Are there times when a murderer should be acquitted? (part 1)

Around 9 p.m. on July 22, 2006, in the small community of Pierreville, about 113 kilometres northeast of Montreal, a Quebec woman, Armande Cote called 9 1 1 to report that her spouse, Andre Hogue, 63, had been injured. He was actually shot in the back of his head and was dying. The attending physician at the hospital established that Hogue was suffering from head injuries and confirmed the presence of a metal object in his skull, (a bullet) and communicated this information to the police.

The police upon learning this information, attended at Cote’s home around midnight. The lights of the house were off and the house was peaceful. Cote 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 Cote that they knew that her husband was suffering from a gunshot wound. The police, accompanied by Cote, inspected the interior and the exterior of the residence, as well as a gazebo without a search warrant.

There are times when the police should enter a house without a warrant if they really have a belief that there is an intruder in the home and that the occupants are in danger. But that was not the real reason why the police entered Cote’s and Hogue’s house without a warrant. They entered it because they were on a fishing expedition. They suspected that Cote shot her husband and they wanted to find evidence that would show that she was the person who shot her husband.

It is highly unlikely that they could have gotten a search warrant since there was no real evidence that Cote really was the person that shot her husband. Although, I have to admit that it is strange that she would be dressed for bed considering the fact that her husband had just been shot three hours earlier and was dying in the hospital. One would think that she would have been at the hospital.

The police questioned Cote about the presence of firearms in the house. This tells you right away that they knew that it wasn’t someone other than Cote who shot her husband. She confirmed the presence of two firearms but could only locate one, to which she led the police. The police later obtained search warrants which were executed at Cote’s residence. A .22 calibre rifle, of the same calibre as the bullet recovered from her husband’s skull, was finally located by the police on the premises.

Cote was brought to the police station around 3 a.m. but it wasn’t until 5:23 a.m. that was she given a warning as a suspect in the attempted murder of her husband and advised of her right to counsel. After being warned, Cote spoke with a lawyer and invoked her right to silence.

I don’t know if she contacted her own lawyer at 5:23 a.m. or if she spoke with a legal aid lawyer who was on duty at that time of the morning. (Incidentally, it was me who brought in the law into Canada that provides 24-hour duty counsel to arrested persons and the police are obligated by law to give the phone numbers of these lawyers to those persons they have arrested and brought into the police stations)

In any case, the police had no right to question her until they asked her if she would like to speak to a lawyer. If they didn’t give her the opportunity to exercise that right, then anything she told them would not be permitted to be entered into evidence at her trial.

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, Cote was interrogated by the police throughout the day. Cote 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 and that she did not want to talk anymore and wanted to go lie down.

That’s when the police should have stopped questioning her. Quite frankly, I am surprised that she even spoke to them further after she first spoke with counsel. Whoever the lawyer was that she spoke to would have told her that she was under no obligation by law to give the investigators any information relating to the shooting of her husband.

Unfortunately for some suspects, they want to convince the police that they are innocent and in attempting to do that, they get tripped up in their statements that leads the investigators closer to the truth of what really happened.

Cote’s interrogation ended at 8 p.m. on July 23, when she was advised of her husband’s death and she was subsequently charged with second degree murder.

At her trial, Cote’s lawyer applied to the trial judge to exclude the evidence against her. The trial judge concluded that the police had illegally embarked on a systematic violation of Cote’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 Cote’s property, and the search of her house, property and gazebo constituted unreasonable searches and seizures contrary to section 8 of the Canadian Charter of Rights. He held that the police detained Cote without telling her why in violation of section 10(a) of the Charter, and that the police violated Cote’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 Cote’s right to silence as protected by section 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 (judge or justice of the peace) to obtain warrants. The trial judge excluded all of the evidence pursuant to section 24(2) of the Charter, finding that its admission would bring the administration of justice into disrepute, and subsequently, Cote was acquitted of the charge.

The Crown (prosecutor) appealed that decision and the Quebec Court of Appeal found that the trial judge was right to exclude Cote’s statements to the police. However, it concluded that the trial judge had erred by excluding the observations the police made of the exterior of Cote’s home before the warrants issued as well as the physical evidence obtained at Cote’s home in execution of the warrants. The Court of Appeal then ordered a new trial. The matter was appealed and ended up before Canada’s Supreme Court.

The Supreme Court had previously held that three avenues of inquiry were relevant to an assessment of whether the admission of evidence obtained in breach of the Canadian Charter of Rights would bring the administration of justice into disrepute: (1) an evaluation of the seriousness of the state (police) 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 section 24(2) determination to determine whether admission of the evidence would bring the administration of justice into disrepute.

The judgment of the Supreme Court was that the Court of Appeal erred in intervening on the basis that the police had not deliberately acted in an abusive manner. It doesn’t matter whether or not that they deliberately violated a suspects rights if those rights are violated. 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 Supreme Court also said that 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 Cote’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.

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. Often police who go on fishing expeditions will see what they are looking for but they know that they can’t seize it until they get a search warrant to do so unless of course it was in plain sight.

The fact that the police could have demonstrated to a judge or justice of the peace 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 after they completed their unauthorized search further aggravated the seriousness of the Charter-infringing state (police) 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 Cote’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 a casual and brief search. The breach interfered with 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.

At Cote’s trial for the second degree murder of her husband, 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. Besides the illegal search, the trial judge ruled that Cote's rights were further violated when she was detained without being told why, that police also breached her right to a lawyer and her right to remain silent, and that statements she made to police were not made voluntarily. Officers were also found to have misled the courts when they finally did obtain search warrants.

The trial judge had drawn the line where the police had continually shown systemic disregard for the law and the Canadian Constitution and the Canadian Charter of Rights. 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 the disturbing and aberrant police behaviour. He ruled that whatever evidence the police had illegally discovered could not be used as evidence against her and because that was the only evidence they had against her, she was acquitted of the crime or murdering her husband. The Supreme Court of Canada agreed with the trial judge’s decision.

Now I realize that some or perhaps even many of my readers will feel that anyone who commits a murder should not be acquitted because of some technicality or flaw in the investigation. I for one don’t like murderers getting off scot free.

But we must look at the bigger picture. Do we want police investigators flouting our rights in order to get to the bottom of a crime? Many years ago, I got a call from a neighbour who said that the police had arrested his ten-year-old sister at one in the morning and taken her to the police station. And while the girl’s parents were at the station attempting to be with their daughter in the interview room, the police wouldn’t let them into the interview room. The investigators had broken the law. The law in Canada and elsewhere is that when a young person is being questioned, the parents have the right to be present in the interview room during the questioning of the child. When I learned what had happened, I was furious. The next morning I called the police department and told them that I wanted the two investigators off the case immediately. They were immediately removed from the case. Further, I pointed out that anything the girl said to those two police investigators can never be presented at court. The police agreed with that also. In the end, no charges were laid against the little girl and the police apologized to the girl and her parents for the manner in which the little girl was mistreated.

Many years ago, a police officer in Florida stopped a car being driven by a black man and for no reason at all other than to go on a fishing expedition. He told the black driver to open the trunk of his car. When the trunk was opened, the police officer discovered the body of a woman in the truck. The black man was immediately arrested and later charged with the woman’s murder. He was acquitted at trial because the court concluded that the police officer had no right to stop the man in the first place and further the police officer had no right to demand that the man open the trunk of his car. His rights were abused by the police officer.

If the police while investigating crimes can flout their violations in the face of those whom they suspect are guilty of some crime, then one is forced to ask why we have a Charter of Rights or a Constitution in the first place. We as a society cherish our rights against police abuse and if setting a murderer free because of the violations he or she suffered from as a result of the misconduct of the police, then so be it. I would rather see a murderer go free than live in a community or a nation where those rights we cherish are whittled away by the police until our Charter of Rights or our Constitution become nothing more but mere wood shavings on the floor.