R. v. Grant: Detention and When Evidence Is Excluded
If police violate your Charter rights, the evidence they find is not automatically thrown out. Section 24(2) of the Charter says evidence is excluded if admitting it would bring the administration of justice into disrepute. R. v. Grant, 2009 SCC 32, is the leading case on how courts decide that, and on when a person is detained.
- You are detained if you are physically restrained, or if a reasonable person in your position would conclude you had no choice but to comply.
- Detention triggers the right to be told why and the right to counsel.
- Courts weigh three things before excluding evidence: how serious the police conduct was, its impact on the accused's rights, and society's interest in a trial on the merits.
- There is no automatic rule: each case is weighed on its facts.
The case
Donnohue Grant, then 18, was walking in Toronto when three officers approached. One stood in his way and told him to keep his hands in front of him, while the others stood behind. When asked if he had anything he shouldn't, he said he had a small bag of marijuana and a firearm. The Supreme Court found he had been psychologically detained before he answered, so his rights had been breached. But it admitted the gun, considering that the officers had not acted in bad faith, the law on detention had been unclear, and the gun was reliable evidence.
When are you detained?
- Being stopped and questioned is not always detention.
- Courts look at how the encounter looked to a reasonable person: what was said, how many officers there were, where it happened, and the person's age and circumstances.
- Once detained, you must be told the reason promptly and informed of your right to a lawyer.
The three Grant factors
- The seriousness of the Charter-infringing conduct: deliberate or reckless breaches weigh towards exclusion; minor, good-faith errors less so.
- The impact on the accused's Charter-protected interests: a strip search or a home entry has more impact than a brief stop.
- Society's interest in adjudication on the merits: reliable, important evidence weighs towards admission.
Licensed paralegals in Ontario can defend provincial offences, such as Highway Traffic Act charges, and some less serious summary conviction criminal matters permitted by the Law Society. More serious criminal charges need a criminal lawyer.
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This article is general information for people in Ontario, not legal advice. Rules, forms and deadlines change, and every situation is different. Check the current rule or speak to a licensed legal professional before you act.
Not sure where you stand? A licensed paralegal can look at your documents and tell you your options.
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