2009 SCC 32
The accused in this case had been walking on the sidewalk in an area near schools with a known history of student assaults, robberies and drug offences. He was intercepted by three police officers, who claimed the accused stared at them and fidgeted with his clothing in a suspicious manner as they drove past. The officers approached the accused in a manner that blocked his path and at one point instructed him to keep his hands in front of him. Upon being asked if he had anything he ought not to, the accused admitted to the possession of a small amount of marijuana and a firearm. The officers arrested and searched the accused, seizing the drugs and firearm, and advised him of his right to counsel. The accused challenged the admission of the drugs and firearm, claiming that the sidewalk stop had effectively been a detention and, given that he was not informed of his rights until after the search and seizure, that the detention had been arbitrary contrary to s.9 of the Charter.
The Supreme Court agreed that the conversation had become a ‘detention’ around the point when the officers instructed the accused to keep his hands in front of him. This was based on a finding of ‘psychological restraint’, which is established when an individual either has a legal obligation to comply with a request or demand or reasonably believes based on state conduct that they must comply. In this case psychological detention was established with consideration of the entire circumstances – not just the instruction for the accused’s hands in front of him, but also the positioning of the officers, the manner in which he had been approached, and the tenor of the overall conversation. Therefore the physical evidence of the drugs and firearm was obtained in a manner breaching the accused’s ss.9 and 10 rights under the Charter. In determining whether the evidence could be properly admitted under s.24(2), the Court considered three factors: 1) the seriousness of the Charter-infringing state conduct; 2) the impact of the breach on the accused’s Charter interests; and 3) society’s interests in the adjudication of the case on its merits. Because the police officers had made an honest mistake while operating in an area of legal uncertainty, the Court found that the balance tipped in favour of adjudication of the case on its merits, and allowed the drug and firearm evidence.
Faculty of Law Research and Commentary Discussing R v. Grant
Hamish Stewart, “The Criminal trial: morality play and the rule of law,” (2016) 20 Can Crim L Rev 295.
Hamish Stewart, “Section 24(2): Before and after Grant,” (2011) 15 Can Crim L Rev 253.
Kent Roach, “Determining the seriousness of the violation under section 24(2) of the Charter,” (2014) 61 CLQ 157.
Kent Roach, “Section 24(2) of the Charter,” (2010) 56 CLQ 365.
Kent Roach, “The future of exclusion of evidence after Grant and Bjelland,” (2009) 55 CLQ 285.
Hamish Stewart, “The Grant trilogy and the right against self-incrimination,”(2009) 66 CR (6th) 97.
Facta
| Date | Document |
| 2007 / 11 / 12 | Appellant – Donnohue Grant |
| 2008 / 01 / 28 | Respondent for Grant – Her Majesty the Queen |
| 2008 / 02 / 22 | Intervener – Canadian Civil Liberties Association |
| 2008 / 03 / 07 | Appellant – Grant Factum in Response |
| 2008 / 03 / 08 | Intervener – Attorney General of British Columbia |
| 2008 / 03 / 14 | Intervener – Director of Public Prosecutions |
| 2008 / 03 / 19 | Intervener – Criminal Lawyers’ Association (Ontario) |