R. v. Côté

R. v. Côté
Collection
Supreme Court Judgments
Date
2011-10-14
Neutral citation
2011 SCC 46
Report
[2011] 3 SCR 215
Case number
33645
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 33645
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215
Date: 20111014
Docket: 33645
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