R. v. Lafrance 2022 SCC 32 – Case Summary
The Supreme Court of Canada clarifies right to counsel, and police detention, in the context of a murder confession.
Who
Police locate a man bleeding heavily from a neck wound. The victim is transported to hospital where he later dies.
Police suspect Lafrance of being involved in the homicide, and obtain and execute a search warrant on his home. Lafrance agrees to speak with police, having not yet been arrested, and is taken to a nearby police station to be interviewed.
Lafrance is allowed to leave the police station after the interview, but is arrested for the homicide approximately 3 weeks later.
What
On the day of the search warrant, police interrogate Lafrance for over three hours. They obtain a blood sample, fingerprints, his cell phones, and clothing. At no point is he told that he can speak with a lawyer.
On the day of his arrest, Lafrance is told he can contact a lawyer and talks briefly with Legal Aid, who indicate he should “get a lawyer” to speak to.
Following the call, Lafrance is interrogated for several hours, ultimately confessing to the murder.
Where
The trial is heard in the Alberta Court of Queen’s Bench (ABQB). Lafrance is acquitted of first-degree murder, but convicted by a jury for second-degree murder.
Lafrance appeals to the Alberta Court of Appeal (ABCA), on the basis that the trial judge erred in allowing both of his statements, as well as other evidence obtained in the interviews, to go before the jury.
The Court agrees, finding that his Charter rights under s. 10(b) – to seek the advice of a lawyer and be informed of that right – were breached, and that the evidence should not have been put before the jury. The Court orders a new trial in a split decision.
The Crown appeals to the Supreme Court of Canada (SCC). A split SCC upholds the decision of the ABCA, and a new trial is ordered.
Why
Detention
Detention is the “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).
Three factors are considered:
1. The circumstances giving rise to the encounter as they would reasonably be perceived by the individual;
Whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling [him out] for focused investigation”
2. The nature of the police conduct
Includes police “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”
3. The particular characteristics or circumstances of the individual where relevant
Includes “age[,] physical stature[,] minority status[, and] level of sophistication” of the accused
The SCC determined that Lafrance was detained at the time of both statements, including the interrogation prior to his arrest. Lachance was a young Indigenous man with minimal police experience, awoken in his home by armed officers giving him commands, and remained under near constant supervision of the police during the encounter (para 63).
The SCC held that a reasonable person in Lafrance’s shoes, would have felt obligated to comply with police demands and conclude they were not free to go (para 64).
Right to counsel
It remains well settled law that when someone is detained by police, their s.10(b) Charter right to retain counsel, and right to be informed of that right, is engaged.
The SCC found a Charter breach on the search warrant day interrogation, as Lafrance was never told of his right to contact a lawyer, nor given an opportunity to do so.
The SCC further held an additional breach occurred during the interrogation on the day of arrest.
Section 10(b) of the Charter has an informational and implementational component:
Informational – police must advise a detainee of their right to counsel
Implementational – police must allow a detainee to exercise their right to counsel - i.e. communicate with a lawyer for advice
Typically, one phone call is all an accused gets. In exceptional circumstances, more may be required, including (para 72):
Police invite the accused to take part in non-routine procedures that the lawyer would not have considered when talking to the accused
Change in jeopardy that could affect the adequacy of the advice received
Reason to question detainee’s understanding of their rights
Lafrance had made comments to the police that made it clear he did not understand his rights when speaking with them. This included not knowing “the benefits and drawbacks of cooperating with the police investigation, as well as strategies to resist cooperation that should be the detainee’s choice” (para 71)
“His 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. (para 86)”
The Gist
Detention
The SCC reaffirm the standard for detention in Grant (2009 SCC 32) and Le (2019 SCC 34), and reject the standard in Moran ((1987), 36 C.C.C. (3d) 225)
“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)
Right to counsel
Where police have reason to question a detainee’s understanding of their rights, they must take proactive steps even if the detainee has already spoken with a lawyer and received advice.
This concern is heightened where the detainee is especially vulnerable, including the young, Indigenous, and those lacking in experience with the police.
The reasons of Justice Brown, writing for the majority, are a bold refocus on the power imbalance between the state and the accused, and a reminder to police that the pursuit of a confession does not trump individual rights.