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Saturday, 18 July 2009

Incidental detention from police encounters

slaw.ca blog today published a post, SCC decision in R. v. Grant: Do the ends justify the means?, commenting on a new judgment from the Supreme Court of Canada dealing with human rights, police questioning, search and seizure, and exclusion or reception of evidence.



R v Grant, 2009 SCC 32 dealt with a common occurrence in policing: a chance observation or encounter by patrolling police results in them speaking with someone; though they don't have any power to arrest, detain or search the person, the police compel the person to remain for the duration of a conversation — whether deliberately or unintentionally — and then obtain a piece of information, usually volunteered, that justifies the arrest and search of the accused.



(It might also be an arrest, if a police officer merely says something that makes it clear a person is not free to go. So long as they feel compelled to remain, they are under arrest: Symes v Mahon [1922] SASR 447; Bird v Jones (1845) 7 QB 742.)



That sort of scenario unfolded in Grant, followed by the Toronto police officers searching Mr Grant and seizing cannabis and a loaded revolver. On appeal the accused argued the encounter and search was:

  • an arbitrary detention contrary to the Charter of Rights and Freedoms s 9, similar to our Charter of Human Rights and Responsibilities s 21(2)

  • a failure to advise him of his right to counsel contrary to s 10(b), which has no direct equivalent in our Charters 21(3) is probably closest

  • an unreasonable search contrary to s 8, again with no direct equivalent in our Charter, but possibly similar to s 20



Under the Canadian Charter of Rights and Freedoms, s 24(2) provides for exclusion of evidence obtained contrary to the charter if its reception in evidence 'would bring the administration of justice into disrepute'.



The UK Charter of Human Rights has a similar provision in s 8, providing for judicial remedies for breaches of human rights.



In contrast, Victoria has a melange of remedies, but no express provision like other jurisdictions. However, s 39 would enable a Court to rely on judicial discretion to exclude Grant-style evidence.



In Grant, the majority considered excluding the evidence would bring the administration of justice into disrepute, the Charter breach was not at the most serious end of the scale, and the firearm was cogent and reliable evidence. They considered those things justified admitting the evidence.



To me, this sounds thematically very similar to the sort of reasoning we're familiar with under the public-policy discretion articulated in Bunning v Cross. On one hand, it shows a new-found flexibility in interpreting and applying human rights. The downside is that human rights are supposed to provide an absolute protection against state-power, rather than a discretionary response.



Evidence Act 2008 s 138 requires exclusion of illegally or improperly obtained evidence subject to a similar balancing exercise, and would apply in Grant-style scenarios, so I expect we might see this case used in Victorian courts in the future.



Edit



I should add that Grant was one of four cases dealing with this point, all delivered at the same time.



The others were:



Further Edit:

An analysis of Suberu can be found at Don Mathias' site in his post, Detention: will R v Grant work?

2 comments:

Jeremy Gans said...

I think Charter s13(a) - a right against arbitrary or unlawful interferences with privacy - is the closest analogy to Canada's s8. Search and seizure law is all about arbitrariness, lawfulness and 'reasonable expectations of privacy'. So, the ruling in Grant on when street policing turns into an infringement of rights ought to be influential here.

Unfortunately, Grant is also an significant weakening of Canada's law on excluding illegally obtained evidence. Previously, the Canadians struck a middle ground between American mandatory exclusion and Australian discretion, but alas they now are indistinguishable from Bunning v Cross. The New Zealanders made a similar switch in 2002, and the even the US is heading that way. It's a pity, as Bunning v Cross and s138EA, almost never keep out important evidence.

Any cop who reads Grant would take home the message that there's no problem doing random street searches, as any significant evidence will be admitted at the trial. It's only the fact that cops don't read actual decisions (and learn their law, like everyone else, from US TV), that gives them any reason to follow the rules.

Elucubrator said...

Canadian Supreme Court blog The Court recently critiqued this decision in more detail in R v Grant: a work in progress.

I reckon this case will be useful for our domestic human rights jurisprudence until we get some law on this point ourselves.