R. v. Grant (D.), (2009) 391 N.R. 1 (SCC)

JudgeMcLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
CourtSupreme Court (Canada)
Case DateApril 24, 2008
JurisdictionCanada (Federal)
Citations(2009), 391 N.R. 1 (SCC);2009 SCC 32;[2009] CarswellOnt 4104;[2009] 2 SCR 353;193 CRR (2d) 1;97 OR (3d) 318;309 DLR (4th) 1;245 CCC (3d) 1;66 CR (6th) 1;391 NR 1;[2009] CarswellOnt 4105;AZ-50566222;EYB 2009-161617;JE 2009-1379;[2009] SCJ No 32 (QL);[2009] ACS no 32;253 OAC 124;82 MVR (5th) 1

R. v. Grant (D.) (2009), 391 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] N.R. TBEd. JL.067

Donnohue Grant (appellant) v. Her Majesty The Queen (respondent) and Director of Public Prosecutions of Canada, Attorney General of British Columbia, Canadian Civil Liberties Association and Criminal Lawyers' Association (Ontario) (intervenors)

(31892; 2009 SCC 32; 2009 CSC 32)

Indexed As: R. v. Grant (D.)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

July 17, 2009.

Summary:

An accused was convicted of possession of a loaded, prohibited firearm (Criminal Code, s. 95(1)), unauthorized possession of a firearm (s. 92), possession of a firearm for the purpose of transferring it (s. 100(1)), carrying a concealed weapon (s. 90(1)) and possession of a firearm knowing that the serial number had been removed (s. 108(1)). The s. 92 conviction was stayed. The accused was sentenced to a total of 18 months' imprisonment, reduced to 12 months for 92 days of pretrial custody, and three years' probation. The accused appealed the convictions and sentence.

The Ontario Court of Appeal, in a decision reported at 213 O.A.C. 127, dismissed the appeals. The accused appealed the dismissal of his conviction appeal. At issue was whether the police arbitrarily detained the accused contrary to s. 9 of the Charter and whether they failed to advise him of his right to speak to a lawyer contrary to s. 10(b). Alternatively, if he was not detained, the accused asserted that the Court of Appeal erred in finding that there was no violation of his s. 8 right to be protected against unreasonable search and seizure.

The Supreme Court of Canada allowed the appeal on the s. 100 charge and entered an acquittal, but dismissed the appeal on the other counts. The court set out the test for determining at what point a person was detained for the purpose of ss. 9 and 10 of the Charter and revised the test for determining whether evidence obtained as a result of a Charter breach should be excluded under s. 24(2).

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The Supreme Court of Canada stated that "Section 9 [of the Charter] serves to protect individual liberty against unlawful state interference. A lawful detention is not arbitrary within the meaning of s. 9 ... unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9. ... Earlier suggestions that an unlawful detention was not necessarily arbitrary ... have been overtaken by [R. v. Mann (P.H.)] in which this Court confirmed the existence of a common law police power of investigative detention. The concern in the earlier cases was that an arrest made on grounds falling just short of the 'reasonable and probable grounds' required for arrest should not automatically be considered arbitrary in the sense of being baseless or capricious. Mann, in confirming that a brief investigative detention based on 'reasonable suspicion' was lawful, implicitly held that a detention in the absence of at least reasonable suspicion is unlawful and therefore arbitrary within s. 9. ... it should now be understood that for a detention to be non-arbitrary, it must be authorized by a law which is itself non-arbitrary. We add that, as with other rights, the s. 9 prohibition of arbitrary detention may be limited under s. 1 by such measures 'prescribed by law as can be demonstrably justified in a free and democratic society'" - See paragraphs 54 to 56.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The Supreme Court of Canada stated that "The purpose of s. 9 [of the Charter], broadly put, is to protect individual liberty from unjustified state interference. As recognized by this Court in Blencoe v. Human Rights Commission (B.C.) et al. ... 'liberty', for Charter purposes, is not 'restricted to mere freedom from physical restraint', but encompasses a broader entitlement 'to make decisions of fundamental importance free from state interference' ... Thus, s. 9 guards not only against unjustified state intrusions upon physical liberty, but also against incursions on mental liberty by prohibiting the coercive pressures of detention and imprisonment from being applied to people without adequate justification. The detainee's interest in being able to make an informed choice whether to walk away or speak to the police is unaffected by the manner in which the detention is brought about. ... More specifically, an individual confronted by state authority ordinarily has the option to choose simply to walk away ... Where this choice has been removed - whether by physical or psychological compulsion - the individual is detained. Section 9 guarantees that the state's ability to interfere with personal autonomy will not be exercised arbitrarily. Once detained, the individual's choice whether to speak to the authorities remains, and is protected by the s. 10 informational requirements and the s. 7 right to silence. " - See paragraphs 20 and 21.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The Supreme Court of Canada in discussing the meaning of "detention" under ss. 9 and 10 of the Charter, stated that "Another often-discussed situation is when police officers approach bystanders in the wake of an accident or crime, to determine if they witnessed the event and obtain information that may assist in their investigation. While many people may be happy to assist the police, the law is clear that, subject to specific provisions that may exceptionally govern, the citizen is free to walk away ... Given the existence of such a generally understood right in such circumstances, a reasonable person would not conclude that his or her right to choose whether to cooperate with them has been taken away. This conclusion holds true even if the person may feel compelled to cooperate with the police out of a sense of moral or civic duty. ... In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation. Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel." - See paragraphs 37 and 38.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The Supreme Court of Canada stated that "The language of ss. 9 and 10 [of the Charter] is consistent with this purpose-based approach to detention. The pairing of 'detained' and 'imprisoned' in s. 9 provides textual guidance for determining where the constitutional line between justifiable and unjustifiable interference should be drawn. 'Imprisonment' connotes total or near-total loss of liberty. The juxtaposition of 'imprisoned' with 'detained' suggests that a 'detention' requires significant deprivation of liberty. Similarly, the words 'arrest or detention' in s. 10 suggest that a 'detention' exists when the deprivation of liberty may have legal consequences. This linguistic context requires exclusion of police stops where the subject's rights are not seriously in issue." - See paragraph 29.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The Supreme Court of Canada stated that "1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest 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 been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors: 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." - See paragraph 44.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - Two plainclothes police officers noticed the accused walking in a suspicious manner - They asked a nearby uniformed officer (Gomes) to have a "chat" with him - Gomes stood in the accused's path, told him to keep his hands in front of him and began questioning him - The two plainclothes officers arrived, showed their identification and stood behind Gomes - Every time that the accused moved, Gomes moved to maintain their relative positions - After asking for identification, Gomes asked the accused if he had ever been arrested and whether he was carrying anything illegal - The accused admitted that he had marijuana and a loaded revolver - The police arrested the accused and seized the revolver - The Supreme Court of Canada concluded that the accused was detained from the point that he was told to keep his hands in front of him - The encounter developed into the accused being singled out as the object of particularized suspicion - The nature of the questioning changed from ascertaining the accused's identity to determining whether he "had anything that he shouldn't" - The encounter took on the character of an interrogation, going from general neighbourhood policing to effectively taking control over the accused and attempting to elicit incriminating information from him - It was inherently intimidating - The power imbalance was exacerbated by the accused's youth and experience - A reasonable person in the accused's position (18 years old, alone and faced by three larger policeman in adversarial positions) would have concluded that his or her right to choose how to act had been removed - The sustained and restrictive tenor of the officers' conduct reasonably supported the conclusion that they were putting the accused under their control and depriving him of his choice as to how to respond - See paragraphs 45 to 52.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Two plainclothes police officers noticed the accused walking in a suspicious manner - They asked a nearby uniformed officer (Gomes) to have a "chat" with him - Gomes stood in the accused's path, told him to keep his hands in front of him and began questioning him - The two plainclothes officers arrived, showed their identification and stood behind Gomes - Every time that the accused moved, Gomes moved to maintain their relative positions - After asking for identification, Gomes asked the accused if he had ever been arrested and whether he was carrying anything illegal - The accused admitted that he had marijuana and a loaded revolver - The police arrested the accused and seized the revolver - The Supreme Court of Canada concluded that the accused was detained from the point that he was told to keep his hands in front of him - The court stated that "s. 10(b) of the Charter required the police to advise [the accused] that he had the right to speak to a lawyer, and to give him a reasonable opportunity to obtain legal advice if he so chose, before proceeding to elicit incriminating information from him. Because he now faced significant legal jeopardy and had passed into the effective control of the police, the [accused] was 'in immediate need of legal advice' ... Because the officers did not believe they had detained the [accused], they did not comply with their obligations under s. 10(b). The breach of s. 10(b) is established." - See paragraph 58.

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - [See second Civil Rights - Topic 3604 and Civil Rights - Topic 4604 ].

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - [See second Civil Rights - Topic 3604 and Civil Rights - Topic 4604 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See second Civil Rights - Topic 3604 and Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada stated that "When faced with an application for exclusion under s. 24(2) [of the Charter], a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission 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 may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute." - See paragraph 71.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada stated that "The first line of inquiry relevant to the s. 24(2) [Charter] analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. ... This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter. ... State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute." - See paragraphs 72 to 74.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada, in discussing the first line of inquiry relevant to the s. 24(2) Charter analysis, stated that "Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach ... 'Good faith' on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith ... Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion." - See paragraph 75.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada, in discussing the second line of inquiry relevant to the s. 24(2) Charter analysis, stated that "This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. ... To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. ... The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. ... Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not." - See paragraphs 76 to 78.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada, stated that "... the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's 'collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law' ... Thus the Court suggested in [R. v. Collins (S.C.C.)] that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence." - See paragraph 79.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada, in discussing the third line of inquiry relevant to the s. 24(2) Charter analysis, stated that "... The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained ... is inconsistent with the Charter's affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence. ... This said, public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry. If a breach ... undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused's interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute. ... The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to 'balance the interests of truth with the integrity of the justice system' ... The court must ask 'whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial'" - See paragraphs 80 to 82.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada, in discussing the third line of inquiry relevant to the s. 24(2) Charter analysis, stated that ... The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry ... we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution. ... It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. ... In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus. ... The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high." - See paragraphs 83 and 84.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada set out three lines of inquiry for determining whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute within the meaning of s. 24(2) of the Charter - The court stated that "... the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits ... reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of 'all the circumstances' of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute. ... In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible. However, the preceding analysis creates a decision tree, albeit more flexible than the Stillman self-incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, a measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination." - See paragraphs 85 and 86.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada set out three lines of inquiry for determining whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute within the meaning of s. 24(2) of the Charter - The court considered the application of the test to statements by an accused - The court stated that "In summary, the heightened concern with proper police conduct in obtaining statements from suspects and the centrality of the protected interests affected will in most cases favour exclusion of statements taken in breach of the Charter, while the third factor, obtaining a decision on the merits, may be attenuated by lack of reliability. This, together with the common law's historic tendency to treat statements of the accused differently from other evidence, explains why such statements tend to be excluded under s. 24(2)." - See paragraphs 89 to 98.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada set out three lines of inquiry for determining whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute within the meaning of s. 24(2) of the Charter - The court discussed the application of the test to bodily evidence - The court set out concerns with a simple conscription test and concluded that a flexible, multi-factored approach was required, not only by the wording of s. 24(2), but by the wide variant between different kinds of bodily evidence - While each case had to be considered on its own facts, generally where an intrusion on bodily integrity was deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity was high, bodily evidence would be excluded, notwithstanding its relevance and reliability - On the other hand, where the violation was less egregious and the intrusion was less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body could be admitted - This would often be the case with breath sample evidence, whose method of collection was relatively non-intrusive - See paragraphs 99 to 111.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada set out three lines of inquiry for determining whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute within the meaning of s. 24(2) of the Charter - The court discussed the application of the test to non-bodily physical evidence - See paragraphs 112 to 115.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada set out three lines of inquiry for determining whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute within the meaning of s. 24(2) of the Charter - The court discussed the application of the test to derivative evidence and concluded that discoverability was no longer determinative - The court stated that "Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence. The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused's underlying interest against self-incrimination. The converse, of course, is also true. On the other hand, in cases where it cannot be determined with any confidence whether evidence would have been discovered in absence of the statement, discoverability will have no impact on the s. 24(2) inquiry. To determine whether the admission of derivative evidence would bring the administration of justice into disrepute under s. 24(2), courts must pursue the usual three lines of inquiry outlined in these reasons, taking into account the self-incriminatory origin of the evidence in an improperly obtained statement as well as its status as real evidence." - See paragraph 122.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada set out three lines of inquiry for determining whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute within the meaning of s. 24(2) of the Charter - The court discussed the application of the test to derivative evidence - The court stated that "The weighing process and balancing of these concerns is one for the trial judge in each case. Provided the judge has considered the correct factors, considerable deference should be accorded to his or her decision. As a general rule, however, it can be ventured that where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused's protected interests, the trial judge may conclude that it should be admitted under s. 24(2). On the other hand, deliberate and egregious police conduct that severely impacted the accused's protected interests may result in exclusion, notwithstanding that the evidence may be reliable. ... The s. 24(2) judge must remain sensitive to the concern that a more flexible rule may encourage police to improperly obtain statements that they know will be inadmissible, in order to find derivative evidence which they believe may be admissible. The judge should refuse to admit evidence where there is reason to believe the police deliberately abused their power to obtain a statement which might lead them to such evidence. Where derivative evidence is obtained by way of a deliberate or flagrant Charter breach, its admission would bring the administration of justice into further disrepute and the evidence should be excluded." - See paragraphs 127 and 128.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Two plainclothes police officers noticed the accused walking in a suspicious manner - They asked a nearby uniformed officer (Gomes) to have a "chat" with him - Gomes stood in the accused's path, told him to keep his hands in front of him and began questioning him - The two plainclothes officers arrived, showed their identification and stood behind Gomes - Every time that the accused moved, Gomes moved to maintain their relative positions - After asking for identification, Gomes asked the accused if he had ever been arrested and whether he was carrying anything illegal - The accused admitted that he had marijuana and a loaded revolver - The police arrested the accused and seized the revolver - The Supreme Court of Canada concluded that the accused's s. 9 and 10(b) Charter rights were breached - With respect to the s. 24(2) analysis, the gun constituted derivative evidence - Where the officers' conduct was neither deliberate nor egregious, the effect of admitting the evidence would not greatly undermine public confidence in the rule of law - The infringement of the accused's rights was significant, but not at the most serious end of the scale - The value of the evidence was considerable - Weighing these concerns, the court concluded that the courts below had not erred in concluding that the admission of the gun would not, on balance, bring the administration of justice into disrepute - The officers were operating in circumstances of considerable legal uncertainty - That tipped the balance in favour of admission - See paragraphs 129 to 140.

Civil Rights - Topic 8462

Canadian Charter of Rights and Freedoms - Interpretation - Purposive test - At issue was the interpretation of ss. 9 and 10 of the Charter - The Supreme Court of Canada, stated that "As for any constitutional provision, the starting point must be the language of the section. Where questions of interpretation arise, a generous, purposive and contextual approach should be applied. ... Constitutional guarantees such as ss. 9 and 10 should be interpreted in a 'generous rather than ... legalistic [way], aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection' ... Unduly narrow, technical approaches to Charter interpretation must be avoided, given their potential to 'subvert the goal of ensuring that right holders enjoy the full benefit and protection of the Charter' ... While the twin principles of purposive and generous interpretation are related and sometimes conflated, they are not the same. The purpose of a right must always be the dominant concern in its interpretation; generosity of interpretation is subordinate to and constrained by that purpose ... While a narrow approach risks impoverishing a Charter right, an overly generous approach risks expanding its protection beyond its intended purposes. In brief, we must construe the language of ss. 9 and 10 in a generous way that furthers, without overshooting, its purpose ..." - See paragraphs 15 to 18.

Civil Rights - Topic 8550

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Bring the administration of justice into disrepute (s. 24(2)) - The Supreme Court of Canada stated that "the words of s. 24(2) [of the Charter] capture its purpose: to maintain the good repute of the administration of justice. The term 'administration of justice' is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. ... The phrase 'bring the administration of justice into disrepute' must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system." - See paragraphs 67 to 70.

Criminal Law - Topic 1128

Offences against public order - Weapons - General - Transfer of weapons or ammunition without authority - An accused was convicted of possession of a firearm for the purpose of transferring it (Criminal Code, s. 110(1)) - The evidence supporting the conviction consisted of the accused's statement to a police officer that he was "dropping off" the gun somewhere "up the road" - The accused appealed, asserting that "transfer" in s. 100(1) required an intention to pass the firearm into another person's possession - Section 84 defined transfer as, inter alia, to transport - The Ontario Court of Appeal adopted the ordinary definition of "transport" and concluded that the accused was transferring the gun because he was moving it from one place to another - The Supreme Court of Canada allowed an appeal, stating that Parliament did not intend s. 100(1) to address the simple movement of a firearm from one place to another - A "transfer" within the meaning of the section was transactional in nature - Section 100(1) appeared in the Code under the heading "Trafficking offences" - The accused's offence was serious and potentially extremely dangerous, but he did not commit the crime of trafficking - See paragraphs 141 to 148.

Criminal Law - Topic 1379.2

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where Charter right breached - [See tenth Civil Rights - Topic 8368 ].

Police - Topic 3107

Powers - Investigation - Questioning of suspects and witnesses - [See second Civil Rights - Topic 3604 ].

Police - Topic 3208

Powers - Direction - Random or arbitrary stopping of persons - [See third Civil Rights - Topic 3604 ].

Statutes - Topic 2612

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Noscitur a sociis (from associated words) - The Supreme Court of Canada set out and applied the "associated meaning" principle of statutory interpretation while interpreting s. 100(1) of the Criminal Code - See paragraph 144.

Words and Phrases

Bring the administration of justice into disrepute - The Supreme Court of Canada considered the meaning of this phrase as used in s. 24(2) of the Canadian Charter of Rights and Freedom - See paragraphs 67 to 70.

Words and Phrases

Detention - The Supreme Court of Canada considered the meaning of "detention" as used in ss. 9 and 10 of the Canadian Charter of Rights and Freedoms, 1982 - See paragraphs 24 to 44.

Words and Phrases

Transfer - The Supreme Court of Canada considered the meaning of "transfer" as used in s. 100 of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 141 to 148.

Cases Noticed:

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, consd. [paras. 13, 158].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 16].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 16].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 20].

R. v. Esposito (1985), 12 O.A.C. 350; 24 C.C.C.(3d) 88 (C.A.), refd to. [para. 21].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 21].

R. v. Dedman (1981), 32 O.R.(2d) 641 (C.A.), refd to. [para. 21].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 248; 322 N.R. 205; 199 B.C.A.C. 45; 326 W.A.C. 45; 2004 SCC 42, refd to. [para. 21].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 22].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, consd. [para. 25]; refd to. [para. 156].

R. v. Grafe (1987), 22 O.A.C. 280; 36 C.C.C.(3d) 267 (C.A.), refd to. [paras. 37, 169].

Charkaoui, Re (2004), 328 N.R. 201; 247 D.L.R.(4th) 405; 2004 FCA 421, revd. [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 54].

R. v. Duguay, Murphy and Sevigny (1985), 8 O.A.C. 31; 18 C.C.C.(3d) 289 (C.A.), refd to. [para. 55].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, not folld. [paras. 56, 195].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103, refd to. [para. 56].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 56].

R. v. Suberu (M.) (2009), 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, reving. (2007), 220 O.A.C. 322; 85 O.R.(3d) 127; 2007 ONCA 60, refd to. [paras. 58, 160, 188].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 58].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, not folld. [para. 60]; refd to. [para. 207].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, refd to. [paras. 64, 207].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 64].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 65].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161, refd to. [para. 75].

R. v. Genest, [1989] 1 S.C.R. 59; 91 N.R. 161; 19 Q.A.C. 163, refd to. [para. 75].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 75].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 75].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 77].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, refd to. [para. 79].

R. v. Wray, [1971] S.C.R. 272, refd to. [para. 80].

R. v. Kitaitchik (A.) (2002), 161 O.A.C. 169; 166 C.C.C.(3d) 14 (C.A.), refd to. [para. 82].

R. v. Henry (D.B.) et al., [2005] 3 S.C.R. 609; 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, refd to. [para. 89].

R. v. Harper, [1994] 3 S.C.R. 343; 172 N.R. 91; 97 Man.R.(2d) 1; 79 W.A.C. 1, refd to. [para. 96].

R. v. Schedel (B.C.) (2003), 184 B.C.A.C. 166; 302 W.A.C. 166; 175 C.C.C.(3d) 193 (C.A.), refd to. [para. 101].

R. v. Richfield (D.) (2003), 175 O.A.C. 54; 178 C.C.C.(3d) 23 (C.A.), refd to. [para. 104].

R. v. Dolynchuk (E.N.) (2004), 184 Man.R.(2d) 71; 318 W.A.C. 71; 184 C.C.C.(3d) 214 (C.A.), refd to. [para. 104].

R. v. Banman (J.J.) (2008), 231 Man.R.(2d) 102; 437 W.A.C. 102; 236 C.C.C.(3d) 547; 2008 MBCA 103, refd to. [para. 104].

R. v. S.A.B. et al., [2003] 2 S.C.R. 678; 311 N.R. 1; 339 A.R. 1; 312 W.A.C. 1; 2003 SCC 60, refd to. [para. 104].

R. v. Shepherd (C.) (2007), 289 Sask.R. 286; 382 W.A.C. 286; 218 C.C.C.(3d) 113; 2007 SKCA 29, affd. (2009), 391 N.R. 132; 331 Sask.R. 306; 2009 SCC 35, refd to. [para. 106].

R. v. Padavattan (R.), [2007] O.T.C. Uned. 961; 223 C.C.C.(3d) 221 (Sup. Ct.), refd to. [para. 106].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241, refd to. [para. 114].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201; 2001 SCC 83, refd to. [paras. 114, 154].

R. v. St. Lawrence, [1949] O.R. 215 (H.C.), refd to. [para. 117].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 119].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [paras. 129, 161].

R. v. Harris (M.) (2007), 228 O.A.C. 241; 225 C.C.C.(3d) 193; 2007 ONCA 574, refd to. [para. 129].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 131].

R. v. Goldhart (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161, refd to. [para. 131].

R. v. Harrison (B.) (2009), 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [paras. 140, 227].

McDiarmid Lumber Ltd. v. God's Lake First Nation et al., [2006] 2 S.C.R. 846; 356 N.R. 1; 212 Man.R.(2d) 7; 389 W.A.C. 7; 2006 SCC 58, refd to. [para. 144].

R. v. Davis (G.N.), [1999] 3 S.C.R. 759; 248 N.R. 44; 182 Nfld. & P.E.I.R. 78; 554 A.P.R. 78, refd to. [para. 147].

Unites States of America v. Mendenhall (1980), 446 U.S. 544 (U.S.S.C.), refd to. [para. 156].

Florida v. Royer (1983), 460 U.S. 491 (U.S.S.C.), refd to. [para. 156].

California v. Beheler (1983), 463 U.S. 1121, refd to. [para. 158].

Oregon v. Mathiason (1977), 429 U.S. 492, refd to. [para. 158].

Escobedo v. Illinois (1964), 378 U.S. 478, refd to. [para. 158].

Miranda v. Arizona (1966), 384 U.S. 436, refd to. [para. 158].

Thompson v. Keohane (1995), 516 U.S. 99, refd to. [para. 158].

Stansbury v. California (1994), 511 U.S. 318, refd to. [para. 158].

R. v. Moran (1987), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), leave to appeal refused [1988] 1 S.C.R. xi, refd to. [para. 168].

R. v. Orellana, [1999] O.J. No. 5746 (C.J.), refd to. [para. 187].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 193].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, refd to. [para. 199].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 200].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1, refd to. [para. 203].

R. v. Strachan (1986), 25 D.L.R.(4th) 567 (B.C.C.A.), refd to. [para. 210].

Herring v. United States (2009), 555 U.S. 1, refd to. [para. 212].

R. v. Duguay, Murphy and Sevigny, [1989] 1 S.C.R. 93; 91 N.R. 201; 31 O.A.C. 177, refd to. [para. 212].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 213].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 213].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 217].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 9, sect. 10 [para. 24 et seq.]; sect. 24(2) [para. 59].

Criminal Code, R.S.C. 1985, c. C-46, sect. 100 [para. 141].

Authors and Works Noticed:

Butterfoss, Edwin J., Bright Line Seizures: The Need for Clarity in Determining When Fourth Amendment Activity Begins (1988-1989), 79 J. Crim. L. & Criminology 437, p. 439 [para. 169].

Canada, Law Reform Commission, The Exclusion of Illegally Obtained Evidence, Working Paper No. 10 (1974), pp. 19, 20, 21, 22 [para. 212].

Driedger, Elmer A., Construction of Statutes (3rd Ed. 1994), p. 269 [para. 147].

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.) (2007 Update, Release 1), vol. 2, pp. 36-30, 36-31 [para. 17]; s. 41.8(d) [para. 120].

Lafave, Wayne R., Search and Seizure: A Treatise on the Fourth Amendment (4th Ed. 2004), vol. 1, pp. 32 to 37 [para. 212].

Mahoney, Richard, Problems with the Current Approach to s. 24(2) of the Charter: An Inevitable Discovery (1999), 42 Crim. L.Q. 443, generally [para. 101].

McLellan, A. Anne, and Elman, Bruce P., The Enforcement of the Canadian Charter of Rights and Freedoms: An Analysis of Section 24 (1983), 21 Alta. L. Rev. 205, pp. 205 to 208 [para. 102].

Mirfield, Peter, The Early Jurisprudence of Judicial Disrepute (1987-1988), 30 Crim. L.Q. 434, pp. 444, 452 [para. 207].

Ontario, Human Rights Commission, Inquiry Report: Paying the Price: The Human Cost of Racial Profiling (2003), online: www.ohrc.on.ca/en, generally [para. 154].

Ontario, Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (1995), p. 337 [para. 154].

Paciocco, David M., Stillman, Disproportion and the Fair Trial Dichotomy under Section 24(2) (1997), 2 Can. Crim. L.R. 163, p. 170 [para. 105].

Paciocco, David M., The Judicial Repeal of s. 24(2) and the Development of the Canadian Exclusionary Rule (1989-1990), 32 Crim. L.Q. 326, pp. 334 [para. 196]; 340 [para. 212].

Penney, Steven, Taking Deterrence Seriously: Excluding Unconstitutionally Obtained Evidence Under Section 24(2) of the Charter (2004), 49 McGill L.J. 105, p. 114 [para. 211].

Perrin, L. Timothy, Caldwell, H.M., Chase, C.A., and Fagan, R.W., If It's Broken, Fix It: Moving Beyond the Exclusionary Rule - A New and Extensive Empirical Study of the Exclusionary Rule and a Call for a Civil Administrative Remedy to Partially Replace the Rule (1998), 83 Iowa L. Rev. 669, generally [para. 212].

Roach, Kent, Constitutionalizing Disrepute: Exclusion of Evidence after Therens (1986), 44 U.T. Fac. L. Rev. 209, p. 228 [para. 196].

Shearing, Clifford D., and Stenning, Philip C., Police Training in Ontario: An Evaluation of Recruit and Supervisory Courses (1980), p. 41 [para. 153].

Stuart, Don, Charter Justice in Canadian Criminal Law (4th Ed. 2005), pp. 327 [para. 151]; 543, 544 [para. 210]; 581 [para. 101].

Stuart, Don, Questioning the Discoverability Doctrine in Section 24(2) Rulings (1996), 48 C.R.(4th) 351, generally [para. 120].

Stuesser, Lee, R. v. S.A.B.: Putting "Self-Incrimination" in Context (2004), 42 Alta. L. Rev. 543, generally [para. 104].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 227 to 231 [para. 144].

Tanovich, David M., Using the Charter to Stop Racial Profiling: The Development of an Equality-Based Conception of Arbitrary Detention (2002), 40 Osgoode Hall L.J. 145, generally [para. 154].

Young, Alan, All Along the Watchtower: Arbitrary Detention and the Police Function (1991), 29 Osgoode Hall L.J. 329, pp. 365, 366 [para. 162]; 390 [para. 154].

Counsel:

Jonathan Dawe and Frank R. Addario, for the appellant;

Michal Fairburn and John Corelli, for the  respondent;

James C. Martin and Paul Adams, for the intervenor, the Director of Public Prosecutions of Canada;

Michael Brundrett and Margaret A. Mereigh, for the intervenor, the Attorney General of British Columbia;

Don Stuart and Graeme Norton, for the intervenor, the Canadian Civil Liberties Association;

Marlys A. Edwardh and Jessica R. Orkin, for the intervenor, the Criminal Lawyers' Association (Ontario).

Solicitors of Record:

Sack Goldblatt Mitchell, Toronto, Ontario, for the appellant;

Attorney General of Ontario, Toronto, Ontario, for the respondent;

Public Prosecution Service of Canada, Halifax, Nova Scotia, for the intervenor, the Director of Public Prosecutions of Canada;

Attorney  General  of  British  Columbia, Vancouver, B.C., for the intervenor, the Attorney General of British Columbia;

Queen's University, Kingston, Ontario, for the intervenor, the Canadian Civil Liberties Association;

Ruby & Edwardh, Toronto, Ontario, for the intervenor, the Criminal Lawyers' Association (Ontario).

This appeal was heard on April 24, 2008, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages on July 17, 2009, with the following opinions:

McLachlin, C.J.C., and Charron, J. (LeBel, Fish and Abella, JJ., concurring) - see paragraphs 1 to 149;

Binnie, J., partially concurring - see paragraphs 150 to 184;

Deschamps, J., partially concurring - see paragraphs 185 to 230.

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3452 practice notes
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    ...anything: he was acting in accordance with the well-established rule that “a detention not authorized by law is arbitrary” ( R v Grant , 2009 SCC 32 [ Grant ] at para 54). It is in fact the Court of Appeal which is mistaken, because it relies on the definition of “arbitrary” developed in th......
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