R. v. Côté (A.), [2011] N.R. TBEd. OC.024

JudgeMcLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
CourtSupreme Court (Canada)
Case DateOctober 14, 2011
JurisdictionCanada (Federal)
Citations[2011] N.R. TBEd. OC.024;2011 SCC 46

R. v. Côté (A.) (SCC) - Civil rights - Charter - Exclusion of evidence for blatant disregard of Charter rights by police

MLB being edited

Currently being edited for N.R. - judgment temporarily in rough form.

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2011] N.R. TBEd. OC.024

Armande Côté (appellant) v. Her Majesty The Queen (respondent) and Criminal Lawyers' Association (Ontario) (intervenor)

(33645; 2011 SCC 46; 2011 CSC 46)

Indexed As: R. v. Côté (A.)

Supreme Court of Canada

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

October 14, 2011.

Summary:

The accused called 911 to report that her husband was injured. At the hospital, the police learned that the husband had been shot. He died. Hours later, the police arrived at the accused's house to investigate her as a suspect. They searched the grounds and were permitted in the accused's home on the pretext of responding to the 911 call made hours earlier. They did not disclose that they knew her husband had been shot. The police searched the house and spoke with the accused. She was later taken to the police station for questioning and gave statements. The police had reasonable and probable grounds to obtain a search warrant, but chose not to do so. In a subsequent attempt to validate the search, they obtained search warrants by in part misleading the judicial officer who issued them. They did not inform the accused that she was detained and did not advise her of her right to counsel until they had gathered their evidence and later charged her with second degree murder. The intention was to lead the accused to believe that they were merely responding to her 911 call hours earlier, not that they considered her a suspect and were attempting to obtain evidence to be used against her. The trial judge, on a voir dire, held that the following Charter rights were violated: right to be informed of the reason for her detention (s. 10(a)), right to counsel (s. 10(b)) and right to be secure against unreasonable search and seizure (s. 8). The police intentionally and blatantly disregarded the accused's Charter rights. They acted in bad faith. The seriousness of the Charter breaches was aggravated by the officers misleading a judicial officer in obtaining the search warrants and their non-credible testimony on the voir dire to justify or cover-up their misconduct. The judge excluded all of the evidence (accused's oral and written statements, physical evidence obtained as a result of the invalid search warrants, and the officers' observations respecting the exterior of the house before the warrants issued) under s. 24(2) of the Charter. The judge held that notwithstanding that exclusion of the evidence would result in an acquittal of a serious crime, because of the "extraordinarily troubling police misconduct" the evidence had to be excluded to prevent further discrediting of the administration of justice. Absent other evidence, the accused was acquitted. The Crown appealed.

The Quebec Court of Appeal allowed the appeal and ordered a new trial. The court agreed that the accused's video-taped statements should be excluded under s. 24(2), but held that the trial judge erred in excluding the physical evidence resulting from the illegal searches. The court noted that the physical evidence could have been lawfully discovered had a search warrant been obtained early in the process (police had reasonable and probable grounds to obtain one), society had an interest in having serious crimes dealt with on the merits and that the police officers had not deliberately acted in an abusive manner. The court determined that exclusion of the physical evidence, rather than its inclusion, would bring the administration of justice into disrepute. The accused appealed.

The Supreme Court of Canada, Deschamps, J., dissenting, allowed the appeal and restored the acquittal on the ground that the trial judge did not err in excluding all of the evidence under s. 24(2). The court held that "the Court of Appeal erred in interfering with the trial judge's s. 24(2) determination on the basis that the police did not deliberately act abusively; they did, as the trial judge found. It should also not have interfered with the trial judge's s. 24(2) determination by assigning greater importance to the seriousness of the offence when the trial judge was fully aware of and properly weighed this factor. The Court of Appeal should not have simply substituted its weighing of these factors for that of the trial judge given that he clearly considered them according to correct legal principles".

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused called 911 to report that her husband was injured - At the hospital, the police learned that the husband had been shot - He died - Hours later, the police arrived at the accused's residence to investigate her as a suspect - Without a warrant, they searched the grounds and were permitted in the residence on the pretext of responding to the 911 call made hours earlier - They did not disclose that they knew her husband had been shot - The police searched the house and spoke with the accused - She was later taken to the police station for questioning and made oral and written statements - The police had reasonable and probable grounds to obtain a search warrant, but chose not to do so - They later obtained search warrants by in part misleading the judicial officer who issued them - They neither informed the accused that she was detained nor advised her of her right to counsel until they had gathered their evidence and later charged her with second degree murder - The intention was to lead the accused to believe that they were merely responding to her 911 call hours earlier, not that she was a suspect from whom they were attempting to obtain evidence - The following Charter rights were violated: right to be informed of the reason for her detention (s. 10(a)), right to counsel (s. 10(b)) and right to be secure against unreasonable search and seizure (s. 8) - The judge found that the police intentionally and blatantly disregarded the Charter - They acted in bad faith - The seriousness of the Charter breaches was aggravated by the officers misleading a judicial officer in obtaining the search warrants and their non-credible testimony to justify or cover-up their misconduct - The judge excluded the accused's oral and written statements, all physical evidence obtained as a result of the illegal searches, and the officers' observations respecting the exterior of the house before the warrants issued (s. 24(2)) - The judge conceded that excluding the evidence would lead to an acquittal of a serious crime, but held that the "extraordinarily troubling police misconduct" required the exclusion of all evidence to prevent further discrediting of the administration of justice - The Quebec Court of Appeal agreed with the exclusion of all statements, but held that the judge erred in excluding the physical evidence resulting from the illegal searches - Great weight was given to the fact that the physical evidence could have been lawfully discovered had a search warrant been obtained early in the process (police had reasonable and probable grounds to obtain one) and society's interest in having serious crimes dealt with on the merits - The Court of Appeal determined that the officers had not deliberately acted in an abusive manner - The Supreme Court of Canada restored the acquittal - The court held that "the Court of Appeal erred in interfering with the trial judge's s. 24(2) determination on the basis that the police did not deliberately act abusively; they did, as the trial judge found. It should also not have interfered with the trial judge's s. 24(2) determination by assigning greater importance to the seriousness of the offence when the trial judge was fully aware of and properly weighed this factor. The Court of Appeal should not have simply substituted its weighing of these factors for that of the trial judge given that he clearly considered them according to correct legal principles." - The judge was "obviously and justly concerned about the continuous, deliberate and flagrant breaches of the appellant's Charter rights" - There was no error in excluding all of the evidence - See paragraphs 1 to 89.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada reiterated its revised approach to the exclusion of evidence under s. 24(2) of the Charter: "The first line of inquiry involves an evaluation of the seriousness of the state conduct. The more serious the state conduct constituting the Charter breach, the greater the need for courts to distance themselves from that conduct by excluding evidence linked to the conduct. The second line of inquiry deals with the seriousness of the impact of the Charter violation on the Charter-protected interests of the accused. The impact may range from that resulting from a minor technical breach to that following a profoundly intrusive violation. The more serious the impact on the accused's constitutional rights, the more the admission of the evidence is likely to bring the administration of justice into disrepute. The third line of inquiry is concerned with society's interest in an adjudication on the merits. It asks whether the truth-seeking function of the criminal process would be better served by the admission or exclusion of the evidence. The reliability of the evidence and its importance to the prosecution's case are key factors. Admitting unreliable evidence will not serve the accused's fair trial interests nor the public's desire to uncover the truth. On the other hand, excluding reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public's perspective. The importance of the evidence to the Crown's case is corollary to the inquiry into reliability." - See paragraph 47.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The police obtained evidence by way of an illegal search (no warrant obtained) - The evidence, excluded by the trial judge, was held to be admissible by the Court of Appeal largely because "it could have been obtained legally by warrant, without the appellant's participation" - This was the principal basis for appellate intervention - The Supreme Court of Canada discussed the principle of "discoverability" and how it affected the more flexible, multi-factored approach to the exclusion of evidence under s. 24(2) of the Charter under R. v. Grant (SCC) and its companion cases - The court stated that "discoverability" referred "to situations where unconstitutionally obtained evidence of any nature could have been obtained by lawful means had the police chosen to adopt them. ... discoverability has, in appropriate circumstances, a useful role to play in the s. 24(2) analysis where the interest at stake is one other than self-incrimination. ... Discoverability had two main effects on the analysis: first, the fact that the evidence could have been obtained properly in some circumstances tended to make the Charter breach more serious ... On the other hand, in some circumstances, the fact that the police actually had reasonable and probable grounds to search, although they did not obtain a warrant, tended to lessen the seriousness of the breach. ... discoverability can, in simple language, cut both ways. ... While discoverability may still play a useful role in the s. 24(2) analysis, it is not determinative. A finding of discoverability should not be seen as necessarily leading to admission of evidence. Nor should courts engage in speculation. As stated in Grant, where it cannot be determined with any confidence whether evidence would have been discovered in the absence of the Charter breach, discoverability will have no impact on the s. 24(2) inquiry." - In this case, the court held that the Court of Appeal errred in giving great weight to "discoverability" given the "multiple, serious and deliberate" Charter breaches - See paragraphs 50 to 88.

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact - A trial judge, in excluding evidence under s. 24(2) of the Charter, found that the police acted deliberately in an abusive manner in breaching the accused's Charter rights - The Court of Appeal held that the judge erred in excluding all of the evidence, largely because it was satisfied that the police did not intend to act prejudicially nor had they deliberately acted in an abusive manner - The Supreme Court of Canada held that "this constituted a re-characterization of the evidence that was not open to the Court of Appeal. ... The Court of Appeal should not have substituted its own view of the police conduct for that of the trial judge." - See paragraphs 50 to 51.

Cases Noticed:

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 10].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81, refd to. [para. 12].

R. v. Tricker (R.) (1995), 77 O.A.C. 1; 21 O.R.(3d) 575 (C.A.), refd to. [para. 12].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 26].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 26].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 36].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 36].

R. v. Beaulieu (G.), [2010] 1 S.C.R. 248; 398 N.R. 345; 2010 SCC 7, refd to. [para. 44].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 62].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 64].

R. v. Colarusso, [1994] 1 S.C.R. 20; 162 N.R. 321; 69 O.A.C. 81, refd to. [para. 66].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72, refd to. [para. 68].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask. R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 69].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 84].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1, refd to. [para. 88].

Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 109].

Counsel:

Carole Gladu, Josée Veilleux and Karine Guay, for the appellant;

Magalie Cimon and Pierre Goulet, for the respondent;

Frank Addario and Kelly Doctor, for the intervenor.

Solicitors of Record:

Centre communautaire juridique de la Rive-Sud, Longueuil, Quebec, for the appellant;

Directeur des poursuites criminelles et pénales du Québec, Longueuil, Quebec, for the respondent;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervenor.

This appeal was heard on March 15, 2011, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada.

On October 14, 2011, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Cromwell, J. (McLachlin, C.J.C., Binnie, LeBel, Fish, Abella, Charron and Rothstein, JJ., concurring) - see paragraphs 1 to 90;

Deschamps, J., dissenting - see paragraphs 91 to 119.

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