Charter Detention and the Exclusion of Evidence after Grant, Harrison and Suberu

In July 2009 the Supreme Court of Canada released R. v. Grant, R. v. Suberu, R. v. Harrison and R. v. Shepherd. The quartet of judgments made major changes to the law governing the section 9 right against arbitrary detention, the section 10(b) right to counsel and the exclusion of unconstitutionally obtained evidence under section 24(2). This article discusses the importance of the decisions, which clarified the meaning of detention, established that unlawful detentions are necessarily arbitrary and determined that rights to counsel must be given “immediately” upon detention. Most significantly, Grant overturned 22 years of settled section 24(2) jurisprudence and established a new analytical framework. This article examines the the oretical implications of the new framework and whether the section 7 self-incrimination jurisprudence continues to be valid. This article also considers the practical effects of the new section 24(2) analysis. Although it makes it easier for the prosecution to argue for the admission of derivative evidence, the renewed emphasis on police misconduct may make it easier to exclude evidence where the police deliberately or negligently disregard Charter rights