The highly anticipated Supreme Court of Canada (SCC) judgment in R. v. Grant was released this morning. Grant was a young black man walking in a neighbourhood patrolled by both plainclothes and uniformed police. During a routine patrol, plainclothes officers stated grant "stared" at them and began "fidgeting". A uniformed officer was tasked to "have a chat" with Grant and this officer requested biographical information from him during which time he told Grant to "keep his hands in front of him." The two plainclothes officers who had observed Grant earlier joined the uniformed officer and the three of them took up a strategic posture in front of Grant blocking his path on the sidewalk. As the "chat" continued, Grant eventually admitted to being in possession of a small amount of marijuana and a firearm.
In its judgment, while the majority of the Court supported a finding of arbitrary detention, they unanimously found that this breach was not sufficiently eggregious to warrant exclusion of evidence under section 24(2) of the Charter. This continues a recent history at the SCC and Ontario Court of Appeal (OCA) to actively consider the flip side of s. 24(2)'s rule against "bringing the administration of justice into disrepute."
Until relatively recently, the disrepute of the justice system was analyzed almost entirely from the perspective of the defence. The question typically being asked was: would the admission of this evidence at trial, having been obtained in an unlawful manner, tarnish the justice system's reputation for equality and fairness? If the answer was "yes", the solution was to exclude the evidence from the trial thus preserving the repute of the administration of justice.
However, for several years now courts across Canada, and particularly in Ontario, have responded to increasing gun violence and public outcries against perceived crime waves by turning the traditional test on its head. The SCC has solidified that shift with R. v. Grant now clearly stating that where the exclusion of evidence would bring the adminsitration of justice into disrepute, courts must balance this against the severity of the Charter breach with the judicial trend now explicitly favouring admission of evidence even where it is obtained unlawfully. This is particularly true whenever a firearm happens to be the piece of evidence being considered.
The implications of this decision, while not surprising having followed a clearly building trend to this point, could prove to be massive and revolutionary. One should expect emboldened police officers to aggressively pursue investigations with less concern about the constitutional legality of their behaviour knowing that the SCC has essentially endorsed a policy of "the ends justify the means". The ramifications will touch upon every interaction police officers have with the public including breath samples in impaired driving cases, the execution of search warrants, and on-the-street encounters as was the case in Grant.
Agreed. The new Grant test appears to come down to whether the police conduct was egregious or not, and how invasive it was. This represents a significant shift in favour of police powers and away from the rights of the accused.
I had an interesting discussion with one of my colleagues today about what impact this quartet of cases will have on the day-to-day practice of criminal law. Though the degree of discretion for exclusion of evidence has narrowed, it has not been completely abrogated.
We were particularly interested in the SCC's comments regarding the importance of deference to trial judges' decisions on Charter applications.
My friend believes that this decision won't have a substantial impact because trial judges — particularly those at the Ontario Court of Justice level — tend to be more ends-oriented. They are usually more concerned with the facts than the law. If they find themselves faced with a sympathetic defendant, there's a good chance that they will apply the Grant test in a manner favourable to the accused.
It would essentially be the reverse of what happened post-Stillman. Stillman made the exclusion of conscriptive evidence almost automatic. But over the last 10 years, courts have increasingly criticized the rule and have refused to exclude conscriptive evidence in gun, drug, and impaired driving cases. They looked to that tiny range of discretion to admit conscriptive evidence in Stillman, and they exercised it with vigour.
It remains to be seen what effect this case will have. I'm not so sure that I agree with my friend, but I am hopeful.
Lawrence, I think your comments about Stillman are insightful but I have a somewhat more reserved view of what the current composition of the OCA would do with the SCC's latest quartet commentary. While the SCC has left open a door to exclusion in cases of 'eggregious' police conduct, even that case dealt with exclusion of drugs. Language coming from courts, and our CA in particular, regarding firearms appear to clearly direct trial courts to admit guns into evidence under pretty much any circumstance.
While it's hard to explain the case for exclusion to the general public, no one ever seems to give consideration to the massive number of innocent people who are subjected to arbitrary detention and unlawful searches that never result in any charges. It is THOSE people who are most at risk in the new watered-down Charter landscape as police have essentially been encouraged to do 'whatever it takes' to get guns off the street. If they hit the jackpot and find a gun, they can safely assume the evidence will be admitted even in the face of unlawful police conduct. If they find something less exciting than a gun (say some pot), no skin off their back…evidence excluded but the pot's still off the street and the suspect has probably spent some very uncomfortable time in pre-trial custody awaiting bail in our perpetually dysfunctional bail courts. Finally, if the police come up empty in an unlawful search, they simply send the victim of their violation on his / her way with barely an apology and there is no consequence to them whatsoever for the breach.
Hardly a system designed to encourage accountability in police practices.
During a routine patrol, plainclothes officers stated grant “stared” at them and began “fidgeting”. A uniformed officer was tasked to “have a chat” with Grant and this officer requested biographical information from him
This trend bothers me. I would like to see McLachlin CJ's reaction to a cop coming up to her and for no reason or fairly specious ones ("looked at me the wrong way") demanding to know her business and her identity so it can be checked in the police computer.
The old adage that it is better to let 10 guilty free than one innocent incarcerated seems to have been supplemented by "but everything short of that is fair game"