R. v. Lafrance, 2020 QCCA 17202022 SCC 32 (39570)

“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.”

The SCC (5:4) dismissed the appeal. 

Justice Brown wrote as follows (at paras. 1, 19, 21, 22, 63, 64, 79, 88, 90, 101, 102):

” 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.

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)?

A.           March 19, 2015

 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.

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:

1.            The circumstances giving rise to the encounter as they would reasonably be perceived by the individual;
2.            The nature of the police conduct; and
3.            The particular characteristics or circumstances of the individual where relevant (Grant, at para. 44; Le, at para. 31).

All three Grant factors — the circumstances giving rise to the encounter, the nature of the police conduct, and the particular characteristics or circumstances of the individual — weigh decisively here, on the facts of this case, in favour of finding that Mr. Lafrance was first detained when he, a young Indigenous man with minimal police exposure, was awoken in the early morning by the police inside his home, and commanded to get dressed and leave. He continued to be detained throughout the encounter, including outside the home, in the police van and in the interview room of the police station, all of which involved the near-continuous supervision and presence of the police, until the conclusion of his interview on March 19, and I so find.

It follows that police were required to inform Mr. Lafrance 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. My colleagues say that this conclusion means that the combination of an accused young person and the execution of a search warrant will always result in a finding of detention (para. 160). But that is not so; it is only where the police execute a warrant in a way that leads the reasonable person in the accused’s shoes to believe that, in the entirety of the circumstances, he or she is not free to leave, that a detention would arise. Such was the case here: given the overwhelming force in which a team of police officers arrived at Mr. Lafrance’s home, ordered him to get dressed and leave his home, and monitored his every movement, the officers should have recognized that a reasonable person in Mr. Lafrance’s shoes would feel obliged to comply with their demands and would conclude that he or she was not free to go. In such situations, the police should have informed him of his rights under s. 10(b) of the Charter. I will turn to the consequences of this breach below, after considering his encounter with police on April 7.

B.            April 7, 2015

 The degree of imbalance between police and detainee will of course vary from case to case, depending on the particular circumstances of the detainees themselves. Specific characteristics of individual detainees (described as “vulnerabilities” in the context of police interrogation) can influence the course of custodial interviews. Investigating officers and reviewing courts must be alive to the possibility that these 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. In such situations, Sinclair requires that an accused is entitled to an additional consultation to even the playing field.

The police breached Mr. Lafrance’s s. 10(b) right to counsel by refusing to provide 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. I now turn to the consequences that follow from this breach and from the March 19 breach of Mr. Lafrance’s s. 10(b) right.

C.            Section 24(2) of the Charter 

Would, then, allowing the Crown to rely on the evidence obtained on March 19 and April 7 in breach of Mr. Lafrance’s Charter rights bring the administration of justice into disrepute? Deciding this entails considering and balancing the three lines of inquiry identified in Grant: (1) the seriousness of the Charter‑infringing conduct; (2) the impact on the Charter‑protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits (para. 71; Le, at paras. 139-42; R. v. Tim, 2022 SCC 12, at para. 74). While the first two lines of inquiry typically work in tandem, it is not necessary that both of them support exclusion in order for a court to determine that admission would bring the administration of justice into disrepute (Le, at para. 141). As the Court said in Le, “[i]t is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion” (para. 141). In other words, it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry when assessing whether evidence should be excluded. That is why the third line — which typically pulls towards a finding that admission would not bring the administration of justice into disrepute — will seldom tip the scale in favour of admissibility when the two first lines, taken together, make a strong case for exclusion (Le, at para. 142; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 56).

Taken together, the three Grant lines of inquiry confirm that the admission of the evidence would bring the administration of justice into disrepute. These were two serious breaches with a correspondingly significant impact on the s. 10(b) rights of Mr. Lafrance. The first and second lines of inquiry therefore present 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 strength of the first two lines of inquiry overwhelms the moderate impact on society’s interest in the truth‑seeking function of the criminal trial process. 

It follows that the evidence obtained as a result of the breaches of Mr. Lafrance’s Charter rights on March 19 and April 7 must be excluded.”