At trial, Grant alleged violations of his rights under ss. 8, 9 and 10(b) of the Charter. The trial judge found no Charter breach and admitted the firearm. The Court of Appeal concluded that a detention had crystallized during the conversation with the officer 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). but up.
- What constitutes detention?
- Were Grant's rights under ss. 8, 9 and 10(b) of the Charter violated?
- If so, is the admission of the gun permissible under s.24(2)?
Appeal allowed on thetrafficking charge, acquittal entered. Appeal dismissed on all other counts.
McLachlin and Charron, writing for the majority, found that existing jurisprudence on detention was unclear and thus decided to lay out a new framework. They hold that the correct test for detention is whether a reasonable person, placed in the position of the accused, would conclude that their right to choose how to act has been removed by the police, given their conduct.
Applying this test to the case at bar, they hold that Grant was detained within the meaning of ss.9 and 10(b) of the Charter before being asked the questions that led him to disclose his possession of the firearm. Asking him to keep his hands in front of him likely was not sufficient in and of itself, but a holistic look, including the two plainclothes officers taking up tactical positions, would lead a reasonable person to conclude they were being detained. They also note the inherent power imbalance in the situation given Grant's age and inexperience.
They also lay out a test for the admission of evidence obtained under a Charter breach, per s.24(2). There are three factors which must be analyzed:
- the seriousness of the Charter-infringing state conduct - requires an assessment of whether the admission of the evidence would tend to bring the administration of justice into disrepute, and focuses on the severity of the state conduct that led to the Charter breach (which includes an analysis of whether the breach was deliberate or willful, and whether the officers were acting in good faith);
- the impact on the Charter-protected interests of the accused - focuses on how the accused person was affected by the state conduct (which includes an analysis of the intrusiveness into the person's privacy, the direct impact on the right not to be forced to self-incriminate, and the effect on the person's human dignity); and
- society's interest in an adjudication of the case on its merits - focuses on how reliable the evidence is in light of the nature of the Charter breach.
Applying this test to the case at bar, they find that Grant's Charter rights were breached, but the mistake made by the officers was an understandable one. Under the circumstances, there is no evidence that admitting the gun would bring the administration of justice into disrepute. The impact of the infringement on Grant's rights under ss.9 and 10 were significant, as he incriminated himself under questioning from the officers. The evidence itself is highly reliable, and gun crime is a serious problem with significant societal repercussions, however Grant argued that the seriousness of the crime made it more important his rights be respected. On balance, they find that the admission was acceptable, although it was a close ruling.
Binnie, concurring in part, agrees with a holistic approach but does not like the focus this definition of detention puts on the perception of psychological pressure, even if filtered through the "reasonable person" standard.
- The test for detention is that an objective standard must be met.