[jolinar of malkshor]

Justice Laskin, authoring the unanimous appeal court judgment, first reviewed what constitutes a detention. Under the Charter, a detention can occur two ways: physical or "psychological". A psychological detention can occur when a police officer gives direction or demand to a citizen in which the citizen feels (reasonably believes) they have no choice but to obey (and submits or acquiesces to the direction or demand) - even if there is no legal authority for the demand or direction, and thus no offence committed for failing to comply.

Laskin noted: The definition of "psychological detention" reflects a judicial balance between competing values. On the one hand, the police have the duty and the authority to investigate and prevent crime in order to keep our community safe. In carrying out their duty, they must insteract daily with ordinary citizens. Not every encounter between the police and a citizen amounts to a constitutional "detention". This court and other courts have recognized that police must be able to speak to a citizen without triggering that citizen's Charter rights.

On the other hand, ordinary citizens must have the right to move freely about their community. Thus, the police cannot detain a citizen for questioning unless they are authorized by law to do so.

A "psychological" detention includes three elements: a police direction or demand to an individual; the individual's voluntary compliance with the direction or demand, resulting in a deprivation of liberty or other serious legal consequences; and the individual's reasonable belief that there is no choice to comply.

In this case Laskin ruled the accused was psychologically detained.
- The uniformed officer's intitial demand was made while standing in front of Grant. His path was blocked and he was told to keep his hands in front of him. This was a demand which Grant wasn't free to ignore.
- The actions of the plainscloths officers. They did not stay in their car, but got out, showed Grant their police badges and stood behind the uniformed officer.
- The three officers were bigger than Grant and effectively formed a small phalanx blocking his path, exerting control over his movements throughout the encounter.
- The uniformed officer's questions went well beyond a mere request for identification or other non-incriminating information. These questions amounted to further "demands".
- Grant acquiesced to all the officers' demands. he put his hands in front of him and gave incriminating answers, leading to his arrest, the search and the ultimate deprivation of his liberty.
- Grant's manner in answering the questions suggested he did not believe he had the right to walk away and end the conversation, but rather believed he had no choice.
- The duration of the encounter was about 7 minutes. It wasn't a long encounter, but it wasn't so short that it could not give rise to a detention.

The final decision: Although Grant's s.9 Charter right had been breached, the evidence was nonetheless admisible under s. 24(2). Even though the revolver was "derivative evidence" that arose from his answers, he had a lesser expectation of privacy in a public area, the detention was briefm the questions minimally intrusive, police did not physically restrain him until after the arrest and they acted in good faith. Furthermore, possession of a loaded firearm in a public place is very serious, the accused was near several schools, the evidence was crucial to the Crown's case and was entirely reliable. Therefore, admitting it would not bring the administration of justice into disrepute.

Grant's conviction appeal was dismissed. (meaning the original sentence stood).

R. v. Grant (2006) Docket: C43132 (OntCA).

Note: This case overview was taken out of the "Blue Line" magazine.