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Canadian Charter Of Rights And Freedoms Case Analysis Law Essay

On November 17th, 2003, the accused, Donnohue Grant, caught the attention of three police officers that were patrolling an area near schools with a history of youth crime such as robberies, drug offences and assaults. Police Constables Worrell and Forde were driving an unmarked police vehicle in plainclothes. Constable Gomes was the only officer in uniform of the three and he was driving a marked police vehicle. Donnohue Grant was walking on the sidewalk when he caught the attention of Worrell and Forde. The accused stared at the plainclothes officers as they drove past him. While the unmarked car drove by, the accused was allegedly fidgeting with his coat and pants in a suspicious way. Their reaction to this suspicious behaviour by the accused led them to recommend uniformed Officer Gomes to approach Grant to further investigate.

At this time, Officer Gomes approached the accused, standing directly in his intended path. Officer Gomes requested Grant’s basic personal information and what he was doing in that area. While speaking with Officer Gomes, the accused was behaving nervously and was fidgeting with his jacket. At this point, Officer Gomes asked him to keep his hands in front of him and out of his pockets. While Officer Gomes was interacting with the accused, the plainclothes officers were observing them from a distance. After a short period of time, Officers Worrell and Forde approached the pair on the sidewalk and identified themselves as police officers to the accused and flashed their badges. The two plainclothes officers moved behind Officer Gomes, blocking Grant’s path forward.

Officer Gomes asked Grant if he had anything in his possession that he should not have. Grant replied that he had “a small bag of weed.” The officers asked Grant if the weed was the only item in his possession that he should not have. Grant responded stating that he had a firearm on him. Upon hearing this, the officers’ arrested and searched Donnohue Grant, seizing a loaded revolver and some marijuana. They advised the accused of his right to counsel and brought him back to the police station.

The accused was put on trial for five firearms offences. He claimed that his Section 8, 9 and 10(b) Charter rights were violated. The trial judge did not believe that any Charter rights were violated and Grant was convicted of five firearms offences. The Appeal Judge ruled that there were Charter violations, but did not overturn the convictions. The Supreme Court of Canada agreed that the convictions should stand.

Facts in Issue:

During his trial, Donnohue Grant claimed that the arresting officers violated his rights, specifically sections 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms. Grant believed that he was detained when he was answering the officer’s questions and that the search and seizure of the firearm violated his Charter rights. However, the trial Judge did not agree with the accused and did not believe that his Charter rights were breached. As a result of this, the Judge admitted the firearm as evidence. Due to the ruling of the Judge on the admissibility of the firearm, the accused was convicted of five firearms offences.

“The Court of Appeal upheld the convictions for different reasons.” They concluded that before the accused made his incriminating statements, Officer Gomes had arbitrarily detained Grant and breached his s. 9 Charter rights. However, the court believed that the gun should still be admissible as evidence under s. 24(2) of the Charter. The Court of Appeal agreed with the trial Judge that the accused’s conviction of possession of a firearm for the purpose of trafficking was a valid conviction. They came to this conclusion because Grant had moved the gun to another place and this fell under the definition of “transfer” in the Criminal Code of Canada, thus justifying the conviction. The Supreme Court of Canada was faced with the question of whether or not the gun should be admitted as evidence due to the fact that the accused had multiple Charter rights violated, and whether admitting the evidence would bring the Justice system into disrepute.

Legal Arguments

The legal arguments in this case are whether or not the police violated the accused’s section 8, 9 and 10(b) Charter rights. Section 8 involves being protected against unreasonable search and seizure. Section 9 involves the right to not be arbitrarily detained or imprisoned. Section 10(b) involves the right to retain and instruct counsel without delay and to be informed of this right. Grant believed that he had all three of these Charter rights were violated.

The original trial Judge did not believe that any Charter rights had been violated. The Appeal Judge believed that the trial Judge was wrong in that fact and that there were Charter violations that needed to be called into question before a conviction could be issued. The Appeal Judge believed that Section 8 was not violated, Section 9 was clearly violated and he did not deal with Section 10(b). The Appeal Judge believed that the firearm was obtained through self-incriminating statements and since his Section 9 rights were violated, this would require the evidence to be excluded. However, he believed that the exclusion of the firearm would bring the Justice System into disrepute more than, if he had included it.

Grant believed that his Section 8 rights were violated because the police did not have a reason to believe that he had something on him that constituted a search. The trial judge did not agree and said that the search was not unreasonable. The Supreme Court agreed. Grant believed that his Section 9 rights were violated because the police stood in his way and questioned him. Grant believed that he had no other option but to answer the questions. It was concluded that the police did violate Grant’s Section 9 rights by blocking his path on the sidewalk. The moment when the courts ruled that Grant was detained was when Officer Gomes told Grant to keep his hands in front of him and began asking the line of pointed questions with the plainclothes officers standing behind him.

The accused also believed that his Section 10(b) rights were violated because the police did not give him an opportunity to contact counsel before he gave the incriminating statements that led to his arrest. Since the accused was faced with charges and was in control of the police, the accused required legal advice but was not told that he had this right. The police therefore violated his Section 10(b) right.

The Crown stated that the police did not believe they had detained the accused. The officers also admitted that they did not have reasonable suspicion to detain the accused, which confirmed that they violated his Section 9 rights. The Crown stated that the accused admitted to the firearm, was then arrested and was given his rights. The Crown believes that the officers were protecting themselves and the community by questioning the accused. The Crown stated that questioning people is a part of police procedure and that the police are required to question people in order to effectively protect society, and that this questioning does not result in a detention nor invoke the responsibility of the police to inform of the right to counsel.

Ruling of the Court

At trial, it was concluded that by the actions of the police, a detention arose during the conversation between the accused and Constable Gomes. It was also concluded that this happened before Mr. Grant made incriminating statements, and that the detention was arbitrary and not in breach of section 9 of the Charter. It was held that the gun should be admitted into evidence under section 24(2) of the Charter. At trial, Mr. Grant suspected violations of his right under sections 8, 9, and 10(b) of the Charter. It was concluded that the Trial Judge found no breach, and the accused was charged with five firearm offences.

Under section 9 and 10 of the Charter, detention deals with suspension of the individual’s liberty interest by a major physical or psychological restraint. When physical restraint is not present, psychological restraint must be there for it to be a legal detention. Psychological restraint mainly deals with the individual feeling they had no choice but to comply. To determine whether a person’s state of the liberty of choice was deprived, the court may consider inter alia with these following factors:

The circumstances given rise to the encounter as they would reasonably be perceived by the individual

The nature of the police conduct, and

The particular characteristics or circumstances of the individual are relevant

It is for the trial judge to determine whether the line was crossed in respect to the police conduct towards Mr. Grant’s liberty and the right to choose. Since Mr. Grant did not testify how he interpreted the situation, it is not critical to his argument of detention. It was concluded that there was sufficient evidence to prove that his right to choose how to act was in fact removed. Constable Gomes’ encounter with the accused was questionable as he approached Donnohue Grant and made general inquiries. The trial judge held that such questioning is a legitimate exercise of police powers. After Constable Gomes made general inquiries, he requested Mr. Grants name and address. The accused then provided the officer with a provincial health card. Constable Gomes then asked the accused to keep his hands in front of him as he was behaving nervously and kept adjusting his jacket. Two other officers, dressed in plainclothes, then approached Constable Gomes and the accused, flashed their badges and then stood behind Constable Gomes.

The act of Constable Gomes asking the accused to keep his hands in front of his body supports the conclusion that the accused from this point on was under control of the officers and deprived of his choice to respond to the matter. This encounter went from being a general neighbourhood policing, to an interrogation where the police took control over the accused. It was held that Constable Gomes’ questioning was respectful, but rather intimidating, thus showing power imbalance by the Mr. Grant’s adolescence and inexperience.

The way in which the police obtained the firearm as evidence breached Mr. Grant’s rights under section 9 and 10(b) of the Charter. The police also failed to advise the accused of his right to speak to a lawyer before the questioning occurred during the incident that led to the finding of the firearm. In regards to section 24(2), a court must consider the effect on admitting the evidence on society’s confidence regarding:

The seriousness of the Charter- infringing state conduct,

The impact of the breach on the Charter- protected interests of the accused, and

Society’s interest in the adjudication of the case on its merits.

Mr. Grant’s conviction for the purpose of weapons trafficking under section 100(1) of the Criminal Code should be overturned as his “transferring” within the meaning of this section does not fit. Also, since it was not found that the possession of the gun was being used for the purpose of transferring it to another person, this conviction cannot stand.

The trial judge held that the officer’s general inquiries did not amount to a search within the meaning of Section 8. It was held that Mr. Grant was not detained prior to his arrest. It was also concluded there was no Charter breach; therefore, the trial judge had no problem admitting the firearm. The accused was convicted of five firearm offences. The appellant chose to appeal his many firearm offences relating to the firearm that Police seized.

In the Ontario Court of Appeal, Laskin J.A. held that the trial judge’s conclusion in regards to the question of detention was undetermined by several factors, entitling the court to re-examine the issue. Laskin J.A. concluded that a detention had formed during the conversation with Constable Gomes before Mr. Grant made incriminating statements. He also concluded that a breach with Section 9 occurred, as the officers had no reasonable grounds to detain the appellant and found no breach of Section 8. In regards to Section 24(2), Laskin J.A. held that the standing of admission of Justice would be damaged more by the exclusion of the gun rather than by its admission.

Therefore, he concluded that the gun was properly admitted into evidence. Having said that, he also held that Mr. Grant’s act of moving the loaded revolver from one place to another fell within the definition of “transfer” section 84 of the Criminal Code, which justified the conviction under section 100(1).

In the Supreme Court of Canada, the first issue at hand is whether the evidence of the loaded revolver was obtained in a manner that breached the appellant’s rights. All parties agree that the officers lacked reasonable grounds to detain Mr. Grant. If Mr. Grant was detained, he was entitled to be advised of his right to counsel, which established a breach to section 10(b) of the Charter.

The Crown argues that the appellant was not detained until the officers arrested him after disclosure of the loaded revolver at which point he was advised of his right to speak with a lawyer. The Crown also states that the actions of the officers when the incident occurred was a form of community policing, and it a valid exercise.

In regards to Mr. Grant being detained within meaning of Section 9 and 10 of the Charter, the trial judge held that the accused was not. However, the Crown agrees with Laskin J.A. that the trial judge’s question of detention is undetermined due to certain findings. It is agreed that Mr. Grant was detained as he is 18 years old, alone, and faced by three physically fit officers, and his choice to act had been taken away. It is also concluded that since the officers did not believe they detained the accused, they did not fulfil their obligation under Section 10(b), therefore a breach was established. The Crown would allow the appeal on the trafficking charge (Count 4), and enter an acquittal. All other counts will be dismissed.

The ruling of the court in the Grant case did change the written law, more specifically the penalty for breaking the specific law. After the Grant case, the penalty for Possession of a Firearm For The Purpose of Weapons Trafficking has been increased. Since 2008, the offence has had a minimum penalty of three years for a first time offender, as opposed to one year when Grant was convicted. The penalty for a second time offender is five years and the maximum penalty for this offence is ten years. They saw that Possession of a Firearm For The Purpose of Weapons Trafficking was a very serious offence and cannot be taken lightly; therefore they increased the penalty hoping to deter any further weapons trafficking. Other than the penalty for committing the offence, the actual law itself remains the same. In section 100 of the Criminal Code of Canada, it states that “Every person commits an offence that possesses a firearm…for the purpose of transferring it, whether or not for consideration, or offering to transfer it.” There was no need to change the law itself because the guidelines of the law were already clearly laid out in the Criminal Code, and there was no grey area that needed to be changed to be better understood.

As far as new rules or guidelines, the changing of the penalty changed how the offence was viewed. Now, weapons trafficking offences are seen as very serious criminal offences. The guidelines for laying a weapons trafficking charge must be met in full to be able to hand down the minimum penalty of three years. To convict someone of this charge, proof is required that the person had possession of the firearm for the purpose of transferring it, or offering to transfer it. Also, that person must know that they are not allowed to do so under the Firearms Act. It must also be taken into consideration that Parliament did not intend to label anybody that moves a firearm from place to place as a weapons trafficker, and that the circumstances must match the guidelines for S.100 of the Criminal Code.

The outcome of this case, R v. Grant, did not change the police procedures in a major way. The reason it did not change police procedures is that the police will always approach a suspect with caution and will always search that person if they believe that they are unsafe or that the suspect is posing a threat to others. When a police officer is talking to a person and they begin to fidget, as Mr. Grant did, they will always become suspicious of that person because they do not know what that person is doing or may be planning to do. When a person is found to be carrying a weapon on the streets, the procedure would be to detain that person and find out why he or she is carrying that weapon. The procedure for arresting a person carrying a weapon is not changed because of this case; the importance of it is emphasized. Keeping the streets safe is the priority of the police officers and the current procedure seems to be working so there was no changed needed in lieu of this case.

The Supreme Court decided that after this case it was time to revisit the test that is used to determine whether evidence is excluded or admitted when there is a Charter violation. The new test would take into account the public’s interest in protecting the Charter rights and the public interest in how they would feel about the inclusion of the evidence. The Supreme Court believes that these two aspects are the only things that need to be considered when determining whether to admit or exclude evidence from a trial.

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