Situating Exclusion of Evidence Analysis

in its Socio-Legal Place: A Tale of Judicial Populism

Richard Jochelson & Kirsten Kramar

Published online: 2 April 2014# Springer Science+Business Media Dordrecht 2014

Abstract In the 2009 case of R. v. Grant, the Supreme Court of Canada

reformulated the exclusion of evidence framework in the context of Charter

breaches. The case was something of a revolution for those who study evidence

law and the Charter. Thus far, the case has been the subject of much debate

and even empirical study. Few academic papers have explored the philosophical

predilections of the Court in the decision. In this paper, the authors briefly

review the history of the exclusion of evidence test, explain the new framework

and discuss the academic and legal responses to the case. The authors place the

reasoning of the Court in a broader socio-legal context arguing that the test

articulated by the Court is informed by a type of populism that combined with

recent Charter cases in the police powers context allows for flexible potentials,

ones that could, on occasion, encroach on due process protections. The authors

call for scholars and activists to keep a close eye on the emerging jurisprudence

in this critical area of Charter adjudication.

Keywords Police powers . Judicial populism . Governance by the court . Canadian

judiciary

Introduction

24(2) Where, in proceedings under subsection (1), a court concludes that evi-

dence was obtained in a manner that infringed or denied any rights or freedoms

guaranteed by this Charter, the evidence shall be excluded if it is established that,

having regard to all the circumstances, the admission of it in the proceedings

Crime Law Soc Change (2014) 61:541–561

DOI 10.1007/s10611-014-9515-9

R. Jochelson (*) : K. Kramar

Sociology and Criminal Justice, University of Winnipeg, 515 Portage Avenue, R3B2E9 Winnipeg, MB,

Canada

e-mail: rjochelson@me.com

would bring the administration of justice into disrepute (Canadian Charter of

Rights and Freedoms, 1982).

Section 24(2) of theCanadianCharter ofRights andFreedoms reads like typical procedural

legalese. Yet its adjudication has been at the apex of a revolution in Canadian criminal

evidence law in the last years. InR. v. Grant, 2009 the SupremeCourt of Canada reconfigured

the test for s. 24(2) for the exclusion of evidence that was obtained by law enforcement in

violation of an accused’s Charter rights. The case was immediately something of a cause

célèbre in the world of law students, criminal lawyers and lower court judges. Beyond

academic debates in the literature, the Grant case was also a popular topic on law blogs

and legal commentary websites.1 Indeed, Osgoode Hall students of theCourt.ca declared the

Grant case as the big winner at the first annual Ozzy Awards; the case received four Ozzy

Awards commemorating it as the most influential overall case of the year, criminal case of the

year, Charter judgment of the year, and concurring judgment of the year.

The excitement was perhaps understandable as the Court overturned over 20 years of

jurisprudence in its decision, and because the exclusion of evidence test is the final test of the

Charter breaches and the criminal trial—that is, in Charter violation cases, even when the

evidence is obtained in a manner which infringed an accused’s Charter rights, s.24(2)

provides an avenue by which the evidence could be included (or excluded) at trial. Thus

for all the attention paid to the adjudication of substantial rights protections for an accused

(such as, for instance, the right to pretrial silence), s.24(2), despite its laboured prose, always

had the potential to act as a trump card for the state in the context of police misconduct.

The newly configured test abandoned previously existing (virtually) exclusionary

rules related to ‘conscripted’ evidence and also reformulated the previous calculus into

a new three pronged assessment of whether the evidence ought to be excluded. The

Court provided sample analyses for future cases dealing with certain categories of

evidence. The Court provided a number of flexible factors to be considered in subse-

quent criminal trials, but ultimately concluded that the evidence in the case ought to be

included. Indeed, in a testament to this flexibility, the Court released a sister case, R. v.

Harrison, 2009, which demonstrated how, on somewhat similar facts, the Grant factors

could militate in favour of exclusion of evidence in slightly different contextual

circumstances. The cases together provided notice that the Supreme Court would be

once again, as in the pre-Charter era (for example, cases such as Rothman 1981 and

Ibrahim 1914), emphasizing the importance of reliable real evidence, even in the face

of substantial, but not egregious, police misconduct.

The academic debates that ensued following the decisions ranged from the empirical

to the descriptive. Analyses ranged from predictions of assaults on due process to

cautious optimism about the new principled approach [2, 19, 20]. In this paper these

studies are reviewed and a void left by the analyses that preceded this work are filled—

an analysis of the rhetorical and judicial philosophies underpinning the new Grant

framework. Others have already discussed the precedential effects and provided a

1 For examples see http://www.thecourt.ca/2009/07/22/severing-ties-grants-new-exclusionary-framework-

applied-in-harrison/; http://www.thecourt.ca/2009/09/17/post-grant-what-the-lower-courts-are-doing/ http://

www.thecourt.ca/2009/12/16/r-v-grant-a-work-in-progress/; http://www.thecourt.ca/2010/04/22/post-grant-

does-it-even-matter/; http://blog.torontodefencelawyers.com/tag/exclusion-of-evidence/; http://canadian-

lawyers.ca/Understand-Your-Legal-Issue/Constitutional-Law/Police-Intentions-and-the-Exclusion-of-

Evidence.html.

542 R. Jochelson, K. Kramar

detailed case commentary on the factual circumstances in the Grant and Harrison cases

[19]. This paper will instead focus on the philosophical predilections that

occupied the Court as it transitioned to the new exclusion of evidence test. It

asks what was achieved by the reconfigured exclusion of evidence test?

Ultimately it finds that the Court has achieved a more flexible approach to

exclusion jurisprudence. The Grant test allows for the interests of populist

sentiment (as measured by the Court) to be balanced against the substantial

deference provided by a reviewing court to trial court decisions.

This paper attempts to place the Court’s reasoning in a broader socio-legal critique

that calls into question the notion of populism in political decision making and in the

use of abstract legal tests used for the purposes of adjudication of Charter rights. How

the Supreme Court has used the Grant test in subsequent decisions—most recently in

the case of R. v. Côté, 2011 will also be explored.

Ultimately, this paper concludes by submitting that the Grant case should be read in

light of significant decisions in the adjudication of Charter rights in the context of

privacy, reasonable searches, right to silence and right to counsel. Placed in this context,

the flexibility of Grant could provide for more ominous potentialities as calls for

security, increased order and punitivity are marshaled by both the government and a

segment of its citizenry. It is this same flexibility however, that allows the Court to

utilize its discretion in complicated decisions where systematic and persistent police

malfeasance raises the specter of bad faith even in cases involving serious criminal

allegations. In short, the Grant framework is a skeletal outline of populist governance

that has potential to bend and grow with emerging and evolving conceptions of the

administration of justice.

Part I: The Previous Test for s.24(2)

Prior to Grant, the test for exclusion of evidence was governed by an amalgamation of

rules developed from the Supreme Court Cases of R. v. Collins, 1987 and R. v. Stillman,

1997. Broadly speaking, the test for exclusion of evidence once a Charter breach had

been established was determined by three sweeping inquiries (R. v. Collins, 1987; R. v.

Stillman, 1997: para 98). The first phase of the analysis focused on factors in a case

which might render the trial unfair. In Collins, the Supreme Court asked this question to

determine whether the evidence was real and apart from the Charter breach or whether

it was evidence (like a confession) that emanated from an accused. In Stillman, the

Court refined this parameter with a conscriptive evidence rule which set up “a virtually

automatic exclusionary rule for conscriptive evidence, reasoning that its admission

would nearly always make the trial unfair and that an unfair trial would always bring

the administration of justice into disrepute”. (R. v. Stillman, 1997: para 98; [19]:255).

If the trial was not rendered unfair by the nature of the evidence, the court would

then consider, under phase two, the seriousness of the constitutional breach of the

state. Typically the factors considered under this analysis included whether the

breach was committed in good faith or bad faith, whether the breach was merely

inadvertent and technical versus deliberate, willful and flagrant and whether the

breach was motivated by a need to preserve evidence (R. v. Stillman, 1997: paras

123–135, R. v. Collins, 1987: para 35; [10]). Lastly, in phase three, the Court would

Situating Exclusion of Evidence Analysis in its Socio-Legal Place 543

consider factors that weighed in the administration of justice in excluding the

evidence (R. v. Stillman, 1997: para 39).

The Stillman/Collins test was the subject of much critique for many years prior

to the Court’s decision in Grant. According to Stewart this was because it created

“… a virtually automatic exclusionary rule for conscriptive, non-discoverable evi-

dence in the face of the seemingly clear direction in Section 24(2) to consider ‘all

the circumstances’” and also for “fostering confusion about what amounted to

‘conscriptive’ evidence and what did not” ([19]:256). The Court in Grant was well

aware of these critiques and it noted that the factors “have been criticized as

inconsistent with the language and objectives of s. 24(2)” (2009: para 60). The

majority noted that “fairness is better conceived as an overarching systemic goal

than as a distinct stage of the s. 24(2) analysis” (2009: para 65).

Indeed, the majority in Grant draws on academic critiques that argued the

test the Court had previously developed placed the analysis “into a straitjacket

that determines admissibility solely on the basis of the evidence’s conscriptive

character rather than all the circumstances”; that the framework “inappropri-

ately eras[es] distinctions between testimonial and real evidence”; and that test

resulted in “anomalous results in some situations” (R. v. Grant, 2009: para

101). Perhaps it is the final critique that had proven most problematic for the

Court. The majority in Grant noted that the problem of anomalous results

occurred in cases where “breath sample evidence tendered on impaired driving

charges has often suffered the fate of automatic exclusion even where the

breach in question was minor” while “more serious breaches in other kinds of

cases—for instance, those involving seizures of illegal drugs in breach of

s.8—have resulted in admission on the grounds that the evidence in question

was non-conscriptive” (2009: para 106).

Beyond these policy-based critiques, legal academics had also critiqued the Collins/

Stillman test on philosophical grounds. Paciocco wrote of three philosophical possibil-

ities for an exclusion of evidence test: denying the prosecution the use of tainted

evidence, deterrence for state agents in violating Charter rights, and to promote

“judicial integrity” ([12]: 332). Paciocco’s concept of judicial integrity allows a court

to avoid a partnership with official lawlessness while simultaneously assuring the

people that government could not profit from lawless conduct by state officials such

as police ([12]:332–333, 340).

Others have criticized the notion that the administration of justice test was to be

judged on an objective basis. In Collins the majority wrote that the notion of

disrepute would be judged by asking “[w]ould the admission of the evidence bring

the administration of justice into disrepute in the eyes of the reasonable man,

dispassionate and fully apprised of the circumstances of the case?” (1987: para 33).

However, the test is further tempered by the contention that “[t]he reasonable

person is usually the average person in the community, but only when that

community’s current mood is reasonable” (1987: para 33). Pottow argued that this

approach was a “vindication tool for the use by the individual against the tyranny

of the majority” but subject to a community’s feelings that the administration of

justice would be brought into disrepute ([17]:39–40). Some scholars proposed

proscriptive changes to the content of s.24(2) analysis on the basis of legal

philosophy. Steven Penney argued that the most appropriate approach for s.24(2)

544 R. Jochelson, K. Kramar

analysis ought to be based on deterrence of Charter breaches by state actors,

however, Penney argues for a more refined concept of deterrence than articulated

by Canadian courts ([13]: paras 5, 8–10).

The problematic issues of deterrence’s role, judicial integrity, conscriptive evidence

and anomalous results were issues that the Court needed to confront in the case of

Grant. Prior to exploring the reasoning of the case and the newly configured s.24(2)

test, a brief history of the facts of the case and the decision of the adjudicating courts is

required.

Part II: The Grant Test

The facts of Grant involved three police officers that were on patrol to monitor locations

near schools with a history of assaults, robberies, and drug related offences. Two of the

officers were dressed in plain-clothes and driving an unmarked car. A third officer was

uniformed and driving a marked police car. Grant, a young black man, came to the attention

of the plain-clothed officers as he strolled along the sidewalk. Grant’s suspicious gaze and

movements garnered their attention. The two officers suggested to the third he talk with the

accused as he drew near. The uniformed officer engaged Grant in conversation and blocked

his path on the sidewalk—requesting information and his name and address. Ultimately the

plain-clothed officers approached, identified themselves as officers and further blocked

Grant’s egress. In response to questioning, Grant admitted that he had “a small bag of

weed” and a firearm with him. Grant was arrested, searched and the marijuana and a loaded

revolver were seized (2009: paras 2–4). At trial, the judge found no Charter breaches and

admitted the gun (2004 in 2009: para 9). At appeal, the Ontario Court of Appeal found an

arbitrary detention but nonetheless included the firearm as evidence (2004 in 2009: para 10).

The majority of the Supreme Court agreed with the Ontario Court of Appeal but formulated

a new test for the exclusion of evidence under the Charter. The majority noted that the

firearm was reliable, real derivative evidence that was obtained as a result of a less severe

Charter breach, in the context of police uncertainty about the legal practice of investigative

detention: this militated inclusion of the evidence (2009: paras 133–140).

In the face of the philosophical and policy based critiques facing the Collins/Stillman

rationale, the majority in Grant articulated a refined test for s.24(2) analysis of

exclusion of evidence.

When faced with an application for exclusion under s. 24(2), a court must assess and

balance the effect of admitting the evidence on society’s confidence in the justice

system having regard to: (1) the seriousness of the Charter-infringing state conduct

(admission may send the message the justice system condones serious state miscon-

duct), (2) the impact of the breach on the Charter-protected interests of the accused

(admission may send the message that individual rights count for little), and (3)

society’s interest in the adjudication of the case on its merits (2009: para 71).

Under the first heading of analysis, the Court would consider whether the police

acted in good faith, whether the breach was inadvertent and minor vs. willful and

reckless, the presence of exigent circumstances such as the need to preserve evidence,

and whether the police conduct was an isolated incident versus a pattern of abuse of

Situating Exclusion of Evidence Analysis in its Socio-Legal Place 545

Charter rights (2009: 74–75). Under the second heading of analysis the Court would

consider whether the breach was “fleeting and technical” or “profoundly intrusive”

(2009: para 76). Here, the nature of the Charter right at issue would be profoundly

important. This requires an assessment of the “interests engaged by the infringed right

and…the degree to which the violation impacted on those interests” (R. v. Grant, 2009:

para 77). The Court seems to deem breaches relating to self-incrimination (including the

right to silence or counsel) more serious and the “more serious the incursion on these

interests, the greater the risk that admission of the evidencewould bring the administration of

justice into disrepute” (2009: para 77). When a breach relates to unreasonable searches, the

majority writes that determining the impact on “privacy, and more broadly, human dignity”

would be crucial (2009: para 78). An intrusionwhere an individual has a high expectation of

privacy will be deemed to be more serious.

The third and final heading of analysiswould analyze “whether the truth-seeking function

of the criminal trial process would be better served by admission of the evidence, or by its

exclusion.” (2009: para 79). Here, the Court admits that the reliability of the evidence would

be a crucial factor but also notes that “the concern for truth-seeking is only one of the

considerations under a s. 24(2) application” (R. v. Grant, 2009: para 80):

If a breach (such as one that effectively compels the suspect to talk) undermines the

reliability of the evidence, this points in the direction of exclusion of the evidence. The

admission of unreliable evidence serves neither the accused’s interest in a fair trial nor

the public interest in uncovering the truth. Conversely, exclusion of relevant and

reliable evidence may undermine the truth-seeking function of the justice system and

render the trial unfair from the public perspective, thus bringing the administration of

justice into disrepute (2009: para 81).

The remnants of the Collins/Stillman criteria of trial fairness are evident here. What was

previously an autonomous stepwith a virtually exclusionary rule now becomes a factor to be

weighed in the administration of justice. The majority also notes the importance of the

evidence to the prosecution’s case at this stage in the analysis (R. v. Grant, 2009: para 83).

According to Stewart, the majority of the Supreme Court in Grant does not view the

seriousness of the accused’s offence as a definitive factor, leaving it as a seemingly neutral

factor in the administration of justice analysis ([19]:261–263).

Following the articulation of the test, the Court provides a summary of the test as it might

apply to different types of evidence. Table 1 contains a summary of this discussion. The

Court’s emphasis on the reliability of the evidence seems to be highlighted in the course of

that discussion, with the Court allowing inclusion in cases that guarantee reliability but

minimize intrusions on an accused (R. v. Grant, 2009).

The Academic Response

Given that Grant was a complete reconfiguration of the constitutional test for exclusion

of evidence it is unsurprising that it has been the subject of many subsequent com-

mentaries and critiques. Stewart writes, ominously, that the Court’s minimization of the

conscription rules under Collins/Stillman and its reification of reliability of the evidence

means that “unconstitutionally obtained statements are no longer special; they are

546 R. Jochelson, K. Kramar

Table 1 Summary of classes of evidence in grant

Type of evidence State conduct factors Breach seriousness factors Administration of

justice factors

Tentative conclusions

Statements by the accused Courts cannot be seen condoning

serious violations of self-

incrimination protections.

-Distinction between serious and

deliberate conduct versus

inadvertent police slips

Liberty and autonomy breaches more serious and

are often implicated in right to silence and

counsel cases.

-Clear information and consent or technical

breaches may militate against the seriousness

of the breach

Reliability is often

undercut in coerced

statement situations.

Usually exclusion.

Bodily evidence (DNA, breath) Focus on conscription is less

welcome

-Was the police conduct

egregious or good faith?

Was the accused’s bodily integrity, human

dignity or privacy invaded?

-Invasive bodily takings (blood) versus more

innocuous procedures (fingerprinting)

Reliability usually

guaranteed

Excluded when accused’s interests

are severely and intentionally

violated

-Less egregious violations will

favour inclusion

Non-bodily physical evidence Focus on conscription is less

welcome

-Was the police conduct

egregious or good faith?

Privacy and the relative assessment of reasonable

expectation of privacy must be assessed

(home is more private than a car)

-Bodily integrity and dignity (strip search/cavity

search more serious than a perimeter search)

Reliability usually

guaranteed

Excluded when accused’s interests

are severely and intentionally

violated

-Less egregious violations will

favour inclusion

Derivative evidence (physical

evidence found from

unlawfully obtained

statement)

Was the police conduct egregious

or good faith?

Liberty and autonomy breaches more serious and

are often implicated in right to silence and

counsel cases

-Clear information and consent or technical

breaches may militate against the seriousness

of the breach

-otherwise independently discoverable evidence

breach less serious

Reliability usually

guaranteed

Reliable evidence on good faith

breaches usually included

-Deliberate and egregious conduct

that severely impacts accused

excluded despite reliability

Situatin

gExclu

sionofEvidence

Analy

sisin

itsSocio

-LegalPlace

547

subject to the same three lines of inquiry as any other type of evidence” ([19]:264). He

notes that in many cases, Grant will produce the same results as the Collins/Stillman

approach except in cases related to self-incrimination, as Grant “unquestionably

increases the likelihood of admission” ([19]:265).

Some have argued that the Court’s fascination with whether the police acted in good

faith will favour inclusion because the interrogation of the issue creates a type of

presumption of good faith on the part of the state actor ([5]:498). Nathan Forester has

argued that Grant provides for “cautious optimism that “due process” rights are once

again a matter of significant concern.” ([3]:23). He states that the Court’s subsequent

jurisprudence finds they subscribe to the notion that “justice receives a black eye when

it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable

police conduct or practices” (R. v. Morelli in [3]:63).

Tim Quigley has argued that the majority in Grant has taken great strides to protect due

process guarantees under the Charter but he remains cautious in predicting whether or not

the courts will include or excludemore evidence as a result ([18]:92; [30]). He does however

argue that the case implicitly calls for more inclusion in the context of bodily evidence such

as breathalyzer samples ([18]:94). Don Stuart agrees with this general conclusion but argues

that the seriousness of the Charter violation has taken on added interest for the Court

([21]:326). This view seems to be echoed by those who argue that multiple Charter breaches

will be more likely to result in exclusions in a given case ([9]:233; [30]:326). Paciocco has

questioned the expanded discretion of the trial judge, and the ability to weigh the seriousness

of the offence as a factor under the new test [11]. Recently, MikeMadden has concluded an

empirical study on the post-Grant jurisprudence using a sample of over 100 cases. He

concludes that:

…the classes of evidence that are in issue in Section 24(2) proceedings are not

predictably determining exclusion outcomes: real and physical evidence is ex-

cluded almost as often as conscripted testimonial evidence, while breathalyzer

data has an exclusion rate that is only 2 % lower than the global exclusion rate…

there are some subcategories of real evidence that inexplicably signal, much more

strongly, the probability of admission or exclusion: cocaine and crack are ex-

cluded 18 % more often than the global exclusion rate, while guns are excluded

20 % less often than the baseline ([9]:250).

Madden argues that the Supreme Court’s attempts to reduce anomalous results in

Grant have met with a margin of failure. He argues that lower courts have not

embraced the majority’s call in Grant to heed the trends in the types of evidence it

outlined (see Table 1) but have instead emphasized the need to consider “all of the

factors” in their assessment of the exclusion of evidence ([9]:251).

The commentaries and empirical results in the wake of Grant, provide equivocal

and often contradictory predictions about the nature of court decision-making in the

realm of exclusion of evidence law. Thus far, few analyses of the philosophies

underpinning the Court’s decision have emerged in the literature, which has restricted

itself to questions of precedent and effects in law as a result of Grant. In the coming

pages, Grant will be placed in a broader socio-legal framework to understand the

rationales of the decision in the context of other recent Supreme Court decisions as

well as socio-legal changes that are arguably occurring. By reading Grant in this

548 R. Jochelson, K. Kramar

broader context, one can perhaps elucidate different interpretations of the case beyond its

precedential effects.

Part III: Rereading Grant

It is in the rhetorical sections of the majority’s decision inGrant that one can see glimpses of

the philosophical concerns that move the Court. The Court is careful to describe the

administration of justice not just as procedural machinations but as a means of “maintaining

the rule of law and upholding Charter rights in the justice system as a whole” (R. v. Grant,

2009: para 67). Themajority makes clear that these goals can only be achieved on an analysis

informed by of long-term and prospective forethought. This analysis would require that

attention be paid to the twin goals of upholding the justice system’s “integrity” as well as

“public confidence” in the justice system (R. v. Grant, 2009: para 68). Here theCourt seems to

echo Paciocco’s earlier arguments that it is mainly concerned with notions of judicial

integrity—the ability to stand apart from official malfeasance while attempting to maintain

popular trust ([12]:340, see also [11]).

The Court seems to be embracing a type of judicial deference to populist will. This

remarkable link between judicial integrity and popular will, while present in cases following

the development of the Collins/Stillman test is a recurring and often repeated theme in the

Grant case. The Court notes that its newly configured test contains three steps “each rooted

in the public interests” viewed from a “societal perspective” (2009: para 71). The majority

makes clear that due process concerns of the accused, while a factor in the discussion, should

not militate an analysis of s.24(2) which punishes police or provides compensation to the

accused; rather, the analysis assumes the breach has occurred and seeks to improve the

prospective repute of the system in order to not “do further damage to the repute of the

justice system” (2009: para 69).

The type of populism the Court is ascribing to here, is one in which would seek to avoid

“sending a message to the public that the courts, as institutions responsible for the adminis-

tration of justice, effectively condone state deviation from the rule of law” in its ‘seriousness of

the breach’ analysis (2009: para 72; [11]). The majority notes that any deterrence of police

conduct in the assessment of seriousness of the breach “may be a happy consequence” but that

itsmain goal is to “preserve public confidence in the rule of law and its processes” (R. v. Grant,

2009: para 73). Similarly, in assessing the seriousness of the Charter breach, the majority

states:

The more serious the impact on the accused’s protected interests, the greater the risk

that admission of the evidence may signal to the public that Charter rights, however

high-sounding, are of little actual avail to the citizen, breeding public cynicism (2009:

para 76).

Lastly, the majority discusses society’s interest in adjudicating the case on the merits.

Here they argue that the interest is a “collective” one for maintaining law, order and

truth in the criminal trial (R. v. Askoy, 1990:1219–1220 in R. v. Grant, 2009: para 79).

The majority seems to suggest that the public is most interested in truth seeking and

reliability of the evidence: “exclusion of relevant and reliable evidence may undermine

the truth-seeking function of the justice system and render the trial unfair from the

Situating Exclusion of Evidence Analysis in its Socio-Legal Place 549

public perspective” (2009: para 81). While one could read these rhetorical passages of

the majority’s prose as a movement away from due process protections, the extent to

which the effect of Grant has achieved such ends is weakened by the latest (though

relatively early) empirical studies [9].

Yet, throughout its formulation of the new test, the majority linked its reasoning

to the will of the collective, the societal interest, and fear of the public’s cynicism

as to the role of the judiciary. These reifications of the judicial integrity rationale

for exclusion of evidence clearly dovetail with Paciocco’s critiques regarding the

previous iterations of the exclusion of evidence test [11, 12]. However, numerous

times in Grant, the steps of the legal test are linked to will of the public

demonstrating a seemingly newer and fetishistic judicial predilection in divining

populist sentiment in criminal trials [15].

The type of populism advocated by the Court in Grant is not given context by

reference to the population’s actual opinions in regards to the concept of administration

of justice. The type of populism advocated is not then adherence to any sort of tangible

political movement or specific political movement ([28]:88, [36]), but rather is:

[t]he political at its purest: “the inflection” of the social space that can affect any

political content… [this] populism occurs when a series of “democratic”

demands….is enchained in a series of equivalences, and this enchainment pro-

duces the universal political subject ([35]:277).

The type of populism the majority is arguing for inGrant is therefore not apprised of

the will of a society with concrete desires and goals but is better described as an

abstraction. The Court’s allegiance to the public will and its desire to avoid the

cynicism of the public is better understood as a recreation of an “artificial concreteness”

which enables the reader of such decisions to see the adjudication of the administration

of justice, not as a “complex” series of multi-factorial decisions but rather as a means of

seeing order in what otherwise would appear to be chaos. The decision provides a

reformulation which speaks to a legal landscape of a “meaningful life-world” in which

readers see moral coherence in the Court’s reformulation ([35]:280). This type of

abstracted populism is seen when reading the legal standard that the majority encour-

ages the reader to embrace in the context of s.24(2) analysis. At all stages in the s.24(2)

analysis in Grant, the majority states that “the inquiry is objective. It asks whether a

reasonable person, informed of all relevant circumstances and the values underlying the

Charter, would conclude that the admission of the evidence would bring the adminis-

tration of justice into disrepute” (2009: para 68).

It is clear that at the heart of the Court’s claims to adhere to the populist will of

society is the notion that a member of the population will be reasonable and represen-

tative of a society member in a reasonable mood. Earlier, critiques of this standard as

being apprised of a double standard—protecting us from the tyranny of the majority

while preventing damage done to the due process of the Charter inherent in the

administration of justice were reviewed. This contradiction provides the Court with

interpretive space within which to wrestle with these political debates. Debates that

include whether reliability or truth seeking must trump privacy protections, for in-

stance, could be decided in either direction, depending on the Court’s assessment of the

reasonable person. Hence the populist plea that the majority appears to make is

550 R. Jochelson, K. Kramar

somewhat inaccurate because it is really a plea for reasonableness as adjudicated by the

Court.

The most compelling recent literature critiques reasonable person tests as completely

abstract judicial creations. Critical legal scholars such as Seyla Benhabib and Diana

Young have called such constructions archetypical creations of a “generalized other”

[24, 23]. In such analyses, the reasonable person is better understood as an abstract,

right-possessing subject. Benhabib writes:

We assume that the other, like ourselves, is a being who has concrete needs,

desires and affects, but that what constitutes his or her moral dignity is not what

differentiates us from each other, but rather what we, as speaking and acting

rational agents, have in common. Our relation to the other is governed by the

norms of formal equality and reciprocity: each is entitled to expect and to assume

from us what we can expect and assume from him or her ([24]:158–159).

Diana Young has argued that in criminal law, the reasonable person test has been a

particularly difficult legal standard for courts to interpret because they are faced with

giving content to an abstraction in actual, concrete cases ([23]: 16; [29]). While courts

have taken great strides to provide some subjective contact points between the reason-

able person test and “lived realities” especially in cases that harbour gendered and racial

implications, these attempts to concretize the reasonable person test have been largely

unexplored in cases which communalize the reasonable person test, especially in

criminal procedure and evidence adjudications ([23]: 16).

Certainly, theCourt has itself demonized objective tests that rely on communal standards in

the context of the substantive criminal law. Famously, in the Labaye case (2005), the majority

of the SupremeCourt restated the criminal approach to obscenity and indecency by retiring the

legal test—“the community standards of tolerance of harm test”—which relied on the

reasonable community member to assess their neighbour’s tolerance of sexual expression

and or activities (R. v. Labaye, 2005). In retiring the test, the majority noted the following

concerns with the way it had been applied:

On its face, the test was objective, requiring the trier of fact to determine what the

community would tolerate. Yet once again, in practice it proved difficult to apply in an

objective fashion. How does one determine what the “community”would tolerate were

it aware of the conduct ormaterial? In a diverse, pluralistic societywhosemembers hold

divergent views, who is the “community”? And how can one objectively determine

what the community, if one could define it, would tolerate, in the absence of evidence

that community knew of and considered the conduct at issue? In practice, once again,

the test tended to function as a proxy for the personal views of expert witnesses, judges

and jurors. In the end, the question often came down to what they, as individual

members of the community, would tolerate. Judges and jurors were unlikely, human

nature being what it is, to see themselves and their beliefs as intolerant. It was far more

likely that they would see themselves as reasonable, representative members of the

community. The chances of a judge or juror saying, “I view this conduct as indecent but

I set that view aside because it is intolerant”, were remote indeed. The result was that

despite its superficial objectivity, the community standard of tolerance test remained

highly subjective in application (R. v. Labaye, 2005: para 18).

Situating Exclusion of Evidence Analysis in its Socio-Legal Place 551

Indeed the same questions and concerns should have been raised by the Court in

Grant as it relates to the reasonable member of society, in the context of the adminis-

tration of justice test. In Grant, the Court is ascribing to a “condonation theory” of

exclusion of evidence; the Court cannot be seen to be endorsing serious state miscon-

duct but neither could it condone technical exclusions of evidence for serious offences

([11], 29; Paciocco raises concerns regarding trial judge discretion and the notion that

seriousness of the offence might unduly influence s.24 analysis). The result is that the

legal standard of the objective test that the majority subscribes to in Grant can be

described as a “monological approach [which] makes normative evaluations against a

set of stable universal principles” ([23]: 16). The Court’s objective test in these

circumstances asserts that at the time of the case, society views justice singularly.

This is a vision of justice that aligns with the works of John Rawls who writes that

“justice as fairness … presents itself as a conception of justice that may be shared by

citizens as a basis of a reasoned, informed, and willing political agreement. It expresses

their shared and public political reason” ([32, 33]:9). Justice is then tangible and

identifiable in these cases under the Court’s vision.

Undoubtedly, these attempts to identify objective societal standards are abstrac-

tions though. Young argues that these types of abstracted standards are informed by

blind faith in a reasonable political subject that is an abstracted imaginary construc-

tion; that is, the objectivity asserted by a Court here is really a projected type of

ideal citizen. This citizen is abstracted from real lived situations. Ignoring these

‘real’ situations might encourage reasoning that further supports “closure of the

system of legal reasoning from the open-ended scope of debate that informs broader

public rationality [and] reflects [the Court’s] role as an institution that gives effect to

the process of democratic deliberation” ([27] in [23]: 20). Thus value judgments (for

example subjective traits of the objective construct) in such objective tests are

typically eliminated unless they can be grounded in legal tradition itself ([23]:20).

The result is that the abstraction that the Grant court relies upon requires it to create

its own notions of actual reasonable people with characteristics it views as salient. In

short, it allows the Court the luxury of stating that it is minding populist sentiment,

while simultaneously creating the content of said populist sentiment. In Grant, the

reasonable person approach allows the Court to create a constitutional standard to

both define and adjudicate the parameters of a new test for exclusion of evidence.

The problems that the Court articulates as plaguing the Collins/Stillman criteria can

thus be better understood as problems that the Court views as barriers to its own

jurisprudence. In this way, the decision in Grant could be seen less as a response to

populist calls for change, and more as a pragmatic response to a Court finding itself

trapped by its previous precedents. Faced with the hurdles apparent in the case law,

the majority rewrites the s.24(2) test as a disingenuous ode to the will of the public

in maintaining confidence in the administration of justice.

Here it is important to distinguish between the majority’s approach in

Grant’s to populist notions versus the relatively new criminological concept

of penal populism. The literature on penal populism is vast and evolving [4, 26,

31] and is demonstrative of structural changes in the way penal power is

organized, speaking to a type of populism that represents the “moods, senti-

ments and voices of significant and distinct segments of the public” ([31]:8).

Pratt writes that:

552 R. Jochelson, K. Kramar

[R]ather than populism merely being a device to bring political popularity, its

central aim is ‘to inject the will of the people into the democratic decision-making

process’… or at least the will of those people whom governments are thought to

have previously taken for granted and ignored. To do this, it also has to break

down those barriers represented by the establishment that might prevent this from

happening ([31]:9).

In more simplistic terms, according to Pratt, penal populism has resulted in more

populist based political parties and citizen led penal initiatives that prey on “anger,

disenchantment and disillusionment” with the processes of criminal justice, in order to

protect the “well-being and security of law abiding ‘ordinary people’” ([31]:14). This

type of populism relies on intuitions and anxieties about crime rather than empiricism;

broadly stated, these sentiments support ‘get tough on crime’ approaches and more

severe sanction for criminal actors ([31]: 14). Penal populism “attempts to reclaim the

penal system for what it sees as the oppressed majority and harness it to their

aspirations rather than those of the establishment, or those of liberal social movements

that pull in the opposite direction” ([31]:21).

However, penal populism is often led only by certain classes of citizens. This type of

populism aligns a government’s objectives with the call of certain citizens to achieve

the promise of the politics of law and order. This populism responsibilizes certain

citizen groups to act as conceptual vigilantes in the fight for a more secure society.

Certainly, one could argue that the Court’s rationale in Grant aligns more with these

penal populist goals. A compelling case could be made that citizens of certain classes—

jurists and leading academics—have called for a return to populism in the manufacture

of a new exclusion of evidence test. One could argue that the decision in Grant

devolves to the lower courts the ability to use a multiplicity of factors to declare a

war on due process. This account of the Court’s approach in Grant is far too simplistic

and presumptive. Certainly, the emerging empirical evidence has not born out an attack

on due process when studying inclusion and exclusion of evidence rates alone. Indeed,

the discussion in Grant about the reconfiguration of the test seems to reflect a dialogue

between critics of the Collins/Stillman approach and the Court; the discussion does not

seem to demonstrate any actual recognition of societal mobilization towards crime

control politics (this sort of societal leaning is often emblematic of claims of penal

populism).

The Court’s use of the objective test in Collins/Stillman seems more in line with a

notion of political populism where a political actor speaks on behalf of the members of

society who are afflicted by social grievances because those players have no direct role

to play in the establishment of penal and legal policy ([31]:32). However, the Court in

cases such asGrant is not using populism in the same ways as an elected official might.

The source of the Court’s authority is, rather, borne of its constitutional and remedial

role in excluding evidence in the context of Charter breaches and the Court is entitled to

act after hearing submissions from the relevant parties including interveners.

The Court’s move to align its role as arbiter of evidentiary exclusion in the case of

Constitutional breaches with populism inherent in the administration of justice suggests

a third species of populism. This is a populism that mirrors the presumptions of political

populism because it sees the key societal players (the average citizen as reasonable

person) as ‘dummy players’—that is society has no direct contact with the judiciary as

Situating Exclusion of Evidence Analysis in its Socio-Legal Place 553

it assesses what type of exclusionary circumstances would bring the administration of

justice into disrepute. On the other hand, much of the application of the legal calculus is

devolved to lower courts, devoid of automatic exclusionary rules as was the case under

the Collins/Stillman test. Certainly, the opening up of the exclusionary rules of the

Collins/Stillman test combined with the judicial edict to examine the implications on

justice prospectively and as a means of avoiding the public’s cynicism provides for

theoretical overlap with the tenets of a penal populist conception. Indeed, the test

allows for the potential of a socio-legal trend towards inclusion and therefore the Grant

test has the potential to be aligned with, or subsumed within, conceptions of penal

populism.

Therefore it is possible to envision the majority approach to the exclusion of

evidence in Grant’s as a middle ground between the political and penal approaches

to populism. The Court has given effect to a test concerned with of all the circum-

stances, devoid of virtually certain exclusionary rules, and apprised of the Court’s

abstracted sense of the mood of the community. This movement towards judicial

populism might align with constitutional theory that views such calculi as assessments

of “thin” constitutional principles. These values are ones citizens often take for granted,

but their meaning remains elusive. For instance, the notion of equality is a “given” in

the Canadian constitutional context, yet its exact content is both hotly contested and

evolving. These thin values are “narrowly defined core values that remain uncontested

in constitutional arenas”; however, the content of these uncontested values may still be

open to debate ([1, 6, 8, 25, 34]: 17). The thin value at stake in Grant is the conception

of administration of justice. That its content is informed by populist sentiments of the

Court is an observation that admits that the concept’s exact meaning may vary with the

socio-political times. The abstractness of the objective test allows for this contingent

uncertainty within the parameters of the test articulated in Grant.

What the Court is achieving in the Grant reconstruction is the creation of a new and

flexible approach to s.24(2) analysis that better allows itself to orient its decision to the

socio-political concerns of the day. This flexibility has been met by legal academics

with mixed responses ([2]:213–214) but the new flexibility must also be read in the

context of Supreme Court jurisprudence in recent years, particularly in the context of its

s.8, s.7 and 10b adjudications in the recent post-Charter era. A brief review of the case

law and relevant literature reveals that the Supreme Court has recently limited the

constitutional protections provided in cases of privacy, reasonable search and seizure

right to silence and right to counsel.2 While a detailed review of this jurisprudence is

beyond the purview of these pages, it would seem that the flexibility provided by the

2 The Supreme Court of Canada case of R. v. Singh, 2007 has appeared to dilute protections for the pretrial

right to silence of the accused seeming to endorse an overlap of the constitutional protection with the common

law confessions rule—see Plaxton, [14]. Similarly the right to counsel appears to have been circumscribed in

R. v. Willier, 2010 and R. v. Sinclair, 2010. The dissent, per Binnie J., in Sinclair writes that the case law now

allows that an:

[I]ndividual (presumed innocent) may be detained and isolated for questioning by the police for at least 5

or 6 h without reasonable recourse to a lawyer, during which time the officers can brush aside assertions of the

right to silence or demands to be returned to his or her cell, in an endurance contest in which the police

interrogators, taking turns with one another, hold all the important legal cards (at para 98).

This is done in the, words of the dissent, at para. 99, in “the societal interest in resolving crimes”. See

also Stewart, [16]. For an example of the a case where relaxed expectation of privacy, and lower warrantless

search standards meets the new Grant framework see R. v. Nolet, 2010.

554 R. Jochelson, K. Kramar

Grant framework together with the retreat from the previous Charter rights jurispru-

dence in the 1990s (for example, see [7]) could result in reduced due process protec-

tions. In this regard, Stewart’s warning of a possible reduction of some due process

protection becomes a future contingency to consider and study as new jurisprudence

emerges. However, the absence of exclusionary rules combined with the populist ethic

of the Court also allows for flexibility in the exclusion of evidence analysis. Indeed the

Supreme Court’s own jurisprudence following Grant demonstrates that the decision to

exclude or include evidence is not determined linearly or entirely predictably.

Part IV: The Supreme Court’s Assessment of Grant

In this section, the Supreme Court’s more recent jurisprudence following the Grant

decision is briefly reviewed in order to assess whether any clarifying legal principles

have emerged since the 2009 decision. This review demonstrates a Court that empha-

sizes the flexibility of the Grant test as well as the importance of lower court decisions

in the Grant calculus.

In the sister case toGrant, R. v. Harrison, 2009, the Court excluded 35 kg of cocaine

after an officer stopped a vehicle that had no front license plate (which was lawful

because the vehicle was from Alberta though the stop was made in Ontario). The

officer continued a detention in the absence of reasonable grounds, and upon discov-

ering the driver’s license was suspended, searched the car and found the cocaine. The

Court characterized the police conduct as an “unconstitutional detention and search”

and decided that the evidence should be excluded (R. v. Harrison, 2009: para 1). The

main factor which favoured exclusion was that the police misconduct in question was

considered “brazen and flagrant” (2009: paras 3, 23). The Court noted that police

misconduct need not be deliberate in order to tip the scales towards exclusion of

evidence:

While the violations may not have been “deliberate”, in the sense of setting out to

breach the Charter, they were reckless and showed an insufficient regard for

Charter rights. Exacerbating the situation, the departure from Charter standards

was major in degree, since reasonable grounds for the initial stop were entirely

non-existent (2009: para 24).

The blatant nature of the misconduct weighed against the reliability of the

evidence and the relatively moderate violations that the Court found on the

rights of the accused. The Court noted that “to appear to condone wilful and

flagrant Charter breaches that constituted a significant incursion on the appel-

lant’s rights does not enhance the long-term repute of the administration of

justice” (R. v. Harrison, 2009: para 39).

One year later, in R. v. Morelli, 2010, the police were acting on a tip given by a social

worker to the RCMP. The social worker had received information from a computer

technician who unannounced was installing high speed-Internet on the accused’s

computer. The technician noted that the accused had young children and also found

that the accused’s computer taskbar favourites included links to apparent underage

pornographic material. The technician also observed a tripod and a webcam pointed

Situating Exclusion of Evidence Analysis in its Socio-Legal Place 555

towards toys and the vicinity of the children. Subsequently, an officer obtained a

warrant to search the accused’s computer and found evidence of child pornography

resulting in criminal charges.

The majority found that the information to obtain the warrant contained numerous

errors and that the information was:

Carelessly drafted, materially misleading, and factually incomplete. [It] invoked

an unsupported stereotype of an ill-defined “type of offender” and imputed that

stereotype to the appellant. In addition, it presented a distorted portrait of the

appellant and of his surroundings and conduct in his own home at the relevant

time (R. v. Morelli, 2010: para 4).

Due to the nature of the allegations, the Court was concerned that the information

document resorted to “stereotypical, inflammatory, or misleading allegations” (R. v.

Morelli, 2010: para 10). In the aggregate, the majority was troubled that there was an

absence of reasonable and probable grounds for the search. In applying the Grant test

the majority found firstly that the police who executed the warrant acted in good faith

and secondly that the errors of the officers who executed the warrant were not

egregious. However, the officer who prepared the information “was neither reasonably

diligent nor mindful of his duty to make full and frank disclosure…[the information]

was also drafted in a misleading way” (R. v. Morelli, 2010: para 100). The majority was

mindful that “the repute of the administration of justice is jeopardized by judicial

indifference to unacceptable police conduct” even though the majority found itself

bound by the trial judge’s finding that the police acted in good faith (R. v. Morelli, 2010:

paras 102–103). The majority found the breach as experienced by the accused to be

serious since “it is difficult to imagine a more intrusive invasion of privacy than the

search of one’s home and personal computer” (R. v. Morelli, 2010: para 105). Given the

seriousness of the breach and the Court’s interest in maintaining the long-term repute of

the justice system the evidence was excluded (R. v. Morelli, 2010: para 113).

In R. v. Beaulieu, 2010, the Court made clear that deference should be made to the

trial Court in applying Grant, and that in its view the test had not changed significantly

since Collins/Stillman. The appeal involved a firearm offence whereby a firearm was

discovered during the lawful installation by police of listening devices for surveillance

purposes in the accused’s car. While installing the devices, the officers followed the

wires and discovered a console that they dismantled, ultimately revealing a loaded

firearm. So as not to jeopardize the ongoing investigation, “the police had the firearm

rendered unusable and placed it back in the car” (2010: para 2). One year later the

accused was charged with a firearm offence. It was not disputed that the search was

unconstitutional but the trial judge found that the police conduct was not flagrant and

declined to exclude the evidence (2010: para 4). The decision was reversed on appeal,

but the Supreme Court restored the trial decision. In reaching its conclusion, the Court

noted that though the lower courts did not use Grant (since it has not been issued yet),

the relevant factors in determining exclusion of evidence have not changed (2010: para

7). The Court agreed that the evidence should be included:

As for the impact of the breach, the trial judge took into account Mr. Beaulieu’s

reduced privacy interest in his car and the limited scope and invasiveness of the

556 R. Jochelson, K. Kramar

search. With regard to society’s interest in an adjudication on the merits, she

concluded that the evidence was crucial to the Crown’s case. It is also uncon-

tested that a gun is reliable evidence (R. v. Beaulieu, 2010: para 8).

In R. v. Côté, 2011, the Supreme Court of Canada again had an opportunity to revisit

the Grant factors. The case likely represented the most controversial case of exclusion

of evidence since Grant, due to the seriousness of the offence—murder. Police

responded to the emergency phone call of the accused that her spouse had been injured.

At the hospital it was determined that the victim had sustained head injuries and that the

wounds contained the presence of a metal object. At midnight, officers attended the

accused’s home. They did not tell the accused they believed that the victim had suffered

a gunshot wound. The police searched both inside and outside of the residence as well

as a gazebo. They also questioned the accused about the presence of firearms who

confirmed two firearms in the house. The police were only able to locate one and they

later obtained warrants to search the home, finding a matching firearm for the bullet in

the victim’s skull. The accused was brought to the police station early in the morning

and over 2 h later was told she was an important witness in an attempted murder. She

was advised of her right to counsel but continued to speak and was arrested for

attempted murder. She was re-advised of her Charter rights at this point, spoke with

a lawyer and was interrogated throughout the day. In the evening she was told that her

spouse was now dead and that she was being charged with second-degree murder.

The majority of the Court characterized the case as one of “serious and systematic

disregard for Charter rights by the police during the investigation of a serious crime”

(R. v. Côté, 2011: para 1), noting “the trial judge, after a 5-day hearing, concluded that

the police investigators over several hours had violated virtually every Charter right

accorded to a suspect in a criminal investigation” (2011: para 2). The majority also

found serious violations of the right to privacy, and the right to be free from unreason-

able search and seizure and detention (2011: para 85). However, just as importantly, the

majority provided great deference to the decision of the trial court, stating:

the… decision to exclude the observations made by police at the appellant’s home

and the physical evidence collected pursuant to the warrants was owed defer-

ence…The Court of Appeal’s holding that the police had not deliberately acted in

an abusive manner was contrary to the trial judge’s numerous findings of delib-

erate and systematic police misconduct. Its emphasis on the seriousness of the

offence was also misplaced given that the trial judge had acknowledged that the

offence was serious and that the seriousness of the offence had been held not to be

a determinative factor…Both the police misconduct and its impact on the ac-

cused’s Charter-protected interests were very serious, even taking discoverability

into account. The trial judge was obviously and justly concerned about the

continuous, deliberate and flagrant breaches of the appellant’s Charter rights and

this consideration played an important role in his balancing of the factors under s.

24(2). He also properly took into account the strong societal interest in having a

serious criminal charge determined on its merits (R. v. Côté, 2011: para 89).

This passage makes clear that the Supreme Court, following the development of the

Grant test, is placing a great degree of defence on the findings of the Voire Dire court.

Situating Exclusion of Evidence Analysis in its Socio-Legal Place 557

The early case law of the Supreme Court following Grant could be read as a retreat

from the critique that Grant placed too heavy an emphasis on a crime control agenda.

However, the Court’s work on deference in the last several years suggests that the most

important clarification since Grant is the degree of deference that the Court will provide

to a well-reasoned trial court decision (as Beaulieu and Côté amply demonstrate),

which has resulted in both inclusion and exclusion of evidence. Lastly, these latest

cases make clear that flagrant and serious constitutional breaches committed by police

may militate exclusion of evidence even when the evidence obtained may be quite

reliable, perhaps easing the concerns of some scholars that Grant would provide a law

and order panacea to prosecutors across Canada. The amount of deference provided to

well-reasoned lower court decisions however, suggests that a measure of unpredict-

ability will continue to inculcate Supreme Court reconsiderations and clarifications of

the Grant test.

Conclusion

This paper has reviewed the judicial test for the exclusion of evidence under the

previous Collins/Stillman formulation and under the new Grant framework. It has also

reviewed the descriptive and empirical research that has emerged since the case was

decided in 2009. It is perhaps too early to predict the empirical effect of Grant as

decisions are formulated over the coming years, but the descriptive analyses after the

adjudication have varied from cautious optimism to more stark opinions.

This paper has added to the growing examination of the rhetoric of the Grant Court,

using emerging socio-legal theoretical lenses. The post Grant Court has given more

effect to a type of judicial populism that seems to mediate the interstitial spaces between

penal populism and political populism. Advancing this reasoning on the universalized

(mono)logic of a reasonable person test perhaps acts as a proxy for the whims of the

particular machinations of the judge writing the decision. Scholars have argued that the

use of objective standards in the context of public interest is a more banal development.

For instance, Frederick Schumann writes:

If we see courts not only as interpreting the law’s meaning, but as justifying a

particular obligation as the authentic meaning of the law, then the concern with

public appearance becomes immediately easier to understand. In turn, we can see

that the figure of the reasonable person is simply the persona corresponding to the

legal relation, to whom justifications of legitimate legal obligations must be

addressed. Several familiar features of adjudication are best explained as aimed

at publicly justifying legal results as authentic to this persona (2008:97).

This may be a perfectly legitimate description of the positivistic machinations of

the Court. One could, however, see the flexibility developed by the Court in Grant in

the context of substantial retreats in Charter jurisprudence of police powers. However,

the effect of Grant can be seen in less polarized terms: the decision is not as

indicative of banal positivism, or unfettered crime control, but rather as the potential

alignment of the flexibility of the exclusion of evidence test with political movements

of the day.

558 R. Jochelson, K. Kramar

Thus whileGrantmay provide flexibility it does so at the expense of clarity as to the

content of the administration of justice. It seems that the administration of justice is a

moving target influenced by the Court’s assessment of the reasonable mood of the

average Canadian at the time of the case. The abstraction of this objective test provides

a legal vacuum that, at its most perilous, could be increasingly informed by law

enforcement agendas under the guise of populist sentiment. However, this populist

discourse can be mitigated and/or disguised by the Court’s adherence to the principle of

deference to the trial decision [11]. Thus the Grant calculus provides a populist and

flexible analytic by which to determine evidentiary exclusion.

The flexibility of the test also means that a differently constituted Court in another

era might reach different conclusions on the content of the administration of justice. Of

course, this is both the insidiousness and practicality of elastic legal tests such as the

newly articulated s.24(2) framework—“infinite analyses by which a Court could

empower or disempower police to discipline us” ([7]:239). The scenario that is

ultimately achieved will be a question answered in the fullness of time. The scholars

and citizens who were alarmed by the flexibility of the Grant framework ought be

resilient in their study of the emerging jurisprudence of new s.24(2) analysis.

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