Grant, Harrison, Suberu and Shepherd: Where do we go from here? [How about: “Back to Basics”] presented by Peter Rosinski

Section 9 Charter “Detention” Spectrum – Grant [2009] No. 32 (July 17, 2009) Complete freedom of choice/movement Delayed movement (not “detention”) Uncertain freedom of choice/movement “Detention” (psychological or physical) Arrest** [General questioning* or requests for information which may lead to “focussed suspicion”] – Grant: paras. 41 and 49 Generally requires (statutory or Mann [2004] 3 SCR 59 Common law basis for) “reasonable suspicion” to be lawful detention – Grant: paras – which may lead to “focussed interrogation” – Suberu: para. 29 Reasonable grounds * Not every interaction with police will amount to a s.9 “detention” – Suberu [2009] SCJ No. 33, para. 23, however, the s.7 Charter Right to silence operates through the detention spectrum. ** See STP v Canada (D.P.P.) [2009] NSJ, No. 378 (CA) where MacDonald CJNS sets out the parameters of arrest under s.495(1)(b) Criminal Code “finds committing” an offence – paras Complete state control of movement (s.10 Charter rights triggered)

“Detention” “The purpose of s.9, broadly put, is to protect individual liberty [psychological and physical freedom of choice] from unjustified state interference” Grant – para. 20 Detention

Summary 1.Detention under ss.9 and 10 of the Charter refers to a suspension of the individual’s liberty 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 deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors: Detention

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. Grant: para. 44 Detention

“Arbitrary” Detention Detention will be “arbitrary” unless it is authorized by non-arbitrary law [statute or “investigative detention” common law police powers – Mann [2004] 35 SCR 59], and that law is carried out in a non-arbitrary manner, or the detention carried out is permitted exceptionally by s.1 Charter justification. Grant: paras Detention

Section 24(2) Charter The purpose of s.24(2) is “to maintain the good repute of the administration of justice.” Grant: para. 67 Section 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 being the administration of justice into disrepute.

OLD (FSE) Collins/Stillman Paradigm Possibly Make Three Enquiries NEW (SIS) Grant Paradigm Must Make Three Enquiries 1. Will admission of the evidence undermine the fairness of the trial by effectively conscripting the Accused against themselves? [Generally for non-discoverable conscriptive evidence, it’s excluded presumptively on the basis of its fatally undermining trial fairness in which case steps 2 and 3 need not be considered. 1. Consider the seriousness of the Charter – infringing conduct [from inadvertent to wilful/reckless violations] Section 24(2) Charter

OLD (FSE) Collins/Stillman Paradigm Possibly Make Three Enquiries NEW (SIS) Grant Paradigm Must Make Three Enquiries 2. Consider the seriousness of the Charter breach 2. Consider the impact of the Charter breach on the Charter protected interests of the Accused [“discoverability” remains relevant to assess “the extent to which the breach actually undermined the interests protected by the right infringed” – paras. 76 and 122 Grant]. Section 24(2) Charter

OLD (FSE) Collins/Stillman Paradigm Possibly Make Three Enquiries NEW (SIS) Grant Paradigm Must Make Three Enquiries 3. Consider the effect of excluding the evidence on the long term repute of the administration of justice? Grant: paras Consider society’s interest in an adjudication on the merits [“reliability” of the evidence is an important factor regarding the truth finding aspect of adjudication - Grant: para. 81] And then: “Whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into dispute”? Grant: para. 85 Section 24(2) Charter

S.24(1) Charter Exclusion of Evidence – Bjelland [2009] SCJ No. 38 (July 30, 2009) S.24(1) – “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied, may apply to a Court of competent jurisdiction to obtain such remedy as the Court considers appropriate and just in the circumstances.” Purpose of s.24(1) is to safeguard the fairness of the trial process and/or the integrity of the justice system [paras 19, and 26] S.24(2) not applicable because in cases of late disclosure, the evidence was not “obtained in a manner that infringed or denied” Charter rights. Section 24(1) Charter

Under s.24(1) Accused must demonstrate: A - breach of s.7 Charter right to full answer and defence i.e. (i)Actual “material” prejudice to their ability to make full answer and defence – paras. 21 and 26 (ii)On balance of probabilities. B – and that late disclosure: EITHER renders the trial process unfair such that the “unfairness cannot be remedied” through other remedies (eg adjournment and disclosure order) OR that the exclusion of evidence is “necessary to maintain the integrity of the justice system” – para. 24 Section 24(1) Charter

Apples and Oranges – Case Comparisons Grant [2009] SCJ No. 32 Harrison [2009] SCJ No. 34 Suberu [2009] SCJ No. 33 Shepherd [2009] SCJ No. 35