R. v. Grant

R. v. Grant
Collection
Supreme Court Judgments
Date
2009-07-17
Neutral citation
2009 SCC 32
Report
[2009] 2 SCR 353
Case number
31892
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 31892
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353
Date: 20090717 Docket: 31892
Between:
Donnohue Grant
Appellant
and
Her Majesty The Queen
Respondent
‑ and ‑
Director of Public Prosecutions of Canada, Attorney General of British Columbia,
Canadian Civil Liberties Association and Criminal Lawyers’ Association (Ontario)
Interveners
Official English Translation: Reasons of Deschamps J.
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
Joint Reasons for Judgment: (paras. 1 to 149)
Partially Concurring Reasons: (paras. 150 to 184)
Partially Concurring Reasons: (paras. 185 to 230)
McLachlin C.J. and Charron J. (LeBel, Fish and Abella JJ. concurring)
Binnie J.
Deschamps J.
______________________________
R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353
Donnohue Grant Appellant
v.
Her Majesty The Queen Respondent
and
Director of Public Prosecutions of Canada,
Attorney General of British Columbia,
Canadian Civil Liberties Association and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Grant
Neutral citation: 2009 SCC 32.
File No.: 31892.
2008: April 24; 2009: July 17.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Arbitrary detention — Right to counsel — Encounter between accused and police going from general neighbourhood policing to situation where police effectively took control over accused and attempted to elicit incriminating information — Whether police conduct would cause a reasonable person in accused’s position to conclude that he or she was not free to go and had to comply with police demand — Whether accused arbitrarily detained — Whether accused’s right to counsel infringed — Meaning of “detention” in ss. 9 and 10 of Canadian Charter of Rights and Freedoms .
Constitutional law — Charter of Rights — Enforcement — Exclusion of evidence — Firearm discovered as result of accused’s statements taken in breach of his right against arbitrary detention and right to counsel — Firearm admitted into evidence at trial and accused convicted of five firearms offences — Whether admission of firearm bringing administration of justice into disrepute — Revised framework for determining whether evidence obtained in breach of constitutional rights must be excluded — Canadian Charter of Rights and Freedoms, s. 24(2) .
Criminal law — Firearms — Possession of firearm for purposes of weapons trafficking — Whether simple movement of firearm from one place to another without changing hands amounts to weapons trafficking — Meaning of “transfer” of weapon for purposes of ss. 84 , 99 and 100 of Criminal Code, R.S.C. 1985, c. C‑46 .
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.
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. [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]
The accused’s conviction for possession of a firearm for the purposes of weapons trafficking under s. 100(1) of the Criminal Code should be quashed on the ground that he did not “transfer” the firearm within the meaning of that section. A contextual reading of s. 100 and the related provisions reveals that Parliament intended to reserve the stiffest penalties for transfers that amount to weapons trafficking, not for the mere movement of a firearm from place to place. Since the trial judge did not find that the accused was in possession of the gun for the purpose of transferring it to another person, the s. 100(1) conviction cannot stand. [141] [143]
Per Binnie J.: The majority’s approach to the definition of “detention” in ss. 9 and 10 of the Charter lays too much emphasis on the claimant’s perception of psychological pressure, albeit as filtered through the eyes of the hypothetical reasonable person in the claimant’s situation. The objective facts of such encounters as well as the perception of the police in initiating the encounter, and whatever information the police possess at the time or acquire as the encounter proceeds, all of which may or may not be known to the person stopped, should be factored into a more comprehensive analysis of when a “detention” occurs for Charter purposes. [150] [180]
The Court’s embrace of a wholly claimant‑centred approach may lead to the impression that it is more important to enquire whether the hypothetical reasonable person “in the individual’s circumstances” would think himself or herself to be detained than whether he or she is detained. The perspective of the person stopped is important and it is true that there can be no detention unless the liberty of the person stopped is (or is reasonably perceived by that person to be) significantly constrained, but this does not exhaust the relevant considerations. [151]
It is important to be able to determine at what moment an interaction between the police and a member of the public is converted into a detention of that individual, thereby triggering the rights subsidiary to detention including the right to involve his or her lawyer. Re‑examining the concept of “psychological detention” with a view to broadening the perspectives from which the encounter is viewed is one way to ease the “obvious tension” between the requirement to inform detained persons of their right to counsel and the proper and effective use of brief investigative detentions. The police know, but the claimant may not know, the point at which he or she graduates from being a person of interest to a person around whom suspicion is starting to focus, and becomes a person whose legal rights are seriously in issue. [153] [160] [165] [177]
There are a number of problems with the Court’s continuing endorsement of the Therens approach for the purpose of determining when a simple interaction crystallizes into a detention. Insistence that the claimant’s circumstances be viewed from the more detached perspective of a “reasonable person” in some cases exaggerates the ability of ordinary people to stand up to police assertion of authority, and may compel the conclusion that the claimant had the choice to walk away whereas in reality no such choice existed. On the other hand, if the concept of the reasonable person is intended to describe average cooperative members of the public, the Canadian reality is that such people will almost always regard a direction from a police officer as a demand that must be complied with. Viewed in this way, police instructions or demands readily constrain a claimant’s choice to leave and, therefore, even the less intrusive encounters between the police and citizens ought frequently to be declared detentions under the claimant‑centred approach adopted by the majority. [166] [170]
A further problem in calibrating the “reasonable person” is to define exactly what information this fictional person possesses and what experience he or she brings to the assessment of the encounter. This is of particular relevance to visible minorities who may, because of their background and experience, feel especially unable to disregard police directions, and feel that assertion of their right to walk away will itself be taken as evasive and subsequently argued by the police to be sufficient grounds of suspicion to justify a Mann detention. The police perspective on such encounters, whether or not conveyed to the person stopped, is relevant. In the absence of explicit criteria various judges will tend to read into the “reasonable person” their own projections of the moment at which, in their view, the person stopped ought to be able to call a lawyer. This may encourage a results‑oriented analysis. [169] [172‑174]
The Therens approach does not take into account adequately what the police know and when they knew it except insofar as this information is conveyed to the person stopped, but the police may not consider it to be in their interest to convey the information. Apparent general inquiries by the police may be designed, unknown to the person stopped, to elicit the missing piece by way of self‑incrimination. Possession of such knowledge may in fact place the police in an adversarial relationship with the person approached whether that person is aware of the jeopardy or not. It is the adversarial relationship together with the “stop” that generates the need for counsel. On the other hand, a more benign police purpose may deprive even an unambiguous police command of the legal effect of a detention, and thereby enure to the benefit of the prosecution. [167] [178‑179]
A finding of detention requires a police command or direction as well as compliance by the person claiming a s. 9 detention in the reasonable belief that there was no other choice. However, police words and conduct should be interpreted in light of the purpose of the encounter from the police perspective, whether disclosed to the person from whom cooperation was requested or not. Moreover, when considering the perception of the person stopped, serious weight should be given to the values and experience of the person actually stopped, including the experience of visible minorities. [176‑177]
On the facts of this case, the conclusion of the majority that the accused was arbitrarily detained is agreed with. The purpose of the police officers was to investigate crime, whether actual or anticipated. The police had no information whatsoever that the accused may have been implicated in criminal activity or even whether a crime had been committed. The police order to the accused to “keep his hands in front of him” crystallized the detention. However, the finding of a detention is properly the product not only of the accused’s perception (filtered through the hypothetical reasonable person) but also of the objective facts of why the encounter was initiated (crime detection) and the perception of the police, who at the outset lacked any information on which to base such aggressive tactics. The majority’s analysis under s. 24(2) and the consequent disposition of the appeal are also agreed with. [181‑184]
Per Deschamps J.: The facts of this case, considered as a whole, support the conclusion that the accused was detained. The detention came to a head when the officers asked him certain direct questions that, viewed objectively, might have caused a reasonable person to feel singled out, cornered and, therefore, detained. Owing to the nature of the questions asked by G, the line between prevention and suppression was crossed. G asked the accused if he had committed a crime. Once such a question had been asked of a person who had known he was being watched from the time he had crossed paths with W and F — who had since arrived on the scene — the encounter could no longer be described simply as an interaction between a police officer and a member of the public. The exchange was no longer an impromptu conversation that the accused would think he could walk away from as he pleased. [191]
Regarding the factors to consider in deciding whether to admit or exclude evidence obtained in violation of a Charter right, the new test proposed by the majority is inconsistent with the purpose of s. 24(2) of the Charter , which is to maintain public confidence in the administration of justice. The statement that s. 24(2) has a long‑term societal purpose is of great significance for the identification of the factors to considered in the analysis. The proposed test, by focussing the analysis on the conduct of the police in the first branch and on the interest of the accused in the second, and by attaching less importance to the seriousness of the offence in the third, does not give sufficient consideration to the long‑term societal interest that must guide the judge in reaching a decision. In determining whether the maintenance of confidence in the administration of justice would be better served by admitting the evidence or by excluding it, the judge must instead strike a fair balance between two societal interests: the public interest in protecting Charter rights and the public interest in an adjudication on the merits. On the first branch, any facts that help show the effect of the violation on the protected rights must be considered, including the state conduct that gave rise to the violation. The impact of a violation on protected interests will vary with the circumstances, and the judge must therefore consider all the facts that will enable him or her to assess the long‑term impact of his or her decision on the repute of the administration of justice, that is, not on the rights of the accused being tried, but rather on those of every individual whose rights might be violated in a similar way. As for the second branch, whether the evidence is reliable and whether it is essential or peripheral are factors that are crucial to the maintenance of public confidence, as is the seriousness of the offence. [185] [195] [198] [202] [223‑226]
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]
There is agreement with the majority on the charge of possession of a firearm for the purposes of trafficking. [229]
Cases Cited
By McLachlin C.J. and Charron J.
Not followed: R. v. Collins, [1987] 1 S.C.R. 265; R. v. Stillman, [1997] 1 S.C.R. 607; applied: R. v. Therens, [1985] 1 S.C.R. 613; referred to: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; R. v. Esposito (1985), 24 C.C.C. (3d) 88; Dedman v. The Queen, [1985] 2 S.C.R. 2; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Grafe (1987), 36 C.C.C. (3d) 267; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; R. v. Duguay (1985), 18 C.C.C. (3d) 289; R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Burlingham, [1995] 2 S.C.R. 206; R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3; R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Silveira, [1995] 2 S.C.R. 297; R. v. Genest, [1989] 1 S.C.R. 59; R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. White, [1999] 2 S.C.R. 417; R. v. Askov, [1990] 2 S.C.R. 1199; R. v. Wray, [1971] S.C.R. 272; R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; R. v. Harper, [1994] 3 S.C.R. 343; R. v. Schedel (2003), 175 C.C.C. (3d) 193; R. v. Richfield (2003), 178 C.C.C. (3d) 23; R. v. Dolynchuk (2004), 184 C.C.C. (3d) 214; R. v. Banman, 2008 MBCA 103, 236 C.C.C. (3d) 547; R. v. S.A.B., 2003 SCC 60, [2003] 2 S.C.R. 678; R. v. Shepherd, 2007 SKCA 29, 218 C.C.C. (3d) 113, aff’d 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. Padavattan (2007), 223 C.C.C. (3d) 221; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. St. Lawrence, [1949] O.R. 215; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Harris, 2007 ONCA 574, 225 C.C.C. (3d) 193; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Goldhart, [1996] 2 S.C.R. 463; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; McDiarmid Lumber Ltd. v. God’s Lake First Nation, 2006 SCC 58, [2006] 2 S.C.R. 846; R. v. Davis, [1999] 3 S.C.R. 759.
By Binnie J.
Not followed: R. v. Therens, [1985] 1 S.C.R. 613; referred to: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; United States v. Mendenhall, 446 U.S. 544 (1980); Florida v. Royer, 460 U.S. 491 (1983); California v. Beheler, 463 U.S. 1121 (1983); Oregon v. Mathiason, 429 U.S. 492 (1977); Escobedo v. Illinois, 378 U.S. 478 (1964); Miranda v. Arizona, 384 U.S. 436 (1966); Thompson v. Keohane, 516 U.S. 99 (1995); Stansbury v. California, 511 U.S. 318 (1994); R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, aff’g 2007 ONCA 60, 85 O.R. (3d) 127; R. v. Moran (1987), 36 C.C.C. (3d) 225, leave to appeal refused, [1988] 1 S.C.R. xi; R. v. Grafe (1987), 36 C.C.C. (3d) 267; Practice Note (Judges’ Rules), [1964] 1 W.L.R. 152.
By Deschamps J.
Not followed: R. v. Collins, [1987] 1 S.C.R. 265; referred to: R. v. Orellana, [1999] O.J. No. 5746 (QL); R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460; R. v. Kang‑Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; R. v. Greffe, [1990] 1 S.C.R. 755; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Burlingham, [1995] 2 S.C.R. 206; R. v. Strachan (1986), 25 D.L.R. (4th) 567; Herring v. United States, 555 U.S. 1 (2009); R. v. Duguay, [1989] 1 S.C.R. 93; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 8 , 9 , 10 , 11( c ) , 13 , 24 .
Criminal Code , R.S.C. 1985, c. C‑46, ss. 84 “transfer”, 86(2), 99, 100.
Firearms Act , S.C. 1995, c. 39, s. 21 “transfer”.
Model Code of Pre‑Arraignment Procedure (ALI 1975), s. 110.1(2).
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APPEAL from a judgment of the Ontario Court of Appeal (McMurtry C.J.O. and Laskin and Lang JJ.A.) (2006), 81 O.R. (3d) 1, 213 O.A.C. 127, 209 C.C.C. (3d) 250, 38 C.R. (6th) 58, 143 C.R.R. (2d) 223, 2006 CarswellOnt 3352, [2006] O.J. No. 2179 (QL), affirming the accused’s conviction entered by M. H. Harris J., 2004 CarswellOnt 8783. Appeal allowed in part.
Jonathan Dawe and Frank R. Addario, for the appellant.
Michal Fairburn and John Corelli, for the respondent.
James C. Martin and Paul Adams, for the intervener the Director of Public Prosecutions of Canada.
Michael Brundrett and Margaret A. Mereigh, for the intervener the Attorney General of British Columbia.
Don Stuart and Graeme Norton, for the intervener the Canadian Civil Liberties Association.
Marlys A. Edwardh and Jessica R. Orkin, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of McLachlin C.J. and LeBel, Fish, Abella and Charron JJ. was delivered by
The Chief Justice and Charron J. —
I. Overview
[1] Mr. Grant appeals his convictions on a series of firearms offences, relating to a gun seized by police during an encounter on a Toronto sidewalk. The gun was entered as evidence against Mr. Grant and formed the basis of his convictions. The question on this appeal is whether that evidence was obtained in breach of Mr. Grant’s Charter rights, and if so, whether the evidence should have been excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms .
[2] Resolving these questions requires us to revisit two important and contentious areas of criminal law Charter jurisprudence. The first is the definition of “detention” under ss. 9 and 10 of the Charter . The second is the test for exclusion of evidence obtained in violation of the Charter pursuant to s. 24(2).
[3] The submissions before us reveal that existing jurisprudence on the issues of detention and exclusion of evidence is difficult to apply and may lead to unsatisfactory results. Without undermining the principles that animate the jurisprudence to date, we find it our duty, given the difficulties that have been pointed out to us, to take a fresh look at the frameworks that have been developed for the resolution of these two issues. We will also consider the subsidiary issue that arises in this case: the meaning of “transfer” of a weapon for the purposes of ss. 84 , 99 and 100 of the Criminal Code , R.S.C. 1985, c. C-46 .
II. Facts
[4] The encounter at the centre of this appeal occurred at mid-day on November 17, 2003, in the Greenwood and Danforth area of Toronto. With four schools in the area and a history of student assaults, robberies, and drug offences occurring over the lunch hour, the three officers involved in the encounter were on patrol for the purposes of monitoring the area and maintaining a safe student environment. Two of the officers, Constables Worrell and Forde, were dressed in plainclothes and driving an unmarked car. Although on patrol, their primary task was to visit the various schools to determine if there were persons on school property who should not have been there — either non-students or students from another school. The third officer, Constable Gomes, was in uniform and driving a marked police car. On “directed patrol”, he had been tasked with maintaining a visible police presence in the area in order to provide student reassurance and to deter crime during the high school lunch period.
[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.
[6] Cst. Gomes then got out of his car and initiated an exchange with Mr. Grant, while standing on the sidewalk directly in his intended path. The officer asked the appellant “what was going on”, and requested his name and address. In response, the appellant provided a provincial health card. At one point, the appellant, behaving nervously, adjusted his jacket, prompting the officer to ask him to “keep his hands in front of him”. By this point, the two other officers had returned and parked on the side of the street.
[7] Cst. Worrell testified on cross‑examination that he and Cst. Forde pulled up because he got a funny feeling based on Mr. Grant’s way of looking over at them, looking around “all over the place”, and adjusting himself. On direct examination he said that “[h]e still seemed to be, I don’t know, looking a bit nervous the way he was looking around, looking at us, looking around when speaking to Officer Gomes. And at this time, I suggested to my partner, you know, I don’t think it would hurt if we just go up to Officer Gomes and just stand by, just to make sure everything was okay.” Thus, after a brief period observing the exchange from their car, the two officers approached the pair on the sidewalk, identified themselves to the appellant as police officers by flashing their badges, and took up positions behind Cst. Gomes, obstructing the way forward. The exchange between Cst. Gomes and Mr. Grant subsequent to the arrival of the two officers was as follows:
Q. Have you ever been arrested