R v Grant

The majority found that "detention" refers to a suspension of an individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either when the individual has a legal obligation to comply with the restrictive request or demand or when a reasonable person would conclude by reason of the state's conduct that they had no choice but to comply.

In cases where there is physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether a reasonable person in the individual's circumstances would conclude that the state had deprived them of the liberty of choice, the court may consider, inter alia, the following factors:

• 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 focused investigation.
• 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.
• The particular characteristics or circumstances of the individual, when relevant, including age; physical stature; minority status; level of sophistication.

The majority went on to find that Mr. Grant was psychologically detained when he was told to keep his hands in front of him and when the other officers moved into position to prevent him from walking forward. Therefore, he was arbitrarily detained and denied his right to counsel.

In a concurring decision, Binnie J disagreed with the majority's analysis of the definition of detention but agreed that Mr. Grant was detained before he incriminated himself, infringing his Charter rights. In a second concurring decision, Deschamps J also agreed that Mr. Grant was detained prior to incriminating himself.

Once a violation was found, the case turned on the application of section 24(2), which states that once a violation of an individual's Charter rights have been found, the evidence obtained through the violation must be excluded if its inclusion would bring the administration of justice into disrepute.

The majority found that the analytical framework found in the prior leading cases of R v Collins and R v Stillman had created justifiable criticisms, and the majority set out a revised test, consisting of three parts:

• Seriousness of the Charter-Infringing State Conduct, which requires an assessment of whether the admission of the evidence would bring the administration of justice into disrepute, and focuses on the severity of the state conduct that led to the Charter breach (which includes an analysis of whether the breach was deliberate or willful, and whether the officers were acting in good faith),
• Impact on the Charter-Protected Interests of the Accused, which focuses on how the accused person was affected by the state conduct (which includes an analysis of the intrusiveness into the person's privacy, the direct impact on the right not to be forced to self-incriminate, and the effect on the person's human dignity), and
• Society's Interest in an Adjudication on the Merits, which focuses on how reliable the evidence is in light of the nature of the Charter breach.

After applying all three inquiries into the evidence obtained from Mr. Grant, the majority found that the gun should not be excluded as evidence against Mr. Grant.

Binnie J agreed entirely with the majority's analysis of section 24(2). Deschamps J agreed that the Collins test needed replacing, but disagreed with the majority's proposed test. Nonetheless, she agreed with the majority's ultimate conclusion that the gun should not be excluded as evidence against Mr. Grant.

The majority disagreed with the lower courts' interpretation of "transfer" for the purpose of transferring a firearm without lawful authorization under section 100(1) of the Criminal Code. The majority found that "transfer" in such a context required some type of "transaction". Deschamps J expressly agreed with the majority's analysis. Binnie J did not comment on the issue, other than stating he agreed with the majority's ultimate disposition of the appeal.