R v Côté: An Interpretation and Extension of Grant

After much wrangling in cases such as R v Collins, [1987] 1 SCR 265 [Collins] and R v Stillman, [1997] 1 SCR 607 [Stillman], the Supreme Court of Canada finally recognized the full purpose of s. 9 of the Charter in the landmark decision of R v Grant, [1993] 3 SCR 223 [Grant] two years ago. In many ways, R v Côté, [2011] 3 SCR 215 [Côté], which was released by the Court earlier last week, rests on the shoulders of this precedence while strengthening the commitment to our civil liberties successfully defended in Grant in 2009. Like Grant, Côté asks whether s. 24(2) of the Charter should be applied when the court is faced with “serious and systematic disregard for Charter rights by the police during the investigation of a serious crime.” Côté, applying the test laid out in Grant, offers an answer: in the case of egregious violations of Charter rights by the state, the near unanimous Court held that evidence directly and even indirectly related to the violations had to be excluded. The police blatantly disregarded almost all of the accused’s rights in this case – from the right to counsel to the right to be free from unreasonable search and seizure – such that the admission of evidence would ultimately bring the “administration of justice into disrepute.” After applying a s. 24 analysis to this case, the majority of the Court, excepting Justice Deschamps, felt compelled to toss out the evidence and throw out the case entirely, acquitting Côté of the murder of her husband.

Police Powers Gone Out of Hand

The sequence of events that took place in the Côté residence on the evening of July 22, 2006 is central to the case. The defense argues that a systematic violation of the accused’s Charter-protected rights took place in the span of almost an entire day: from 12:15am at night to 9:00pm the next evening.

At around 9:00pm, the accused, Armande Côté, phoned 911, alerting authorities that her husband had been injured. The attending physician at the hospital determined that the victim suffered from a head injury caused by a metal object, such as a bullet. The police, however, did not relay this information to the accused.

The police came to the residence later that night at around midnight. When the accused greeted them at the door, apparently asleep and wearing her pajamas, the police did not inform her of their reason for their visit. Instead, they lied to her; they told her that they were there to inspect the property to make sure it was safe. After being welcomed into the house, the police proceeded to inspect the interior and exterior of the property, including the surrounding areas and the gazebo, where the supposed injury had occurred. This would have fallen under a violation of Côté’s s. 8 right to be secure against unreasonable search or seizure. The police also asked the accused about firearms in the house, at which point she admitted to having two guns. She could only locate one at that time, though.

A few moments afterward, the police detained the accused without providing her any reason or reasons, thereby infringing her s. 9 right. Section 9 states that “everyone has the right not to be arbitrarily detained or imprisoned.” At the police station, the police refused to advise her of her right to have legal counsel. In doing so, the police also violated her s. 10(a) and 10(b) rights. It was only until 5:23am that the police gave the accused any information about her husband’s murder, namely that she was “an important witness” (translation). She was reassured that she was just a witness – not the prime suspect – even though the police had already determined that she was the prime suspect by then.

Lastly, the police subjected the accused to hours upon hours of interrogations, asking improper questions and soliciting involuntary statements. At many points in the night and the next day, the accused exhibited signs of anxiety and claustrophobia. She also claimed that she did not want to say any more. By then, the accused had consulted several lawyers, who advised her of her right to silence. Thus, her right to silence, a principle of fundamental justice under s. 7 of the Charter, was, according to the trial judge, completely brushed aside by the police time and time again (R v Hebert, [1990] 2 SCR 151).

Lastly, the trial judge shed doubt as to the legitimacy of the search warrant. It was found that the investigators had misled judicial officers to obtain it, and had subsequently become evasive and unbelievable witnesses at trial.

Where the Court of Appeal Went Wrong

The different outcomes at the trial level and the appellate level in Côté arise not from issues of law but mainly issues of fact. Explaining where the Court of Appeal head gone wrong, the Supreme Court notes: the appellate court “found that the police did not intend to act prejudicially nor had they deliberately acted in an abusive manner. This constitutes a re-characterization of the evidence that was not open to the Court of Appeal.” This mistake was made more acute by the fact that the Court of Appeal’s re-characterization of the evidence stood against the numerous findings of the trial judge. The trial judge had concluded that the police had, among other things, not acted in good faith, 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. The Supreme Court found there to be no valid reason to substitute the views of the appellate level court for that of the trial judge.

Exclusion of Evidence and The Grant Test

While the Crown did admit that the police overstepped their bounds and violated the accused’s constitutional rights in this case, it contended that only certain pieces of evidence needed to be excluded at trial, namely the statements made by the accused to the police. The exclusion of evidence is governed by s. 24(2) of the Charter, which states: where a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

The standard of review of a trial judge’s s. 24(2) determination of what would bring the administration of justice into disrepute is set out by the Court in Grant and was recently affirmed in R v Beaulieu, [2010] 1 SCR 248. Essentially, the Court faces the task of assessing whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute under three lines of inquiry: (1) the seriousness of 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. For the first line of inquiry, the Court must recognize that the more serious the state conduct constituting the Charter breach, the greater the need to exclude the evidence obtained. The second line is very similar. in that the more serious the Charter violation, the more likely the violation is going to bring the administration of justice into disrepute. Lastly, the Court must address the question of whether the truth-seeking function of the criminal process would be better served by the admission or exclusion of the evidence. There is no “overarching rule” and none of these three factors can trump any other factor” (Grant, para 86).

In the end, the Supreme Court of Canada was very confident of the trial judge’s conclusions. Applying the Grant test, the Court agreed with the trial judge that “both the police misconduct and its impact on the accused’s Charter-protected interests were very serious… 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).” Furthermore, Cromwell and the majority of the Court took the view that there was a strong societal interest in having a serious criminal charge determined on its merits. Without using those exact words, the Supreme Court of Canada essentially came to the same conclusion as the trial judge – that the admission of this evidence would bring the administration of justice into disrepute. It therefore concluded that there was no error in law in the trial judge’s decision and, accordingly, the appeal was set aside.

Grant, and then Côté

While Côté may not set out a new test for the determination of whether evidence ought to be excluded in a case, it does significantly advance the jurisprudence in this area. In Grant, evidence at issue in the case of an s. 24(2) analysis is “derivative evidence,” which is defined as “physical evidence discovered as a result of an unlawfully obtained statement” (para 116). The Court of Appeal ultimately found all of the physical evidence from the scene of the crime to be admissible because it would have been discovered without the appellant’s assistance; the Court of Appeal argued that the police could have obtained a search warrant anyway. The appellate-level court, therefore, interpreted the meaning of “derivative evidence” broadly in reaching their decision.

The Supreme Court of Canada, though not explicitly, also broadly interpreted “derivative evidence” in this case. While Grant held that only “derivative” evidence ought to be excluded, Côté seems to suggest that when the police’s actions are so egregious, even evidence that is not “physical evidence discovered as a result of an unlawfully obtained statement” ought to be taken out. Ultimately, the Supreme Court of Canada eliminated so much of the police’s evidence, such as the physical evidence discovered at the house when they did not have an official search warrant, that the Crown’s case could not possibly go forward. Without waving the flag of civil liberties, this case sets a welcome precedence for the protection of our Charter and constitutional rights.