Supreme Court excludes evidence supporting murder conviction based on Charter breach

R. v. Côté, 2011 SCC 46 was just released by the Supreme Court. It dealt with a search of accused's home conducted by police without valid warrants. The trial judge found that the police had not acted in good faith and demonstrated blatant disregard for accused's Charter rights throughout investigation. As a result the evidence, otherwise relevant and material to the charge, was excluded.

The decision to exclude will be controversial. Some will argue that the public should not be punished by having criminals walk free because police officers made mistakes, even serious mistakes. Others will say the only way to ensure that police respect Charter rights is to take away the fruits of tainted investigations. Regardless, the Court's decision may well suggest they will not hesitate to take strong positions on other cases like bigamy and prostitution (note the Insite decision).

Regardless, for immediate purposes I note a passage where the Court held that a Court of Appeal must show more deference to decisions of trial judges:

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.