Friday’s Supreme Court of Canada Judgments: For Civil Libertarians, Like a Breath of Fresh Air

On Friday the Supreme Court of Canada released judgments in four eagerly awaited criminal Charter cases: R. v. Grant, 2009 SCC 32; R. v. Harrison, 2009 SCC 34; R. v. Shepherd, 2009 SCC 35; and R. v. Suberu, 2009 SCC 33.

Although much of the media coverage has focused on the results, ultimately the Court found no Charter violation in either Shepherd or Suberu, affirmed the decision below to admit into evidence an unconstitutionally obtained handgun in Grant, and excluded the cocaine at issue in Harrison. By the numbers, that looks like a 3 to 1 victory for the state over the individual accused, and an unmitigated victory for crime control over due process.

A closer consideration of the judgments, however, reveals a far more nuanced and optimistic outcome for those who worry equally about civil liberties.

Of the four, Friday’s key decision was undoubtedly Grant. Despite the Court’s decision to admit the handgun in that case, a closer reading of the judgment reveals that proponents of due process have much to celebrate.

Section 9 of the Charter

First, the Court has finally seized the opportunity to identify the underlying purpose of s. 9, the right not to be arbitrarily detained or imprisoned.  They have never done this before, even though s. 9 has been before them on countless occasions. The Court recognized, quite correctly I think, that the purpose of this important Charter guarantee is to protect our liberty from unjustified interference by the state. With that purpose in mind, the Court went on to revisit the meaning of “detention”, which is the legal event that triggers the protection afforded by this constitutional guarantee.

In its judgment, the Court re-affirms the core of its earlier precedent in R. v. Therens, [1985] 1 S.C.R. 613, while also providing much-needed and very practical guidance on when a police-citizen encounter will constitute a “detention”. In a very useful summary that should undoubtedly find its way into police training manuals, the majority explains at para. 44 that:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

The reference in 2(c) to the individual’s “minority status” is an undoubted and welcome recognition by the Court that members of certain visible minority communities have been policed differently in the past, and that their unique experience in being targeted for increased scrutiny will understandably influence their perception of a police encounter and ought to be taken into account in assessing whether or not they were “detained” for Charter purposes.

Applying these criteria, the Court concluded that young Mr. Grant was indeed “detained” when he was intercepted by three police officers, one in uniform blocking his way to the front, with two standing by just behind him, asked for his name and address, told “to keep his hands in front of him” and then subject to a series of questions that resembled an interrogation.

Recognizing a new s. 24(2) exclusionary framework

With respect to s. 24(2), which was the other major focus of its ruling, the Court essentially rewrites the rules from its earlier – and much criticized – judgments in R. v. Collins, [1987] 1 S.C.R. 265 and R. v. Stillman, [1997] 1 S.C.R. 607.

This new approach is a considerable improvement over Stillman, and the insurmountable confusion that was created by that judgment’s “conscripted” vs. “non-conscripted” evidence categorization.

In Grant, in deciding whether or not the admission of evidence could bring the administration of justice into disrepute (the language from s. 24(2)) the Court favours a more robust balancing approach, which sensibly requires a consideration of: (1) the seriousness of the Charter infringing state conduct, (2) the impact of the breach on the Charter protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits. Under this approach, unlike Stillman, no single factor is controlling and no particular type of evidence is privileged for exclusion or admission.

Hopefully, lower court judges will see past the result in Grant, in which the Court admits the handgun. The Court was careful to explain that it was doing so in large part because the demarcating line between permissible police-citizen encounters and constitutionally prohibited arbitrary detentions was unclear prior to its judgment in Grant. In other words, the officers in Grant were to be forgiven for making an honest mistake in navigating this confusing area of the law. In fact, the Court was careful to point out in Grant that the decision to admit the handgun was a “close case”. Thankfully, the Court’s judgment in Grant now clarifies much of that confusion, which is why the Court makes a point of noting, at para. 133:

We add that the Court’s decision in this case will be to render similar conduct less justifiable going forward. While police are not expected to engage in judicial reflection on conflicting precedents, they are rightly expected to know what the law is.

In future, police officers who do what the officers did in Grant can expect that the fruits of their unconstitutional efforts will be excluded.

In short, even though the Court admitted the handgun in this case, it has sent a very strong and clear message to the police: Police officers, know and obey the law. If you exceed the established limits on your legal authority and happen to acquire evidence in the process, you will not be rewarded. To the contrary, the courts will disassociate themselves from deliberate violations of Charter rights by excluding the fruits of their unconstitutional efforts. They will do so, even in cases involving serious crimes (i.e. the exclusion of a very large quantity of cocaine in Harrison).


These judgments are a real breath of fresh air for those of us who are concerned about civil liberties and what has been a noticeable trend in lower courts, as of late, towards the admission of unconstitutionally obtained evidence.

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