R. v. Grant, 2009 SCC 32

In Grant, the Supreme Court of Canada revisited and revised the test laid out in R. v. Collins, [1987] 1 S.C.R. 265, increasing the standard for the exclusion of evidence set out in Section 24(2) of the Charter of Rights and Freedoms.

Three police officers had stopped and questioned the Appellant, Donnohue Grant, essentially on a hunch, detained him arbitrarily, and determined as a result of this arbitrary detention that he was in possession of a handgun and a small quantity of marijuana. The Supreme Court of Canada acknowledged that the detention was arbitrary and that Grant’s rights under Sections 8 and 9 of the Charter had been breached, but concluded that the severity of the breach was not sufficiently serious as to “bring the administration of justice into disrepute” if the evidence of the officers’ conversation with Grant was admitted.

Where the Collins decision emphasized the need to exclude evidence in cases where a clear Charter breach had occurred, Grant considered the question of whether any given Charter breach would “bring the administration of justice into disrepute,” and concluded that in the case at bar, the breach in question did not meet that standard.

In making this decision, the court employed largely utilitarian reasoning, concluding that protecting the rights of an individual accused was not necessarily an adequate reason to exclude evidence, and that evidence could only be properly excluded in cases where the overall fairness of the justice system was at issue. The fact that this reasoning was applied to a case where the “crimes” in question did not involve any individual victim demonstrates that the Grant decision wasn’t about re-balancing the rights of criminals vs. victims, but of individuals vs. the government.

This is a worrying trend in Canadian law, which will allow police to take increased liberties under the guise of “societal interest,” diminishing individual rights and allowing for the prosecution of individual citizens contrary to common law principles of justice and fair play.