The Supreme Court of Canada on Friday released its latest statement on the exclusion of evidence in cases in which the Charter rights of the accused have been breached.
Since the Court's decision in R. v. Grant, 2009 SCC 32, courts' application of the test for excluding evidence from a trial following a finding of Charter breach seems to have resulted in fewer cases in which evidence has been excluded, in particular where the charges are seen to be less serious.
The balancing operation in Grant, however, had suggested that in more serious cases, courts might exclude evidence more often than in the pre-Grant universe. Although the Côté decision is couched in terms of standard of review, it is clear in a reading of the whole case that that Court gave more weight to the impact of a Charter breach where the charge was serious, in this case, second degree murder.
The Court concluded:
[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.
The Court in Ottawa restored the acquittal, which had been the original trial outcome.
Image of Supreme Court of Canada (c) Tim Lash 2003
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