R. v. GRANT, 2009 SCC 32

Court laid down factors to determine about fact of imprisonment and replaced the Collins Test with a new test to determine the admissibility of evidence under S. 24(2) of the Charter which is obtained in violation of Charter right.

To briefly state the facts, Respondent was a young black man who was stopped and questioned by three police officers while they were on their patrolling duty. During this interaction, Respondent was found in possession of a firearm and a small quantity of marijuana. At his trial the accused respondent pleaded violation of his Charter Rights under section 8, 9 and 10(b). On appeal, the Court of Appeal held the stoppage and questioning of respondent was detention for the purpose of S. 9 and police had not availed him his right to Counsel under S. 10(2), the evidence collected from him was in violation of his Charter rights. Thus, the questions before the Supreme Court concerned whether it was detention? and whether it violated respondent’s Charter Rights under s. 8, 9 and 10? And if so, Can the firearm be admissible in that case?

Regarding the detention, the SCC held that detention would happen when a reasonable person placed in the position of the accused would come to a conclusion that his right to do otherwise than the police instructions was circumscribed by the police. This is an objective test and it is for police to realise when the detention occurred so as to avail him attendant individual rights in Charter. Factors like circumstances giving rise to the police-accused encounter, the nature of the police conduct, language and physical contact of the police, place and duration of encounter with the presence of other people, detainee’s age, physical stature, minority and level of sophistication will assist the Court in determining whether detention happened or not. And thus, in the light of facts, his Charter rights had been violated by the police.

The second question was, will the evidence obtained in breach of Charter be admissible? To this, the SCC gave the three-pronged test. First, the seriousness of the infringing act of police (the State). Here analysis will revolve around the deliberate and wilful breach or act done in bona fide. The Court also has to be mindful while condoning the serious acts of misconduct of police which can give the wrong impression to society. Second, the impact on the rights protected by the Charter. Here the examination will be on the invasion into one’s privacy and whether one had given evidence in a self-incriminatory situation. Third, the interest of society in the adjudication of the case on its merit. Here the reliability of the evidence in light of the severity of breach will be tested, which is more of the utilitarian test.

In this case, though the Court ruled on breach of respondent’s Charter Rights but still admitted the evidence of firearm as there was no evidence indicating that admission of gun would led to miscarriage of justice as evidence which weighs more on society’s benefit and less on violation of Charter rights of the accused was ruled to be admissible.