Post-Grant: Does It Even Matter?
In light of the extraordinary staying power of the SCC’s decision in Grant—the continuous discussions, winning the title of “Judgment of the Year”, and nearly sweeping the “Ozzys”—we’ve decided to revisit the case again and ask the question: Does it even matter?
Two months after Grant was released, my colleague Soloman Lam surveyed the new trial court jurisprudence. What he found was the test had not seemed to change much, with both R. v. Mahmood,  O.J. No. 3192 and R. v. Cook,  O.J. No. 3428 standing by previous decisions.
With almost a year’s worth of jurisprudence to scour since the Grant decision, we decided to revisit this question. What we have found is that Grant very much matters indeed.
The facts and tests of Grant can be found here or here. In order to determine whether the old and new tests produce different results, we have collected appellate decisions in which the court reviewed the s. 24(2) analysis in light of the new Grant framework. It is important to note that while we have attempted to review the basis for each decision, these results are often correlational, as the appeal can be allowed on a misapplication of the Collins test.
We first turn to R. v. Beaulieu, 2010 SCC 7. In this decision the Supreme Court held the trial judge’s reasons under the old test considered all the factors in the new test, and the outcome under either test remains the same, and therefore upheld the admission of evidence.
In R. v. Wong, 2010 BCAA 160 the Court of Appeal held that the trial judge had under the old test considered “all relevant circumstances” which accorded with the general principles of the Grant test to be a flexible test based on all the circumstances, and consequently upheld the exclusion.
In R. v. Ward, 2010 BCAA 1, the court upheld the admission of the evidence based on the judge’s finding the search “not particularly egregious”.
In R. v. Volk, 2010 SKCA 3 the court once again upheld the admission of the evidence.
In all the above cases, regardless of the application of the old Collins test or the new Grant test, the result was the same. It’s interesting to note that the majority of the cases, except for Wong, admitted the evidence.
However in R. v. Watt, 2009 MBQB 297, despite the court holding that the trial judge could come to his conclusion to admit under the new test, it directed a new trial to consider the effect of the breach and whether it was “egregious”. Apparently, according to the court, the weight given to the effect of the breach on the s. 24(2) analysis, would differ between the old and new analyses.
In R. v. Du, 2009 CanLII 39783 (Superior Court of Justice – Summary Conviction Appeal Court) the court overruled the trial judge’s finding under the old test to exclude the evidence as conscriptive evidence. It held instead that, under the new test, the exclusion of this evidence would have an adverse effect on the reputation of the justice system, and thus admitted the evidence.
In R. v. Imanse, 2010 BCSC 446 the trial judge excluded the evidence, holding it would adversely affect trial fairness and bring the administration of justice into disrepute. However, the Supreme Court of British Columbia held that an application of the Grant test would have produced a different result favouring admission since the breach was not serious. The court then ordered a retrial.
In R. v. Reddy, 2010 BCAA 11 the judge admitted the evidence at trial, finding that breach only moderately intrusive. On appeal, the court held under the new test the state infringing action was serious, and was done so when there was no legal uncertainty. Accordingly, the evidence was excluded to protect the repute of the justice system.
In R. v. Crocker, 2009 BCCA 388 the judge held that the series of acts by the police viewed cumulatively displayed serious misconduct which would bring justice into disrepute, and thus excluded the evidence. The court allowed the appeal under the new test, since the police did not display any bad faith and the minimal intrusiveness, and ordered a new trial.
Finally in R. v. Chehil, 2009 NSCA 111, the trial judge excluded the evidence under the old test, but the NS Court of Appeal found that the trial judge had erred in failing to consider the totality of circumstances. It therefore allowed the evidence.
It is interesting to note that, in the majority of the first series of cases, where the same result was achieved under both tests, the initial decision was to admit the evidence. Conversely, in the second series of cases, where the trial decisions were overruled, the majority of the decisions was to exclude the evidence.
Professor James Morton suggests that the recent Supreme Court decision of R. v. Beaulieu, 2010 SCC 7 indicates that a proper application of the old Collins test would survive a Grant analysis. In other words, we have come in a full circle. The Stillman analysis perverted the original Collins test, to the extent that conscriptive evidence became an instant bar. By stepping away from the Stillman analysis, under the Grant test a Collins-like result is reached.
However, only the case of Du dealt with conscriptive evidence. It would seem that other factors must account for this seemingly increased willingness to admit evidence. Under the third branch of the Grant test, the heavy emphasis on the public interest in the proper adjudication of the case on its merits may account for some of this. While inconclusive, it is arguable that, post-Grant, there is a greater willingness to admit evidence than even pre-Stillman.
While we only considered appellate decisions involving the application of both the old and new tests, it would be interesting to see whether, in the first instance, lower courts are displaying an increased tendency to admit evidence than under the Collins regime. One thing is for certain though, Grant definitely matters. To what extent, only time will tell.