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.