## Facts

- Three Toronto police officers patrolled a high-crime school area to monitor safety.
- Two plainclothes officers observed Donnohue Grant walking nearby, perceived him as nervous, and asked a uniformed officer to speak with him.
- The uniformed officer approached, blocked Grant’s path, requested name and address, and directed him to keep his hands in front of him.
- The two plainclothes officers approached, stood behind the uniformed officer, displayed badges, and further limited Grant’s ability to leave.
- During questioning, Grant admitted prior arrest and stated he had marijuana and a firearm.
- Police arrested and searched Grant, seizing marijuana and a loaded revolver.
- Grant sought exclusion of the firearm, alleging breaches of Canadian Charter rights (including arbitrary detention and right to counsel).

## Issues

1. What constitutes “detention” under Charter ss. 9 and 10, including psychological detention, and was Grant detained during the street encounter?
2. Whether Grant’s s. 10(b) right to counsel was breached, and if so, whether the firearm and related evidence should be excluded under Charter s. 24(2).
3. Whether “transfer” for certain firearms offences requires a transaction, or can be satisfied by mere movement of a firearm.

## Decision

- The Supreme Court of Canada held Grant was detained by psychological restraint and that the detention was arbitrary, breaching s. 9.
- The Court held Grant’s s. 10(b) right to counsel was breached because he was questioned while detained without being afforded counsel.
- The Court reformulated the s. 24(2) exclusion analysis and, applying it, admitted the firearm evidence.
- The appeal was allowed in part: an acquittal was entered on one firearms “transfer” count; remaining firearms convictions were upheld.

## Legal Principles

- “Detention” includes significant physical restraint and psychological restraint; psychological detention exists when police conduct would cause a reasonable person in the individual’s circumstances to conclude there is no real choice but to comply.
- In assessing psychological detention, relevant considerations include: the circumstances of the encounter (including location and number of officers), the nature of police conduct (language, positioning, control of movement), and personal characteristics of the person (including age, minority status, and prior justice-system experience).
- Police may reduce ambiguity in street encounters by clearly advising that the person is not required to answer questions and is free to leave.
- Evidence obtained through Charter breaches is excluded under s. 24(2) only if admission would bring the administration of justice into disrepute, evaluated through three inquiries: (1) seriousness of the Charter-infringing state conduct, (2) impact of the breach on the accused’s Charter-protected interests, and (3) society’s interest in adjudication on the merits (including reliability and importance of the evidence).
- For certain firearms “transfer” offences, “transfer” requires some form of transaction; mere movement of a firearm without a transactional element is insufficient.

## Conclusion

The court clarified that detention can be psychological and arises when police actions would make a reasonable person feel compelled to comply, triggering the right to counsel; it also replaced the prior s. 24(2) approach with a three-factor balancing test and held that, despite detention and counsel-right breaches, reliable firearm evidence was admissible while a “transfer” conviction was set aside because transfer requires a transaction.


R. v. Grant, 2009 SCC 32 (Can. 2009)