In The Wrong Place At The Wrong Time: R v Coutu - Gustavo da Roza

Introduction:

R v Coutu is a classic scenario of being in the wrong place at the wrong time. As described in further detail below, the accused was arrested due to showing up at a location where the police’s canine unit had tracked a suspect involved in an armed robbery. Despite at “first glance” the accused matched the supposed appearance of the suspect, the accused was later cleared of the robbery. However, the accused was found to be in possession of illegal weapons and was subsequently charged. Even though the accused was still sentenced for possession of the weapons, the trial judge declared the arrest illegal and sought to send a “message” to the Winnipeg Police by reducing the accused’s sentence. The Crown later appealed the sentence reduction and legality of the arrest; where the Court of Appeal allowed the Crown’s appeal. This case entails important issues prevalent today: the legality of arrests when assessing all circumstances involved, and judicial activism.

Background: 1

A man armed with a machete, robbed a Winnipeg convenience store and fled on foot with a female accomplice. The Police arrived at the store and obtained a description of the suspects from the store owners (note: language barrier). They also quickly reviewed the surveillance video of the suspects. Then a police canine unit began to track the suspects from the store, which led them to a house within 30 minutes after the robbery had occurred. While at the house, the officers observed two individuals walking into the backyard of the house who they believed matched the appearance of the suspects from the robbery incident (similar clothing, footwear and stature of the male suspect). One of the officer’s yelled, “police, show me your hands” and the accused appeared to panic; he started to walk backwards and removed his backpack. The officer thought the accused was “potentially going to start running away,” and based on the officer’s experience of being in similar situations, proceeded to arrest the accused and searched his backpack.

When the officers searched his backpack, they found a loaded sawed-off rifle, two throwing stars and an air pistol with a silencer. However, once the police had time to then conduct a further review of the surveillance video in comparison with the accused, the accused was quickly cleared of the robbery. Nevertheless, the accused was still charged for the contents of his backpack.

Trial Court Decision: 2

Once the case went to trial, the judge declared the arrest illegal and the warrantless search of the backpack unreasonable. But due to the evidence of possession of the weapons, the accused was still charged for five and one-half years in prison. The judge then proceeded to reduce the sentence by one-half years (to a total of five years) because he was “alarmed” by the police misconduct and said this was another example of the Winnipeg Police Service’s pattern of systematically ignoring the rights of

citizens. This reduction in sentencing was described by the judge as sending a “message” to the police.

The Crown then appealed the sentence, focusing on three main issues: the legality of the arrest, the reduction of the sentence based on state misconduct, and the imposition of concurrent sentences for five counts of possession contrary to a prohibition order.

Review of the Court of Appeal’s Decision:

As mentioned above regarding the Crown’s appeal, for purposes of this case commentary I will focus on the first two issues: the legality of the arrest, and the reduction of the sentence based on state misconduct.

The trial judge concluded that the arresting officer’s grounds to arrest were not objectively reasonable. His review of the arrest focused only on the appearances being mismatched between the accused and the suspect and concluded that was not sufficient for an arrest. 3 As reviewed by the Court of Appeal, they found the arrest was justified, which involved examining what is required for a lawful warrantless arrest and assessing the totality of the circumstances of the arrest. First, the power to arrest was summarized in R v Penner: “A lawful warrantless arrest pursuant to section 495(1)(a) of the Criminal Code has both a subjective and objective component. The officer who makes the decision to arrest must subjectively have reasonable and probable grounds on which to base the arrest and those grounds must be objectively justifiable to a reasonable person placed in the position of the officer [;…] the appropriate standard of proof is one of reasonable probability, not proof beyond a reasonable doubt [;…and] the trial judge must assess the totality of the circumstances in a practical, non-technical and common-sense way, mindful of the knowledge, experience and training of the officer.” 4 This definition for a warrantless arrest demonstrates that a police officer’s decision to arrest does not need to be 100% certain, and that circumstances surrounding the arrest have to be considered. Despite what the trial judge concluded, I agree with the Court of Appeal that there was more than just the clothing comparison between the accused and suspect to consider. First, when the accused was confronted by the police, his reaction suggested he was about to flee. As highlighted by Court: “it is important to bear in mind ‘that the police are often required to make split-second decisions in fluid and potentially dangerous situations.’ 5 In addition, the situation of the armed suspect on foot led to the officers having to quickly review the surveillance video and obtain a description from the shop owners where language barriers were present in order to pursue the suspect right away. Moreover, the police dog tracking evidence put the accused’s location as a potential suspect. In regards to the clothing not being identical in terms of logos or other details, the accused matched the same height and build of the male suspect with similar dark clothing as described by the shop owners. Furthermore, the accused’s footwear from a distance appeared as identical to the suspects as per the police officer, who quoted that: “The arresting officer explained that his experience was that, while it is not uncommon for robbery suspects to change their clothing after a robbery to evade capture, they “don’t often change their footwear” 6 Overall, the conditions together establish that the arresting officer had reasonable grounds to arrest the accused.

The reduction of the sentence by the trial judge in my opinion was a form of judicial activism that was not warranted based on the circumstances of the case, which the Court of Appeal also held. First of all, since the arrest can be deemed lawful (as per the above analysis), then the search of the backpack was incidental to the arrest and reasonable as per section 8 of the Charter, and thus no Charter breach occurred. In addition, there was no alleged state misconduct directly tied to the case: “While the police did make a mistaken identity, they treated the accused professionally, fairly and acted diligently to exclude him from the robbery. There was no misconduct relevant to the circumstances of the offence or the offender which could be used as a mitigating factor on sentence.” 7 There was nothing that the trial judge could point towards in this specific case regarding state misconduct. Even though there are cases involving systematic police problems in our society, this is the wrong case for the judge to carry out judicial activism. First of all, the accused made no allegation of “a systematic pattern of illegal arrests by the Winnipeg Police Service,” 8 and the accused’s counsel even stated that the situation didn’t warrant an abuse of Charter rights as the trial judge declared. Since the accused nor crown raised Charter infringement or systematic abuse by the police, the trial judge is essentially trying to implement his own beliefs to enact policy change. The Court of Appeal highlighted how this was inappropriate by stating: “the judge placed himself in the position of a witness whose evidence could not be tested.” 9 Essentially, the trial judge is stating that he knows best despite the specific conflicting case at hand and that his word should be taken as “bond,’ ironically with no need to review his statement in the law courts. As concluded by the Court of Appeal, there was no evidence of state misconduct for this case and the “one-half-year” reduction by the trial judge was eliminated.

In light of the above, judicial activism is a key part of our society and has furthered many social justice causes such as the definition of marriage or the Persons case which gave women the eligibility to sit in the Senate of Canada. However, is it a sign of a problem with our democratic system? We need to remember that judges are unelected appointments. Why can’t our democratically elected politicians who represent us, the people, not enact legislation changes reflective of society’s consensus that we have to rely on the courts to step outside of their roles of interpreting the law, to now “recreate” them?

Endnotes.......................

1 R v Coutu, 2020 MBCA 106.

2 Ibid.

3 R v Coutu, 2020 MBCA 106 at para 15.

4 R v Penner, 2019 MBCA 8 at para 4.

5 Supra note 3 at para 18.

6 Ibid at para 23.

7 Ibid at para 26.

8 R v Coutu, 2020 MBCA 106 at para 28.

9 Ibid at para 27.