Supreme Court rules on scope of Charter right to counsel when in police detention

In a decision examining what constitutes police detention and when police must facilitate additional legal consultations because an initial consultation was insufficient, the Supreme Court of Canada has ruled 5-4 in favour of an Alberta man, who will get a new trial in his murder case.

Released this morning, the decision in R. v. Lafrance, 2022 SCC 32 dealt with two interactions between the respondent, Nigel Lafrance, and police. On the first, police executed a search warrant on Lafrance’s home and interviewed him without informing him of his right to counsel, under s. 10(b) of the Charter. The second interaction occurred after Lafrance’s arrest. Police denied him a second opportunity to speak with a lawyer during his interrogation, after which Lafrance confessed to the murder.

"The majority of the SCC affirms the need to review the entire context of the interaction between an accused and the Police, and confirms that the RCMP have a responsibility to ensure that an accused has a meaningful opportunity to consult with counsel," says Gregory Lazin, who acted for Lafrance.

"The majority of the Court’s s.10(b) analysis is focused on the power differential between the accused and the State, and the majority explicitly states that a generous and purposive approach to interpreting s.10(b) is required," he says. "While every counsel hopes that their matter can actually change the law, it seems that as a result of this decision, there will have to be a contextual analysis by the state, and an opportunity for a moving of the 'goalposts.'"

The majority’s decision provides direction to police to be sensitive to the individual characteristics of detainees, says Anil Kapoor, who acted for the Criminal Lawyers' Association, an intervenor. The CLA’s intervention focussed on a vulnerable accused’s entitlement to additional consultations with counsel.

Writing for the majority, Justice Russell Brown said that the power imbalance between police and detainee will vary in degree depending on the detainee’s particular circumstances. Officers and courts must recognize that a detainee may have vulnerabilities which, combined with developments in the interrogation, will make their initial legal advice inadequate and hinder their ability to make an informed choice about whether to cooperate with police. These vulnerabilities may relate to gender, youth, age, race, mental health, language comprehension, cognitive capacity, or other considerations. When this is the case, the 2010 SCC ruling in R. v. Sinclair entitles the detainee to an additional legal consultation “to even the playing field,” said Justice Brown.

“Imagine you've got a detainee who's autistic, and where they fall on the spectrum may not be necessarily apparent to the officer,” says Kapoor. Counsel may need to spend more time with them, or have more than one phone call, he says. “When the police officer realizes that that particular detainee has that characteristic, this decision means that they've got to facilitate that additional consultation.”

The first interaction occurred following the stabbing murder of 26-year-old Anthony Yasinski. Lafrance was sleeping in his home when police arrived to execute a search warrant. They woke him up, told him to dress and leave the house. An officer asked Lafrance to speak with him about the murder, told him it was up to him whether to do so, and Lafrance agreed. Police drove Lafrance to the police station and interviewed him for three-and-a-half hours. While police told him the door was unlocked and he was free to leave at any time, an officer also said they were in a “secure environment,” and that if he wanted to leave, use the washroom, or have a smoke break, he would need to ask permission.

With Lafrance’s consent, police took his fingerprints, DNA, clothes and cell phone, prior to which the officer offered him a chance to speak with a lawyer.

A few weeks later, police returned to arrest Lafrance for the murder. The arresting officer informed him of his right to counsel and Lafrance asked to speak with legal aid. After the phone call, he answered affirmatively when policed asked whether he had spoken to a lawyer and understood the advice. After a few hours of interrogation, Lafrance asked to speak with his father, saying to do so was his “only chance of getting a lawyer,” and that he wanted one before he continued. He added that legal aid had told him to get a lawyer before he continued talking with police. The officer replied that he had already spoken to a lawyer and could not have one in the room with him during the interrogation. They continued and Lafrance confessed to the murder soon after.

"I have been practicing criminal law for almost 40 years," says Lazin. "This was one of the most egregious examples of police running rough-shod over the rights of a naive young Indigenous man that I have encountered."

The question with Lafrance’s first police encounter was whether he was detained, entitled to be informed of his right to counsel and given an opportunity exercise it. The test from R. v. Grant, and later expanded in R. v. Le, is applicable to every instance of alleged detention by police, said Justice Brown.

Under the test, three factors must be considered and balanced. First, the court must consider how the interaction would have been reasonably perceived by a person in Lafrance’s position. The court must ask “whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or singling them out for focused investigation.” Justice Brown said it is “inconceivable” that, woken up and confronted by armed police officers, Lafrance would not believe he was being singled out for investigation.

The second factor concerns the police conduct during the encounter. The police telling Lafrance he was free to leave is outweighed by the “overwhelming show of force in the intrusion into the home,” the fact the police never left his presence, the “long ride to the police station,” and the “secure environment for a lengthy interview,” said Justice Brown.

The third factor examines Lafrance’s “age, physical stature, minority status, and level of sophistication.” At 19-years-old, his youth aggravates the power imbalance. As an Indigenous person, courts must recognize “the relational aspect between the police and Indigenous persons, characterized as it has been by an overwhelming power imbalance and history of discrimination.” Courts must also be alive to “the resulting possibility that their interactions would reasonably be perceived by Indigenous persons as depriving them of choice to cooperate.”

All three factors “weigh decisively” in favour of finding police had detained Lafrance, said Justice Brown. Justices Andromache Karakatsanis, Sheilah Martin, Nicholas Kasirer, and Mahmud Jamal agreed.

Justices Suzanne Côté, Malcolm Rowe, Richard Wagner, and Michael Moldaver would have found that Lafrance was not detained at the time of the warrant execution, nor did they believe his right to counsel was violated after his arrest.

Writing for the dissent, Justices Côté and Rowe said a deferential approach to the trial judge’s findings of fact would lead to the conclusion that the police were not coercive in their behaviour during the first encounter. The judges cautioned that the majority’s approach of viewing the situation from the perspective of a reasonable person in Lafrance’s shoes should “not be overemphasized.” Doing so provides too little guidance for police to determine whether they have “psychologically detained” someone. Police must be able to seek information from people they have no intention of detaining without infringing their s. 9 Charter right against arbitrary detention.

While Justices Côté and Rowe said they agreed with the majority that a finding of detention is not negated because police told Lafrance he was free to go and was not required to speak to them, the majority should have given greater weight to the officer’s testimony that he had made that clear.

When it came to the denial of a second legal consultation during the interrogation following Lafrance’s arrest, Justices Côté and Rowe said it is inaccurate to suggest s. 10(b)’s purpose is to “mitigate the imbalance between the individual and the state.” The purpose is to provide an opportunity to get information and legal advice to decide whether to cooperate with police.

Lafrance’s experience did not amount to “changed circumstances” that require an additional legal consultation when there is reason to doubt the detainee understands their s. 10(b) right, said Justices Côté and Rowe. The record showed Lafrance’s decision to speak with the officers “was both free and informed.” The officer confirmed Lafrance understood and exercised his right to counsel and his “discomfort in the face of difficult police questioning” is not enough to warrant a second consultation.