The Supreme Court of Canada (SCC) has sent out a strong
reminder to appellate courts
that trial judges may exclude
evidence obtained as a result of
“serious and systematic disregard for Charter rights by the
police”—even when it leads to
the dismissal of serious criminal
charges, including murder.
In an 8-1 ruling hailed as an
important victory by defence
counsel in R. v. Côté, [2011]
S.C.J. No. 46, Justice Thomas
Cromwell restored Armande
Côté’s acquittal for second-degree murder in the shooting
death of her husband in 2006.
The trial judge excluded evidence crucial to the Crown’s case
after finding officers from the
Tracy detachment of the Sûreté
du Québec knowingly and deliberately breached many of Côté’s
Charter rights. However, the
Quebec Court of Appeal ordered
a new trial based on its view that
the police did not act in bad faith
and the evidence should not
have been excluded.
In its Oct. 14 judgment, the
SCC (Justice Deschamps dissent-
ing) held that the Court of Appeal
overstepped its bounds by
incorrectly substituting its own
view of the facts for the trial
judge’s reasonable findings. Jus-
tice Cromwell stressed the appeal
courts should accord “consider-
able deference” to trial judges’
determinations to exclude evi-
dence under s. 24(2) of the Char-
ter, where the lower courts have
considered the proper factors
and have not made any unreason-
able findings.
police seized from Côté’s home in
violation of her s. 8 Charter right
to be free from unreasonable
search and seizure.
Côté called 911 around 9 p.m.
to report that her spouse had
been injured. Soon after a doctor
told police her husband had
likely been shot in the head. The
police arrived at Côté’s home
around midnight and told her
they were there to find out what
happened and to make sure the
premises were safe. They did not
tell her they believed her husband had been shot nor that they
considered her a suspect. They
inspected inside and outside the
house and questioned her about
firearms in the house. The police
later obtained search warrants
and found a . 22 calibre rifle, of
the same calibre as the bullet
recovered from the skull of her
husband, who died in hospital.
Justice Cromwell noted the
trial judge found the police
investigators, over several hours,
“violated virtually every Charter
right accorded to a suspect in a
criminal investigation. The trial
judge found these violations
were not the result of isolated
errors of judgment on the part of
the police, but were part of a
larger pattern of disregard of the
appellant’s Charter rights.”
Justice Cromwell said the ser-
iousness of the police miscon-
duct was aggravated when they
later obtained telewarrants,
without fully and frankly disclos-
ing to the court all the material
facts, and when, as witnesses at
trial, investigators refused to
admit obvious facts. n
The Ontario Securities Commission
(OSC) started a pilot one-year
litigation assistance program on
Oct. 17. Volunteer lawyers from
Gowlings, Torys, Stockwoods, Wardle
Daley Bernstein and Borden Ladner
Gervais are offering legal counsel to
unrepresented respondents appearing
in OSC enforcement proceedings.
Any unrepresented respondent
may apply for volunteer legal advice,
on a first-come, first-served basis,
subject to the availability of volunteer
counsel. Volunteer counsel are not
providing complete litigation support
for all aspects of a proceeding. They
may provide litigation support only
during one or more of the following
stages of an enforcement proceeding:
pre-hearing conferences; settlement
conferences and/or hearings; and
sanctions and costs hearings.
Access to lawyer a human right
CONTENTS
NEWS
HARPER ANNOUNCES Supreme
Court of Canada nominees...........1
ALBERTA INSURANCE reforms
take effect next July .................. 11
turning point...where the court
said ‘the approach of [courts]
ignoring deliberate Charter vio-
lations was a failure.’”
Magalie Cimon, Crown pros-
ecutor with the appeal division
of the Longueuil office of Que-
bec’s Ministry of the Attorney
General, told The Lawyers
Weekly through a spokesperson
the court’s key message was of
appellate deference to trial
judges’ determinations under s.
24(2) of the Charter.
Queen’s University professor
Don Stuart said Côté is a surprisingly strongly worded — and
very welcome — message to
appeal courts to show appropriate deference to trial judges’
decisions as to whether the
admission of unconstitution-ally-obtained evidence would
bring the administration of justice into disrepute.
“I think it’s a very important
decision because at the moment
there is a big discrepancy
between the trial judges and the
courts of appeal across the
country,” Stuart told The Lawyers Weekly.
“Surveys would indicate that
at the trial level across the coun-
try, when there is a Charter vio-
lation, the chances of getting
the evidence excluded is very
good — it’s anywhere between
50 and 60 per cent of the cases.
At the appellate level across the
country there is far more reti-
cence,…and now we have got
the Supreme Court of Canada
saying ‘Don’t do that! Defer to
the trial judge.’”
In Côté, the trial judge
excluded physical and observa-
tional evidence that was key to
the Crown’s case, including a rifle
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NON-LAWYERS TO sit on BC
discipline panels...........................1
QUE. CA examines effect of
reinsurance contracts................. 12
Legal Aid & Pro Bono Law
A PROPOSAL for improving access
to justice.................................... 13
RICHES, MCKENZIE & HERBERT LLP
PATENTS, TRADE MARKS, COPYRIGHT, LITIGATION
The International Commission of
Jurists (ICJ) has urged European
Union (EU) states to implement a
strengthened version of the European
Commission’s Draft Directive on the
Right of Access to a Lawyer in
Criminal Proceedings and the Right to
Communicate Upon Arrest.
In an Oct. 12 briefing paper the
Geneva-based human rights body
recommends changes to the draft
directive which aims to have EU
member states implement the right
of access to a lawyer.
Led by senior judges, lawyers and
academics from around the world,
including Supreme Court of Canada
Justice Ian Binnie, the ICJ points out
the draft directive simply reflects the
member states’ existing international
law obligations. Implementing the
draft directive would reduce the need
for recourse by criminal suspects to
the European Court of Human Rights
to challenge violations of their right to
counsel, the ICJ says. It also
recommends the creation of a draft
Directive on Legal Aid.
SCC REINS in police
misconduct ..................................2
BARRISTERS & SOLICITORS - PATENT & TRADE MARK AGENTS
Extra-territorial human rights
LESSONS FOR lawyers on the
new libel defence......................... 3
WHY LEGAL aid must be
considered an essential service . 14
HELPING CANADIAN Tire grow as
it adds Forzani Group Ltd.............. 4
MAKING A case for pro
bono work.............................. 15
PAUL HERBERT, B.SC., PHM., R.PH, LL.B., J.D., PH.D.
DAN HITCHCOCK, B.ENG. (ELEC. ENG.), LL.B.
JEFF PERVANAS, B.A.SC. (ENG. SCI.), LL.B.
BOBBY ATHWAL, B.A.SC. (MECH. ENG.), M.A.SC., LL.B., J.D.
BYRON THOM, B.A.SC. (ENG. SCI.), LL.B.
BRAN T LATHAM, B.A.SC. B.SC. (CHEM. ENG.), LL.B.
GARY M. TRAVIS, B.SC. (GEOL.), LL.B.
MICHAEL ADAMS, B.ENG. (MECH. ENG.), B.SC., LL.B.
MICHAEL YUN, B.SC. (BIOCHEM), J.D.
TRADE MARK AGENT MARTA TANDORI CHENG
ACCESSING JUSTICE from rural
communities ................................ 8
BUSINESS & CAREERS
AIDSBEAT 2011........................ 26
STICKHANDLING DEALS for
sports teams.............................. 21
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OPINION
HALLOWEEN AT work .............. 22
OMAR HA-REDEYE.................... 5
FOCUS
DEPARTMENTS
Leila Feldman, M.A. OACCPP
Certified Anger Management Facilitator
(C.A.M.F.) For Adults and Teens
Insurance Law
THE PROBLEM with ‘meta-
literalism’ in insurance policy
interpretation ............................. 9
PLAINTIFF BAR relieved over
replacement benefit ruling ......... 10
Announcements. . . . . . . . . . . 25
Careers ................. 21
Classified Ads ............ 19
Lawddities............... 10
Legal Briefs...............2
Names in the News......... 4
Weekly Digest............ 17
Masters in Counselling Psychology
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200 St. Clair Avenue West,
Ste. 401 WD
Toronto, Ontario, M4V 1R1
The International Commission of
Jurists (ICJ) and the Maastricht
Centre for Human Rights announced
Oct. 17 the development by
international law and human rights
experts of the Maastricht Principles
on Extra-Territorial Obligations of
States in the Area of Economic,
Social and Cultural Rights. These
principles are designed to clarify the
human rights obligations of states
beyond their own borders.
The principles cover all economic,
social and cultural rights, including
the right to just and favourable
conditions of work, social security, an
adequate standard of living, food,
housing, water, sanitation, health,
education and participation in cultural
life. The principles say states are
obliged to co-operate and assist other
states in realizing economic, social
and cultural rights of all people.
