Post-Grant: What the Lower Courts Are Doing
It’s no secret that we at TheCourt.ca are enthusiastic about s. 24(2) jurisprudence, having written a number of impassioned articles on the subject. Some of us on the staff waited with bated breach for the SCC’s decisions in Grant, Suberu and Harrison, which were finally released last July over a year after oral arguments were heard.
The SCC eliminated the three-prong Collins test for s. 24(2) and replaced it with a new three-prong Grant test. A trial judge must engage in and balance the following avenues of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; (3) and society’s interest in the adjudication of the case on its merits. The trial fairness branch of the now-defunct Collins test has been eliminated, and the old middle branch—a look at the seriousness of Charter breach—has essentially been split into two areas of analysis: the breach’s seriousness in relation to the state, and the breach’s seriousness in relation to the accused. Deschamps J.’s dissent was highly critical of the majority for placing new emphasis on state conduct, because it would imply that s. 24(2) is meant to deter state agents from engaging in unconstitutional behaviour (which is the rationale behind the American exclusionary rule). She pointed out that deterrence via the exclusion of evidence has never been proven empirically, and that the purpose of s. 24(2) is not state deterrence but to distance the administration of justice from disreputable activity and to maintain public confidence in the courts. Deschamps J. worried that the majority was effectively rewriting the purpose of s. 24(2).
TheCourt.ca‘s Daniel Del Gobbo also had reservations regarding the first and second branches of the new test,arguing that there is but an artificial distinction between the two since the state’s unconstitutional conduct is “usually ‘serious’ because it compromises the privacy and liberty interests of the accused.”
How subsequent trial judges deal with the blur between Grant‘s first and second avenues of inquiry remains to be seen. Although the SCC’s decision in Grant is less than two months old, LexisNexis Quicklaw reports that it has already been cited in twenty-four cases. Both the old and new tests for s. 24(2) give trial judges much leeway in deciding when to exclude evidence in the face of state misconduct, so we thought it might be interesting to examine how the trial courts have thus far interpreted the SCC’s reasons and applied the Grant test for s. 24(2).
Trial Courts Apply the New Test
Among the first cases to consider the new Grant formulation was the Ontario Superior Court of Justice’s judgment in R. v. Mahmood,  O.J. No. 3192, where three persons accused of robbing a jewelry store applied to have the court reconsider its decision to admit some unconstitutionally obtained evidence, in light of the new test for s. 24(2). The police had engaged in three searches: first, it gathered all cell phone tower records in the vicinity of the jewelry store; second, it accessed the accused’s cellphone records; and third, the police searched the accused’s home.
Based on the new s. 24(2) test, the court still did not alter its original decision, which was to exclude evidence of the first search but admit the fruits of the latter two searches. Like the SCC majority in Grant, the court took pains to emphasize that the purpose of s. 24(2) is to protect society’s confidence in the administration of justice, though “the deterrence of Charter breaches might become a happy result of the inquiry.” The court also implicitly drew a strong distinction between the first and second branches of the Grant test. Regarding the unreasonable search of all records from the cellphone tower near the jewelry store, the court wrote, “While the privacy protected interests of the accused was a low level one with respect to the Tower Dump Records, it is evident that … the breach [was] a very serious one.”
In R. v. Cook,  O.J. No. 3428, the Ontario Superior Court of Justice again stood by a previous decision to admit unconstitutionally obtained evidence. The court also reaffirmed that the first and second avenues of inquiry under Grant do not lead to the same conclusion. In this case, the court found that
“[t]he seriousness of the offending conduct on the part of the police, though not at the egregious end of the scale nor undertaken in bad faith, favours exclusion of the seized evidence. The minimal degree of intrusiveness on Mr. Cook’s s. 8 Charter right and the essentiality of the reliable evidence to proof of criminal allegations before the court, tends toward admission of the evidence.”
In R. v. Bruno,  A.J. No. 896, the police officer detained the accused for suspected impaired driving. After stopping the accused’s car and asking him to step out, the officer failed to provide the accused with his s. 10(b) rights until he had been arrested and placed in the back of the police cruiser. The court found that, in the interim, the officer accumulated additional evidence in support of his demand for a breath sample, including the accused’s alcohol stench and his stagger and lack of balance.
The Alberta Provincial Court found that the police officer had infringed the accused’s s. 10(b) right. The court held that “this breach would result in the Court being seen as associating itself with police misconduct,” emphasizing again the primary objective behind s. 24(2). The court found that the breach, which violated the principle against self-incrimination, was both serious on the police’s end (it had a clear obligation to refrain from questioning) and the accused’s end (he had a clear right to stay silent).
In all three trial decisions, the respective court found that the third branch of the new s. 24(2) analysis supported admitting unconstitutional evidence. Also interesting, and rather disappointing, is that the decisions do not wrestle with how to balance the three branches against each other. In each case, after examining whether each branch weighs in favour for or against admission of the evidence, the court makes a determination that borders on arbitrary.
It’s too early to tell what effect the new reformulation of the s. 24(2) analysis will have in trial hearings and whether the new test has really changed what evidence should be excluded and in what context. However, the above trial cases indicate that, at least for non-conscriptive evidence (a now-defunct term), the balancing act of s. 24(2) remains substantially the same post-Grant. This is likely McLachlin J.’s objective when she reformulated the test, as she was quite adamant that past s. 24(2) jurisprudence was still valid in the face of the new test.
Also, two concerns about the new test—(1) a trial judge’s decision under s. 24(2) will be guided more by the objective of state deterrence than by the objective of protecting the administration of justice’s reputation, and (2) that the first and second branches are conflatable—have so far been proved unfounded. Indeed, regarding the second concern, the fact that Grant‘s third avenue of inquiry seems to tip in favour of admission makes the distinction between the first and second branches even more important.