Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Lafrance, 2022 SCC 32, July 22, 2022, the police arrested the accused at his residence on March 19, 2015. He was asked to come to the police station to provide a statement regarding an alleged murder. The police drove him to the police station, took him to a secure environment therein, and interviewed him for over three hours. On April 7, 2015, the police arrested the accused for that murder.  The accused spoke to legal aid counsel. The police conducted an interview with the accused.  Several hours into the interview, the accused asked to call his father because that would be his “only chance of getting a lawyer”. The police did not allow him to call his father.  The accused subsequently confessed to having committed the murder.

At his trial, the accused sought to have the confession excluded, arguing that he been had detained by the police March 19, but not advised of his right to contact counsel.  He also argued that section 10(b) of the Charter was breached on April 7, when the police would not allow him to contact his father.

The trial judge admitted the confession, concluding that the accused had not been detained on March 19 and that police were not required to allow him to call his father. A majority of the Alberta Court of Appeal allowed his appeal, excluded the confession, and ordered a new trial. The Crown appealed to the Supreme Court of Canada.

The appeal was dismissed. The Supreme Court concluded that the police had detained the accused on March 19, breached section 10(b) of the Charter by failing to inform him of his right to counsel and committed a second breach of section 10(b) on April 7, by refusing to allow the accused to contact a lawyer through his father. Finally, the Court held that these were serious breaches and admitting the evidence thereby obtained would bring the administration of justice into disrepute.

March 19, Detention:

The Supreme Court indicated that “[p]sychological 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’” (at paragraph 22).

The Court concluded that in this case the “Grant factors… weigh decisively” in favour of finding that the accused was detained on March 19 (at paragraphs 63 and 64):

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.

April 7, A Second Consultation with Counsel:

The Supreme Court indicated that “[s]ection 10(b) does not confer the right to have a lawyer present during a police investigation. And, a single consultation with a lawyer is constitutionally sufficient, absent a change in circumstances or new developments that suggest that the choice faced by the accused has been ‘significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not’ (Sinclair, at para. 65). Such a change in circumstances or new development is not demonstrated, the Court added, where police engage in ‘the common . . . tactic of gradually revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against [them]’” (at paragraph 69).

However, the Court also indicated that Sinclair recognizes “that the implementational component of 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” (at paragraph 72).

The Court held that in this case “[t]here was ample reason here to question Mr. Lafrance’s understanding of his s. 10(b) right, bringing his circumstances within the third Sinclair category. While it is true that general confusion or a ‘nee[d for] help’ is not a ground for further consultation with counsel (Sinclair, at para. 55), Mr. Lafrance was not, as my colleagues say, experiencing ‘mere confusion’ or ‘discomfort’ (paras. 177-83 (emphasis deleted)). To explain, and as my colleagues acknowledge, a ‘changed circumstance’ can arise ‘[w]hen there is reason to question the detainee’s understanding of his s. 10(b) right’ (para. 172). That is this case. 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” (at paragraph 86).

Section 24(2):

The Supreme Court concluded that “[t]aken 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” (at paragraph 104).