Section 8 of the Canadian Charter of Rights and Freedoms (the “Charter”) protects Canadians against unreasonable search and seizure. But what happens when law enforcement collects evidence in a manner that violates an accused’s Charter rights? Is that evidence nevertheless admissible? In 2009, the Supreme Court of Canada set out a test in R. v. Grant for analyzing whether such evidence ought to be excluded as provided by s. 24(2) of the Charter. Now, in 2021, the Supreme Court has had the opportunity to revisit the test again in R. v. Reilly.

The Grant Test: Exclusion of Evidence

In R. v. Grant, the Supreme Court recognized the important purpose of section 24(2) of the Charter: to maintain the good repute of the administration of justice. A section 24(2) analysis considers whether, in the long term, the overall reputation of the justice system will be adversely affected by the admission of the evidence. The inquiry is an objective one, asking whether a reasonable person in the circumstances would conclude that the administration of justice would be brought into disrepute by the admission of the evidence.

In light of this overarching purpose, the Supreme Court developed the following test, now known as the Grant test. That is, once state conduct is found to have infringed a Charter right, the court is required to apply the following three factors to “assess and balance the effect of admitting the evidence on society’s confidence in the justice system.” The Court must consider:

  1. The seriousness of the Charter-infringing state conduct (admission of the evidence may send the message the justice system condones serious state misconduct).
  2. The impact of the breach on the Charter protected interests of the accused (admission of the evidence may send the message that individual rights count for little).
  3. Society’s interest in the adjudication of the case on its merits.

Application of the Grant Test in R. v. Reilly

In R. v. Reilly, the police were investigating two separate armed robberies they believed to be linked. After arresting an individual who named the accused as having been involved, the police attended the accused’s residence. When the accused did not present himself at the door for a curfew check as required by a probation order, the police entered through an unlocked rear sliding door. The police knocked on the accused’s bedroom door and arrested him. The police then performed a clearing search of the residence and observed evidence related to the robberies. The police obtained a search warrant in part based on observations from the clearing search. Based on this evidence, the appellant was convicted of six counts of robbery and firearms offences. The accused applied for a notice seeking an order to exclude evidence under s. 24(2) of the Charter as a result of the section 8 rights violations in the unlawful arrest and searches. While the accused also raised the issue of the validity of the Information to Obtain and the related search warrant, the courts agreed that the search warrant was validly issued. As a result, the search warrant’s validity was not an issue raised before the Supreme Court.

Trial Judge finds the Accused’s Section 8 Charter Right had been Breached

In applying the Grant Test, the trial judge found that the accused’s section 8 Charter right had been breached. The judge, however, found that while the police conduct in entering the accused’s residence was serious, the constable’s conduct was not expressly approved by a senior office so the “overall state conduct” did not fall at the serious end of the spectrum. Likewise, while the warrantless entry was unjustified, it was not “profoundly intrusive” as the police did not actually seize property or intrude on the accused’s dignity. The Court further found that society’s interest in adjudicating the case on its merits favoured the inclusion of evidence, as it was reliable and could have a significant impact on the case. Given this analysis, the Court concluded that the inclusion of the evidence would not bring the administration of justice into disrepute.

B.C. Court of Appeal finds Police Misconduct was Wilful and Serious Necessitating the Exclusion of Evidence

The British Columbia Court of Appeal found that the trial judge failed to correctly assess the seriousness of the Charter-infringing conduct and also failed to weigh the Grant factors properly. The trial judge analyzed each step of the Grant Test and drew a separate conclusion to each question, however, the Grant Test requires an overall weighing and balancing of the factors at the end of the inquiry of all three. In balancing all three factors together, the B.C. Court of Appeal held that “the police misconduct was wilful and so serious” that it was necessary to exclude the evidence obtained.

SCC states Trial Judges Cannot Choose which Charter-Infringing State Conduct to Consider

In a unanimous decision by the Supreme Court, the justices affirmed the findings of the B.C. Court of Appeal. In conducting its own section 24(2) analysis, the Supreme Court found that conducting the balancing analysis within just the first two Grant Test factors would “water down any exclusionary power these factors may have,” thus undermining the application and purpose of section 24(2).

The Supreme Court further noted that the trial judge failed to consider the seriousness of the conduct of the clearing search in weighing the police misconduct, stating that “trial judges cannot choose which relevant Charter-infringing state conduct to consider.”

SCC affirms Grant Test Must be Applied with Rigour to Protect Charter Values

This analysis by the Supreme Court reaffirms the structure and importance of the Grant Test and that it should be applied with rigour in order to protect Charter values. It further suggests that courts should consider all three factors of the Grant Test and conduct a final balancing analysis to protect individual liberties and uphold section 8 Charter rights.

Contact the Criminal Lawyers at Hicks Adams LLP in Toronto if you feel your Charter Rights have been Violated

At Hicks Adams LLP in Toronto, our criminal lawyers are experienced in defending against state misconduct and upholding your immutable Charter rights. We know how to respond to improper searches and are here to ensure your personal liberties are protected. Contact Hicks Adams LLP to discuss your rights and how we may assist you in defending them. Call us at 416-975-1700 or contact us online to schedule a confidential consultation.