Misbehaviour by police cited in freeing woman charged with murder

A Supreme Court of Canada judgment that let a Quebec woman walk free on a murder charge highlights the tension between police wrongdoing and the rights of the criminally accused.

The court found on Friday that police acted with such flagrant disregard for the defendant's Charter rights that her trial could not go ahead without disgracing the justice system.

An 8-1 majority found that police violated almost every criminal right, including to counsel, to avoid self-incrimination, and to be free of unreasonable search and seizure. It said that police also misled a judge to obtain a search warrant.

While the decision is likely to anger some in the law-enforcement community, it was a victory for the defence bar, which has increasingly accused the Supreme Court of turning its back on the rights of the accused.

"The Supreme Court is trying to get it into the collective police consciousness, after years of gentle chastising, that the constitution is not an optional honour code," said Frank Addario, a lawyer for the Criminal Lawyers Association. "The court has said loud and clear: 'You are going to lose cases if you don't follow the minimum standards in the Charter.' "

Scott Newark, a prominent victim-rights advocate and former prosecutor, said he is skeptical when a prosecution is scuttled on Charter grounds, because the public interest is rarely served.

"While obviously the court is loath to act in any way that 'encourages' cops to ignore the Charter, it might be worthwhile to see if remedies targeted at the error, but short of suppressing the truth, were available and why they aren't used," he said.

The defendant, Armande Côté called 911 on July 22, 2007, to report that her husband, Andre Hogue, had been apparently shot in the head in their backyard gazebo. Police quickly settled on Ms. Côté as their prime suspect, but did not tell her this until eight hours later, after she had shown them evidence and provided several statements.

At trial, a judge noted that police deliberately kept Ms. Côté in the dark until she was fatigued, hungry and claustrophobic in an interrogation room. The judge excluded the evidence as tainted, leaving the Crown with nothing left to pursue the case.

On appeal, the Quebec Court of Appeal overturned the decision and ordered a new trial.

The key question for the Supreme Court was whether the police misconduct was so extreme that admitting the evidence would bring the justice system into disrepute.

"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," Mr. Justice Thomas Cromwell said for the majority. "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."

Madam Justice Marie Deschamps, writing in dissent, argued that the misconduct was insufficient to let a possible killer go free.

"There are cases of impacts on expectations of privacy that are much more serious," she said. "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."