In my last article, I began writing about when and why a trial judge throws out evidence in a criminal trial. In this article I will go through the 2009 Supreme Court of Canada case Regina v. Grant, which revamped the test for how judges are to decide whether evidence should be admitted or excluded.

Grant was arrested on November 17, 2003, in an area of Toronto with four schools and a history of student assaults, robberies, and drug offences occurring over the lunch hour. On the incident date, there were three police officers on patrol for the purposes of monitoring the area and maintaining a safe student environment. One of their primary tasks was to visit the schools to determine whether there were people on school property who didn’t belong there.

Grant was a young black man who was walking down the street when he came to the attention of the police. Const. Worrell said that Grant stared at them in an unusually intense manner while fidgeting with his coat and pants. Given his suspicious behavior and their purpose for being in the area, they decided to stop Grant and see what he was doing in the area.

Const. Gomes stopped Grant and stood on the sidewalk directly in Grant’s intended path. He asked Grant what was going on and requested his name and address. At one point in the interaction, the appellant was adjusting his jacket, prompting the officer to ask that he keep his hands in front of him. Soon after, the two other officers, Const. Worrell and Const. Forde, joined them and took up positions behind Const. Gomes, completely obstructing Grant’s way forward.

Const. Gomes asked Grant whether he’d ever been in trouble before and whether he had anything on him that he shouldn’t. Grant admitted to having a small bag of weed and a firearm. He was then arrested.

The Supreme Court of Canada found that Grant’s section 9 and 10(b) rights were breached—he was arbitrarily detained and he wasn’t given the opportunity to seek legal advice before making the statements. The court then changed the test with which judges are to decide whether to exclude evidence obtained as a result of a charter violation. A judge must consider:

1. the seriousness of the charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct),

2. the impact of the breach on the charter-protected interests of the accused (admission may send the message that individual rights count for little), and

3. society’s interest in the adjudication of the case on its merits.

With respect to item 1, the courts are concerned with whether admitting the evidence would send the message that serious state misconduct will simply be overlooked. The purpose is not to punish police officers for their mistakes but to ensure that the public is secure in knowing that the police are upholding the law. Trivial or inadvertent mistakes weigh more in favour of admitting evidence whereas wilful and intentional breaches do not.

With respect to item 2, the courts must ask how serious was the impact on the accused. With respect to item 3, the courts must weigh a number of factors. How serious is the offence, how reliable is the evidence, how necessary is it to the Crown’s case? Would the truth-seeking function of the criminal justice system be better served by the admission or exclusion of the evidence?

In the Grant case, the statements and the gun were ultimately admitted as evidence. The Supreme Court found that the officers were not acting in bad faith; they were acting in a time of legal uncertainty as to what their powers were on detention (the court made it quite clear that the actions of these officers in stopping Grant without legal cause would not be condoned in the future). The court found that the impact of Grant’s s. 9 rights being violated was not that serious, but the impact on his s. 10(b) rights was. Despite the significant impact on Grant’s charter-protected interests, the court held that the offence was serious and found that the administration of justice would not suffer with the admission of the evidence.

Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at straight.reasonable.doubt@gmail.com.

A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.