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EXCLUSION  OF EVIDENCE - GRANT TEST


R. v. Harrison, 2009 SCC 34, [2009] 2 SCR 494 CanLII


The accused and his friend were driving a rented sports utility vehicle from Vancouver to Toronto.  In Ontario, a police officer on highway patrol noticed that the vehicle had no front licence plate.  Only after activating his roof lights to pull it over did he realize that, because it was registered in Alberta, the vehicle did not require a front licence plate.  The officer was informed by radio dispatch that the vehicle had been rented at the Vancouver airport.  


Even though he had no grounds to believe that any offence was being committed, the officer testified at trial that abandoning the detention might have affected the integrity of the police in the eyes of observers.  


The officer’s suspicions seem to have been aroused from the beginning of this encounter.  He arrested the accused after discovering that his driver’s licence had been suspended.  The officer then proceeded to search the vehicle.  He found two cardboard boxes containing 35 kg of cocaine.


On a voir dire, the trial judge held that the initial detention of the accused was premised on a mere hunch or suspicion rather than reasonable grounds and therefore constituted an arbitrary detention, contrary to s. 9 of the Canadian Charter of Rights and Freedoms.  He further held that the warrantless search of the vehicle was unreasonable within the meaning of s. 8 of the Charter.  In the analysis pursuant to s. 24(2) of the Charter, the trial judge found that the violations were serious and that the officer’s explanations for stopping the vehicle defied credibility.  However, in view of the seriousness of the offence charged and the importance of the evidence to the Crown’s case, he admitted the cocaine into evidence on the grounds that the repute of the administration of justice would suffer more from its exclusion than from its admission.  The accused was convicted of trafficking.  The Court of Appeal, in a majority decision, upheld the trial judge’s decision to admit the evidence and affirmed the accused’s conviction.

Held (Deschamps J. dissenting):  The appeal should be allowed and an acquittal entered.


Per McLachlin C.J. and Binnie, LeBel, Fish, Abella and Charron JJ.:  The Charter breaches in this case are clear, the sole issue being whether the cocaine was properly admitted into evidence.  


Based on the revised framework set out in Grant,


the three lines of inquiry relevant to determining whether the admission of the evidence would bring the administration of justice into disrepute are:  


(1) the seriousness of the Charter-infringing state conduct;


(2) the impact of the breach on the Charter-protected interests of the accused; and


(3) society’s interest in the adjudication of the case on its merits.  


When the framework is applied to the facts of this case, the balancing of the factors favours exclusion of the evidence.  The conduct of the police that led to the Charter breaches represented a blatant disregard for Charter rights, further aggravated by the officer’s misleading testimony at trial.  


The deprivation of liberty and privacy represented by the unconstitutional detention and search was a significant, although not egregious, intrusion on the accused’s Charter-protected interests.  


On the other hand, the drugs seized constituted highly reliable evidence tendered on a very serious charge.


However, the seriousness of the offence and the reliability of the evidence, while important, do not in this case outweigh the factors pointing to exclusion.  To appear to condone wilful and flagrant Charter breaches amounting to a significant incursion on the accused’s rights does not enhance, but rather undermines, the long-term repute of the administration of justice.  


The trial judge’s reasoning transformed the s. 24(2) analysis into a simple contest between the degree of the police misconduct and the seriousness of the offence.  He placed undue emphasis on the third line of inquiry while neglecting the importance of the other two, particularly the need to dissociate the justice system from flagrant breaches of Charter rights.  Because the evidence in question was essential to the Crown’s case, the accused should be acquitted.  The price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards.  Police officers are expected to adhere to higher standards than alleged criminals. [1-2] [20-21] [27] [32-34] [37-39] [41-43]


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R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353 CanLII


Three police officers were on patrol for the purposes of monitoring an area near schools with a history of student assaults, robberies, and drug offences.  W and F were dressed in plainclothes and driving an unmarked car. G was in uniform and driving a marked police car.  The accused, a young black man, was walking down a sidewalk when he came to the attention of W and F.  As the two officers drove past, the accused stared at them, while at the same time fidgeting with his coat and pants in a way that aroused their suspicions.  W and F suggested to G that he have a chat with the approaching accused to determine if there was any need for concern.  G initiated an exchange with the accused, while standing on the sidewalk directly in his intended path.  He asked him what was going on, and requested his name and address.  At one point, the accused, behaving nervously, adjusted his jacket, which prompted the officer to ask him to keep his hands in front of him.  After a brief period observing the exchange from their car, W and F approached the pair on the sidewalk, identified themselves to the accused as police officers by flashing their badges, and took up positions behind G, obstructing the way forward.  G then asked the accused whether he had anything he should not have, to which he answered that he had “a small bag of weed” and a firearm.  At this point, the officers arrested and searched the accused, seizing the marijuana and a loaded revolver.  They advised him of his right to counsel and took him to the police station.


...

Held : The appeal should be allowed on the trafficking charge and an acquittal entered.  The appeal should be dismissed on all other counts.

Per McLachlin C.J. and LeBel, Fish, Abella and Charron JJ.:  Existing jurisprudence on the issues of detention and exclusion of evidence is difficult to apply and may lead to unsatisfactory results.  It is the duty of the Court, without undermining the principles that animate the jurisprudence to date, to take a fresh look at the frameworks that have been developed for the resolution of these two issues.  [3]


Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with a restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.  


In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:  (a) the circumstances giving rise to the encounter as they would reasonably be perceived by the individual;


(b) the nature of the police conduct; and


(c) the particular characteristics or circumstances of the individual where relevant.  


To answer the question whether there is a detention involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements.  In those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual, it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go.  It is for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed between police conduct that respects liberty and the individual’s right to choose, and conduct that does not.  Deference is owed to the trial judge’s findings of fact, although application of the law to the facts is a question of law.  [32] [43-44]


In this case, the accused was detained within the meaning of ss. 9 and 10 of the Charter before being asked the questions that led him to disclose his possession of the firearm.  The encounter began with G approaching the accused and making general inquiries.  Such preliminary questioning is a legitimate exercise of police powers.  G then told the accused to keep his hands in front of him.  While this act, in isolation, might be insufficient to indicate detention, consideration of the entire context of what transpired from that point forward leads to the conclusion that the accused was detained.  


Two other officers approached, flashed their badges and took tactical adversarial positions behind G, who began to engage in questioning driven by, and indicative of, focussed suspicion of the accused.  The sustained and restrictive tenor of the conduct after the direction to the accused to keep his hands in front of him reasonably supports the conclusion that the officers were putting him under their control and depriving him of his choice as to how to respond.  At this point, the accused’s liberty was clearly constrained and he was in need of the Charter protections associated with detention.  The encounter took on the character of an interrogation, going from general neighbourhood policing to a situation where the police had effectively taken control over the accused and were attempting to elicit incriminating information.  Although G’s questioning was respectful, the encounter was inherently intimidating.  The power imbalance was obviously exacerbated by the accused’s youth and inexperience.  


Because the test is an objective one, the fact that the accused did not testify as to his perceptions of the interaction is not fatal to his argument that there was a detention.  The evidence supports his contention that a reasonable person in his position would conclude that his or her right to choose how to act had been removed by the police, given their conduct.  [45] [47-52]

The evidence of the firearm was obtained in a manner that breached the accused’s rights under ss. 9 and 10(b) of the Charter.  An unlawful detention is necessarily arbitrary, in violation of s. 9.  The officers acknowledged at trial that they did not have legal grounds or a reasonable suspicion to detain the accused prior to his incriminating statements. Therefore, the detention was arbitrary.  The police also failed to advise the accused of his right to speak to a lawyer before the questioning that led to the discovery of the firearm.  The right to counsel arises immediately upon detention, whether or not the detention is solely for investigative purposes.  [11] [55] [57-58]


The criteria relevant to determining when, in “all the circumstances”, admission of evidence obtained by a Charter breach “would bring the administration of justice into disrepute” must be clarified.  


The purpose of s. 24(2), as indicated by its wording, is to maintain the good repute of the administration of justice.  Viewed broadly, the term “administration of justice” embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.  The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system.  While exclusion of evidence resulting in an acquittal may provoke immediate criticism, s. 24(2) does not focus on immediate reaction to the individual case.  Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence.  


The inquiry is objective.  It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.  Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice.  Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.  Section 24(2)’s focus is also societal.  Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns.  [66-70]


When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:


(1) the seriousness of the Charter-infringing state conduct,


(2) the impact of the breach on the Charter-protected interests of the accused, and


(3) society’s interest in the adjudication of the case on its merits.  


At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence.  The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.  


The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right.  The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.  


At the third stage, a court asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion.  Factors such as the reliability of the evidence and its importance to the Crown’s case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the trial judge in each case.  Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination.  [71-72] [76-77] [79] [86] [127]


Here, the gun was discovered as a result of the accused’s statements taken in breach of the Charter.  When the three-stage inquiry is applied to the facts of this case, a balancing of the factors favours the admission of the derivative evidence.  The Charter-infringing police conduct was neither deliberate nor egregious and there was no suggestion that the accused was the target of racial profiling or other discriminatory police practices.  The officers went too far in detaining the accused and asking him questions, but the point at which an encounter becomes a detention is not always clear and the officers’ mistake in this case was an understandable one.  Although the impact of the Charter breach on the accused’s protected interests was significant, it was not at the most serious end of the scale.  Finally, the gun was highly reliable evidence and was essential to a determination on the merits.  The balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision. However, when all these concerns are weighed, the courts below did not err in concluding that the admission of the gun into evidence would not, on balance, bring the administration of justice into disrepute.  The significant impact of the breach on the accused’s Charter-protected rights weighs strongly in favour of excluding the gun, while the public interest in the adjudication of the case on its merits weighs strongly in favour of its admission.  However, the police officers were operating in circumstances of considerable legal uncertainty, and this tips the balance in favour of admission.  [132-133] [139-140]

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Jim O'Neil, LL.B.

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