January 22, 2008
Contributors at TheCourt.ca have been closely following developments involving R v Grant since it was granted leave at the Supreme Court of Canada ("SCC") in June of last year. While the case is not scheduled to be heard until the end of April (and that date is merely tentative), some developments have arose in the past three weeks. Specifically, on January 2nd, Justice Rothstein granted four organizations leave to intervene on the case.
The organizations which have been granted leave are the federal government’s Director of Public Prosecutions, the Attorney General of British Columbia, the Canadian Civil Liberties Association, and the Criminal Lawyers’ Association (Ontario).
The case, which was recently discussed by Rebecca Ross in her December 17th post, involves an 18-year old male who appeared "suspicious" to police officers while walking near a school in Toronto’s Greenwood and Danforth area. The police officers approached and questioned him for about seven minutes. They asked if he “had anything that he shouldn’t." Acting honestly, the young man replied that he was carrying a small bag of marijuana. After the police probed further, he admitted to having a loaded firearm. He was immediately arrested.
Deciding the case will likely force the SCC to re-articulate the bounds of the right to be secure against unreasonable search (s. 8 of the Charter), the right not to be arbitrarily detained (s. 9), and the circumstances under which evidence can be excluded under s. 24 (2). Critics of Court of Appeal’s decision in R v Grant (see (2006), 81 OR (3d) 1) have argued that the case creates a firearms exception to the s. 24(2) exclusion rule; that is, firearms have become nearly impossible to exclude from evidence, even in the context of a serious Charter breach.
Obviously, the case raises many important issues of public policy and the SCC’s decision on the matter must be made in a way which recognizes that it will have implications impacting the interests of more than merely the parties involved. Consequently, granting these organizations intervener status will assist the SCC in understanding the broad social and political issues at stake.
Presumably, the Director of Public Prosecutions and the Attorney General of British Columbia will be supporting the position of the Attorney General of Ontario. The Canadian Civil Liberties Association and the Criminal Lawyers’ Association, on the other hand, will likely oppose the government’s position and argue that exclusion must be used as a tool to ensure law enforcement bodies investigate crimes while respecting the rights enshrined in the Charter.
All parties will be provided with limited space to make their arguments. The SCC has not yet decided whether to allow the interveners to present oral arguments and their written arguments will be limited to 10 pages. Nonetheless, their involvement will hopefully contribute to a decision which many of us at theCourt.ca are eagerly anticipating.
6 Comments
"After the police probed further, he admitted to having a loaded firearm.He was immediately arrested".
I think that this is a key issue here. What is actually meant by "probed further"? Did the police say "we're going to search you, so if you have something you better give it up"? Or did they just straight out ask the question.
I believe the difference to be that if the accused felt he was being detained and did not have the right to leave at the time he was approached by the police - then his admission to possesion of a firearm could be questionable. More to the point, once the accused first admitted to possesing a bag of marijuana, did the police make a decision to investigate further? If so, they should have detained the accused for the purpose of continuing with the investigation. The initial admission of the marijuana provided the reasonable and probable grounds for such an investigation. But the accused should have been afforded the benefit of charter rights.
In the progression of events described, it seems reasonable that the police were justified in approaching the accused in the first place, based on an observable behaviour that the police could describe, based on their training and experience, as suspicious. The initial questions asked also seem justified. But once the grounds were established to conduct the investigation the situation changes.
Detaining the accused and advising him of his rights does not interfere with the ability of the police to do their job. If the accused then refused to answer questions, the police could have arrested him for the possession of a controlled substance under the CDSA. The subsequent procedural search of the arrested individual would have revealed the weapon and the additional charge could have been then added. For that matter, even upon detaining the accused due to the RPG's established, a frisk for officer safety would have been appropriate, which again would have revealed the weapon. But because the police continued with questioning after establishing reasonable and probable grounds to believe an offence was committed, and because the accused correctly believed that he was not free to leave and was, in essence, detained without the benefit of sections 9 & 10 of the charter, there appears to be a clear violation of his rights.
I believe the SCC will come to a similar conclusion.
K Trudeau made the following statement:
"it seems reasonable that the police were justified in approaching the accused in the first place, based on an observable behaviour that the police could describe, based on their training and experience, as suspicious."
Laskin J.A. of the Court of Appeal of Ontario wrote at para. 30:
"As the police did not have reasonable grounds to detain him, the detention was arbitrary. Therefore the appellant’s constitutional right under s. 9 of the Charter was violated."
Even in this case, which did not advance the rights of the accused, the Court nevertheless found that the investigative detention was not justified.
R. v Mann
"The police cannot be said to "detain", within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview."
"The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference."
R. Clements will no doubt note that my assertion was that, based on the information given here, and on some assumptions that police were reacting based on noteable experience in the particular area and circumstances, the initial contact between police and Grant was justified and did not constitute an arbitrary detention.
However, once the admission of possession of marijuana was made, there can be no doubt that it became the intent of the police to detain. Again, the detention itself was not arbitrary, but the failure to inform Grant of his rights at that time demonstrates a violation of Grant's s. 10 charter protections.
Therefore, the evidence derived from questions asked after this point should be excluded.
In commenting on the factual situation in R v. Grant, K Trudeau opined:
"...based on the information given here, and on some assumptions that police were reacting based on noteable experience in the particular area and circumstances, the initial contact between police and Grant was justified and did not constitute an arbitrary detention."
I think K Trudeau is incorrect (and so does, as noted in my first response, the Court of Appeal of Ontario).
Yes, R v. Mann does tell us that it may not constitute detention within the meaning of s.9 every time the police stops someone for the purpose of identification or interview. I am not sure how this single statement supports K Trudeau's contention that Mr. Grant was not in fact detained.
Indeed, Laskin J.A. was alive to the concern addressed in R v. Mann: “the potential for abuse inherent in such low-visibility exercises of discretionary power”. The Court went on to note that although the case was a "close one", the test for psychological detention (including the necessary degree of compulsion) was met and that "the appellant was detained contrary to s. 9 of the Charter during the police’s questioning of him, even before he admitted to possession of marijuana."
When K Trudeau states "based on the information given here" one wonders whether he is engaged in a post facto analysis so clearly rejected by the Supreme Court of Canada in Hunter v. Southam. Let us be clear, what information was "given here" to provide the police with reasonable grounds to detain Mr. Grant?
- The two officers in an unmarked car drove past the appellant and "as they did so, he [Mr. Grant] "stared" at them in an unusual manner, and "fidgeted" with his coat and pants in a way that Worrell [one of the officers] found "just kind of a little bit, I guess, suspicious."
- The court also accepted that the police were "patrolling one of Toronto’s high-crime areas" and that "the area has four schools and a history of assaults, robberies, and drug offences occurring over lunch hour and involving students." (The appellant was not a student at any of these schools.)
K Trudeau's statement that the "police were reacting based on noteable experience in the particular area and circumstances", seems to be suggesting the the high crime nature of the areas plus "the information given here" (ie. Grant looked suspicious) should be enough to provide reasonable grounds for Grant's investigative detention. It is not.
In R v. Mann, Iacobucci J. held that "[T]he presence of an individual in a so-called high crime area is relevant only so far as it reflects his or her proximity to a particular crime. The high crime nature of a neighbourhood is not by itself a basis for detaining individuals." It should be clearly noted that the "information given here" did not include information about a "particular crime".
With respect to the investigative detention analysis in R v. Grant, it is clear that Laskin J.A.'s analysis - rather than K. Trudeau's - is more consistent with where this fledging law currently stands. I suppose, though, that K Trudeau reasoning may find support with those who make legal decisions on the basis of "images of horror and anguish the likes of which few could have imagined twenty-five years ago when the Charter first came to being".
(It should be noted that racial profiling may have also been part of the "information" that the police were reacting to.)
Nowhere in the Court of Appeal judgment is the race of Mr. Grant mentioned. The concluding comment of your correspondent, Mr. R. Clemens "It should be noted that racial profiling may have also been part of the “information” that the police were reacting to" suggests and I had inferred from the " crime scene" that Mr. Grant was black. Do you know whether this inference is correct. I am not asking you to post this query but if you know I would appreciate a response.
Thanks, you do a great job
Michael Jackson
Professor of Law UBC
I can confirm that Mr. Grant is indeed black.
Although racial profiling was not expressly alleged by trial counsel it is hard not to wonder what role race might have played, at least subconsciously, in convincing the detaining officers that Mr. Grant's rather innocuous conduct warranted further investigation.
It will be remembered that the behaviour that aroused police suspicion was the fact that when they drove past him Mr. Grant stared at the officers and fidgeted with his coat and pants.