Another Interlude from our Supreme Overlords (III)


Your teacher was right – don’t “fidget”.


Citation:  R. v. Grant, 2009 SCC 32,  [2009] 2 S.C.R. 353

Date:  20090717

Docket:  31892


At trial, the accused alleged violations of his rights under ss. 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms. The trial judge found no Charter breach and admitted the firearm. The accused was convicted of five firearms offences.  The Court of Appeal upheld the convictions for different reasons.  It concluded that a detention had crystallized during the conversation with G, before the accused made his incriminating statements, and that the detention was arbitrary and in breach of s. 9 of the Charter. However, it held that the gun should be admitted into evidence under s. 24(2) of the Charter. The court agreed with the trial judge that the accused’s act of moving the gun from one place to another fell within the definition of “transfer” in the Criminal Code, and that this justified the conviction for possession of a firearm for the purposes of weapons trafficking.

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.


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 Agents of the State stopped this guy based on nothing more than their “hunch” that the guy was “hinky”

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]

The Overlords are setting new case law precedent with this three-pronged test.

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]

One would think that if the law is “not always clear” and “uncertain”, that the benefit should go to the accused; how can one know, exactly, when one is being “detained” or not, if the cops don’t?

Per Deschamps J.:


In this case, to admit the weapon in evidence would have a positive effect on the repute of the administration of justice.  According to the trial judge’s findings of fact, the exchange lasted only a few minutes, the officers were polite to the accused, and they were motivated by a desire to take a proactive approach in patrolling an area near schools with serious problems related to youth crime and safety.  On the protection of the public, it should be noted that the charge is firearms‑related, that it would be impossible to establish guilt without the evidence and that the evidence is eminently reliable.  When balanced against each other, the limited impact of the violation on the protected interests and the great importance of the evidence for the purposes of the trial favour admitting the physical evidence. [228‑229]

So, as long as  the crime is “serious enough”, your rights don’t mean squat!  I would like to think that if the crime is of a serious nature, then your rights should be even more greatly safeguarded, as the possible punishment one faces would be correspondingly severe.

The judgment of McLachlin C.J. and LeBel, Fish, Abella and Charron JJ. was delivered by

The Chief Justice and Charron J. —

II.     Facts

[5]     Mr. Grant, a young black man, was walking northbound on Greenwood Avenue when he came to the attention of Constables Worrell and Forde.  As the two officers drove past, Cst. Worrell testified that the appellant “stared” at them in an unusually intense manner and continued to do so as they proceeded down the street, while at the same time “fidgeting” with his coat and pants in a way that aroused their suspicions.  Given their purpose for being in the area and based on what he had just seen, Cst. Worrell decided that “maybe we should have a chat with this guy and see what’s up with him”.  Cst. Worrell wanted to know whether Mr. Grant was a student at one of the schools they were assigned to monitor, and, if he was not, whether he was headed to one of the schools anyway.  Noticing Cst. Gomes parked on the street ahead of Mr. Grant, and in light of his uniformed attire, the two plainclothes officers suggested to Cst. Gomes that he “have a chat” with the approaching appellant to determine if there was any need for concern.

As seen previously, it was acknowledged that the cops did not have “reasonable grounds” to “detain” the suspect, let alone search him.

IV.     Analysis

A.      Breach of the Charter

1.   The Meaning of “Detention” Under the Charter

(b)   Interpretative Principles

[15] As for any constitutional provision, the starting point must be the language of the section.  Where questions of interpretation arise, a generous, purposive and contextual approach should be applied.

[16] Constitutional guarantees such as ss. 9 and 10 should be interpreted in a “generous rather than . . . legalistic [way], aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection” (R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (S.C.C.), [1985] 1 S.C.R. 295, at p. 344).  Unduly narrow, technical approaches to Charter interpretation must be avoided, given their potential to “subvert the goal of ensuring that right holders enjoy the full benefit and protection of the Charter” (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 23).

[17] While the twin principles of purposive and generous interpretation are related and sometimes conflated, they are not the same.  The purpose of a right must always be the dominant concern in its interpretation; generosity of interpretation is subordinate to and constrained by that purpose (P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), vol. 2, at pp. 36-30 and 36-31). While a narrow approach risks impoverishing a Charter right, an overly generous approach risks expanding its protection beyond its intended purposes.  In brief, we must construe the language of ss. 9 and 10 in a generous way that furthers, without overshooting, its purpose: Big M Drug Mart, at p. 344.

I always thought that the “purpose” of a right was to safeguard the interests of the individual from the State’s overstepping its authority.

[21] More specifically, an individual confronted by state authority ordinarily has the option to choose simply to walk away: R. v. Esposito 1985 CanLII 118 (ON C.A.), (1985), 24 C.C.C. (3d) 88 (Ont. C.A.), at p. 94; Dedman v. The Queen, 1985 CanLII 41 (S.C.C.), [1985] 2 S.C.R. 2, at p. 11, citing Martin J.A. in the Ontario Court of Appeal ((1981), 32 O.R. (2d) 641, at p. 653):

Although a police officer may approach a person on the street and ask him questions, if the person refuses to answer the police officer must allow him to proceed on his way, unless . . . [he] arrests him . . . .

See also Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42 (CanLII), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 131. Where this choice has been removed — whether by physical or psychological compulsion — the individual is detained. Section 9 guarantees that the state’s ability to interfere with personal autonomy will not be exercised arbitrarily. Once detained, the individual’s choice whether to speak to the authorities remains, and is protected by the s. 10 informational requirements and the s. 7 right to silence.

Which is why anyone who is confronted by the po-leece should always ask “am I being detained?” – if the answer is “no”, then leave; if the answer is “yes” then exercise your right to silence, and demand a lawyer.  If you don’t know your rights, you can’t exercise them properly.

[22] “Detention” also identifies the point at which rights subsidiary to detention, such as the right to counsel, are triggered. These rights are engaged by the vulnerable position of the person who has been taken into the effective control of the state authorities. They are principally concerned with addressing the imbalance of power between the state and the person under its control. More specifically, they are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination.  They also ensure that the person who is under the control of the state be afforded the opportunity to seek legal advice in order to assist in regaining his or her liberty.  As this Court observed in R. v. Hebert, 1990 CanLII 118 (S.C.C.), [1990] 2 S.C.R. 151:

In a broad sense, the purpose of ss. 7 to 14 is two‑fold to preserve the rights of the detained individual, and to maintain the repute and integrity of our system of justice.  More particularly, it is to the control of the superior power of the state vis‑à‑vis the individual who has been detained by the state, and thus placed in its power, that s. 7 and the related provisions that follow are primarily directed. The state has the power to intrude on the individual’s physical freedom by detaining him or her.  The individual cannot walk away.  This physical intrusion on the individual’s mental liberty in turn may enable the state to infringe the individual’s mental liberty by techniques made possible by its superior resources and power.  [Emphasis added; pp. 179-80.]

[23] By setting limits on the power of the state and imposing obligations with regard to the detained person through the concept of detention, the Charter seeks to effect a balance between the interests of the detained individual and those of the state. The power of the state to curtail an individual’s liberty by way of detention cannot be exercised arbitrarily and attracts a reciprocal obligation to accord the individual legal protection against the state’s superior power.

Well, at least they seem to understand the nature of individual rights vs the power of the State


[137]      As discussed, discoverability remains a factor in assessing the impact of Charter breaches on Charter rights.  The investigating officers testified that they would not have searched or arrested Mr. Grant but for his self-incriminatory statements. Nor would they have had any legal grounds to do so.  Accordingly, the fact that the evidence was non-discoverable aggravates the impact of the breach on Mr. Grant’s interest in being able to make an informed choice to talk to the police. He was in “immediate need of legal advice” (Brydges, at p. 206) and had no opportunity to seek it.

[138]      Considering all these matters, we conclude that the impact of the  infringement of Mr. Grant’s rights under ss. 9 and 10(b) of the Charter was significant.

[139]      The third and final concern is the effect of admitting the gun on the public interest in having a case adjudicated on its merits.  The gun is highly reliable evidence. It is essential to a determination on the merits.  The Crown also argues that the seriousness of the offence weighs in favour of admitting the evidence of the gun, so that the matter may be decided on its merits, asserting that gun crime is a societal scourge, that offences of this nature raise major public safety concerns and that the gun is the main evidence in the case.  On the other hand, Mr. Grant argues that the seriousness of the offence makes it all the more important that his rights be respected.  In the result, we do not find this factor to be of much assistance.

[140]      To sum up, the police conduct was not egregious.  The impact of the Charter breach on the accused’s protected interests was significant, although not at the most serious end of the scale.  Finally, the value of the evidence is considerable. These effects must be balanced in determining whether admitting the gun would put the administration of justice into disrepute.  We agree with Laskin J.A. that this is a close case. The balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision.  However, weighing all these concerns, in our opinion 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 Mr. Grant’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.   Unlike the situation in R. v. Harrison, 2009 SCC 34 (CanLII), 2009 SCC 34, [2009] 2 S.C.R. 494, the police officers here were operating in circumstances of considerable legal uncertainty. In our view, this tips the balance in favour of admission, suggesting that the repute of the justice system would not suffer from allowing the gun to be admitted in evidence against the appellant.

So, as long as the cops are polite to you, and the “societal interest” is sufficient enough, then your rights mean squat…good to know.

V.   Conclusion

[149]           We would allow the appeal on Count 4 (the trafficking charge) and enter an acquittal. On all other counts, we would dismiss the appeal.

All the other firearms convictions were upheld, only the trafficking charge was dismissed

Combined with the other two decisions by our Supreme Overlords I have already posted, we no longer have the right to remain silent, the right to an attorney, nor the right against arbitrary detention and ureasonable search and seizure.

And people think Canada is a “free” country?  Guess again!

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