In R. v. Lafrance, 2022 SCC 32, the Supreme Court of Canada was sharply divided on a number of issues, including whether police officers had “detained” an accused during and after the execution of a search warrant at the accused’s home, and whether police were required to allow the accused to consult a lawyer a second time after his arrest. This decision confirms that police actions can cause an accused to be “detained” psychologically, even when officers tell the accused that they are free to go. It also sheds light on – and possibly expands – when police must allow a suspect to speak with a lawyer multiple times during an interview.
Background
Police in Alberta suspected that the accused, a recent high school graduate, was involved in the stabbing death of a person on March 17, 2015. He was described as “youthful, [I]ndigenous and ha[ving] minimal police exposure”. There were two relevant interactions between the accused and the police in the weeks after the victim’s death.
The First Encounter: In the early morning of March 19, 2015, eleven armed police officers executed a search warrant at the accused’s home. The police woke the accused and told him to dress and leave the home immediately. They asked him to identify himself and to come to the police station to provide a statement about an incident down the road (i.e. the stabbing). They said it would be a “completely voluntary” choice for the accused to do so. The accused agreed. The police drove him to the police station after the accused said he had no money to take public transit. They took him to a secure part of the station past two locked doors. They told him that he was free to leave any time, but that they would have to escort him out of the secured area, including to the bathroom. They did not tell the accused that he had the right to consult a lawyer. The accused was interviewed for over three hours, which resulted in the police finding evidence. He then left the station.
The Second Encounter: On April 7, 2015, the police arrested the accused for murder. They told him that he could consult a lawyer. After a call with Legal Aid, the police interviewed him. Several hours into the interview, the accused asked to call his father because it would be his “only chance of getting a lawyer”. He said the Legal Aid lawyer had told him to speak to a lawyer in person before continuing to talk to the police. The police refused, saying that the accused may have misunderstood the advice from the Legal Aid lawyer, and that a lawyer was not entitled to be present for the interview. They continued to question the accused, who confessed to killing the victim.
The accused was tried for murder by a judge and jury. He argued that the evidence acquired through the First and Second Encounters, including his confession, should be excluded because the police had violated his Charter right to consult a lawyer during both encounters. The trial judge rejected his arguments and the jury convicted the accused of second-degree murder. The accused appealed. A majority of the Alberta Court of Appeal allowed the appeal, excluded the confession from evidence, and ordered a new trial.
The Crown appealed to the Supreme Court of Canada, seeking to restore the conviction. In a 5:4 split, the majority of the Court dismissed the Crown’s appeal and concluded that a new trial was needed. The Court disagreed on several issues.
The First Encounter: Detained or Not?
As the Charter right to be informed of the right to speak to a lawyer is only engaged once a person is detained, the first question was whether the accused was “detained” by the police when they executed the search warrant at his home on March 19, and during the subsequent interview at the police station.
The majority of the Court concluded that the accused was detained. A detention can occur even where there is no physical restraint by the police, if a reasonable person in the accused’s shoes would feel psychologically obligated to comply with the police and conclude that they are not free to go. This is because ordinary citizens may not know their rights or the police’s powers and may feel required to always cooperate with the police.
In the circumstances of this case, a reasonable person in the accused’s shoes – a 19-year-old woken by a team of 11 armed police officers and told to leave his home, then taken by police to a secured part of the police station for a three-hour interview – would have understood that he had to cooperate with the police. It was also relevant that the accused was Indigenous, had little experience with the police, and was of small stature.
The dissent did not think there was a detention. They stressed that the police had repeatedly told the accused that he was free to go, and they concluded the police acted appropriately. But the majority considered that, although this factor weighed against there being a detention, the situation had to be assessed as a whole, based on “a practical reality of interactions between police and citizen”. The fact that the police told the accused that he was free to go was only one consideration.
The dissent also believed that the majority ignored the trial judge’s conclusions from the evidence, including that the accused was dishonest and had cooperated with the police not because he felt compelled, but because he thought it would reduce their suspicions. But the majority downplayed these concerns by confirming that the analysis is focused on an objectively reasonable person in the accused’s shoes, and not on the accused’s actual thoughts at the time.
The Second Encounter: Right to Second Consultation with a Lawyer?
The second question was whether, after the accused’s arrest on April 7, initial consultation with Legal Aid, and subsequent interview, the accused should have been given another opportunity to speak with a lawyer after he told the police that Legal Aid had told him to speak with a lawyer in person before continuing to talk to the police.
The Court has previously decided that a single consultation with a lawyer is usually sufficient to satisfy the Charter right to a lawyer, unless there has been a “change in circumstances” that suggests that the choice the accused must make has been “significantly altered”. A change in circumstances can include where there is a reason for the police to question if the detainee understands their rights.
The majority in this case concluded that the police should have allowed the accused to consult with a lawyer again after it became apparent that the accused may not have understood the advice he received from Legal Aid. He either misunderstood Legal Aid’s advice, or the advice was incorrect. Either way, there was reason to believe that the accused did not understand his rights, and he had to be allowed to consult a lawyer a second time.
The dissent disagreed. The evidence indicated that the accused understood the Legal Aid lawyer’s advice that he was not required to speak to the police at any time. The dissent believed that the majority’s conclusions effectively meant that a detainee is entitled to further consult a lawyer upon request, or upon mere confusion about their rights.
Conclusion
The majority’s decision in Lafrance confirms the need for police officers to continually re-evaluate the situation during an investigation and to consider what may be in the mind of a reasonable person in the shoes of those with whom they interact, whether it is gauging the possibility of psychologically detaining a suspect or the need of a second consultation with a lawyer during an interview to satisfy the Charter.
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