R v Grant

Grant replaced the Collins/Stillman framework for the exclusion of evidence obtained in breach of the Charter. Under the new framework, a court considers the seriousness of the breach, the impact on the accused's Charter-protected interests, and society's interest in adjudication on the merits.

Three Toronto police officers stopped Grant on the street and asked him questions. The encounter quickly became investigative. They asked whether he had anything he should not. He admitted to a small bag of marijuana and a loaded firearm. The officers had no grounds to detain at the start.

(1) Was Grant detained when officers questioned him? (2) If so, was his right to counsel breached? (3) Should the firearm be excluded under s.24(2)?

Detained. Right to counsel breached. New framework set out. On the facts, evidence admitted (4-3 split on application).

Detention occurs where the state suspends an individual's liberty by significant physical or psychological restraint. To assess s.24(2), courts balance: (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 adjudication of the case on its merits.

McLachlin CJ and Charron J held the previous trichotomy (conscriptive vs non-conscriptive) was unstable. The new test focuses on long-term repute of the administration of justice. The first branch goes to the gravity of the breach (was it inadvertent or systemic?). The second goes to seriousness of impact on the accused (privacy, dignity, autonomy). The third weighs the truth-finding interest, including reliability of the evidence and the seriousness of the offence.

Now the controlling framework for every s.24(2) analysis. Grant's emphasis on long-term reputation of the justice system marks a shift away from short-term outcome focus. Subsequent cases (Harrison, Côté, Le, Beaver) refine the application.

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

McLachlin CJ, Binnie J, LeBel J, Deschamps J, Fish J, Abella J, Charron J, Rothstein J, Cromwell J