the Charter-infringing state conduct. With respect to the second branch of the analysis, the absence of prior judicial authorization constitutes a significant infringement of privacy. Having regard to all of the circumstances, the impact of the police misconduct on C's right to privacy was serious: the unauthorized search occurred in her home in the middle of the night while she was detained and the search was not brief. The breach implicated her liberty, her dignity as well as her privacy interests. Thus, the absence of prior authorization for the search was a serious affront to her reasonable expectation of privacy.

In this case, the trial judge drew the line where the police had continually shown systemic disregard for the law and the Constitution. The trial judge did not err in concluding that the courts must not tolerate this sort of behaviour by those sworn to uphold the law. He took the only course open to him in order to prevent the administration of justice from falling into further disrepute by condoning this disturbing and aberrant police behaviour.

Per Deschamps J. (dissenting): The application of the three-stage test proposed in R. v. Grant leads to the conclusion that the physical evidence should not have been excluded. At the first stage of the analysis - that of the seriousness of the Charter-infringing state conduct - the police officers' conduct revealed a serious disregard for C's constitutional rights. Not only did the officers...

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