R. v. Lafrance

R. v. Lafrance
Collection
Supreme Court Judgments
Date
2022-07-22
Neutral citation
2022 SCC 32
Case number
39570
Judges
Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud
On appeal from
Alberta
Subjects
Constitutional law
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Lafrance, 2022 SCC 32
Appeal Heard: December 3, 2021 Judgment Rendered: July 22, 2022 Docket: 39570
Between:
Her Majesty The Queen Appellant
and
Nigel Vernon Lafrance Respondent
- and -
Attorney General of Ontario, Canadian Civil Liberties Association and Criminal Lawyers’ Association Interveners
Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
Reasons for Judgment: (paras. 1 to 103)
Brown J. (Karakatsanis, Martin, Kasirer and Jamal JJ. concurring)
Joint Dissenting Reasons: (paras. 104 to 194)
Côté and Rowe JJ. (Wagner C.J. and Moldaver J. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Her Majesty The Queen Appellant
v.
Nigel Vernon Lafrance Respondent
and
Attorney General of Ontario,
Canadian Civil Liberties Association and
Criminal Lawyers’ Association Interveners
Indexed as: R. v. Lafrance
2022 SCC 32
File No.: 39570.
2021: December 3; 2022: July 22.
Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
on appeal from the court of appeal of alberta
Constitutional law — Charter of Rights — Detention — Right to counsel — Police entering suspect’s home in early morning to execute search warrant and driving him to police station for interview without advising him of right to counsel — Police later arresting suspect and conducting second interview after legal aid lawyer consulted — Suspect requesting during second interview to call his father for assistance in obtaining legal advice but request refused — Suspect confessing during second interview to killing victim but seeking exclusion of confession at trial on basis that police breached his right to counsel — Whether police detained suspect and breached his right to counsel on day of execution of warrant — Whether police breached suspect’s right to counsel on day of arrest by refusing to allow him to have further consultation with lawyer — If so, whether admission of evidence would bring administration of justice into disrepute warranting its exclusion — Canadian Charter of Rights and Freedoms, ss. 10(b) , 24(2) .
The police suspected that L might have been involved in the death of an individual. Two days after the death, a team of armed police officers entered L’s home to execute a search warrant. L was a 19‑year‑old recent high school graduate, was Indigenous, had had minimal police exposure and was of much smaller stature than the officers. The officers awoke him and ordered him to dress and leave the premises. He was led to a police officer who asked him to identify himself and to come to the police station to provide a statement regarding the alleged murder. The police drove him to the police station, took him to a secure environment and interviewed him for over three hours. Approximately three weeks later, the police arrested L for murder. That day, after allowing him to call Legal Aid, they interviewed him. Several hours into the interview, L asked to call his father because that would be his only chance of getting a lawyer and because Legal Aid told him to get a lawyer before he continued talking. The police refused the request and pushed for answers. L eventually confessed to killing the victim.
At trial, L sought to exclude his confession by arguing that the police had detained him on the day of the execution of the warrant and breached his right to counsel pursuant to s. 10(b) of the Charter on the day of the execution of the warrant and on the day of his arrest. The trial judge admitted the evidence, finding that L had not been detained on the day of the execution of the warrant, and the police were not required to allow him a second opportunity to call a lawyer on the day of the arrest. L was convicted by a jury of second‑degree murder. The majority of the Court of Appeal allowed his appeal, excluded the evidence under s. 24(2) of the Charter and ordered a new trial.
Held (Wagner C.J. and Moldaver, Côté and Rowe JJ. dissenting): The appeal should be dismissed.
Per Karakatsanis, Brown, Martin, Kasirer and Jamal JJ.: The police detained L on the day of the execution of the warrant and then breached s. 10(b) by failing to inform him of his right to counsel. The police committed another breach of s. 10(b) on the day of the arrest by refusing to allow L to contact a lawyer in circumstances which showed that his initial conversation with Legal Aid was insufficient for the purposes of s. 10(b). These were serious breaches, substantially impacting L’s Charter ‑protected interests, and admitting the evidence thereby obtained would bring the administration of justice into disrepute.
The test that should be applied in every instance of alleged detention by police is the test stated in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692. It is comprehensive in scope and addresses the full breadth of circumstances that engage the right against self‑incrimination protected by s. 10 of the Charter , including investigative detention. Trial judges must not consider the factors in R. v. Moran (1987), 36 C.C.C. (3d) 225 (Ont. C.A.). The test for detention set out in Grant and expanded in Le is objective, and it was restated to direct the inquiry to the perspective of the reasonable person in the accused’s shoes. Under this test, three factors are to be considered and balanced.
The first factor a court must consider is how the circumstances of the encounter would have been reasonably perceived by the individual — more specifically, whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or singling them out for focused investigation. The analysis properly begins at the moment the encounter itself begins. In the instant case, on the day of the execution of the warrant, it is inconceivable that a reasonable person in L’s shoes — woken and confronted by armed police officers in his home telling him to leave — would believe that the police had arrived to provide general assistance, maintain general order or make general inquiries. The reasonable person would immediately understand that he or she is being singled out for investigation. This weighs in favour of a finding of detention. While, of course, the police were authorized by warrant and as such had legitimate reasons for the steps they took, this is not determinative of — and indeed is unlikely to affect — how a reasonable person perceives his or her interactions with the police. Indeed, the warrant itself, by authorizing the police to search L’s home, reveals a targeted investigation.
The second factor directs a court’s attention to the nature of the police conduct throughout the encounter. Specifically, their actions and language used, their use of physical contact, the place where the encounter occurred, the presence of others, and the duration of the encounter, may all play a role in shaping the perceptions of the reasonable person in the individual’s shoes. The assessment requires a broad view directed to all circumstances of the case, from which view a court should focus on the contextual factors that would affect the perception of the reasonable person in the individual’s shoes. No single consideration, including a police statement to an individual that he or she is not detained or otherwise under any obligation to cooperate or may leave, is determinative of whether a detention has occurred. The test is principally objective and therefore, rather than focusing on what was in the individual’s mind at a particular moment in time, the inquiry is into how the police behaved and, considering the totality of the circumstances, how such behaviour would be reasonably perceived.
The investigating officer’s statements to L that he was free to leave militate against a finding of detention, but they are outweighed by circumstances that support the opposite conclusion. While considerations of the physical proximity of the police to L have little if any impact, the presence of others is a significant consideration. L was in the presence of at least one police officer throughout his interaction with the police; their continued presence and supervision would tend to contribute to the perception of a reasonable person in L’s shoes that he or she was not free to decline to speak or to leave. Furthermore, this was a single, lengthy police encounter. This interaction spanned several locations and each of them have features — the overwhelming show of force in the intrusion into the home, the long ride to the police station and the secure environment for a lengthy interview — that, taken as a whole, support the view that someone in L’s position would reasonably have perceived that he or she could not leave. This supports a finding of detention.
The final factor requires a court to consider, where relevant, the individual’s age, physical stature, minority status and level of sophistication. Actual consideration of how these various characteristics might impact the reasonable view of the matter as held by someone in like circumstances is required. Youth — even the youth of early adulthood — aggravates the power imbalance between the state and the individual, making it more pronounced, evident and acute. With respect to the race of the accused, the question that must be answered is how a reasonable person of a similar racial background would perceive the interaction with the police. To answer this question, courts must take into consideration the larger, historic and social context of race relations between the police and the various racial groups and individuals in Canadian society. In evaluating interactions between Indigenous people and the police, courts must be alive to (1) the relational aspect between the police and Indigenous persons, characterized as it has been by an overwhelming power imbalance and history of discrimination; and (2) the resulting possibility that their interactions would reasonably be perceived by Indigenous persons as depriving them of choice to cooperate.
In this case, L’s youth is a crucial consideration that should have received more attention. It is simply unrealistic to suggest that a reasonable 19‑year‑old will, even in the presence of police statements to the contrary, feel anything but constrained to respond positively to the request to give a statement, following immediately upon the sort of police entry into his home that occurred here. L’s Indigenous background is a factor that weighs somewhat in favour of detention, albeit not heavily as it did not appear to play a significant role in shaping his perception of his obligation to cooperate with the police. Further, L’s sophistication does not undermine the case for finding a detention. Rather, his lack of experience with the police and unfamiliarity with his Charter rights bolsters it.
All three factors weigh decisively in favour of finding that L was detained. It follows that police were required to inform him of his s. 10 (b) right to counsel and to afford him the opportunity of exercising it, and breached that right by failing to do so.
Whether the police breached s. 10(b) of the Charter by refusing to allow a further consultation with a lawyer requires an application of the test in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310. As explained in Sinclair, the purposes of s. 10(b) include to inform the detainee not only of his rights and obligations under the law (informational component) but, equally and if not more important, to allow him to obtain advice as to how to exercise those rights (implementational component). This latter component implicitly includes a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult counsel. While a single consultation with a lawyer is constitutionally sufficient, the implementational component of s. 10(b) imposes upon police a further obligation to provide a detainee with a reasonable opportunity to consult counsel again if a change in circumstances or a new development suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation. Three non‑exhaustive categories of exceptional circumstances triggering this duty were identified in Sinclair: (1) the police invite the accused to take part in non‑routine procedures that counsel would not consider at the time of the initial consultation; (2) there is a change in jeopardy that could affect the adequacy of the advice received during the initial consultation; and (3) there is reason to question the detainee’s understanding of his rights.
The third category broadly covers circumstances where the detainee may not have understood the initial s. 10 (b) advice of his right to counsel, which imposes on the police a duty to give him a further opportunity to talk to a lawyer. The inquiry is into circumstances, stated broadly, and an inquiry into whether a detainee understood that he or she could remain silent is not sufficient. It is only by ensuring that detainees obtain legal advice that accounts for the particular situation they face, conveyed in a manner they can understand, that s. 10 (b) can meaningfully redress the imbalance of power between the state (whose agents know the detainee’s rights) and the detainee (who may not). It is uncontroversial that the purpose of s. 10 (b) is to mitigate the imbalance between the individual and the state. Investigating officers and reviewing courts must be alive to the possibility that a detainee’s vulnerabilities, which may relate to gender, youth, age, race, mental health, language comprehension, cognitive capacity or other considerations, coupled with developments that may occur in the course of police interrogation, will have rendered a detainee’s initial legal advice inadequate, impairing his or her ability to make an informed choice about whether to cooperate with the police.
On the day of L’s arrest, the police fulfilled the informational component of s. 10 (b) and initially at least satisfied the implementational component upon arrival at the police station. While the police did not employ any new or unusual investigative techniques and there was no change in jeopardy during the interview, there was ample reason to question L’s understanding of his s. 10 (b) right. His confusion was an objective indicator that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so. There were also clear signs that either the legal advice he obtained was incorrect, or he did not understand how his s. 10 (b) rights applied to his current circumstances. The concern that should reasonably have arisen in the mind of the investigating officer that L may not have understood his rights and how to exercise them is affirmed, if not heightened, when considered in light of L’s particular characteristics such as his youth, his Indigenous background and his level of sophistication. The police breached his right to counsel by refusing to provide him with another opportunity to consult with a lawyer despite there being reason to conclude that he had not understood his s. 10 (b) advice, even after having spoken with Legal Aid.
The evidence obtained as a result of the breaches of L’s Charter rights must be excluded as the admission of the evidence would bring the administration of justice into disrepute. The two breaches were serious and had a correspondingly significant impact on his s. 10(b) rights. This presents a strong case for exclusion of the evidence. On the other hand, society’s interest favours admission of the evidence, but not strongly. Taken cumulatively, the seriousness of the Charter infringing conduct and the impact of the breaches on L’s Charter ‑protected interests overwhelms the moderate impact on society’s interest in the truth‑seeking function of the criminal trial process.
Per Wagner C.J. and Moldaver, Côté and Rowe JJ. (dissenting): The appeal should be allowed and L’s conviction for second degree murder restored. L was not detained on the day of the execution of the warrant, nor was his s. 10 (b) right to counsel violated on the day of his arrest, when he was not permitted a second consultation with counsel.
The disagreement with the majority that L was detained by police on the day of the execution of the warrant turns on three key points. First, a deferential approach to the trial judge’s findings of fact leads to the conclusion that police did not engage in coercive behaviour in their interactions with L that day. Second, the perspective of a reasonable person in the particular circumstances of the individual must not be overemphasized because to do so provides too little guidance to police in determining whether they have psychologically detained someone in carrying out their regular duties. The police must be able to avoid infringing the s. 9 Charter right against arbitrary detention when they are seeking to obtain information from an individual and they have no intention to detain him or her but a reasonable person may nonetheless conclude a detention exists. Third, while there is agreement with the majority that a finding of detention is not precluded by statements by police that an individual does not need to speak to them and is free to leave, in the instant case, greater weight is to be accorded to the police officers’ testimony that they made clear to L that he did not need to speak to them and he was free to go.
Applying the framework from Grant leads to the conclusion that L was not psychologically or otherwise detained at any point during his dealings with the police on the day of the execution of the warrant. Thus, there was no requirement that he be advised by police of his right to counsel under s. 10(b) of the Charter .
First, with respect to the circumstances giving rise to the encounter, the trial judge did consider the context in which police first interacted with L and its relevance to whether or not he was detained. He indicated that the search warrant was executed professionally and disclosed no signs of unnecessary coercion. While a reasonable person in L’s position would have felt singled out for investigation, this did not turn the encounter into a detention.
Next, regarding the police conduct, there is no basis to contradict the trial judge’s conclusion that L was not subject to psychological detention. The police made statements on several occasions that L was under no obligation to cooperate and he was free to leave at any time, and their conduct did not undermine their statements. A careful and deferential review of the record requires a rejection of the factors that, according to the majority, outweigh the police statements that L was free to go. The conduct of the police in relation to the execution of the search warrant shows no evidence giving rise to an impression of control over the person. There is no credible evidence that police gave orders or closely monitored L for purposes other than the execution of the search warrant. As for the ride to the police station, the trial judge’s factual findings about the police conduct during that time and his finding that L chose this option also do not militate in favour of a finding of detention. Further, the trial judge’s findings indicate that police avoided anything akin to accusatory interrogation. Moreover, the evidence demonstrates that L was keen to collaborate. As to physical contact, there is agreement with the majority that there was no evidence of physical contact or oppressive proximity that could support a finding of psychological detention. With respect to the presence of others, there is disagreement with the majority that this was a significant consideration because this factor refers to witnesses, not police officers, and, in any event, the presence of other police officers is of no consequence, given how the police conducted themselves. Finally, the interview took place at the police station and, while its duration of about three and a half hours was lengthier than generally occurs in non-accusatory sessions, having regard to the conversational interview style and the absence of any confrontation, there is no basis to differ from the trial judge’s conclusion that its length does not suffice to constitute the basis of a psychological detention.
Finally, turning to L’s particular circumstances, the trial judge acknowledged his youth, Indigenous background, lack of experience, and small stature. These factors are all material — without being determinative — in assessing whether police undermined statements that he was free to go. There is no evidentiary support for the majority’s assertion that the execution of the search warrant was conducted in a manner that would make a reasonable person in L’s position feel detained. L’s objective personal characteristics, although significant to the inquiry, do not turn the tide. Overall, the trial judge’s findings of fact confirm what is otherwise objectively ascertainable: a reasonable person in L’s shoes would not have perceived the police conduct as a significant deprivation of his liberty.
L claims that his right to counsel was not implemented on the day of his arrest because he had a right to a second consultation with counsel during the police interview. This issue is governed by the Court’s decision in Sinclair and its companion cases. It is not accurate to suggest that s. 10 (b)’s purpose is to mitigate the imbalance between the individual and the state; rather, its purpose is to provide a detainee with an opportunity to obtain information and legal advice relevant to his or her legal situation upon detention, in order to support the detainee’s right to choose whether to cooperate with the police investigation or not.
In the instant case, L’s situation does not fit within the category of changed circumstances that requires a second consultation when there is reason to question the detainee’s understanding of his or her s. 10 (b) right. There is no basis to conclude that the choice faced by L was significantly altered so as to require further advice in order to fulfill the purpose of his s. 10 (b) rights. The fact that a detainee demonstrates hesitancy or concern during an interrogation is not, on its own, sufficient to establish that he or she did not have a full opportunity to consult with counsel and the detainee merely asking for a second consultation with a lawyer is not enough to support a right to a second consultation. Mere confusion or an incorrect belief in a constitutional right to have a lawyer present is also not enough to trigger a constitutional obligation under s. 10 (b). A review of L’s interactions with police indicates that his choice to speak to the police investigators was both free and informed. While his request to speak to his father was an implicit request for a second consultation with a lawyer, that is not enough to support a right to a second consultation. The police officer confirmed that L understood and exercised his right to counsel. L knew the legal jeopardy that he was facing and he knew he did not have to say anything to the police officer. L’s discomfort in the face of difficult police questioning is not, on its own, grounds for a second consultation.
Even if it could be said that L was detained on the day of the execution of the warrant, the statement he subsequently provided on the day of his arrest was not sufficiently connected to that Charter breach and there is therefore no basis on which to exclude such evidence under s. 24(2) .
Cases Cited
By Brown J.
Overruled: R. v. Moran (1987), 36 C.C.C. (3d) 225; applied: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310; referred to: R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. Seagull, 2015 BCCA 164, 323 C.C.C. (3d) 361; R. v. Tessier, 2020 ABCA 289, 12 Alta. L.R. (7th) 55, leave to appeal granted, Bulletin of Proceedings, March 4, 2021, at p. 2; R. v. Eaton, 2019 ONCA 891; R. v. N.B., 2018 ONCA 556, 362 C.C.C. (3d) 302; R. v. Folker, 2016 NLCA 1, 373 Nfld. & P.E.I.R. 49; R. v. Rajaratnam, 2006 ABCA 333, 397 A.R. 126; R. v. Van Wissen, 2018 MBCA 110, 367 C.C.C. (3d) 186; R. v. Theriault, 2021 ONCA 517, 157 O.R. (3d) 241; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Dussault, 2022 SCC 16; R. v. Pagé, 2018 QCCS 5553; R. v. Smith, 2015 ABQB 624; R. v. Ejigu, 2012 BCSC 1673; R. v. Jongbloets, 2017 BCSC 740; R. v. A.R.M., 2011 ABCA 98, 599 A.R. 343; R. v. Laquette, 2021 MBQB 177; R. v. Hunt, 2020 ONCJ 627; R. v. Fedoseev, 2014 ABPC 192, 597 A.R. 1; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; R. v. Tim, 2022 SCC 12; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; R. v. Reilly, 2021 SCC 38; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. P. (M.B.), [1994] 1 S.C.R. 555.
By Côté and Rowe JJ. (dissenting)
R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310; R. v. Way, 2011 NBCA 92, 377 N.B.R. (2d) 25; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Todd, 2019 SKCA 36, [2019] 9 W.W.R. 207; R. v. Tran, 2010 ABCA 211, 482 A.R. 357; R. v. Schrenk, 2010 MBCA 38, 255 Man. R. (2d) 12; R. v. Hermkens & Moran, 2021 ABQB 885; R. v. Heppner, 2017 BCSC 894; R. v. Roach, 2012 NLTD(G) 21, 319 Nfld. & P.E.I.R. 231; R. v. Bristol, 2011 ABQB 73; R. v. Bucknell, 2021 BCPC 308; R. v. Giulioni, 2011 NLTD(G) 117, 313 Nfld. & P.E.I.R. 220; R. v. Wheeler, 2010 YKTC 7; R. v. Rodh, 2010 SKPC 150, 364 Sask. R. 96; R. v. Jackman, 2011 NLTD(G) 116, 313 Nfld. & P.E.I.R. 203; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460; R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R 402; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Prosper, [1994] 3 S.C.R. 236; R. v. Dussault, 2022 SCC 16; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3; R. v. Tim, 2022 SCC 12; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235; R. v. Collins, [1987] 1 S.C.R. 265.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 8 , 9 , 10 , 24(2) .
Authors Cited
Canada. Statistics Canada. Canadian Centre for Justice and Community Safety Statistics. Perceptions of and experiences with police and the justice system among the Black and Indigenous populations in Canada, by Adam Cotter. Ottawa, February 2022.
Coughlan, Steve, and Glen Luther. Detention and Arrest, 2nd ed. Toronto: Irwin Law, 2017.
MacDonnell, Vanessa A. “R v Sinclair: Balancing Individual Rights and Societal Interests Outside of Section 1 of the Charter ” (2012), 38 Queen’s L.J. 137.
Penney, Steven. “Police Questioning in the Charter Era: Adjudicative versus Regulatory Rule‑making and the Problem of False Confessions” (2012), 57 S.C.L.R. (2d) 263.
Watkins, Kerry G. “The Vulnerability of Aboriginal Suspects When Questioned by Police: Mitigating Risk and Maximizing the Reliability of Statement Evidence” (2016), 63 Crim. L.Q. 474.
APPEAL from a judgment of the Alberta Court of Appeal (Bielby, Veldhuis and Wakeling JJ.A.), 2021 ABCA 51, 20 Alta. L.R. (7th) 211, [2021] 6 W.W.R. 594, 402 C.C.C. (3d) 527, 479 C.R.R. (2d) 277, [2021] A.J. No. 171 (QL), 2021 CarswellAlta 265 (WL), setting aside the conviction of the accused for second degree murder and ordering a new trial. Appeal dismissed, Wagner C.J. and Moldaver, Côté and Rowe JJ. dissenting.
Keith A. Joyce, for the appellant.
Gregory C. Lazin, for the respondent.
Davin Michael Garg and Natalya Odorico, for the intervener the Attorney General of Ontario.
Frank Addario and Samara Secter, for the intervener the Canadian Civil Liberties Association.
Anil K. Kapoor and Victoria Cichalewska, for the intervener the Criminal Lawyers’ Association.
The judgment of Karakatsanis, Brown, Martin, Kasirer and Jamal JJ. was delivered by
Brown J. —
I. Overview
[1] This appeal calls upon the Court to affirm and apply its holdings in R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, and R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, respectively, on two points: (1) evaluating whether an individual has been detained by the police; and (2) applying the framework in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, in the purposive and generous manner required by our jurisprudence.
[2] The police suspected that Nigel Vernon Lafrance might have been involved in the death of an individual that took place on March 17, 2015. In the early morning of March 19, 2015, a team of armed police officers entered his home to execute a search warrant. They awoke Mr. Lafrance, a recent high school graduate described by the trial judge as “youthful, [I]ndigenous and ha[ving] minimal police exposure” (2017 ABQB 746, 399 C.R.R. (2d) 184, at para. 79), and by the Court of Appeal as “19 years old, Indigenous, [with] very limited prior exposure to the police and . . . of much smaller stature than . . . the armed and uniformed officers” (2021 ABCA 51, 20 Alta. L.R. (7th) 211, at para. 29). Ordered to dress and leave the premises, he was then led to a police officer who asked him to identify himself and come to the police station to provide a statement regarding the alleged murder. The police drove him to the police station, took him to a secure environment therein, and interviewed him for over three hours.
[3] On April 7, 2015, the police arrested Mr. Lafrance for murder. After allowing him to call Legal Aid, they interviewed him. Several hours into the interview, Mr. Lafrance asked to call his father because that would be his “only chance of getting a lawyer” (A.R., vol. V, at p. 137). The police refused the request and pushed for answers. Mr. Lafrance eventually confessed to killing the victim.
[4] Mr. Lafrance sought to exclude this confession by arguing that the police had detained him on March 19 and breached his right to counsel pursuant to s. 10(b) of the Canadian Charter of Rights and Freedoms on March 19 and April 7.[1] The trial judge admitted the evidence, finding that Mr. Lafrance had not been detained on March 19 (thereby also disposing of the s. 10(b) argument related to that date), and that police were not required to allow him a second opportunity to call a lawyer on April 7. Mr. Lafrance was convicted by a jury of second‑degree murder. The majority of the Court of Appeal of Alberta allowed his appeal, excluded the evidence under s. 24(2) of the Charter and ordered a new trial. The Crown appeals, asking us to restore the conviction.
[5] I would dismiss the appeal. The police detained Mr. Lafrance on March 19, then breached s. 10 (b) by failing to inform him of his right to counsel. They committed another breach of s. 10 (b) on April 7 by refusing to allow him to contact a lawyer in circumstances which showed that his initial conversation with Legal Aid was insufficient for the purposes of s. 10 (b), being “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights” (Sinclair, at para. 26, citing R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43). These were serious breaches, substantially impacting Mr. Lafrance’s Charter ‑protected interests, and admitting the evidence thereby obtained would bring the administration of justice into disrepute.
II. Facts
[6] On March 17, 2015, Anthony Yasinski was stabbed in the neck and died. The police suspected Mr. Lafrance’s involvement, as he was the last person to have contacted Mr. Yasinski prior to his death.
[7] Two interactions between the police and Mr. Lafrance followed, on March 19, 2015, and April 7, 2015, respectively.
A. March 19, 2015
[8] The police sought and obtained a search warrant to search Mr. Lafrance’s place of residence on the morning of March 19. A police search team of 11 ⸺ many of which were wearing bulletproof vests and carrying firearms, including at least one “assault rifle” ⸺ arrived in marked and unmarked police vehicles at 6:50 a.m., blocked off surrounding roads and entered the residence, making their way to Mr. Lafrance’s room and waking him. When he opened the door, they directed him to dress and leave his house immediately. When he asked the police for permission to look for his cat (which had run outside when the police entered the residence), they permitted him to do so, led him outside, and accompanied him as he chased after it. At all times, Mr. Lafrance remained “in sight of police officers” and did not venture past the police cordon (A.R., vol. II, at pp. 93-94).
[9] Shortly after retrieving the cat, Mr. Lafrance was approached by Sergeant (then Corporal) Eros who, unbeknownst to Mr. Lafrance, had been assigned to interview him and had been waiting for him outside. Sgt. Eros was accompanied by Staff Sergeant (then Cpl.) Zazulak, armed and wearing a bulletproof vest. It is undisputed that, at that time, Sgt. Eros did not have reasonable and probable grounds to proceed to arrest Mr. Lafrance.
[10] Sgt. Eros asked Mr. Lafrance to confirm his identity (which Mr. Lafrance did), advised him that he wanted to speak about an incident that occurred down the road — referring, of course, to Mr. Yasinski’s death — and asked him to come to the police station and provide a statement. Sgt. Eros told Mr. Lafrance that doing so would be a “completely voluntary” choice. Mr. Lafrance agreed to give a statement.
[11] Sgt. Eros and Mr. Lafrance discussed how he could make his way to the police station — whether by public transit, a ride with Sgt. Eros and S/Sgt. Zazulak in an unmarked police van, or by some alternative means. Having no money for bus fare, Mr. Lafrance chose to ride with Sgt. Eros and S/Sgt. Zazulak.
[12] After a 20- to 25‑minute ride to the police station, Mr. Lafrance was escorted by Sgt. Eros and S/Sgt. Zazulak through two controlled access key‑carded doors to an interview room at the back of the station. He was then left alone in the closed room for at least 17 minutes, unaware (because he had not been told) that the door was unlocked. When Sgt. Eros returned to the interview room and Mr. Lafrance asked to use the washroom, Sgt. Eros escorted him to the washroom, stood by while Mr. Lafrance used the washroom, then escorted him back to the interview room.
[13] Sgt. Eros then proceeded to interview Mr. Lafrance for approximately three and a half hours. He began by telling Mr. Lafrance that he did not need to speak with him, that the door to the interview room was unlocked and that he could leave at any time. But Sgt. Eros also informed him that they were currently in a “secure environment” and that, should Mr. Lafrance want to leave, use the washroom or take a smoke break, he would have to let Sgt. Eros know.
[14] Sgt. Eros then informed Mr. Lafrance that he was a suspect in Mr. Yasinski’s murder, and asked him about “what [his] days have been filled with and what [he had] been doing” prior to the police search of his home (A.R., vol. IV, at p. 82). Mr. Lafrance gave answers, some of which were relayed to the search team, leading them to seize items of interest. Sgt. Eros also took Mr. Lafrance’s fingerprints and DNA (prior to which he was offered a chance to speak with a lawyer) and seized his cellphone along with his clothes — all of which were taken after obtaining Mr. Lafrance’s consent. At the interview’s conclusion, police drove Mr. Lafrance home.
B. April 7, 2015
[15] On April 7, the police arrested Mr. Lafrance for the murder of Mr. Yasinski. Shortly after the arrest, the arresting officer informed Mr. Lafrance of his right to counsel and that he would be given an opportunity to call a lawyer. Mr. Lafrance indicated that he understood this and asked to contact a “free lawyer”.
[16] At the police station, Mr. Lafrance was escorted to a telephone room and spoke on the phone with a Legal Aid lawyer. This short conversation was Mr. Lafrance’s first time ever speaking with a lawyer, having never before been arrested or otherwise required to obtain legal services. When he finished the call, the arresting officer asked Mr. Lafrance if he had spoken to a lawyer and understood the advice, to which Mr. Lafrance answered yes. Mr. Lafrance was then moved to an interview room to be interviewed by Sgt. Eros.
[17] Several hours into the interview, Sgt. Eros told Mr. Lafrance that he did not believe his version of the events and that there was no doubt in his mind that Mr. Lafrance was responsible for killing Mr. Yasinski. As the tone of the interview shifted, Mr. Lafrance asked to speak with his father before continuing to answer Sgt. Eros’ questions. When Sgt. Eros asked him why, Mr. Lafrance explained that his father was his “only chance of getting a lawyer” and that he wanted a lawyer before going forward with anything else. He said that Legal Aid told him “to get a lawyer before [he] continue[s] talking” to sit down and talk about his situation (A.R., vol. V, at p. 139). In response, Sgt. Eros explained that he “ha[d] no problem” letting him talk to his father (A.R., vol. V, at p. 138), but that Mr. Lafrance had already spoken to a lawyer. Mr. Lafrance, he said, may have misinterpreted[2] the advice and so he explained to Mr. Lafrance that he could not have a lawyer present in the room with him during the custodial interview. Sgt. Eros testified, however, that he was satisfied that Mr. Lafrance understood his right to silence and his legal advice.
[18] Sgt. Eros pressed ahead with his questioning and, shortly thereafter, Mr. Lafrance confessed to stabbing Mr. Yasinski.
III. Issues
[19] This appeal presents three issues:
1. Did the police detain Mr. Lafrance and breach his s. 10 (b) right to counsel on March 19, 2015?
2. Did the police breach Mr. Lafrance’s s. 10 (b) right to counsel by refusing to allow him to have a further consultation with a lawyer on April 7, 2015?
3. If the answer to either or both of the foregoing is “yes”, would the evidence obtained therefrom bring the administration of justice into disrepute, such that it must be excluded under s. 24(2) ?
IV. Analysis
A. March 19, 2015
[20] Mr. Lafrance’s straightforward argument regarding the March 19 encounter is this: he was detained when the police executed their search warrant, and that detention persisted during his interview at the police station as he felt, in the circumstances, obliged to comply with the request to speak with police. It follows that the police breached s. 10 (b) by failing to advise him of his right to retain and instruct counsel upon detention (Grant, at para. 28).
(1) Detention
[21] Detention refers to “a suspension of an individual’s liberty interest by virtue of a significant physical or psychological restraint at the hands of the state” (R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 21; Le, at para. 27). In the heat of the moment, it is not always easy for ordinary citizens, who may be uninformed of their rights or the scope of the police’s powers, to know whether they have a choi