R v Grant: A Work in Progress

Despite TheCourt.ca having visited R v Grant several times, commenting on the appellate decision, its application in R v Harrison, and post-Grant jurisprudence, there has been little discussion of the actual decision itself, other than my colleague’s excellent critique of the majority’s new test. As the facts of Grant have been laid out before, we will restrict our comments to the judicial reasoning.


The public good is in nothing more essentially interested, than in the protection of every individual’s private rights. (Sir William Blackstone)

It is commonly posited that there exists an inherent tension between protecting individual rights in the face of furthering the public good. Such tensions become evident when the public good demands the truth of a crime, but where that truth was obtained in violation of Charter rights. Recognizing the paramountcy of constitutionally guaranteed rights, U.S. jurisprudence has developed an absolute protection for infringements of certain rights, including the right to silence and the right to counsel. This blanket protection, however, fails to realize the potentially far more important societal concerns that may be involved in any one case. As a result, the Canadian approach to the exclusion of evidence obtained in conjunction with a Charter infringement has been one of balancing the various societal interests to achieve a just result. Thus, when the societal interest in the proper adjudication of a case outweighs the societal interest in protecting constitutional rights, the evidence will not be excluded.

In R v Grant, [2009] 2 SCR 353 [Grant], the court reconsiders the proper approach to the s. 24(2) analysis, recognizing that the courts have been overly focused on “conscriptive” evidence and its effect on an individual’s rights. In departing from the legal foundations established in R v Collins[1987] 1 SCR 265 [Collins] and R v Stillman, [1997] 1 SCR 607 [Stillman], it is important to consider the revised legal framework developed by the court and whether, at long last, it gives the necessary efficacy to the words in s. 24(2). By developing its new approach, the majority clarifies the Collins test and ensures that emphasis is placed back on balancing all the various societal concerns.

In seeking to disentangle s. 24(2) from the heavy emphasis Stillman placed on individual rights, there is a very real concern that the majority places too much weight on society’s interest in the justice system and fails to consider competing social interests. As Deschamps J. points out in her separate concurring reasons, the majority’s tests are too narrowly formulated and fail to consider society’s interests in the protection of constitutional rights. Thus, while Grant seems to take a step in the right direction, there appears to be some distance to go.

Per the Majority

McLachlin C.J. begins with a purposive approach to s. 24(2), which states:

24.(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

She notes that the “administration of justice” encompasses maintaining the rule of law and upholding Charter rights in the justice system as a whole. The concern with bringing the “administration of justice into disrepute” is a societal concern, in the long-term sense of promoting the integrity of, and public confidence in, the judicial system. Section 24(2) is not concerned with punishing the police, compensating the accused, or remedying any breach that may have occurred. By occurring, the breach has already damaged the justice system. The concern now is that the exclusion or admission of the evidence obtained in connection with the infringement should not cause a reasonable person, who understands the underlying values of the Charter, to conclude that the administration of justice is brought into disrepute.

Having determined the purpose of s. 24, McLachlin C.J. points to three factors which would have a bearing on the repute of the administration of justice: (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter rights of the accused, and (3) society’s interest in the adjudication of the case on its merits. The Court must balance all these factors to determine whether the admission of the impugned evidence would bring the administration of justice into disrepute.

Since such tests are not capable of mathematic precision, it is the task of the trial judge to weigh each group of factors in coming to his or her determination. In this case, the impact of the breach weighs in favour of the evidence’s exclusion, while the public interest in its adjudication favours its admission. Since the police acted in circumstances of legal uncertainty, the third test tips the balance towards the admission of the evidence. Accordingly, the majority defers to the lower court’s admission of the evidence.

The formulation of McLachlin C.J.’s third line of inquiry is somewhat puzzling. It would be hard to imagine a scenario where the exclusion of evidence would better serve the truth-finding process of the judicial system. The only situation where that may occur is where the evidence is unreliable, and thus does not help ascertain the truth. Yet the common law has developed checks and balances in order to ensure the reliability of admissible evidence. Indeed, the example that McLachlin C.J. gives regarding compelling a suspect to talk would be protected by the common law confession rule. Insofar as reliability goes, therefore, it is not necessary to rely on s. 24(2) in order to exclude unreliable evidence.

Consequently, the third line of inquiry established in Grant will always support the admission of the evidence. There are simply no factors to the contrary. The only bearing on its exclusion would be if the evidence had little to no importance for the prosecution’s case. However this can be addressed as a threshold issue without recourse to a third line of “inquiry.”

Finally if one looks at the actual wording of s. 24(2), it provides that “the evidence shall be excluded” if the admission of the evidence “would bring the administration of justice into disrepute.” Since the Court is willing to depart from Collins, it might as well tear the entire foundation down. These three lines of inquiry could perhaps better be formulated as two tests for determining whether the admission of justice would be brought into disrepute. The third factor already exists as a point in favour of admitting the evidence, since it would further the truth finding process. The one exception would be where the evidence is not important to the prosecution’s case, in which case its inclusion does not help the process.

Since there is already a point in favour of admission of the evidences, in order to show that its admission will bring the justice system into disrepute the judge would need to be satisfied both tests lean towards the exclusion of the evidence. If the state action is improper, but there has not been a substantial impact on the accused’s Charter rights, then the evidence should be admitted. Since there was no substantial impact on Charter rights, the public can still feel confident that improper state action that is not “procedural” in nature but has serious impact on Charter rights will not be condoned. The fundamental concern is society’s interest in protecting constitutional rights; preventing improper state action is merely one method by which to achieve that objective. Likewise, if there has been a substantial impact on the Charter rights but the improper police action was inadvertent, public confidence in the judicial system will be maintained since the rights are still protected against intentional state action.

Per Deschamps J.

In her separate concurring reasons, Deschamps J. takes issue with the majority’s formulation of the framework for applying s. 24(2). While agreeing that a new test needs to be developed, following the wayward application of the Collins test, she takes issue with the majority’s approach. Deschamps J. identifies the same overall goals that s. 24(2) strives to achieve, namely the long-term societal interest in maintaining public confidence in the administration of justice. However she argues that the majority’s proposed formulation fails to sufficiently consider the long-term societal interest in the protection of constitutional rights, and is overly focused on the conduct of the police and the interests of the individual accused.

Deschamps J. goes on to say what is important in the public interest is the protection of constitutional rights. Accordingly, the greater the impact on Charter rights, the more likely it is to bring justice into disrepute. She posits, however, that state conduct should be one factor taken into consideration in determining the impact of Charter rights but should not be a distinct test to consider. If there is a serious violation of Charter rights, then to preserve public confidence the Court must disassociate itself from the impugned conduct regardless whether or not it was intentional.

By submerging the majority’s first test of state conduct into a consideration of the impact of the breach on Charter rights, Deschamps J. underestimates the importance of its effect. Even if the test is only concerned with society’s interests in the protection of Charter rights, the seriousness of the state action plays an important role in the public’s perception of the Charter protection. By placing little emphasis on state action, Deschamps J. discounts the extent of its effects on the administration of justice. Nonetheless, she raises a valid point that the majority’s first two tests are inextricably intertwined to the extent of society’s interest in the protection of Charter rights.

The second point of contention Deschamps J. raises involves the consideration of the seriousness of the offence. Since the role of the courts is to determine the truth in a fair process, society likely has a far greater interest in ensuring that truth is met when the stakes are the highest, or where the crime is most serious. One can understand the public being less concerned about a speeding ticket not enforced than a serial rapist being allowed to walk. Conversely, where the offence is most serious, improper state action will have the largest impact on the accused’s rights.

As a result, Deschamps J. suggests a simple test that involves balancing society’s interest in the impact of the violation on Charter interests with society’s interest in the adjudication of the case on its merits. While the first branch favours the exclusion of the evidence, the second would generally support admission of the evidence. Once the judge has considered all the factors in each branch, he has discretion in determining whether the admission of the evidence would bring justice into disrepute. Applying this test to the case at bar, Deschamps J. concludes that the limited impact on the accused’s Charter rights coupled with the great importance of the evidence favours the admission of evidence.


It seems apropos that McLachlin C.J., after dissenting in Stillman, writes for the majority of the Court and incorporates many of the same arguments. One wonders, however, whether the jurisprudence that has evolved since Collins is trapping the court in a similar mindset. While the majority decision addresses many of the flaws that flowed from the application of the Collins test, it is not without its failings. In particular, the third test as articulated by the majority does not seem to be context dependent and would argue for the admission of the evidence every time. As a result there is little balancing of factors within the third test, and any determination will rest on the outcome of the first two tests. In addition, as Deschamps J. points out, the majority seems to balance the societal interest in the adjudication of the case against individual actions and rights, rather than the societal interests in protecting those rights. One could do worse than heed Blackstone’s statement, cited above, as to what constitutes the public good.

The simplicity of the approach by Deschamps J. has a certain appeal. On the other hand, one wonders whether such an approach truly captures the various factors in the competing social interests. By bundling state actions as only one factor in considering the impact of the breach, Deschamps J. seems to imply that it would be possible to exclude the evidence even when the police impropriety is not serious.

It remains to be seen how effective the revised framework will be in balancing the competing social interests in deciding whether to exclude the evidence. It is a unanimous court that identifies the purpose of s. 24(2); all that remains now is the application of those principles. As we have seen since Collins, however, that is easier said than done.

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