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Russell Brown

Deeply divided SCC excludes homicide confession obtained by police in breach of right to counsel

Friday, July 22, 2022 @ 5:12 PM | By Cristin Schmitz


In a ruling which admonishes police to be “alive to a detainee’s vulnerabilities” when carrying out their obligation to facilitate a person’s s. 10(b) right to counsel, the Supreme Court of Canada has narrowly affirmed that an Indigenous youth who confessed — to stabbing a drug dealer in the neck — after police twice failed to give the 19-year-old an adequate opportunity to consult with a lawyer, is entitled to a new trial that excludes his illegally obtained confession and other evidence that was thereby tainted.

On July 22, five of nine Supreme Court judges dismissed the Alberta Crown’s as-of-right appeal, and upheld an Alberta Court of Appeal decision, which ordered a new trial for second-degree murder for the respondent Nigel Vernon Lafrance: R. v. Lafrance, 2022 SCC 32.

Counsel told The Lawyer’s Daily Justice Russell Brown’s majority judgment is of particular note to the criminal law bar, for its refinement and elaboration of the s. 10(b) implementational duties of police, as well as the key legal concept of “detention.”

(Section 10(b) states that “everyone has the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right.”) 

In that context, the majority instructs that every allegation of police detention must be examined via the test set out in R. v. Grant, 2009 SCC 32 and R. v. Le, 2019 SCC 34, and also tells trial judges that they “must not consider” the factors set out in the earlier judgment of the Ontario Court of Appeal in R. v. Moran [1987] O.J. No. 794.

In 2021, a majority of the Alberta Court of Appeal ruled that police violated Lafrance’s s. 10(b) Charter rights, and ordered excluded from evidence, pursuant to s. 24(2) of the Charter, his illegally-obtained confession as well as other tainted material because its admission into evidence at the new trial would bring the administration of justice into disrepute: R. v. Lafrance, 2021 ABCA 51.

Justice Russell Brown

Justice Russell Brown

The issue on the appeal arose as a result of police searches of the accused’s home, the manner in which the police conducted an initial interview with Lafrance, in which he was not advised of his right to consult counsel, and the manner in which police conducted a later second interview with Lafrance in which he confessed to having caused the victim’s death via a single stab wound to the man’s neck.

Justice Brown agreed with the Appeal Court majority below that police committed “serious breaches, substantially impacting Lafrance’s Charter-protected interests” and that admitting the evidence thereby obtained would bring the administration of justice into disrepute.

In holding that Lafrance was detained when police searched his home, and during police questioning, Justice Brown said that all three factors to be analyzed under the test for detention “weigh decisively” in favour of finding that Lafrance was detained. With respect to the third factor, which requires police to hold off questioning the detainee where the detainee may not have understood the initial advice, and imposes on police a duty to give the detainee another opportunity to talk to a lawyer, Justice Brown explained that “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 ability 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 be cooperative with the police.”

In this case, Justice Brown held for the majority, there was “ample reason” for police to question Lafrance’s understanding of his right to counsel. “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,” Justice Brown said. “There were also clear signs that the legal advice he obtained was incorrect, or he did not understand how his s. 10(b) right applied to his current circumstances.”

Justice Brown admonished that “the concern that should reasonably have arisen in the mind of the investigating officer that Lafrance may not have understood his rights and how to exercise them is affirmed, if not heightened, when considered in light of Lafrance’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 [i.e. second] 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.”

In dissent, Supreme Court Chief Justice Richard Wagner and Justices Michael Moldaver, Suzanne Côté and Malcolm Rowe ruled to the contrary: police did not violate Lafrance’s right to counsel in any way. However, the minority said that even if it could be said that s. 10(b) was violated at one point, in the circumstances, that breach was not sufficiently connected to the subsequent confession, and therefore the confession could not be excluded.

Anil Kapoor, Kapoor Barristers

Anil Kapoor, Kapoor Barristers

Anil Kapoor of Toronto’s Kapoor Barristers, who with Victoria Cichalewska represented the intervener Criminal Lawyers’ Association (CLA), said Justice Brown’s majority judgment, backed by Justices Andromache Karakatsanis, Sheilah Martin, Nicholas Kasirer and Mahmud Jamal, is a clearly written and welcome approach to determining when someone is detained (which triggers their right to counsel) and what police are constitutionally obliged to do to implement the s. 10(b) Charter right.

“This is a welcomed refinement and elaboration on Sinclair, which respects individual vulnerabilities of detained persons when assessing whether they have made an informed decision to speak to police,” Kapoor said, referencing a leading case on detainees’ right to counsel: R. v. Sinclair, 2010 SCC 35. When police “have someone in their control during a criminal investigation, if there is any doubt in an officer’s mind, the prudent course is to provide the detainee with their right to counsel.”

Moreover, “if the police have information that the initial [legal] consultation with the detainee has not equipped [the detainee] to make an informed decision on whether to speak to the police, the police must now afford further consultations with counsel,” Kapoor advised. “Practically speaking this will change how we look at the police/citizen interaction. Our focus now includes a sensitivity toward individual circumstances in deciding detention and whether the police met their constitutional obligation to facilitate the right to counsel.”

The protection of s. 10(b) would have been less if the views expressed in the minority judgment, co-written by Justices Côté and Rowe, prevailed, he said.

Samara Secter, Addario Law Group LLP

Samara Secter, Addario Law Group LLP

Samara Secter of Toronto’s Addario Law Group LLP, who with Frank Addario represented the intervener Canadian Civil Liberties Association, called the majority judgment “a progressive step in the law and a victory for civil liberties,” as well as a “significant” decision in the s. 10(b) canon.

“Justice Brown takes a purposive approach to the important Charter right to counsel,” she explained. “It is good to see a majority of the court arrest any drift of the right away from its purpose. It is a confirmation that the Charter right exists to even the playing field between the detainee and the state.”

In the wake of the decision, defence counsel “need to remind our clients to say something if they are confused about the right to counsel,” she advised. “Speak up and ask for another consultation with their lawyer.”

The takeaway for police and others, she suggested, is that “the right to counsel is not as simple as giving people one-time access to legal advice. The police must make sure that detainees understand that legal advice. Sometimes, that will mean further consultation with counsel.”

In that regard, the court has cemented the role that systemic disadvantage should play in interpreting Charter rights, Secter explained.  “Officers need to be responsive to pronounced power imbalances, particularly when interrogating young or marginalized individuals. In such a circumstance, s. 10(b) may entitle detainees to an additional consultation with counsel.”

Keith Joyce, appellate counsel in Edmonton with the Alberta Crown Prosecution Service, who argued for the appellant, said he could not immediately comment on the top court’s judgment.

Justice Suzanne Côté

Justice Suzanne Côté

At press time, Lafrance’s counsel, Gregory Lazin of Victoria, was also not immediately available to comment.

The case arose in 2015 when police suspected Lafrance of having been involved in the death of the victim, and obtained a search warrant for Lafrance’s home in Fort McMurray, Alta., where the suspect lived with his father. Early in the morning of March 19, a team of armed police officers in body armour entered his home to search it. They woke him and asked if he was willing to answer some questions and, when he agreed, they drove him to a police station and interviewed him for over three hours — without telling him he could contact a lawyer. Police took a blood sample, fingerprints and cell phones and some clothing.

On April 7, Lafrance was arrested for murder. Police told him he could contact a lawyer, and he had brief phone call with a legal aid lawyer who advised him to get a lawyer. Several hours into the subsequent police interview, Lafrance asked to call his father because he said 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 kept pushing for answers, culminating in Lafrance’s confession.

At his trial, the recent high school graduate — who is Indigenous, had had minimal police exposure and was of much smaller stature than the police officers — applied to exclude his confession and other evidence taken during his first encounter with police on the basis that he should have been allowed to talk to a lawyer at that time, and he should also have been given a second chance at contacting a lawyer during the April 7 interview.

The trial judge rejected the Charter application and admitted the impugned evidence, holding that Lafrance had not been detained on the day of the execution of the warrant; nor were the police required to allow him a second opportunity to call a lawyer on the day of the arrest. The accused was convicted by a jury of second‑degree murder.

In applying the three-factor Grant/Le test for determining whether a person has been detained by police, Justice Brown said 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,” he said. “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 that question, Justice Brown explained, “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.”

Justice Brown said that in this case, Lafrance’s young age was 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,” Justice Brown reasoned. “Lafrance’s Indigenous background is a factor that weighs somewhat in favour of [finding a] 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 ... his lack of experience with the police and unfamiliarity with his Charter rights bolsters it.”

Photo of Justice Russell Brown by Andrew Balfour photography

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 The Lawyer’s Dailyplease contact Cristin Schmitz at Cristin.schmitz@lexisnexis.ca or call 613-820-2794.