Nov 18, 2014

R v Grant: Summary of the application of s.24(2) of the Charter to different types of evidence

R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353

R v Grant provided an analysis of the application of the s.24(2) charter test to different types of evidence. The following is a summary of that analysis. For each type of evidence I will use the following analytic framework:

1) Seriousness of the breach

2) Society's interest in protection of the Charter right

3) Society's interest in having the case judged on its merits

Statements by the accused

This engages the principle against self-incrimination, and in most cases will favour exclusion.


1) Seriousness of the breach

Police misconduct in evidence obtained through statements varies with seriousness of violation. The impression that courts condone serious police misconduct is more harmful to admin of justice than acceptance of MINOR or INADVERTENT slips.

2) Society's interest in protection of the Charter right

Potential harm also hinges on seriousness of infringement on accused’s protected interests. Here this is often right to counsel, which affects a bunch of other rights (self-incrim). BUT less weighted if accused was informed of right but for a technical reason it was defective, or if statement would have been made notwithstanding charter violation.

3) Society's interest in having the case judged on its merits

Look at RELIABILITY of evidence. If circumstances make evidence seem unreliable, aka made statement because wanted something, this undercuts argument that its necessary for a trial of the merits.

Bodily Evidence

1) Seriousness of the breach

An example of this is DNA.The test is fact specific. If deliberate, egregious that disregards rights, this is bad. If good faith, this weakens this argument for the defence.

2) Society's interest in protection of the Charter right

Here we look at degree to which search/seizure infringed on privacy, bodily integrity, human dignity of accused. Serious: forcible blood samples, dental impressions. Not serious: fingerprinting.

3) Society's interest in having the case judged on its merits

Here this favours admission for bodily samples. Circumstances indicate reliability!

Non bodily physical evidence

1) Seriousness of the breach

Fact specific analysis, depends on if can be characterized as deliberate or egregious!

2) Society's interest in protection of the Charter right

Privacy interest involved, reasonable expectation of privacy. Also human dignity (think strip search)!

3) Society's interest in having the case judged on its merits

Reliability issues with physical evidence will not generally be related to the charter breach – tends to weigh in favour of admission. CAUSATION.

Derivative Evidence (physical evidence obtained as a result of unlawfully obtained statement)

1) Seriousness of the breach

The more serious the conduct, the more it undermines administration of justice. If police DELIBERATELY and SYSTEMATICALLY flout, or GOOD FAITH, acting on what they thought were LEGITIMATE POLICING POLICIES (think sniffer dog).

2) Society's interest in protection of the Charter right

Think about discoverability- assessing actual impact on rights! Look at strength of causal connection between self incrimination and resultant evidence. The more likely the evidence would have been obtained without the statement, the less the impact on the rights.

Also look to the extent of infringement in face of free and informed choice – how strong was the breach?

3) Society's interest in having the case judged on its merits

Here the evidence is physical/real so there are less concerns, and thus this type of evidence favours admission.

Other points to note:

Trial Judge, if balanced correct factors, is to be given “considerable deference”

Trial Judge should look out for police who abuse power to get a statement that would lead them to real evidence.


I hope this helps! Leave me a comment.