Street Detention, Safety Searches and s 24(2) Exclusion
Original exam-style practice. Not an official university, NCA, law-society or bar-admission paper.
Scenario
At 11:40 pm, Constables Drey and Okafor of the Marwood Police Service are on patrol in a residential neighbourhood that has seen a string of commercial break-ins over the previous month. The only suspect description ever circulated is "a young male in dark clothing." The officers see Devon Mercer, a 19-year-old Black man, walking alone in dark jeans and a grey hoodie. When the cruiser slows beside him, Devon glances over and turns down a side street. The officers park, get out, and approach on foot: Constable Drey stands directly in front of Devon on the narrow sidewalk while Constable Okafor positions himself a step behind him. Drey says, "Hold up — we need to talk to you. Where are you coming from tonight?"
Devon asks whether he is free to leave. Drey replies, "Just relax, this will only take a minute," and asks for identification. Devon hands over his health card, which Drey keeps while running the name over the radio. Nothing comes back. Okafor then notices Devon's hand drift towards his jacket pocket and says, "I'm going to check you for weapons, for everyone's safety." He pats down the outside of Devon's jacket and feels a small soft pouch in the pocket — which he later concedes did not feel like a weapon. He nonetheless reaches into the pocket, removes the zipped pouch, opens it, and finds 14 grams of fentanyl and a set of brass knuckles. Devon is arrested and charged with possession of fentanyl for the purpose of trafficking and possession of a prohibited weapon.
The charges proceed in the Ontario Court of Justice. Owing to court scheduling backlogs and a slow Crown disclosure process, the earliest available trial date falls approximately 20 months after the charges were laid. Three months of that period are attributable to an adjournment requested by Devon's own counsel, who was unavailable for an earlier offered date. There are no exceptional circumstances. Devon's trial counsel intends to apply to exclude the pouch evidence under s 24(2) of the Charter and to stay the proceedings under s 11(b).
Your task
Advise Devon. Identify when, if at all, he was detained; assess the lawfulness of the detention and the searches; determine whether the fentanyl and brass knuckles should be excluded under s 24(2), applying the Grant framework; and briefly assess the prospects of a stay under s 11(b) applying Jordan.
Issue checklist
- •Was Devon detained, and at what precise moment? (Grant psychological detention test)
- •Was any detention authorized at common law as an investigative detention (reasonable suspicion)?
- •Section 9: was the detention arbitrary?
- •Section 8: did the pat-down and the opening of the pouch exceed the protective scope of a safety search?
- •Section 24(2): apply each of the three Grant lines of inquiry to the fentanyl and brass knuckles
- •Balance the three lines and reach a defensible exclusion conclusion
- •Section 11(b): compute net delay (deduct defence-caused delay) against the 18-month provincial ceiling
- •Below-ceiling stay test: markedly longer than reasonable + meaningful defence steps to expedite
Model answer (attempt the paper first)
Detention. Under Grant, detention for ss 9 and 10 includes psychological detention: it arises where the individual is legally required to comply, or where a reasonable person in their position would conclude they had no choice but to comply. Courts weigh (i) the circumstances of the encounter as the person would reasonably perceive them, (ii) the nature of the police conduct — language, physical positioning, number of officers — and (iii) the individual's characteristics, including age, minority status and sophistication. Here, two officers flanked Devon on a narrow sidewalk at night, used directive language ("Hold up"), deflected his direct question about leaving ("Just relax"), and retained his identification while running checks. As Le confirms, a reasonable 19-year-old racialized man in this position would not feel free to walk away. Devon was detained no later than the moment his question was deflected and his ID retained — well before the pat-down.
Section 9. A detention is arbitrary unless authorized by law. The common law authorizes only a brief investigative detention, and only on reasonable suspicion: objectively discernible facts creating a clear nexus between the individual and a particular recent or ongoing crime (Mann, affirmed in Grant). A month-old generic description ("young male in dark clothing"), presence in the neighbourhood at night, and turning away from a cruiser cannot individualize suspicion; evasion carries little weight, particularly for racialized men who may have independent reasons to avoid police. The Crown will argue the totality of circumstances, but courts consistently reject hunches dressed as constellations. The detention was unauthorized and therefore arbitrary, breaching s 9.
Section 8. A search incident to investigative detention is confined to a protective pat-down, available only where the officer reasonably believes safety is at risk (Mann). Two scope problems arise. First, because the detention itself was unlawful, no incidental search power ever crystallized, and the warrantless search is presumptively unreasonable. Second, even assuming a lawful detention, Okafor exceeded the protective rationale: he conceded the pouch did not feel like a weapon, yet entered the pocket and opened it. That is an evidentiary search of a personal effect, not a safety frisk. Section 8 was breached.
Section 24(2). Devon must show on a balance of probabilities that admission would bring the administration of justice into disrepute, assessed through Grant's three lines.
(1) Seriousness of the state conduct: this was not an inadvertent, good-faith slip. The stop rested on a hunch, the right to leave was brushed aside, and the officer searched an item he knew was not a weapon. The conduct sits towards the serious end and favours exclusion.
(2) Impact on protected interests: the breaches restrained Devon's liberty, compelled an identity check, and intruded on the high privacy interest in his person and personal effects. The impact was significant, again favouring exclusion.
(3) Society's interest in adjudication on the merits: the fentanyl and brass knuckles are real, reliable evidence essential to serious charges, favouring admission. But Grant warns that reliability cannot become a routine override; the seriousness of the offence also cuts both ways, since society insists on a Charter-compliant justice system.
Balancing: the first two lines pull strongly together towards exclusion, and the third cannot routinely rescue the fruits of a baseless stop and an over-broad frisk. Exclusion is the defensible conclusion.
Section 11(b). Jordan sets a presumptive ceiling of 18 months from charge to the actual or anticipated end of trial in provincial court. Delay waived or caused solely by the defence is deducted first: the 3-month adjournment for counsel's unavailability reduces the 20-month total to 17 months, below the ceiling. Below the ceiling, Devon bears the onus of showing that the case took markedly longer than it reasonably should have and that the defence took meaningful, sustained steps to expedite. Nothing here suggests either; a stay is unlikely.
Conclusion. Devon was psychologically detained without reasonable suspicion (s 9) and searched beyond any protective justification (s 8); the evidence should be excluded under s 24(2). The s 11(b) application will likely fail at 17 months of net delay.
Marking rubric
Pinpoints the moment of detention using the Grant factors and Devon's characteristics; tests reasonable suspicion against the generic description and rejects it with reasons; separates the two distinct s 8 scope problems; argues all three s 24(2) lines both ways and reaches a reasoned balance; applies Jordan with the defence-delay deduction and the full below-ceiling test.
Correctly finds detention and breaches of ss 8 and 9 with some factual application; addresses all three Grant lines but treats the third thinly or balances in a conclusory way; identifies the 18-month ceiling and makes the deduction but states the below-ceiling test incompletely.
Identifies a detention and at least one Charter breach; lists the s 24(2) lines but barely applies them to the facts; mentions Jordan without deducting defence delay or without any below-ceiling analysis.
Treats the encounter as consensual throughout or requires physical restraint for detention; no structured s 24(2) analysis (asserts admission or exclusion without the three lines); ignores s 11(b) or misstates the ceiling.
Common mistakes
- ✗Assuming detention requires physical restraint — Grant makes psychological detention sufficient where a reasonable person would conclude they had no choice but to comply.
- ✗Finding reasonable suspicion from a generic description plus presence in a troubled neighbourhood; the suspicion must tie this specific person to a specific recent crime.
- ✗Reasoning backwards from the find: the fact that the pouch contained contraband cannot justify a search that exceeded its protective rationale when it was made.
- ✗Treating reliable real evidence as automatically decisive under the third Grant line; reliability is not a routine override of the first two lines.
- ✗Comparing 20 months directly against the Jordan ceiling without first deducting the 3 months of defence-caused delay.
- ✗Stopping after finding a breach — most of the marks lie in the structured s 24(2) balancing, not the breach finding itself.
Revision notes
- •Detention (Grant): legal compulsion OR a reasonable person in the claimant's position would conclude they had no choice but to comply; weigh the circumstances of the encounter, the police conduct (language, positioning, numbers), and personal characteristics (age, minority status, sophistication).
- •Investigative detention requires reasonable suspicion: objectively discernible facts linking THIS person to a PARTICULAR recent or ongoing crime; a hunch, a generic profile, or mere evasion is not enough.
- •Search incident to investigative detention = protective pat-down only, and only where the officer reasonably believes safety is at risk; entering pockets or opening containers needs fresh justification.
- •s 24(2) (Grant): (1) seriousness of the Charter-infringing state conduct, (2) impact on the accused's Charter-protected interests, (3) society's interest in adjudication on the merits — balance all three; no single line is decisive; onus on the applicant.
- •Jordan ceilings: 18 months in provincial court, 30 months in superior court, measured charge to actual or anticipated end of trial; deduct waived delay and delay caused solely by the defence before comparing.
- •Below the ceiling, the defence must show BOTH that it took meaningful, sustained steps to expedite AND that the case took markedly longer than it reasonably should have; below-ceiling stays are rare.
Linked cases
- R v Grant[2009] 2 SCR 353
- R v Jordan[2016] 1 SCR 631