The appellant was convicted of simple possession of cannabis marihuana.
On appeal, the appellant challenged the trial judge's application of the Grant criteria for the exclusion of evidence under s. 24(2) of the Charter, arguing that his s. 10(b) Charter right to counsel was breached.
The trial judge found a s. 10(b) breach but admitted the evidence, characterizing the breach as minimal.
The appellate court found that the trial judge erred in characterizing the seriousness of the breach and in failing to properly apply the second and third Grant guidelines.
The court concluded that the deliberate nature of the officer's conduct, which encouraged self-incrimination without advising of the right to counsel, constituted a serious breach with significant impact on the appellant's Charter rights, outweighing society's interest in admitting the evidence of a minor drug offence.
The appeal was allowed, the conviction set aside, and an acquittal entered.
