SUPREME COURT OF CANADA
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.
|
R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215
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 were 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 not concern themselves with
obtaining either a warrant or C’s informed consent before conducting their
initial search, they also attempted to conceal the constitutional violations of
C’s rights.
At the second
stage — that of the impact of the Charter breach on the Charter ‑protected
interests of the accused — it is clear that the trial judge did not evaluate
the actual impact of the breach. The main interest affected by the unlawful
police search was C’s expectation of privacy. In this regard, it is not enough
to find that the search resulted in an invasion of privacy, as it is also
necessary to determine the impact of the failure to obtain prior authorization on C’s expectation. To do this, the situation here must be compared with
the one that would have prevailed had the search been authorized in advance.
It is more specifically the difference in seriousness between the two
situations that reveals the extent to which the breach actually undermined the
protected interests. In this case, a warrant could have been issued at the
start of the investigation and the resulting invasion of C’s privacy would, in
practice, have been identical to the one that resulted from the warrantless
search. Moreover, C did not have the highest expectation of privacy. She was
the first and only person to whom the police officers could speak to find out
what had happened in the moments before her spouse was taken away by
ambulance. Therefore, the visit from the police could hardly be said to have
been unexpected.
As for the
third stage of the analysis — that of determining whether the search for truth
would be better served by admitting the evidence or by excluding it — the
evidence in question was reliable physical evidence, and its admission was
likely to be of crucial importance to the truth‑seeking function and to
the conduct of the trial, since the exclusion of the statements made to the
police by C meant that it was the only remaining evidence.
After completing all three stages of the analysis, it is necessary to balance the factors
that weigh in favour of and against excluding the evidence. Here, the police
misconduct, considered as a whole, is serious and the courts must dissociate
themselves from it. However, it is possible to do so in respect of the
constitutional violations in this case without excluding all the evidence.
There are cases of impacts on expectations of privacy that are much more
serious. Moreover, where reliable and important evidence exists, society’s
interest in the search for truth stands out. On the whole, it is the exclusion
of the physical evidence that would bring the administration of justice into
disrepute.
Cases Cited
By Cromwell J.
Applied: R.
v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; referred to: R.
v. Godoy, [1999] 1 S.C.R. 311; R. v. Evans, [1996] 1 S.C.R. 8; R.
v. Tricker (1995), 21 O.R. (3d) 575; R. v. Araujo, 2000 SCC 65,
[2000] 2 S.C.R. 992; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Harrison,
2009 SCC 34, [2009] 2 S.C.R. 494, rev’g 2008 ONCA 85, 89 O.R. (3d) 161; R.
v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248; R. v. Collins, [1987]
1 S.C.R. 265; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Colarusso,
[1994] 1 S.C.R. 20; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R.
v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851; R. v. Feeney, [1997] 2
S.C.R. 13; R. v. Greffe, [1990] 1 S.C.R. 755.
By Deschamps J.
(dissenting)
R. v. Grant, 2009 SCC 32,
[2009] 2 S.C.R. 353; R. v. Collins, [1987] 1 S.C.R. 265; R. v.
Stillman, [1997] 1 S.C.R. 607; Vancouver (City) v. Ward, 2010 SCC
27, [2010] 2 S.C.R. 28; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R.
494.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
ss. 7 , 8 , 10 , 24 .
Criminal Code, R.S.C. 1985, c. C‑46,
s. 488 .
APPEAL from a judgment of the Quebec Court of Appeal
(Dalphond, Duval Hesler and Gagnon JJ.A.), 2010 QCCA 303, 74 C.R. (6th)
130, SOQUIJ AZ-50609169, [2010] Q.J. No. 1162 (QL), 2010 CarswellQue
15137, setting aside the acquittal entered by Cournoyer J., 2008 QCCS
3749, SOQUIJ AZ-50509743, [2008] J.Q. no 7951 (QL), 2008
CarswellQue 7931, and ordering a new trial. Appeal allowed, Deschamps J.
dissenting.
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 intervener.
The
judgment of McLachlin C.J. and Binnie, LeBel, Fish, Abella, Charron, Rothstein
and Cromwell JJ. was delivered by
Cromwell
J. —
I. Introduction
[1]
Evidence obtained in a manner that violates rights
guaranteed by the Canadian Charter of Rights and Freedoms must be
excluded if, having regard to all of the circumstances, its admission would
bring the administration of justice into disrepute: s. 24(2) . This case raises
in stark terms how this requirement applies when the court is faced with
serious and systematic disregard for Charter rights by the police during
the investigation of a serious crime.
[2]
On the appellant’s trial for second degree murder, the
trial judge, after a five-day hearing, concluded that the police investigators
over several hours had violated virtually every Charter right accorded
to a suspect in a criminal investigation. These violations, he held, were not
the result of isolated errors of judgment on the part of the police
investigators, but rather were part of a larger pattern of disregard of the
appellant’s Charter rights. The seriousness of this misconduct was
aggravated by the facts that the investigators had misled a judicial officer in
order to obtain search warrants and that, as witnesses at trial, they had
refused to admit obvious facts, offered improbable hypotheses and tried to
justify their actions on untenable grounds. The trial judge found that to
admit the evidence in the face of this extraordinarily troubling police
misconduct, even when his decision would lead to an acquittal of a serious
crime, would bring the administration of justice into disrepute. He therefore
ordered its exclusion. In response to this ruling, the Crown stated that it
had no other evidence and the appellant was acquitted of the charge.
[3]
The Crown appealed to the Court of Appeal which held
that some of the evidence which the trial judge had excluded should have been
admitted. The court therefore set aside the trial judge’s decision in part and
ordered a new trial. On Ms. Côté’s further appeal to this Court, the
issue is whether the Court of Appeal erred in law in doing so.
[4]
In my respectful view, the appeal must succeed and the
decision of the trial judge to exclude the evidence restored. The trial judge
drew the line where the police had continually shown systematic 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.
II. Facts,
Proceedings and Issues
A. Evidence and Decision at Trial, 2008 QCCS 3749 (CanLII)
(1) Overview
[5]
The appellant applied to the trial judge to
exclude evidence which she claimed had been obtained in a manner that infringed
her rights under the Charter . The appellant also sought exclusion of
her statements to the police on the basis that they had not been made
voluntarily. The trial judge essentially agreed with the appellant, finding
that the police violated the appellant’s rights and misconducted themselves in
several respects.
[6]
The trial judge concluded that the police
embarked on a systematic violation of Ms. Côté’s rights when they entered onto
her property at approximately 12:15 a.m. on July 23, 2006, and these violations
extended until 8:00 p.m. that evening when her interrogation ended. First, the
police officers’ entry on the appellant’s property, their authorization to
enter her home, the search of her house, the peripheral search of the property
and the search of her gazebo constituted unreasonable searches and seizures
contrary to s. 8 of the Charter . Second, within a few moments of their
arrival, the police detained the appellant without telling her why, in
violation of s. 10 (a) of the Charter . Third, at that
point, and later on in their dealings with the appellant, the police violated
her right to obtain the assistance of a lawyer and to be advised of that right,
both in violation of s. 10 (b) of the Charter . Fourth, the police
violated the appellant’s right to silence as protected by s. 7 of the Charter
and fifth, through their improper questioning, obtained a statement that was
not voluntary. In addition, the trial judge found that the investigators had
misled a judicial officer to obtain search warrants and had been evasive and
unbelievable witnesses at trial. After balancing society’s interest in
discovering the truth against its interest in maintaining the integrity of the
administration of justice, the trial judge excluded all of the evidence, finding
that its admission would bring the administration of justice into disrepute.
(2) Evidence
and Reasons
[7]
On July 22, 2006, a little before 9:00 p.m., Ms.
Côté called 9-1-1 to report that her spouse, André Hogue, had been injured.
Mr. Hogue was transported to the Hôtel-Dieu hospital in Sorel and attended to
by Dr. Nicolas Elazhary. Dr. Elazhary established that Mr. Hogue had a wound
in the back of his head and concluded that he was suffering from head and
possibly throat injuries. An X-ray revealed an intracerebral hematoma and a
metal image compatible with a projectile. Dr. Elazhary communicated this
information to Sergeant François Monetta of the Sûreté du Québec (Tracy
Detachment) at 11:08 p.m. Shortly thereafter, Sergeant Monetta sent Constable
Alain Hogue to the hospital to speak with Dr. Elazhary. At 11:28 p.m. Dr.
Elazhary confirmed the presence of a metal object in the victim’s skull and Constable
Hogue relayed this information to Sergeant Monetta. At 11:38 p.m. Sergeant
Monetta contacted Constable Jean-François Fortier in the Nicolet Detachment of
the Sûreté du Québec and communicated the information he had about the victim
and the incident, including the observations made by Dr. Elazhary. Thus, from
at least 11:38 p.m., before officers arrived at Ms. Côté’s residence, the
police knew that they were in all likelihood dealing with a bullet wound to the
back of the head. They were also aware that the victim had been transported to
the hospital from the appellant’s address earlier that evening.
[8]
The appellant contacted Dr. Elazhary around
11:30 p.m. She told him that she had left Mr. Hogue beside the gazebo and that
when she returned he was lying on the ground. Dr. Elazhary informed the
appellant that Mr. Hogue was suffering from head trauma but did not mention the
discovery of the bullet wound.
(a) Investigation
of 9-1-1 Call
[9]
Around 12:15 a.m. patrolling officers Tremblay
and Mathieu attended at the appellant’s home. All of the lights were off and
the house appeared to be calm. Believing the main entrance to be at the rear
of the house, the officers went around the back, entered the solarium and rang
the doorbell. The appellant answered the door in her pyjamas. The officers
explained that they were there to find out what had happened earlier that
evening and to make sure the premises were safe. However, the trial judge was
of the view that their explanations did not reflect their true intentions. The
trial judge held that
[translation] [a]s unpleasant as this
might be for a judge, the court did not believe Constables Tremblay, Mathieu
and Fortier. They unfortunately failed to display the candour and honesty that
are to be expected of police officers responsible for law enforcement. [para.
126]
The officers asked to
enter the house and, without responding, the appellant stepped aside. She
accompanied the officers as they inspected the interior and exterior of the
residence. They did not tell the appellant that they believed that her spouse
was suffering from a gunshot wound.
[10]
The trial judge found that the violation of the
appellant’s rights began shortly after the police arrived at her home, when
they entered onto her property. The police relied on their power to
investigate the 9-1-1 call, and, in particular, to locate the caller, determine
his or her reasons for making the call, and provide the required assistance, but
the trial judge found that the legitimate ambit of that power to investigate
had expired earlier that evening and could not justify their investigation as
it unfolded at the appellant’s residence: see R. v. Godoy, [1999]
1 S.C.R. 311, at para. 22. In the trial judge’s view, the police went to the
appellant’s house with the intention of conducting a criminal investigation, so
they could not claim that, at 12:15 a.m., they were responding to a 9-1-1 call
placed at 8:51 p.m. He found it telling that, while seeking the appellant’s
consent to look around her home, the police had deliberately chosen not to
inform her about the gunshot wound to her spouse’s head. The trial judge
concluded that the police thought the appellant was a suspect in an attempted
murder and were not responding to a call for assistance. The trial judge also
found it incredible that the police tried to justify their intervention on the
basis of ensuring Ms. Côté’s safety. If the police had been genuinely
concerned for the appellant’s safety, he determined that they would not have
had her accompany them as they searched the house.
[11]
The trial judge explained that even if the
parameters set out in Godoy were respected during the initial police
intervention, this power does not authorize police to search the premises or
otherwise intrude on a resident’s privacy or property. He concluded that the
power recognized in Godoy did not authorize the searches of the
appellant’s house and property and these searches were thus unlawful.
(b) Invitation
to Knock and Approach
[12]
The Crown also sought to justify the police
intervention on the basis of the implied invitation to knock and approach the
door for a lawful purpose as set out in R. v. Evans, [1996] 1 S.C.R. 8.
This refers to the idea that “the occupier of a dwelling gives implied licence
to any member of the public, including a police officer, on legitimate business
to come on to the property” (Evans, at para. 13, per
Sopinka J., citing R. v. Tricker (1995), 21 O.R. (3d) 575 (C.A.), at p.
579). The trial judge held that in shutting off the lights in her residence,
the appellant had retracted the public and police’s implicit invitation to
knock and approach. Even if shutting off the lights did not retract this
implied invitation, the trial judge found that the police had exceeded the
permission accorded by the implied
invitation to knock and approach for a lawful purpose. This permission was
exceeded because the police had expressly contemplated the possibility
of recovering evidence against the appellant when they went to her home, illustrated by the fact that the police deliberately
withheld from the appellant the fact that Mr. Hogue had been wounded by a
bullet. Given this intention, the police exceeded the implied permission to
approach and knock. Therefore, the search was not legally justified on this
basis.
(c) Appellant’s
Consent to Enter Her Residence
[13]
The trial judge also found that the police’s
failure to provide the appellant with the information they possessed about the
nature of her spouse’s injuries vitiated her consent to enter her home. It
also did not conform to the requirements set out in the jurisprudence for
obtaining consent for a warrantless search. The warrantless searches could
therefore not be justified on the basis of the appellant’s consent.
(d) Urgency
[14]
Finally, the trial judge found that the evidence
did not establish urgency. There was no concern for the police or the public’s
safety, nor was there a concern that some of the evidence would be destroyed.
Accordingly, the police officers’ entry onto the appellant’s property and the
warrantless search of her home could not be justified on the basis of urgency.
(e) First
Search of House and Property
[15]
After Constables Tremblay and Mathieu entered
the appellant’s home, she accompanied them as they inspected the interior of
the residence. Constable Tremblay then
checked the exterior of the house and found that the door to the gazebo
was broken and that there appeared to be blood inside the gazebo. Constable
Mathieu, accompanied by the appellant, joined Constable Tremblay outside to
make sure everything was in order. Constable Mathieu noticed holes in the
gazebo’s mosquito screen and in the solarium window. The trial judge found
that both of these searches were illegal.
[16]
At 12:27 a.m. Constable Tremblay went back to
the police cruiser and relayed his observations to Constable Fortier. Constable
Mathieu went back inside the house with the appellant. At 12:55 a.m. Constable
Tremblay joined the appellant and Constable Mathieu inside the residence and
questioned the appellant about the presence of firearms in the house. Ms. Côté
gave some information about the night’s events during this encounter. She
confirmed the presence of two firearms but could only locate one. She led the
officers to her bedroom closet where she showed them a firearm case that she
said contained a firearm. Constable Tremblay did not handle the case but
assumed that it contained a firearm.
(f) Detention
[17]
The trial judge held that the appellant’s
detention commenced shortly after Constables Tremblay and Mathieu arrived at
her residence. He found that she was detained at 12:27 a.m. when the officers
observed holes in the solarium’s window and in the gazebo’s mosquito screen,
failed to tell Ms. Côté about the projectile in Mr. Hogue’s head and Constable
Mathieu began making surveillance notes with respect to the appellant’s
behaviour and movements.
[18]
The trial judge found that the police officers
had quickly established that Ms. Côté was the only suspect in the attempted
murder of Mr. Hogue, which is why they hid from her the fact that they knew
about the gunshot wound. The trial judge held that keeping this information
from her was a strategic choice to prevent Ms. Côté from being on her guard.
The trial judge found that the questions posed and verifications undertaken
clearly demonstrated that the goal of the investigation was not to acquire
information, but rather to clarify the appellant’s participation in the crime.
He had the impression that the police officers did not want to admit certain
facts because they were afraid that their admissions would lead the court to
conclude that Ms. Côté was detained within the meaning of s. 10 of the Charter
and that she should have been appropriately cautioned. Specifically, he
found Constable Mathieu’s claim — that if Ms. Côté had wanted to leave, he
would have had no choice but to let her go — to be unbelievable. Accordingly,
the trial judge found that Ms. Côté’s right under s. 10 (a) of the Charter
to be informed promptly of the reasons for her detention was violated until she
was warned as an [translation] “important
witness” at 5:23 a.m. (para. 229). He also found that her rights under s. 10 (b)
to retain and instruct counsel upon detention and to be advised of that right
were violated.
[19]
At 2:20 a.m. Constable Tremblay spoke to
Detective Christian Houle who told him that it would be preferable to bring Ms.
Côté to the police station so that she could make a statement given that she
was an important person with respect to the incident. At 2:34 a.m. Constables
Tremblay and Mathieu took the appellant to the Nicolet police station, giving
her the explanation provided by Detective Houle. She remained in the company
of Constable Mathieu from her arrival at the police station at 2:54 a.m. until
around 4:00 a.m. On a number of occasions, the appellant asked why she was
there, why these steps were being taken and why she was not left at home. She
was told that she was an important witness, she was more familiar with her spouse
than the police were and it was important for the police to figure out what had
happened to Mr. Hogue. At 4:10 a.m. the appellant was asked to write down her
version of the evening’s events. At 5:23 a.m. Detective Sylvain Bellemare gave
the appellant her first warning as an important witness in the attempted murder
of André Hogue.
[20]
To briefly recap, the appellant’s detention
began at 12:27 a.m. but the police failed to caution her until 5:23 a.m. and at
that point, they only cautioned her as an important witness rather than as a
suspect. This violated her s. 10 (a) and (b) rights. The trial
judge was very troubled by the fact that throughout their interactions with the
appellant, the police constantly minimized her actual legal situation to her
and kept her ignorant of the information essential to the exercise of her
constitutional rights. He found that they had deliberately failed to caution
her correctly and he found this behaviour to be illustrative of a constant and
systematic attitude evident throughout their interactions with Ms. Côté.
(g) Establishment
of Security Perimeter and Warrantless Search of Property
[21]
After the appellant was questioned, Constable
Mathieu stayed inside the house with her while Constable Tremblay established a
security perimeter around the property at 1:15 a.m. At 2:05 a.m. Constables
Fortier and Kelly Bellerive arrived on the scene and walked around the property
with Constable Tremblay. The trial judge found this to be a warrantless search
that violated the appellant’s s. 8 rights.
(h) Enlargement
of Security Perimeter
[22]
At 3:10 a.m. Detective Sergeant Luc Briand asked
Constable Fortier to enlarge the security perimeter established earlier by Constable
Tremblay. Between 3:30 and 3:45 a.m. Constable Fortier expanded the perimeter
and took advantage of this opportunity to further search the property. During
this search, Constable Fortier observed at least one hole in the gazebo’s
mosquito screen with the fibres pointing inwards towards the gazebo; a small
hole in the interior window of the solarium; a large hole in the exterior
window of the solarium; powder residue on the interior of the solarium window;
two small holes in the solarium’s mosquito screen; and shards of glass on the
ground underneath the solarium window. The trial judge found that this
constituted an unauthorized perimeter search.
(i) Issuance
of Telewarrants
[23]
At 5:15 a.m. Detective Sergeant Briand drafted requests
for telewarrants (a telewarrant for the recording of the 9-1-1 call, a general
telewarrant and a search and seizure telewarrant) indicating that he had
reasonable and probable grounds to believe that a criminal act, specifically
attempted murder with a firearm, had occurred on the night of July 22 at the
appellant’s home. He indicated that he had reasonable and probable grounds to
believe that the shot had been fired from inside the residence.
[24]
The trial judge noted that Detective Sergeant
Briand had failed to fully and frankly disclose all material facts in the
Information to Obtain a Search Warrant (“ITO”). For instance, para. 5 of the
ITO was misleading because it suggested that some of the observations regarding
the solarium and gazebo had been made inadvertently, thereby concealing the
fact that Constable Fortier had already made a number of those observations
during an earlier unconstitutional search with Constable Tremblay. The trial
judge was also troubled by the fact that Detective Sergeant Briand failed to
mention the illegal search conducted by Constables Tremblay and Mathieu earlier
that evening and the fact that they had refrained from disclosing the bullet
wound to Ms. Côté.
[25]
The general telewarrant and the search and
seizure telewarrant were executed on July 23, 2006 at 10:35 a.m. at the
appellant’s house by Detective Sergeant Briand and Constable Alain Gaucher.
While searching the house they located a .10 calibre gun in a case in the
bedroom closet and a .22 calibre rifle, not in a case in a basement closet.
The trial judge noted that the gun found in the basement closet was the same
calibre as the bullet recovered from the victim’s skull.
[26]
The trial judge held that the general
telewarrant and the search and seizure telewarrant were invalid. He found that
the police must have identified a problem in Constables Tremblay, Mathieu and
Fortier’s interventions and sought the warrants to remedy the unconstitutional
conduct. He concluded that the warrants were invalid because if the unconstitutionally
obtained information was excised from the ITO, the remaining information
(paras. 1-3 and 8) did not constitute “some evidence that might reasonably be
believed on the basis of which the authorization could have issued” (para. 266,
citing R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51). He
also held that the warrants were invalid on the basis of non-disclosure of
relevant information as well as the inclusion of deliberately misleading
information, such as the wording in para. 5 of the ITO that suggested that Constable
Fortier had inadvertently made certain observations while extending the
security perimeter when in fact he had made most of those observations earlier
while unconstitutionally searching the property with Constable Tremblay.
Relying on R. v. Grant, [1993] 3 S.C.R. 223, at pp. 254-55 (“Grant
1993”), the trial judge concluded that the entire search process was
tainted by the warrantless perimeter searches which violated s. 8 .
(j) First
Police Warning
[27]
As mentioned above, the appellant was cautioned
and advised of her right to counsel at 5:23 a.m. by Detective Bellemare. This
was the first time she was so advised even though she had been detained since
12:27 a.m. At that, she was only cautioned as an “important witness” in the
attempted murder of André Hogue. Detective Bellemare used a standard police
warning form but struck out the words [translation]
“arrested or detained” and replaced them with “witness” (evidence of Detective
Bellemare, A.R., vol. V, at p. 192). It is notable that the police
cautioned the appellant as an important witness at 5:23 a.m. when they had
sworn an ITO at 5:15 a.m. stating that they had reasonable and probable grounds
to believe that attempted murder had been committed. Given the
information that the police possessed at 5:23 a.m., the trial
judge found it inexplicable that they only warned Ms. Côté as an important
witness. After being warned, she spoke with a lawyer and invoked her right to
silence. She then described the day’s events to Detective Bellemare and at
5:56 a.m. was placed under arrest for attempted murder. She was cautioned
again, advised of her right to counsel and spoke with a lawyer for a second
time.
(k) Interrogation
[28]
After the appellant was placed under arrest for
attempted murder at 5:56 a.m., she was transferred to a different police
station. After sleeping an hour and eating, she was interrogated first by
Detective Bellemare and later by Detective Pierre Samson. At the outset of her
interrogation, the appellant exhibited extreme anxiety about having the
interrogation room door closed and appeared claustrophobic. She also seemed to
be exhausted and on several occasions told the interrogator that she had had
enough, she did not want to talk anymore or she wanted to go lie down. She
reaffirmed her right to silence over 20 times after consulting various lawyers.
At 8:00 p.m. she was advised of Mr. Hogue’s death and placed under arrest
for murder. This ended her interrogation.
[29]
The trial judge concluded that the appellant’s
right to silence had been systematically violated. He noted that she had been
wakened in the middle of the night in the absence of any sort of urgency, the
police had deliberately put off warning her appropriately and she was exhausted,
claustrophobic and had exercised her right to silence on numerous occasions.
[30]
He also faulted the police for having denigrated
the work of defence counsel, telling the appellant that she had more life
experience than her lawyer and that she was the only person who could help
herself. The investigator also counselled her on exercising her right to
silence. He told her that if she had planned the murder, like a member of an
organized gang would have, he would advise her to remain silent because she
would be in serious trouble in that kind of situation. However, given that her
situation was very different, the investigator suggested that she need not
remain silent. The investigator also suggested that if she had committed an
armed robbery he would advise her to remain silent, but again, her
circumstances were quite different. In light of this specific behaviour, the
whole of the police investigation and the general context of a systematic
violation of Ms. Côté’s constitutional rights, the trial judge was not
convinced beyond a reasonable doubt that the videotaped statement was made
freely and voluntarily.
(l) Police
Testimony at Trial
[31]
The trial judge made strong, unfavourable
findings about the credibility of the police officers’ testimony at trial. He
did not believe Constables Tremblay, Mathieu and Fortier, characterizing their
evidence as lacking in frankness and sincerity. He found that these officers
tried to present their intervention at the appellant’s house as routine, a
simple follow-up to the 9-1-1 call and a verification of the premises, which
downplayed their knowledge that Mr. Hogue had likely suffered a bullet wound to
the back of the head and that they were conducting a criminal investigation. He
also noted that police witnesses refused to admit obvious facts and offered
improbable hypotheses to the court. The trial judge had the impression that
the officers did this because they did not want him to conclude that Ms. Côté
was detained and should have been properly cautioned. As mentioned above, the
trial judge found Constable Mathieu’s assertion that Ms. Côté was not detained
and could have left the police station at any point to be implausible. He
found the officers’ evidence that the appellant had not been told about the
possible gunshot wound because it had not yet been confirmed to be equally
unbelievable. Generally, he found that the officers’ attitude during their
testimony, primarily Constable Tremblay but also Constables Mathieu and Fortier,
established that they did not want to admit that one investigative avenue
implicated Ms. Côté in the attempted murder of Mr. Hogue.
[32]
The trial judge also found that police witnesses
tried to downplay the importance of certain evidence. Specifically, they tried
to minimize the importance of the information transmitted to them from Dr.
Elazhary, illustrated by the fact that Constable Mathieu maintained that the
appellant was not detained and was free to leave at any time. The police
officers also downplayed the issue of whether the holes in the window of the
solarium were bullet holes and claimed that it was important to investigate
whether a shot could have come from the river behind the gazebo when this
hypothesis was inconsistent with the evidence they had already found. He
concluded that the frankness and sincerity that is expected of police officers
charged with applying the law was unfortunately lacking in this case.
(m) Serious
and Systematic Violation of Charter Rights
[33]
The trial judge was troubled by the police
conduct throughout the investigation; he found that it demonstrated a blatant
disregard for the appellant’s Charter rights. He found that the
breaches of the appellant’s rights with respect to search and seizure were
extremely serious, [translation] “flagrant
and systematic” (para. 337). They were not, in his view, the product of
isolated errors in judgment on the part of the police, but rather were part of
a larger pattern of disregard of the rights guaranteed by the Charter .
He found that the police had not acted in good faith.
(n) Exclusion
of the Evidence
[34]
Balancing the interests of the state in
discovering the truth and the integrity of the administration of justice, the trial
judge found that no other result than exclusion of the evidence would prevent
further discrediting of the administration of justice. He therefore concluded
that the admission of the evidence would bring the administration of justice
into disrepute and excluded the oral and written statements given by the appellant,
the evidence obtained as a result of the warranted searches at the appellant’s
home and the observations made by police officers with respect to the exterior
of the house before the warrants were issued. In making his decision, he
emphasized that the crime in question was serious, that there was a strong
societal interest in adjudicating the charge on its merits and recognized that
his decision was particularly difficult because it led to the appellant’s
acquittal.
B. Court
of Appeal, 2010 QCCA 303 (CanLII)
[35]
The Court of Appeal found that the trial judge
was right to exclude the appellant’s statements to police as the police
seriously undermined the advice given by Ms. Côté’s lawyers in obtaining those
statements and this behaviour could not be sanctioned by a court. The Crown conceded,
by and large, that the police had committed a number of violations, and that
they were serious. It also conceded that the videotaped statements ought to be
excluded. However, the court concluded that the trial judge had erred by
excluding the observations police made of the exterior of the appellant’s home
before the warrants were issued as well as the physical evidence obtained at
the appellant’s home in execution of the two telewarrants.
[36]
The Court of Appeal explained that the only
issue before it was the admissibility of reliable derivative evidence. In R.
v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, this Court
referred to derivative evidence as “physical evidence discovered as a result of
an unlawfully obtained statement” (para. 116). The Court of Appeal seemed to
characterize all of the physical evidence obtained at the scene as
derivative evidence in this sense. The Court of Appeal noted that the trial
judge had not had the benefit of this Court’s decisions in Grant and R.
v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, and that these
decisions had changed the law in this area. In Grant, the Court
stated that in determining whether to exclude evidence under s. 24(2) of the Charter ,
a court must assess and weigh the following three factors: (1) the
seriousness of the Charter -infringing state conduct; (2) the impact of
the breach on the Charter -protected interests of the accused; and (3)
society’s interest in the adjudication of the case on the merits (para. 71). The
Court of Appeal explained that while derivative evidence was often excluded
where an accused’s constitutional rights were seriously violated, Grant now
required the judge “to consider whether admission of derivative evidence
obtained through a Charter breach would bring the administration of
justice into disrepute” (para. 33, citing Grant, at para. 118). The
Court of Appeal examined the three factors relevant to the s. 24(2) determination,
as set out in Grant.
[37]
With respect to the first factor (the
seriousness of the Charter -infringing state conduct), the Court of
Appeal acknowledged the trial judge’s finding that the Charter violations
were serious and that the police had systematically violated Ms. Côté’s Charter
rights. However, it concluded that the police officers had not deliberately
acted in an abusive manner.
[38]
Regarding the second factor (the effect of the
violation on the accused’s rights), it found that the accused had been
seriously affected by a series of police errors. However, the Court of Appeal
highlighted the fact that the evidence could have been discovered lawfully
without the appellant’s participation because the police could have obtained a
search warrant. It held that a warrant would have been issued on the basis of
the 9-1-1 call and the finding of a bullet in the deceased’s head which had
entered from the rear, thus eliminating any possibility of suicide. Relying on
Grant, at para. 122, the Court of Appeal noted that discoverability
“retains a useful role . . . in assessing the actual impact of the
breach on the protected interests of the accused” because the possibility of
independent discovery of derivative evidence would mitigate the impact of a Charter
violation on an accused person (para. 43). The discoverability of the
evidence was therefore relevant to the analysis of the second factor. The Court
of Appeal held that the admission of the physical evidence would not affect the
fairness of the trial or bring the administration of justice into disrepute
because the evidence and observations could have otherwise been discovered had
the police obtained a warrant when they had grounds to do so.
[39]
With respect to the third factor (society’s
interest in the resolution of the charge on its merits), the court explained
that the physical evidence which the trial judge had excluded (e.g. the hole in
the gazebo’s mosquito screen, the holes in the solarium window, the traces of
blood and the firearm registered in the victim’s name) was essential to the
Crown’s case as it included all of the evidence from the scene. The Court of
Appeal also underlined that the evidence was reliable. The court found that
society’s interest in having an adjudication on the merits was extremely
important given the seriousness of the alleged crime.
[40]
The Court of Appeal took the view that the exclusion
of the physical evidence, rather than its inclusion, would bring the
administration of justice into disrepute. In the Court of Appeal’s opinion, all
of the physical evidence from the scene would have been discovered without the
appellant’s assistance, the crime was very serious and the police officers had
not deliberately acted in an abusive manner. The court explained that while
the police officers’ respect for the appellant’s constitutional rights had been
somewhat fragmented and that the trial judge had not found them to be credible
witnesses, they did not intend to act prejudicially (pas eu d’“attitude
attentatoire”) (para. 47). Accordingly, the court held that the physical
evidence and observations made at the appellant’s home should not have been
excluded and it allowed the appeal and ordered a new trial.
C. Issues
[41]
The appellant challenges the Court of Appeal’s
decision to admit the physical evidence and the evidence concerning the police
observations at her home. The Crown concedes, as it must, that the police
committed serious breaches of the appellant’s constitutional and legal rights.
The Crown also does not contest the trial judge’s decision to exclude the
appellant’s statements made to police. However, the Crown supports the Court
of Appeal’s decision to admit the police observations and the physical evidence
obtained at the appellant’s home.
[42]
The Court of Appeal intervened principally on
the basis that the evidence observed or collected at the scene could have been
discovered lawfully without the appellant’s participation. The Court of Appeal
also justified its intervention by suggesting that the police had not
deliberately acted in an abusive manner and by emphasizing the seriousness of
the offence. It relied on these considerations in re-balancing the relevant
lines of inquiry under s. 24(2) and in concluding that the repute of the
administration of justice required the admission of some of the evidence. The
appeal thus raises two main issues:
1. Did the Court of Appeal err in intervening on the
bases that the police had not deliberately acted in an abusive manner and that
the offence was serious?
2. Did the Court of Appeal err in intervening on the
basis that the evidence was “discoverable”?
III. Analysis
[43]
Before discussing the main issues in this case,
I will briefly set out the standard of review and the factors relevant to a s.
24(2) determination, as described in Grant and its companion cases.
A. Standard
of Review
[44]
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 not controversial. It
was set out by this Court in Grant and recently affirmed in R. v.
Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248. 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 (Grant, at para. 86, and Beaulieu, at para.
5).
B. The
Grant Analysis
[45]
This Court established a revised approach to the
exclusion of evidence under s. 24(2) in Grant. It explained that s.
24(2) was generally concerned with “whether the overall repute of the justice
system, viewed in the long term, will be adversely affected by admission of the
evidence” (para. 68). As noted earlier, 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. A court’s role when addressing an application to
exclude evidence under s. 24(2) is to balance the assessments under each of
these lines of inquiry and determine, based on all of the circumstances,
whether the admission of the evidence would bring the administration of justice
into disrepute.
[46]
In setting out this new framework, this Court
made it clear that while these lines of inquiry did not precisely track the
categories of considerations set out in the earlier jurisprudence, they did
capture the factors relevant to the s. 24(2) determination that had been set
out in the earlier cases. In Beaulieu, Charron J., writing for
the Court, emphasized this point, noting that Grant did not change the
relevant factors in the s. 24(2) analysis.
[47]
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. Admitting evidence of
questionable reliability is more likely to bring the administration of justice
into disrepute where it forms the whole of the prosecution’s case, but
excluding highly reliable evidence may more negatively affect the truth-seeking
function of the criminal law process where the effect is to “gut” the
prosecution’s case.
[48]
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. There is no “overarching rule” that governs how a
court must strike this balance (Grant, at para. 86). Rather,
“[t]he evidence on each line of inquiry must be weighed in the balance, to
determine whether, having regard to all the circumstances, admission of the
evidence would bring the administration of justice into disrepute” (Harrison,
at para. 36). No one consideration should be permitted to consistently
trump other considerations. For instance, as this Court explained in Harrison,
the seriousness of the offence and the reliability of the evidence should
not be permitted to “overwhelm” the s. 24(2) analysis because this “would
deprive those charged with serious crimes of the protection of the individual
freedoms afforded to all Canadians under the Charter and, in effect,
declare that in the administration of the criminal law ‘the ends justify the
means’” (para. 40, citing 2008 ONCA 85, 89 O.R. (3d) 161, at para. 150, per
Cronk J.A., dissenting). In all cases, courts must assess the long-term repute
of the administration of justice.
C. First
Issue
[49]
I turn to the first of the two issues raised on appeal:
Did the Court of Appeal err in intervening on the bases that the police
had not deliberately acted in an abusive manner and that the offence was
serious?
[50]
As explained above, the Court of Appeal found
that the trial judge had erred in excluding the physical evidence
located at the scene. It based its conclusion, in part, on the fact that the
police did not intend to act prejudicially nor had they deliberately acted in
an abusive manner. It also based this conclusion on the fact that the offence
in question was serious. In my respectful view, appellate intervention was not
warranted on either of these grounds.
(1) Re-characterization of Police Conduct
[51]
The Court of Appeal found that the police did
not intend to act prejudicially nor had they deliberately acted in an abusive
manner. This constituted a re-characterization of the evidence that was not
open to the Court of Appeal. The trial judge made numerous findings to the
contrary, specifically that the Charter violations were extremely
serious, the police had not acted in good faith, the police had demonstrated a
continuous and systematic disregard for the appellant’s Charter -protected
rights and had persisted in their misconduct by misleading a judicial officer
in obtaining search warrants, by failing to be frank and sincere in their
testimony and by trying to justify their actions on untenable grounds. The
Court of Appeal, respectfully, exceeded its role by its re-characterization of
the evidence which departed from express findings by the trial judge which are
not tainted by any clear and determinative error. The Court of Appeal
should not have substituted its own view of the police conduct
for that of the trial judge.
[52]
The respondent spent a considerable portion of
its written argument trying to persuade this Court that the trial judge’s
findings about the nature of the police conduct were unreasonable. The
respondent submits that the trial judge went too far in his criticism of the
police. More specifically, the respondent submits that it was unreasonable for
the trial judge to conclude that the Charter violations committed by the
police were flagrant without considering the dynamic and evolving nature of the
situation. It also submits that the trial judge erred in failing to conclude
that the police were faced with a situation of urgency that required immediate
action from the patrolling officers. I would not accede to these attempts to
reverse the trial judge’s findings of fact. A trial judge’s findings of fact
on a voir dire concerning the admissibility of evidence must be
respected unless they are tainted by clear and determinative error. The trial
judge made clear findings that from virtually the moment that the police
arrived at the appellant’s residence, they believed that she was a suspect; he
concluded that the police knew that the person they were meeting was
susceptible to being involved in the death of Mr. Hogue. I also note that the
trial judge made a clear finding that the officers were not exercising their
investigative powers arising from the 9-1-1 call when they came to Ms. Côté’s
house. Rather, he found that their purpose was to conduct a criminal
investigation by speaking with an obvious suspect. The trial judge made these
clear findings of fact based on his first-hand assessment of the officers’
credibility by observing their testimony in court. There is no basis disclosed
for interfering with the trial judge’s numerous conclusions with respect to the
police conduct and I thus decline to interfere with his findings.
(2) Seriousness
of the Offence
[53]
The Court of Appeal also emphasized that the
offence in question was serious in grounding its conclusion that the trial
judge was wrong to exclude the physical evidence obtained from the appellant’s
residence. This relates to the third branch of the Grant analysis that
deals with society’s interest in an adjudication on the merits. Under this
branch, relevant, reliable evidence that is crucial to the prosecution’s case
will often point towards admission, though these considerations will have to be
balanced against other relevant factors. The seriousness of the offence,
however, has the potential to “cut both ways” and will not always weigh in
favour of admission (Grant, at para. 84). While society has a
greater interest in seeing a serious offence prosecuted, it has an equivalent
interest in ensuring that the judicial system is above reproach, particularly
when the stakes are high for the accused person.
[54]
The Court of Appeal thus erred in reweighing the
impact of the seriousness of the offence. This consideration was fully
addressed by the trial judge who was painfully aware of the seriousness of the
offence and of the consequences of excluding the evidence. At para. 339 of his
reasons, the trial judge acknowledged the seriousness of the offence, and at
para. 340, he noted that the more serious the offence, the greater the
likelihood that the administration of justice would be brought into disrepute
by its exclusion, especially where the evidence was essential to a conviction.
It is clear that the trial judge took this factor into account in his s. 24(2)
determination and the Court of Appeal was therefore unjustified in simply
assigning it greater importance.
[55]
The respondent submits that the trial judge
erred in failing to consider the reliability of the evidence and that this
affected his weighing under the third factor of the s. 24(2) analysis. While I
acknowledge that the trial judge did not expressly state that the evidence was
reliable, he was of course fully aware of the nature of the evidence that was
the subject of his order of exclusion. The evidence was reliable in the sense
that it was objective and material and this would certainly have been obvious
to the trial judge, who described all of the evidence at length in his
reasons. The respondent’s
argument also overlooks the fact that the trial judge’s decision predates this
Court’s judgment in Grant and thus may have been couched in different
terms. I do not accept the respondent’s submission that
the trial judge failed to consider the reliability of the evidence and that
this affected his s. 24(2) determination.
[56]
To conclude, 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.
D. Second
Issue
[57]
I now turn to the second of the two issues raised on
appeal: Did the Court of Appeal err in intervening on the basis that
the evidence was “discoverable”?
(1) The
Court of Appeal’s Reliance on Discoverability
[58]
As noted, the Court of Appeal was also convinced
that the physical evidence (all of which it described as [translation] “derivative evidence”)
should not have been excluded because it could have been obtained legally by
warrant, without the appellant’s participation (para. 33). Indeed, as I read
the court’s reasons, this was the principal basis for its appellate
intervention. The Court of Appeal’s emphasis on the discoverability of the
evidence affected its weighing of the s. 24(2) factors, in particular the
second one concerning the impact of the violation on the accused’s rights. The
court was of the view that the impact of the violations was attenuated because
the evidence could have been lawfully obtained and, accordingly, its admission
would not affect trial fairness nor bring the administration of justice into
disrepute.
[59]
The trial judge was alive to this issue. He
commented at para. 347 of his reasons that it was possible, even probable, that
the police could have pursued their investigation effectively and in a
constitutional manner had they respected simple and elementary principles
governing their actions.
[60]
Analysis of the Court of Appeal’s treatment of
discoverability requires that the following questions be answered:
(a) Did the development of the law in Grant and
its companion cases justify appellate intervention?
(b) What is the principle of discoverability and how
does it affect the s. 24(2) analysis under Grant and its companion
cases?
(c) Did the Court of Appeal err in its treatment of
discoverability in the s. 24(2) analysis in this case?
[61]
I will address these questions in turn.
(a) Did
the Development of the Law in Grant and Its Companion Cases Justify
Appellate Intervention?
[62]
The Court of Appeal was of the view that Grant
and its companion cases, decided after the trial judge’s ruling, had
changed the law with respect to the admission of reliable derivative evidence.
By “derivative evidence”, the Court of Appeal meant physical evidence
discovered as a result of an unlawfully obtained statement. In its broader
sense, evidence is “derivative” when it is discovered as a result of other
unconstitutionally obtained evidence. Under the trial fairness rationale in
R. v. Collins, [1987] 1 S.C.R. 265, derivative evidence
obtained as a result of unconstitutional conscription, that is, compelled
self-incrimination at the behest of the state of the accused against him or
herself, was generally excluded — because of its presumed impact on trial
fairness — unless it would have been independently discovered. The Court of
Appeal noted that now, as a result of Grant and its companion cases, the
admissibility of such evidence is to be assessed on the same basis as all other
evidence by asking whether its admission would bring the administration of
justice into disrepute. The Court of Appeal seemed to suggest that because
derivative evidence of a conscriptive nature was more likely to have been
excluded under the pre-Grant framework, it was necessary to redo the s.
24(2) analysis using the revised Grant approach.
[63]
The fundamental difficulty with the court’s
reasoning, in my respectful view, is this: the trial judge did not refer to the
fact that this was conscriptive evidence, nor did he suggest that the case for
exclusion was stronger because of that. It is therefore difficult for me to
see how the trial judge showed any concern that the evidence ought to be
excluded because it was conscriptive. Thus, the trial judge did not place any
weight on the conscriptive character of the evidence and it did not appear to
affect his analysis in any way. In any event, the Court of Appeal erred by
characterizing all of the evidence as being derivative of an unlawfully
obtained statement when in fact very little of it was. Only the two guns
potentially constitute “derivative” evidence in the narrow sense described by
the Court of Appeal, as the appellant had informed Constables Tremblay and
Mathieu of their presence in the house. Although she only showed police the
gun located in the bedroom, she nevertheless told them that a second gun
existed. More importantly, I am of the view that the Court of Appeal erred in
its analysis of the doctrine of discoverability as it applies in this case.
(b) What
Is the Principle of Discoverability and How Does It Affect the Section 24(2)
Analysis Under Grant and Its Companion Cases?
[64]
The principle of discoverability was developed
under the Collins/Stillman framework of analysis and has
traditionally been applied to derivative evidence obtained as a result of the
breach of an accused’s right against self-incrimination: see Collins,
and R. v. Stillman, [1997] 1 S.C.R. 607. According to the Collins trial
fairness rationale, admitting evidence derived from unconstitutional
self-incrimination not only further undermined the accused’s right not to be
conscripted against him or herself, but it also could be seen as undermining
the fairness of the accused’s trial at which, of course, he or she is presumed
innocent and is not a compellable witness. The fact that the evidence could
have been discovered without the accused’s participation — in other words that
it was discoverable — was considered relevant and often determinative to the s.
24(2) analysis because that fact attenuated the impact of the unconstitutional
actions on the accused’s right against self-incrimination and his or her fair
trial rights. The state would have been able to collect the evidence without
the accused’s participation, and the fact that the evidence would have been
discovered without infringing the accused’s right against self-incrimination
weakens the causal link between the Charter breach and obtaining the
evidence.
[65]
In Grant, this Court established a
more flexible, multi-factored approach to the exclusion of evidence under s.
24(2) . The earlier Collins/Stillman framework had been criticized for
being too categorical; exclusion seemed to be virtually automatic if the
evidence was found to be conscriptive and not otherwise discoverable. However,
Grant affirmed that discoverability remains relevant to the s. 24(2)
analysis, explaining as follows:
Discoverability
retains a useful role, however, in assessing the actual impact of the breach on
the protected interests of the accused. It allows the court to assess the
strength of the causal connection between the Charter -infringing
self-incrimination and the resultant evidence. The more likely it is that the
evidence would have been obtained even without the statement, the lesser the
impact of the breach on the accused’s underlying interest against
self-incrimination. The converse, of course, is also true. On the other hand,
in cases where it cannot be determined with any confidence whether evidence
would have been discovered in absence of the statement, discoverability will
have no impact on the s. 24(2) inquiry. [para. 122]
[66]
The concept of discoverability has been used in
relation to derivative evidence to indicate that the police could have obtained
the same evidence without unconstitutionally conscripting the accused or that
the evidence would have inevitably been discovered without reference to that
conscription: Stillman, at para. 107; R. v. Colarusso, [1994]
1 S.C.R. 20, at p. 77. However, I will use the
term “discoverability” to refer to situations where unconstitutionally obtained
evidence of any nature could have been obtained by lawful means had the police
chosen to adopt them. Viewed in this fashion, 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.
[67]
In the pre-Grant case law, the
fact that unconstitutionally obtained evidence, even though not conscriptive,
could have been obtained by constitutional means was considered in the s. 24(2)
analysis. 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, particularly, for
example, in cases in which the police simply ignored the requirement of prior
authorization for a search. 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.
[68]
R. v. Buhay, 2003 SCC 30, [2003]
1 S.C.R. 631, is a good example of how discoverability can, in simple language,
cut both ways. There, the police searched a locker. One officer said that the
idea of getting a warrant did not even cross his mind, while another said he
did not consider obtaining a warrant because he thought he lacked sufficient
grounds. The Court endorsed the conclusion of the trial judge that the officer
who failed even to consider getting a warrant had demonstrated a “casual
attitude” towards the appellant’s Charter rights and that the other
officer’s decision to proceed with the search because he thought he did not
have sufficient grounds to obtain a warrant suggested a blatant disregard for
the appellant’s rights which was fatal to a claim of good faith: paras. 60-61.
On the other hand, this Court acknowledged that the officer probably did in
fact have sufficient grounds to obtain a warrant and that the existence in fact
of reasonable and probable grounds to conduct the search has on many occasions
been considered as lessening the seriousness of the violation. In the end, the
Court accepted that the trial judge had reasonably concluded that the breach
was serious and that his assessment should not have been interfered with on
appeal: see generally paras. 52-56.
[69]
Discoverability remains a relevant factor under
the current s. 24(2) analysis. R. v. Nolet, 2010 SCC 24, [2010]
1 S.C.R. 851, is an example. Binnie J., writing for the Court, found that the
fact that non-bodily physical evidence obtained in breach of an accused’s s. 8
right would otherwise have been discovered was one of the points favouring the
admissibility rather than the exclusion of the evidence.
[70]
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. I will describe how, in appropriate cases,
discoverability may be relevant to the first two branches of the Grant
analysis.
[71]
I turn to the first branch of the Grant test
which is concerned with the seriousness of the Charter -infringing state
conduct. If the police officers could have conducted the search legally
but failed to turn their minds to obtaining a warrant or proceeded under the
view that they could not have demonstrated to a judicial officer that they had
reasonable and probable grounds, the seriousness of the state conduct is
heightened. As in Buhay, a casual attitude towards, or a deliberate
flouting of, Charter rights will generally aggravate the seriousness of the
Charter -infringing state conduct. On the other hand, the facts that the
police exhibited good faith and/or had a legitimate reason for not seeking
prior judicial authorization of the search will likely lessen the seriousness
of the Charter -infringing state conduct.
[72]
We come now to the effect of discoverability on
the second branch of the Grant test — the impact on the Charter -protected
interests of the accused. Section 8 of the Charter protects an
individual’s reasonable expectation of privacy. That reasonable expectation of
privacy must take account of the fact that searches may occur when a judicial
officer is satisfied that there are reasonable and probable grounds and
authorizes the search before it is carried out. If the search could not have occurred
legally, it is considerably more intrusive of the individual’s reasonable
expectation of privacy. On the other hand, 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 at the place of the search will tend to lessen the impact
of the illegal search on the accused’s privacy and dignity interests protected
by the Charter .
[73]
This is not to say, however, that in such
circumstances there is no infringement of an accused’s privacy interests. A
reasonable expectation of privacy protected under s. 8 of the Charter includes
not only that proper grounds exist but also the requirement of prior judicial
authorization. Thus the absence of a warrant when one was legally required
constitutes an infringement of an accused’s privacy. The intrusiveness of such
an unauthorized search will be assessed according to the level of privacy that
could have reasonably been expected in the given set of circumstances. The
greater the expectation of privacy, the more intrusive the unauthorized search
will have been. The seriousness of the impact on the accused’s Charter -protected
interests will not always mirror the seriousness of the breach, i.e. the Charter -infringing
state conduct. For instance, where the police acted in good faith in obtaining
a warrant that was found on review not to disclose reasonable and probable
grounds to believe that a crime had been committed and that there was evidence
to be found at the place of the search, the seriousness of the Charter -infringing
state conduct is reduced but the impact of the search on the accused’s Charter -protected
interests is greater because the search could not have occurred legally.
[74]
The lawful discoverability of evidence may thus
be a relevant consideration when a court must determine whether to exclude
evidence pursuant to s. 24(2) of the Charter . When relevant, courts
should assess the effect of the discoverability of the evidence under the first
and second Grant lines of inquiry in light of all of the circumstances.
(c) Did
the Court of Appeal Err in Its Treatment of Discoverability in the Section
24(2) Analysis in This Case?
[75]
The Court of Appeal found that all of the
physical evidence gathered on the premises, such as the observations of the
perforations in the mosquito screen and solarium window, the gunpowder residue
on the solarium window and the gun registered in the name of the victim, would
have been discovered without the appellant’s help. Duval Hesler J.A. held that
the 9-1-1 call and the gunshot projectiles lodged in the back of the victim’s
head would have been sufficient to obtain a valid search warrant even before
the first of the warrantless peripheral searches. Relying on Grant, she
stated that if the derivative evidence could have been discovered
independently, the effect of the violation on the accused would be lessened and
this would affect the second element of the s. 24(2) inquiry. She then relied,
in part, on the discoverability of the evidence to ground her conclusion that
the exclusion of the evidence in this case would bring the administration of
justice into disrepute.
[76]
The finding of discoverability in this case rests
on the Court of Appeal’s conclusion that the police could have obtained a
warrant to search the premises very early in the investigation based on finding
Mr. Hogue at the residence with what was likely a bullet in the back of his
head and the 9-1-1 call from the residence. While I agree with this conclusion,
I part company with the Court of Appeal about the significance of this factor
for the s. 24(2) analysis in this case.
[77]
Before turning to the issue of discoverability
in this case, I should briefly comment on what role, if any, the validity or
invalidity of the telewarrants obtained by the police played in the trial
judge’s s. 24(2) analysis. In my view, whether or not those warrants were
valid had little or no impact on the analysis here.
[78]
The trial judge found that the warrants which
the police ultimately obtained were unlawful. In his view, when the
unconstitutionally obtained material was excised from the ITO, what remained
was insufficient. The Court of Appeal did not address this conclusion
directly, noting simply that the grounds to obtain a warrant existed much
earlier, which would have permitted the police to obtain all of the
observations and physical evidence legally. In this Court, the Crown argued
that the trial judge’s ruling about the validity of the warrants was in error.
However, even if the warrants were valid, this could have little if any effect
on the trial judge’s decision to exclude the physical evidence. The trial
judge relied on the fact that the totality of the search process was tainted by
the unconstitutional searches that preceded the issuance of the warrants.
[79]
This finding is consistent with well-established
case law. Grant 1993 provides a good example of how illegal warrantless
searches can taint a subsequent search that is otherwise lawful. In that
case, the information obtained through the warrantless perimeter search was
used to support the police’s application for search warrants. This Court held
that once the illegally obtained information was excised from the affidavits
presented to the issuing justice, the information that remained was sufficient
to issue the warrants. While this Court held that the warrants were valid, it
found that the illegal searches “were nevertheless an integral component in a
series of investigative tactics which led to the unearthing of the evidence in
question”. It was thus “unrealistic to view the perimeter searches as
severable from the total investigatory process which culminated in discovery of
the impugned evidence” (p. 255). Similarly, in the case at bar, given the
trial judge’s findings of fact that the police misconduct was continual and
systematic from the outset of the investigation, the question of exclusion must
not be approached in a compartmentalized fashion.
[80]
I now turn to the impact of discoverability on
the exclusion of evidence in this case.
[81]
With respect to the first branch of the
analysis, it is clear that the trial judge considered the officers’ misconduct to
be very serious. Like in Grant 1993, the collection of the evidence in
this case was simply an extension of the earlier warrantless searches conducted
by Constables Tremblay, Mathieu and Fortier; there was clearly a connection
between the earlier breaches and the evidence obtained pursuant to the
warrants. Moreover, by the time the warrants were obtained in this case, there
had been multiple, serious and deliberate breaches of the appellant’s rights.
As mentioned earlier, the trial judge found it shocking that the police had not
sought a search warrant earlier that evening or obtained the appellant’s free
and informed consent to enter her home. He was also troubled by the fact that
the police had constantly minimized, to the appellant, her true legal situation
and found this disregard for her Charter rights to be part of a systematic
attitude evident throughout their dealings with Ms. Côté. He also found that
obtaining the evidence pursuant to the warranted searches was part of a larger
pattern of disregard for Ms. Côté’s Charter -protected rights. Given
that this evidence was tainted by the earlier Charter breaches that
involved serious police misconduct, it is obvious that nothing turned on the
trial judge’s conclusion with respect to the validity of the warrants.
[82]
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 at
the place of the search but did not do so, in the circumstances of this case,
significantly aggravated the seriousness of their misconduct. The trial judge
found that no police officer seemed preoccupied with the absence of a search
warrant (a warrant was not even prepared until over five hours after the
initial police intervention) or the inherent limits recognized by courts for
proceeding without a warrant. The trial judge was particularly troubled by the
fact that the search occurred during the night, at a very late hour, and in a
dwelling house, typically a place where individuals have the greatest
expectation of privacy.
[83]
The police misconduct in obtaining the warrants
further aggravated the seriousness of the Charter -infringing state
conduct. The trial judge concluded that the warrants were actually sought as an
ill-conceived scheme to attempt to remedy the unconstitutionality of the prior
searches and that the police had misled the issuing judicial officer by failing
to make full and frank disclosure of their earlier, unconstitutional conduct.
[84]
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 at
the place of the search is also relevant to the impact of the breach on the Charter -protected
interests of the accused. If a search warrant could have been validly issued
at the time the search was conducted (putting aside issues about whether the
search was conducted reasonably), the intrusiveness of the illegal search
arises from the fact that it was not authorized in advance by a judicial
officer. This, on its own, tends to reduce the impact of this breach on the
appellant’s Charter -protected reasonable expectation of privacy. However,
the absence of prior judicial authorization still constitutes a significant
infringement of privacy. Indeed, it must not be forgotten that the purpose of
the Charter ’s protection against unreasonable searches is to prevent
them before they occur, not to sort them out from reasonable intrusions on an ex
post facto analysis: R. v. Feeney, [1997] 2 S.C.R. 13, at
para. 45. Thus, prior authorization is directly related to, and forms part of,
an individual’s reasonable expectation of privacy.
[85]
Having regard to all of the circumstances, the impact
of the police misconduct on the appellant’s right to privacy was serious: the
unauthorized search occurred in her home, a place where citizens have a very
high expectation of privacy, and the search was not brief (Grant, at
para. 113). The officers arrived at the appellant’s home at 12:13 a.m. and the
appellant only departed for the police station at 2:34 a.m. The appellant,
dressed in her pyjamas, accompanied the police as they illegally searched the
interior and exterior of her house in the middle of the night for not an
insignificant amount of time during which she was detained without
interruption. The breach was thus not “transient or trivial in its impact” and
implicated her liberty, her dignity as well as her privacy interests (Harrison,
at para. 28; Grant, at para. 113). The appellant certainly
had a reasonable expectation of not being subjected to such an intrusive
search, without lawful authorization in the middle of the night, and several
hours after her spouse had been transported to the hospital. Thus, the absence
of prior authorization for a search of this nature was a serious affront to her
reasonable expectation of privacy.
[86]
In my respectful view, the Court of Appeal was
wrong to conclude that the trial judge erred in his appreciation of the
seriousness of the impact on the Charter -protected interests of
the accused. Even though the searches could have been conducted lawfully, this
fact would not have changed the conclusion that the second branch of the Grant
analysis militated in favour of exclusion, in light of the numerous
other factors highlighting the serious impact on the appellant’s privacy and
dignity interests.
[87]
In the result, the Court of Appeal erred in
attaching great weight to the fact that the evidence was discoverable because
it could have been obtained lawfully. In my view, the trial judge’s assessment
was not tainted by any error of law that is relevant to his ultimate conclusion
or by any unreasonable finding of fact. There was therefore no basis to
interfere on appeal with the trial judge’s weighing of the various factors.
[88]
The trial judge analysed the admissibility of
Ms. Côté’s statements and the material evidence separately. With respect to
both, he found that the violations of the appellant’s rights were systematic
and deliberate and that the police were less than candid even under oath in
court in order to minimize the extent of their misconduct. While the
misleading character of in-court police testimony does not form part of the Charter
breach itself, it is a relevant factor under the first branch of the s.
24(2) analysis as a court must dissociate itself from such behaviour: Harrison,
at para. 26. The trial judge was fully aware that proper investigative
methods could have produced the same evidence, that the evidence was reliable
and that the alleged offence was extremely serious. He also weighed the
important societal interest in having the appellant’s guilt or innocence
determined on the merits. He emphasized that the violations of the appellant’s
rights were the result of “a larger pattern of disregard for the appellant’s Charter
rights” (para. 346, citing R. v. Greffe, [1990] 1 S.C.R. 755, at p. 796)
and this sort of disregard by the police for a suspect’s rights was carried
through to their misleading evidence to obtain the warrants and by their
conduct as witnesses before the court.
IV. Conclusion
[89]
To sum up, the trial judge’s decision to exclude
the observations made by police at the appellant’s home and the physical
evidence collected pursuant to the warrants was owed deference. With respect,
the Court of Appeal misconceived of its appellate role when it substituted its
view of the police conduct for the trial judge’s and when it placed undue emphasis
on the seriousness of the offence. The Court of Appeal’s holding that the
police had not deliberately acted in an abusive manner was contrary to the
trial judge’s numerous findings of deliberate and systematic police
misconduct. Its emphasis on the seriousness of the offence was also misplaced
given that the trial judge had acknowledged that the offence was serious and
that the seriousness of the offence had been held not to be a determinative
factor. The Court of Appeal also erred in placing undue weight on the
“discoverability” of the evidence in its s. 24(2) analysis. While I agree with
the Court of Appeal 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 at the place
of the search, this fact would not have affected the s. 24(2) analysis in all
of the circumstances of this case. Both the police misconduct and its impact
on the accused’s Charter -protected interests were very serious, even
taking discoverability into account. The trial judge was obviously and justly
concerned about the continuous, deliberate and flagrant breaches of the
appellant’s Charter rights and this consideration played an important
role in his balancing of the factors under s. 24(2) . He also properly took
into account the strong societal interest in having a serious criminal charge
determined on its merits. His conclusion was not tainted by any error of law
relevant to the ultimate conclusion and, accordingly, it should not have been
set aside on appeal.
V. Disposition
[90]
I would allow the appeal and restore the
acquittal entered at trial.
English version of the reasons delivered by
[91]
Deschamps
J. (dissenting) — I have read
Cromwell J.’s reasons. He would restore the Superior Court’s judgment
(2008 QCCS 3749 (CanLII)), which in his view contains no error that would
justify the Court of Appeal’s decision to intervene. On the basis of the test
from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I agree with the
Court of Appeal (2010 QCCA 303 (CanLII)) that the evidence obtained without the
appellant’s participation — which I will call “the physical evidence” — should
not have been excluded. I would therefore dismiss the appeal.
[92]
There is only one point
on which my colleague Cromwell J. expressly agrees with the Court of
Appeal: the police could have obtained a search warrant very early in their
investigation. However, he attaches no significance to this fact because, in
his view, the trial judge’s conclusions on the exclusion of the evidence were
not based on the invalidity of the warrants. With respect, I believe that
there are two separate issues here: first, the consequences of the trial
judge’s failure to consider the possibility that a warrant could have been
issued at the very beginning of the investigation; and, second, the
consequences of the invalidity of the warrants issued later in the
investigation. At no point in his analysis did the trial judge consider
whether the physical evidence could have been discovered if a warrant had been
obtained very early in the investigation. In my opinion, it is this finding by
the Court of Appeal that is relevant.
[93]
The trial judge
rendered judgment before the decision in Grant, in which this Court
revised the test from R. v. Collins, [1987] 1 S.C.R. 265, and R. v.
Stillman, [1997] 1 S.C.R. 607. Although this fact would not, considered in
isolation, justify reviewing a decision to exclude evidence, it is nonetheless
appropriate to ask whether the judge considered all the factors on which such a
decision must be based. In the case at bar, it is clear that he failed to do
so.
I. Relevant Facts With Respect to the Issuance of a Warrant Very Early in the
Investigation
[94]
At 11:38 p.m. on
July 22, 2006, Constable Jean‑François Fortier received a telephone
call from Sergeant François Monetta, who told him that a man with
injuries to the back of his head had been taken to hospital by ambulance and
that an X‑ray had revealed that there was a bullet in the man’s head.
Sergeant Monetta gave Constable Fortier the injured man’s name and the address
of the residence from which he had been taken by ambulance after his spouse had
found him injured there.
[95]
On receiving that
information, Constable Fortier, as the head of the team of four police officers
on duty that night for the area in which the residence in question was located,
asked Constables Tremblay and Mathieu to go to the scene to investigate.
[96]
The officers arrived
there at 12:13 a.m. They began by observing the house. It was not lit
and there were no signs of activity. They parked at a certain distance from
the house and walked up to it. They rang the doorbell and a woman opened the
door. It was Ms. Côté. The officers explained that they were from the
Sûreté du Québec and that they were there to find out what had happened that
evening and to make sure that the premises were safe.
[97]
After inspecting the
interior of the residence and determining that no one other than Ms. Côté
was there, Constable Tremblay went outside. He entered the gazebo, where he
saw blood, or what looked like blood. Constable Mathieu and Ms. Côté
joined him there. Constable Mathieu then went back inside the residence, where
he noticed a hole in the glass of one of the solarium’s windows. Constable
Tremblay then went to the patrol car and relayed these observations to
Constable Fortier. It was 12:27 a.m.
[98]
I do not question the
trial judge’s decision to reject the prosecution’s argument that the officers’
purpose in searching the house was to make sure the occupants were safe. My
review of the facts is based strictly on the trial judge’s findings of fact and
is intended to highlight the information the officers had before they arrived
at Ms. Côté’s residence and when they discovered the key pieces of
physical evidence.
[99]
It seems to me that the
Court of Appeal’s conclusion that a warrant could have been issued very early
in the investigation is inescapable. The police were informed that a person
had sustained a serious injury to the back of the head and that the injury had
probably been caused by a firearm. It could not have resulted from illness,
nor could it have been self‑inflicted given the bullet’s point of entry
into the skull. In addition, the police knew the address of the residence from
which the injured person had been taken by ambulance. In light of these facts,
they had to discharge their duty to investigate and gather evidence related to
the incident. It was therefore possible for the police to have reasonable and
probable grounds to believe that evidence of an offence could be found at the
place from which the victim had been taken by ambulance. Furthermore, the
nature of the injury and the fact that the victim had been found on the ground
could have given them reasonable and probable grounds to believe that the
warrant had to be executed by night, since residue, prints and fresh tracks
could have been eliminated or altered if the start of the investigation had
been delayed (s. 488 of the Criminal Code, R.S.C. 1985, c. C‑46 ).
The Court of Appeal analysed the situation as follows (at para. 44):
[translation] In a case such as this
one, all the [physical] evidence gathered on the premises — including the holes
in the gazebo window screen, the hole in the solarium window, the gunshot
residue on the inside of the solarium window, the firearm registered in the
victim’s name and found in his home — would have been discovered without any
contribution from the accused. To obtain a valid warrant to search the premises
where the incident occurred, it would have been sufficient to refer to the 9‑1‑1
call and the bullet fragments that penetrated the victim’s head from the back,
eliminating the possibility of suicide and militating in favour of a serious
indictable offence. It is difficult to imagine that a justice of the peace
would have refused to issue a warrant in light of such assertions, if only for
the purpose of obtaining an appropriate expert assessment of the scene and to
perform checks that were obviously relevant, regardless of any suspicion
against the accused. Consequently, in this case, the flaws detected by the
trial judge in the affidavit used to obtain the general search . . .
warrant are not decisive factors.
[100]
To determine how to
deal with the physical evidence, the Court of Appeal could not simply rely on
the trial judge’s overall assessment. It had no choice but to conduct the
review the trial judge had failed to conduct. In my opinion, the Court of
Appeal was right to conclude that the physical evidence should not have been
excluded, although the way I apply Grant differs somewhat from the way
the Court of Appeal applied it.
II. Application
of the Grant Test
[101]
In Grant, the
Court established a three‑stage test for determining whether evidence is
admissible under s. 24(2) of the Canadian Charter of Rights and
Freedoms . At the first stage, a court must consider the seriousness of the
Charter ‑infringing state conduct and “assess whether the admission
of the evidence would bring the administration of justice into disrepute by
sending a message to the public that the courts, as institutions responsible
for the administration of justice, effectively condone state deviation from the
rule of law by failing to dissociate themselves from the fruits of that unlawful
conduct” (para. 72).
[102]
At the second stage,
the inquiry “focusses on the seriousness of the impact of the Charter
breach on the Charter ‑protected interests of the accused. It
calls for an evaluation of the extent to which the breach actually undermined the
interests protected by the right infringed” (para. 76). It is important
to determine the extent of the violation’s impact on the interests protected by
the infringed right.
[103]
At the third stage,
having regard to the fact that “[s]ociety generally expects that a criminal
allegation will be adjudicated on its merits”, the court must “[ask] whether
the truth‑seeking function of the criminal trial process would be better
served by admission of the evidence, or by its exclusion” (para. 79). The
reliability of the evidence and its importance to the prosecution’s case are
factors to be considered, and all relevant circumstances must be taken into
account.
[104]
In determining whether
the maintenance of confidence in the administration of justice would be better
served by admitting the physical evidence or by excluding it, the court must
balance the implications that are identified at the different stages.
[105]
At the first stage of
the analysis, I accept the trial judge’s conclusion that the police officers’
conduct revealed a serious disregard for Ms. Côté’s constitutional
rights. The judge noted that the officers did not concern themselves with
obtaining either a warrant or Ms. Côté’s informed consent before
conducting their initial search. The judge seems to have believed that
Ms. Côté’s rights would not have been violated had experienced officers
been assigned to the investigation. In some cases, the fact that an agent of
the state is inexperienced may be a sign that rights have not been intentionally
violated, which means that the infringement resulting from the officers’
conduct would be less serious. In the instant case, however, the officers’
inexperience cannot serve as an excuse, since, according to the judge, they
should have known the applicable rules. Also relevant is the judge’s
observation that the officers’ conduct was aggravated by their attempt to
conceal the constitutional violations of Ms. Côté’s rights by raising
arguments he held to be unfounded. The police conduct in this case was such
that the courts must dissociate themselves from it.
[106]
At the second stage, it
is clear that the trial judge did not evaluate the actual impact of the
breach. The main interest affected by the unlawful police search was
Ms. Côté’s expectation of privacy. What must be determined is the impact
on it of the failure to obtain prior authorization. To do this, the situation
here must be compared with the one that would have prevailed had the search
been authorized in advance. It is therefore not enough to find that the search
resulted in an invasion of privacy. While that is of course relevant, it is
more specifically the difference in seriousness between the intrusion that
actually occurred and the one that would have occurred had a warrant been
issued that reveals the “extent to which the breach actually undermined the
interests protected” (Grant, at para. 76). This is the
corollary of the previous findings that a warrant could have been obtained at
the very beginning of the investigation and that this would have led the police
to discover the physical evidence.
[107]
However limited the
warrant may have been, it would at the very least have authorized an
examination of the gazebo and the area surrounding it. The warrant would
therefore have authorized a search of both the outside and part of the inside
of the house. As a result, if it is accepted that the warrant could have been
issued at the start of the investigation, it must also be accepted that the
resulting invasion of Ms. Côté’s privacy would, in practice, have been
identical to the one that resulted from the warrantless search.
[108]
I therefore agree with
Cromwell J. that the impact of the infringement of the right to privacy is
limited to the fact that the search was not authorized by a judicial officer
(para. 84). However, it seems to me that his assessment of that impact
contradicts the conceptual approach that follows from this premise. To
determine the seriousness of the impact of the breach, my colleague considers
facts that would have existed even if the search had been authorized. That
does not reveal the extent to which the expectation of privacy was actually
undermined by the failure to obtain prior authorization for the search.
[109]
All persons are
entitled to expect the state to respect their rights, and a court cannot do
anything that suggests that their rights have no value. Even where a breach
has no practical consequences, the court must play a declaratory role in
vindicating constitutional rights. It is this role that must be borne in mind
where a duly authorized search would have had the same practical consequences
(see, in the analogous context of s. 24(1) of the Charter , Vancouver
(City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28). In the instant case, the
protected right is the legitimate expectation of any person not to be subjected
to a warrantless search. The standpoint from which a court assesses the
impact of a breach of protected rights is therefore very different where the
intrusion would have been identical had the search been authorized by a
warrant. The interest that remains to be protected is what the Court in Ward
referred to as “[v]indication, in the sense of affirming constitutional values”
(para. 28).
[110]
Protection of a person’s
expectation of privacy is a fundamental requirement in the Canadian
constitutional system. For this reason — and to reflect the actual scope of
this expectation — it is particularly appropriate to take a nuanced approach
when assessing it. The higher the expectation of privacy, the more
clearly the constitutional right that protects it must be affirmed.
Conversely, the lower the expectation of privacy, the lower the need for
affirmation.
[111]
In the case at bar,
Ms. Côté was the person who called 9‑1‑1 and provided her
address. She was the person who contacted the doctor and told him that
she had found her spouse in the gazebo. She was the first and only person to
whom the police officers could speak to find out what had happened in the
moments before her spouse was taken away by ambulance. Therefore, the visit
from the police could hardly be said to have been unexpected. In short, not
only would the intrusion have been the same with or without a warrant, but
Ms. Côté did not have the highest expectation of privacy. As a result, the
relevant factors at the second stage of the analysis do not weigh in favour of
excluding the physical evidence.
[112]
At the stage of the
analysis that involves determining whether the search for truth would be better
served by admitting the evidence or by excluding it, I must point out that the
evidence in question was reliable physical evidence. It was found shortly
after the injured person was taken away by ambulance, and it was gathered near
the alleged scene of the crime. Although my colleague acknowledges that the
trial judge did not speak to the reliability of the physical evidence, he
assumes that the judge attached the necessary weight to this factor
(para. 55). With respect, I have difficulty seeing how such a conclusion
can be drawn.
[113]
It is possible that the
trial judge’s failure to discuss the reliability of the evidence is due to the
fact that he was applying the law as it stood before Grant. According
to the test from Collins and Stillman, the discoverability of
physical evidence was linked to the protection against self‑incrimination
and the assessment of trial fairness (Grant, at para. 121).
Exclusion was almost automatic (Grant, at para. 64). In that
context, the reliability of the evidence was of little consequence. However,
one of the changes effected in Grant was in fact to move away from
automatic exclusion toward an analysis in which all the circumstances would be
considered. On this point, I agree with my colleague Cromwell J. that the
discoverability of physical evidence may be relevant to the decision whether to
exclude evidence (para. 74). The relevance of discoverability is no
longer limited to the protection against self‑incrimination, and it is
essential to consider the reliability of the evidence.
[114]
Because the trial judge
did not discuss the reliability of the physical evidence, I cannot find that he
considered all the relevant factors in determining whether physical evidence
should be excluded. In my view, this was a serious flaw.
[115]
As regards the
importance of the physical evidence to the conduct of the trial, it is
sufficient to note that this evidence was circumstantial. Because the
statements made to the police by Ms. Côté had been excluded, it was the
only remaining evidence. Its admission was therefore likely to be of crucial
importance to the truth‑seeking function and to the conduct of the trial.
[116]
At the stage of
assessing society’s interest in the conduct of the trial, having regard to all
the relevant facts, I see nothing that would weigh in favour of excluding the
physical evidence. Although the evidence as a whole was limited by the
exclusion of the statements made to the police by Ms. Côté, some reliable
evidence remained that the prosecution could still have considered sufficient
to conduct the trial.
[117]
After completing all
three stages of the analysis, the court must balance the factors that weigh in
favour of and against excluding the evidence. This is a qualitative exercise
and not a quantitative one (R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R.
494, at para. 36).
[118]
In the instant case,
the police misconduct, considered as a whole, is serious and the courts must
dissociate themselves from it. However, it is possible to do so in respect of
the constitutional violations in this case without excluding all the
evidence. There are cases of impacts on expectations of privacy that are much
more serious. Moreover, where reliable and important evidence exists, society’s
interest in the search for truth stands out. On the whole, I can only conclude
that, in this case, it is the exclusion of the physical evidence that would
bring the administration of justice into disrepute.
[119]
For these reasons, I
would dismiss the appeal.
Appeal allowed, Deschamps J. dissenting.
Solicitor for the appellant: Centre
communautaire juridique de la Rive‑Sud, Longueuil.
Solicitor for the
respondent: Directeur des poursuites criminelles et pénales du
Québec, Longueuil.
Solicitors for the intervener: Sack
Goldblatt Mitchell, Toronto.