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R v Lafrance and the Right to Counsel Case Summary
Cory Wilson is a criminal defence lawyer serving Calgary, Okotoks, Airdrie, Strathmore, Cochrane, Canmore, Didsbury, Medicine Hat, Lethbridge, Grand Prairie and Turner Valley.
Overview
On July 22, 2022, the Supreme Court of Cananda released R v Lafrance, a decision that focused on an accused’s right to counsel. The decision was split 5-4. Justice Brown wrote for the majority, while Justices Côté and Rowe wrote for the minority. This case summary analyzes only Justice Brown’s majority decision.
The police suspected that Mr. Lafrance – a youthful Indigenous man – was involved in the March 17, 2015 death of Mr. Yasinski. On March 19, eleven police officers executed a search warrant at Mr. Lafrance ’s home. The police asked Mr. Lafrance to attend the police station to make a statement. The police then drove Mr. Lafrance to the police station where they interviewed him for three hours. The police did not provide Mr. Lafrance with his s 10(b) right to counsel.
Mr. Lafrance was released after the March 19 interview. However, he was arrested and charged with first degree murder on April 7, 2015. Mr. Lafrance was permitted to speak with duty counsel, then he was interviewed. Several hours into the interview, Mr. Lafrance asked if he could call his father so that his father could arrange a lawyer for him. The police did not allow this. Rather, they continued to press Mr. Lafrance until he confessed to the murder.
Mr. Lafrance argued that his right to counsel was infringed on March 19 and on April 7 and that as a result his confession should be excluded under s 24(2) of the Charter and a new trial should be ordered.
The trial judge admitted the evidence and found that Mr. Lafrance had not been detained on March 19 and that the police were not required to allow him a second opportunity to contact a lawyer on April 7.
The majority of the Court of Appeal allowed Mr. Lafrance ’s appeal, excluded the evidence, and ordered a new trial. The Crown appealed to the Supreme Court of Canada. The majority of the Supreme Court of Canada dismissed the Crown’s appeal. In doing so, the Court found that Mr. Lafrance’s s 10(b) right was breached on March 19, and April 7.
Facts
March 19
The police obtained a warrant to search Mr. Lafrance ’s house on March 19. Eleven officers attended Mr. Lafrance’s house to conduct the search. It was undisputed that on March 19 the officer’s did not have reasonable and probable ground to arrest Mr. Lafrance.
One of the officer’s told Mr. Lafrance that he would like to speak to him at the police station about the death of Mr. Yasinski. The officer said it would be a voluntary statement. Mr. Lafrance agreed, he rode in a police car to the station where he was interviewed for 3.5 hours. During the interview the police informed Mr. Lafrance that he was a suspect in the murder.
April 7
On April 7, the police arrested Mr. Lafrance for the Murder of Mr. Yasinski. Mr. Lafrance spoke to duty counsel. After speaking to duty counsel Mr. Lafrance was interviewed by police. Several hours into the interview the police were challenging Mr. Lafrance’s version of events. Mr. Lafrance asked to speak to his father stating that his father was his “only chance of getting a lawyer.” The police explained that a lawyer could not be present while he was being questioned. The police continued to question Mr. Lafrance; eventually he confessed to stabbing Mr. Yasinski.
Analysis
March 19
At paras 21 – 23 of Lafrance, Justice Brown provided a helpful summary of 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 choice to comply with a request by the police. An individual may perceive “a routine interaction with the police as demanding a sense of obligation to comply with every request” (Le, at para. 26, referring to S. Penney, V. Rondinelli and J. Stribopoulos, Criminal Procedure in Canada (2nd ed. 2018), at p. 83). For that reason, this Court has recognized that, “even absent physical restraint by the state, a detention exists in situations where a reasonable person in the accused’s shoes would feel obligated to comply . . . and that they are not free to leave” (Le, at para. 26 (emphasis added)). Even so, not every encounter between state and citizen effects a detention (Suberu, at para. 3; Le, at para. 27); no detention is effected, and therefore s. 10(b) rights are not breached, where an individual voluntarily assists the police by, for example, freely agreeing to provide a statement.
[22] In this case, Mr. Lafrance says that his choice to cooperate with the police on March 19 was, in substance, imposed by way of psychological constraints. Psychological detention exists where an individual is legally required to comply with a direction or demand by the police, or where “a reasonable person in [that individual’s] position would feel so obligated” and would “conclude that he or she was not free to go” (Grant, at paras. 30‑31; Le, at para. 25). It is that latter category which Mr. Lafrance says describes his circumstances. Three factors — identified in Grant and expanded upon in Le — are to be considered and balanced:
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- The circumstances giving rise to the encounter as they would reasonably be perceived by the individual;
- The nature of the police conduct; and
- The particular characteristics or circumstances of the individual where relevant (Grant, at para. 44; Le, at para. 31).
[23] The applicable standard of review here is that of correctness; the existence of a detention is a question of law (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at paras. 18 and 20; Grant, at para. 43; Le, at para. 23). No deference is owed to the trial judge’s analysis and conclusion thereon. This is not to say that the voir dire is irrelevant, since the trial judge’s findings of facts receive deference, absent a palpable and overriding error (Grant, at paras. 43 and 45).
Regarding the circumstances giving rise to the encounter, Justice Brown stated as follows:
[32] In my view, it is inconceivable that a reasonable person in Mr. Lafrance’s shoes — woken and confronted by armed police officers in his home telling him to leave — would believe that they had arrived to “provid[e] general assistance”, “maintai[n] general order” or make “general inquiries”. The reasonable person would immediately understand that he or she is being singled out for investigation. 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 (Le, at paras. 37‑38). Indeed, the warrant itself, by authorizing the police to search Mr. Lafrance’s home, reveals a targeted investigation.
Regarding the nature of the police conduct, Justice Brown stated as follows:
[39] To summarize: 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. Where present, it is a single consideration among others for which a court should account in deciding whether a reasonable person in the shoes of the accused would feel obliged to cooperate. It does not automatically turn the tide, and may not turn the tide at all, where other factors point to a finding of detention.
[40] Indeed, Sgt. Eros’ statements to Mr. Lafrance[3] do not turn the tide here. While they militate against a finding of detention, they are outweighed by circumstances that support the opposite conclusion, namely that a reasonable person in his position would have felt compelled to comply and unfree to leave…
[42] … In my view, considerations of physical proximity alone would have little if any impact on whether a reasonable person in Mr. Lafrance’s position would feel free to decline to speak to police or to leave…
[43] … Their [the police] continued presence and supervision would tend to contribute to the perception of a reasonable person in Mr. Lafrance’s shoes that he or she was not free to decline to speak or to leave…
[50] The encounter then persisted through a three‑and‑a‑half‑hour interview at the police station, in an interview room described by Sgt. Eros as a “secure environment”, accessible as I have already noted through two sets of locked doors. The “security” of that environment — comprising both the interview room and the surrounding facility through which it was accessed — would tend to affirm in the mind of someone in Mr. Lafrance’s position that he or she is not free to leave at will.
[51] In sum, this was a single, lengthy police encounter. While it spanned several locations, 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 Mr. Lafrance’s position would reasonably have perceived that he or she could not leave (Le, at para. 66). This supports a finding of detention.
Concerning the particular characteristics of the accused, Justice Brown noted that these are not factors that are simply checked off a list. Rather, they need to inform how a reasonable person with the particular characteristics of the accused would feel.
Justice Brown noted that the age of the accused – 19 – was an important factor that did not receive enough attention, and that Mr. Lafrance’s Indigenous background was also a factor that weighed somewhat in favour of detention. Finally, Justice Brown noted that Mr. Lafrance’s inexperience with police militated in favour of a finding of detention and that Mr. Lafrance was detained on March 19.
April 7
Justice Brown noted that there are specific circumstances where the police are required to provide a detainee with an opportunity to consult counsel again:
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 makes this necessary to fulfill s. 10(b)’s purpose (para. 53). Three non‑exhaustive categories of exceptional circumstances triggering this duty were identified (at paras. 49-52): (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. It is that third category which the Court of Appeal thought applicable here. I agree.
Justice Brown concluded that “there was ample reason” for questioning Mr. Lafrance’s understanding of his s 10(b) rights and that “[h]is confusion was an “objective indicat[or] 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” (Sinclair, at para. 55).” And this is because the information to which he had a right under s. 10(b) had not been conveyed, either at all or in a manner he understood.
Section 24(2) Analysis
Justice Brown then reviewed the Grant factors to determine whether admitting the confession would bring the administration of justice into disrepute.
- The Seriousness of the Charter Infringing Conduct
Justice Brown found that both Charter breaches were serious and that this factor militates in favour of excluding the evidence.
- Impact of the Breaches on the Charter Protected Interests of the Accused
Justice Brown agreed with the Court of Appeal and found that the Charter breaches had a serious impact on Mr. Lafrance’s Charter rights. The second factor favours excluding the evidence .
- Society’s intertest in the Adjudication of the Case on its Merits
Justice Brown found that this facto supports admission, “but not heavily so.”
Overall, the majority found that the evidence must be excluded.
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Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.