Supreme Court of Canada

Appeal Heard: December 3, 2021 Judgment Rendered: July 22, 2022 Docket: 39570

Between: Her Majesty The Queen — Appellant

and

Nigel Vernon Lafrance — Respondent

— and —

Attorney General of Ontario, Canadian Civil Liberties Association and Criminal Lawyers' Association — Interveners

Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

Reasons for Judgment: (paras. 1 to 103) Brown J. (Karakatsanis, Martin, Kasirer and Jamal JJ. concurring)

Joint Dissenting Reasons: (paras. 104 to 194) Côté and Rowe JJ. (Wagner C.J. and Moldaver J. concurring)

Parties

Her Majesty The Queen — Appellant

v.

Nigel Vernon Lafrance — Respondent

and

Attorney General of Ontario, Canadian Civil Liberties Association and Criminal Lawyers' Association — Interveners

Indexed as: R. v. Lafrance

2022 SCC 32

File No.: 39570.

2021: December 3; 2022: July 22.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

on appeal from the court of appeal for alberta

Headnote

Constitutional law — Charter of Rights — Detention — Right to counsel — Police entering suspect's home in early morning to execute search warrant and driving him to police station for interview without advising him of right to counsel — Police later arresting suspect and conducting second interview after legal aid lawyer consulted — Suspect requesting during second interview to call his father for assistance in obtaining legal advice but request refused — Suspect confessing during second interview to killing victim but seeking exclusion of confession at trial on basis that police breached his right to counsel — Whether police detained suspect and breached his right to counsel on day of execution of warrant — Whether police breached suspect's right to counsel on day of arrest by refusing to allow him to have further consultation with lawyer — If so, whether admission of evidence would bring administration of justice into disrepute warranting its exclusion — *Canadian Charter of Rights and Freedoms*, ss. 10(b), 24(2).

The police suspected that L might have been involved in the death of an individual. Two days after the death, a team of armed police officers entered L's home to execute a search warrant. L was a 19‑year‑old recent high school graduate, was Indigenous, had had minimal police exposure and was of much smaller stature than the officers. The officers awoke him and ordered him to dress and leave the premises. He was led to a police officer who asked him to identify himself and to come to the police station to provide a statement regarding the alleged murder. The police drove him to the police station, took him to a secure environment and interviewed him for over three hours. Approximately three weeks later, the police arrested L for murder. That day, after allowing him to call Legal Aid, they interviewed him. Several hours into the interview, L asked to call his father because 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 pushed for answers. L eventually confessed to killing the victim.

At trial, L sought to exclude his confession by arguing that the police had detained him on the day of the execution of the warrant and breached his right to counsel pursuant to s. 10(b) of the Charter on the day of the execution of the warrant and on the day of his arrest. The trial judge admitted the evidence, finding that L had not been detained on the day of the execution of the warrant, and the police were not required to allow him a second opportunity to call a lawyer on the day of the arrest. L was convicted by a jury of second‑degree murder. The majority of the Court of Appeal allowed his appeal, excluded the evidence under s. 24(2) of the Charter and ordered a new trial.

Held (Wagner C.J. and Moldaver, Côté and Rowe JJ. dissenting): The appeal should be dismissed.

Per Karakatsanis, Brown, Martin, Kasirer and Jamal JJ.: The police detained L on the day of the execution of the warrant and then breached s. 10(b) by failing to inform him of his right to counsel. The police committed another breach of s. 10(b) on the day of the arrest by refusing to allow L to contact a lawyer in circumstances which showed that his initial conversation with Legal Aid was insufficient for the purposes of s. 10(b). These were serious breaches, substantially impacting L's Charter‑protected interests, and admitting the evidence thereby obtained would bring the administration of justice into disrepute.

The test that should be applied in every instance of alleged detention by police is the test stated in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692. It is comprehensive in scope and addresses the full breadth of circumstances that engage the right against self‑incrimination protected by s. 10 of the Charter, including investigative detention. Trial judges must not consider the factors in R. v. Moran (1987), 36 C.C.C. (3d) 225 (Ont. C.A.). The test for detention set out in Grant and expanded in Le is objective, and it was restated to direct the inquiry to the perspective of the reasonable person in the accused's shoes. Under this test, three factors are to be considered and balanced.

The first factor a court must consider is how the circumstances of the encounter would have been reasonably perceived by the individual — more specifically, whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or singling them out for focused investigation. The analysis properly begins at the moment the encounter itself begins. In the instant case, on the day of the execution of the warrant, it is inconceivable that a reasonable person in L's shoes — woken and confronted by armed police officers in his home telling him to leave — would believe that the police had arrived to provide general assistance, maintain general order or make general inquiries. The reasonable person would immediately understand that he or she is being singled out for investigation. This weighs in favour of a finding of detention. While, of course, the police were authorized by warrant and as such had legitimate reasons for the steps they took, this is not determinative of — and indeed is unlikely to affect — how a reasonable person perceives his or her interactions with the police. Indeed, the warrant itself, by authorizing the police to search L's home, reveals a targeted investigation.

The second factor directs a court's attention to the nature of the police conduct throughout the encounter. Specifically, their 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, may all play a role in shaping the perceptions of the reasonable person in the individual's shoes. The assessment requires a broad view directed to all circumstances of the case, from which view a court should focus on the contextual factors that would affect the perception of the reasonable person in the individual's shoes. No single consideration, including a police statement to an individual that he or she is not detained or otherwise under any obligation to cooperate or may leave, is determinative of whether a detention has occurred. The test is principally objective and therefore, rather than focusing on what was in the individual's mind at a particular moment in time, the inquiry is into how the police behaved and, considering the totality of the circumstances, how such behaviour would be reasonably perceived.

The investigating officer's statements to L that he was free to leave militate against a finding of detention, but they are outweighed by circumstances that support the opposite conclusion. While considerations of the physical proximity of the police to L have little if any impact, the presence of others is a significant consideration. L was in the presence of at least one police officer throughout his interaction with the police; their continued presence and supervision would tend to contribute to the perception of a reasonable person in L's shoes that he or she was not free to decline to speak or to leave. Furthermore, this was a single, lengthy police encounter. This interaction spanned several locations and each of them have features — the overwhelming show of force in the intrusion into the home, the long ride to the police station and the secure environment for a lengthy interview — that, taken as a whole, support the view that someone in L's position would reasonably have perceived that he or she could not leave. This supports a finding of detention.

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. 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 this question, 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.

In this case, L's youth is 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. L's Indigenous background is a factor that weighs somewhat in favour of 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, L's sophistication does not undermine the case for finding a detention. Rather, his lack of experience with the police and unfamiliarity with his Charter rights bolsters it.

All three factors weigh decisively in favour of finding that L was detained. It follows that police were required to inform him 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.

Whether the police breached s. 10(b) of the Charter by refusing to allow a further consultation with a lawyer requires an application of the test in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310. As explained in Sinclair, the purposes of s. 10(b) include to inform the detainee not only of his rights and obligations under the law (informational component) but, equally and if not more important, to allow him to obtain advice as to how to exercise those rights (implementational component). This latter component implicitly includes a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult counsel. While a single consultation with a lawyer is constitutionally sufficient, 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 suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation. Three non‑exhaustive categories of exceptional circumstances triggering this duty were identified in Sinclair: (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.

The third category broadly covers circumstances where the detainee may not have understood the initial s. 10(b) advice of his right to counsel, which imposes on the police a duty to give him a further opportunity to talk to a lawyer. The inquiry is into circumstances, stated broadly, and an inquiry into whether a detainee understood that he or she could remain silent is not sufficient. It is only by ensuring that detainees obtain legal advice that accounts for the particular situation they face, conveyed in a manner they can understand, that s. 10(b) can meaningfully redress the imbalance of power between the state (whose agents know the detainee's rights) and the detainee (who may not). It is uncontroversial that the purpose of s. 10(b) is to mitigate the imbalance between the individual and the state. 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 capacity 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 cooperate with the police.

On the day of L's arrest, the police fulfilled the informational component of s. 10(b) and initially at least satisfied the implementational component upon arrival at the police station. While the police did not employ any new or unusual investigative techniques and there was no change in jeopardy during the interview, there was ample reason to question L's understanding of his s. 10(b) right. 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. There were also clear signs that either the legal advice he obtained was incorrect, or he did not understand how his s. 10(b) rights applied to his current circumstances. The concern that should reasonably have arisen in the mind of the investigating officer that L may not have understood his rights and how to exercise them is affirmed, if not heightened, when considered in light of L'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 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.

The evidence obtained as a result of the breaches of L's Charter rights must be excluded as the admission of the evidence would bring the administration of justice into disrepute. The two breaches were serious and had a correspondingly significant impact on his s. 10(b) rights. This presents 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 seriousness of the Charter infringing conduct and the impact of the breaches on L's Charter‑protected interests overwhelms the moderate impact on society's interest in the truth‑seeking function of the criminal trial process.

Per Wagner C.J. and Moldaver, Côté and Rowe JJ. (dissenting): The appeal should be allowed and L's conviction for second degree murder restored. L was not detained on the day of the execution of the warrant, nor was his s. 10(b) right to counsel violated on the day of his arrest, when he was not permitted a second consultation with counsel.

The disagreement with the majority that L was detained by police on the day of the execution of the warrant turns on three key points. First, a deferential approach to the trial judge's findings of fact leads to the conclusion that police did not engage in coercive behaviour in their interactions with L that day. Second, the perspective of a reasonable person in the particular circumstances of the individual must not be overemphasized because to do so provides too little guidance to police in determining whether they have psychologically detained someone in carrying out their regular duties. The police must be able to avoid infringing the s. 9 Charter right against arbitrary detention when they are seeking to obtain information from an individual and they have no intention to detain him or her but a reasonable person may nonetheless conclude a detention exists. Third, while there is agreement with the majority that a finding of detention is not precluded by statements by police that an individual does not need to speak to them and is free to leave, in the instant case, greater weight is to be accorded to the police officers' testimony that they made clear to L that he did not need to speak to them and he was free to go.

Applying the framework from Grant leads to the conclusion that L was not psychologically or otherwise detained at any point during his dealings with the police on the day of the execution of the warrant. Thus, there was no requirement that he be advised by police of his right to counsel under s. 10(b) of the Charter.

First, with respect to the circumstances giving rise to the encounter, the trial judge did consider the context in which police first interacted with L and its relevance to whether or not he was detained. He indicated that the search warrant was executed professionally and disclosed no signs of unnecessary coercion. While a reasonable person in L's position would have felt singled out for investigation, this did not turn the encounter into a detention.

Next, regarding the police conduct, there is no basis to contradict the trial judge's conclusion that L was not subject to psychological detention. The police made statements on several occasions that L was under no obligation to cooperate and he was free to leave at any time, and their conduct did not undermine their statements. A careful and deferential review of the record requires a rejection of the factors that, according to the majority, outweigh the police statements that L was free to go. The conduct of the police in relation to the execution of the search warrant shows no evidence giving rise to an impression of control over the person. There is no credible evidence that police gave orders or closely monitored L for purposes other than the execution of the search warrant. As for the ride to the police station, the trial judge's factual findings about the police conduct during that time and his finding that L chose this option also do not militate in favour of a finding of detention. Further, the trial judge's findings indicate that police avoided anything akin to accusatory interrogation. Moreover, the evidence demonstrates that L was keen to collaborate. As to physical contact, there is agreement with the majority that there was no evidence of physical contact or oppressive proximity that could support a finding of psychological detention. With respect to the presence of others, there is disagreement with the majority that this was a significant consideration because this factor refers to witnesses, not police officers, and, in any event, the presence of other police officers is of no consequence, given how the police conducted themselves. Finally, the interview took place at the police station and, while its duration of about three and a half hours was lengthier than generally occurs in non‑accusatory sessions, having regard to the conversational interview style and the absence of any confrontation, there is no basis to differ from the trial judge's conclusion that its length does not suffice to constitute the basis of a psychological detention.

Finally, turning to L's particular circumstances, the trial judge acknowledged his youth, Indigenous background, lack of experience, and small stature. These factors are all material — without being determinative — in assessing whether police undermined statements that he was free to go. There is no evidentiary support for the majority's assertion that the execution of the search warrant was conducted in a manner that would make a reasonable person in L's position feel detained. L's objective personal characteristics, although significant to the inquiry, do not turn the tide. Overall, the trial judge's findings of fact confirm what is otherwise objectively ascertainable: a reasonable person in L's shoes would not have perceived the police conduct as a significant deprivation of his liberty.

L claims that his right to counsel was not implemented on the day of his arrest because he had a right to a second consultation with counsel during the police interview. This issue is governed by the Court's decision in Sinclair and its companion cases. It is not accurate to suggest that s. 10(b)'s purpose is to mitigate the imbalance between the individual and the state; rather, its purpose is to provide a detainee with an opportunity to obtain information and legal advice relevant to his or her legal situation upon detention, in order to support the detainee's right to choose whether to cooperate with the police investigation or not.

In the instant case, L's situation does not fit within the category of changed circumstances that requires a second consultation when there is reason to question the detainee's understanding of his or her s. 10(b) right. There is no basis to conclude that the choice faced by L was significantly altered so as to require further advice in order to fulfill the purpose of his s. 10(b) rights. The fact that a detainee demonstrates hesitancy or concern during an interrogation is not, on its own, sufficient to establish that he or she did not have a full opportunity to consult with counsel and the detainee merely asking for a second consultation with a lawyer is not enough to support a right to a second consultation. Mere confusion or an incorrect belief in a constitutional right to have a lawyer present is also not enough to trigger a constitutional obligation under s. 10(b). A review of L's interactions with police indicates that his choice to speak to the police investigators was both free and informed. While his request to speak to his father was an implicit request for a second consultation with a lawyer, that is not enough to support a right to a second consultation. The police officer confirmed that L understood and exercised his right to counsel. L knew the legal jeopardy that he was facing and he knew he did not have to say anything to the police officer. L's discomfort in the face of difficult police questioning is not, on its own, grounds for a second consultation.

Even if it could be said that L was detained on the day of the execution of the warrant, the statement he subsequently provided on the day of his arrest was not sufficiently connected to that Charter breach and there is therefore no basis on which to exclude such evidence under s. 24(2).

Cases Cited

By Brown J.

Overruled: R. v. Moran (1987), 36 C.C.C. (3d) 225; applied: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310; referred to: R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. Seagull, 2015 BCCA 164, 323 C.C.C. (3d) 361; R. v. Tessier, 2020 ABCA 289, 12 Alta. L.R. (7th) 55, leave to appeal granted, [2021] 1 S.C.R. xiii; R. v. Eaton, 2019 ONCA 891; R. v. N.B., 2018 ONCA 556, 362 C.C.C. (3d) 302; R. v. Folker, 2016 NLCA 1, 373 Nfld. & P.E.I.R. 49; R. v. Rajaratnam, 2006 ABCA 333, 397 A.R. 126; R. v. Van Wissen, 2018 MBCA 110, 367 C.C.C. (3d) 186; R. v. Theriault, 2021 ONCA 517, 157 O.R. (3d) 241; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Dussault, 2022 SCC 16, [2022] 1 S.C.R. 306; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; R. v. Reilly, 2021 SCC 38, [2021] 2 S.C.R. 1078; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. P. (M.B.), [1994] 1 S.C.R. 555.

By Côté and Rowe JJ. (dissenting)

R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310; R. v. Way, 2011 NBCA 92, 377 N.B.R. (2d) 25; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Todd, 2019 SKCA 36, [2019] 9 W.W.R. 207; R. v. Tran, 2010 ABCA 211, 482 A.R. 357; R. v. Schrenk, 2010 MBCA 38, 255 Man. R. (2d) 12; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460; R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Prosper, [1994] 3 S.C.R. 236; R. v. Dussault, 2022 SCC 16, [2022] 1 S.C.R. 306; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235; R. v. Collins, [1987] 1 S.C.R. 265.

Statutes and Regulations Cited

*Canadian Charter of Rights and Freedoms*, ss. 8, 9, 10, 24(2).

Authors Cited

Canada. Statistics Canada. Canadian Centre for Justice and Community Safety Statistics. Perceptions of and experiences with police and the justice system among the Black and Indigenous populations in Canada, by Adam Cotter. Ottawa, February 2022.

Coughlan, Steve, and Glen Luther. Detention and Arrest, 2nd ed. Toronto: Irwin Law, 2017.

MacDonnell, Vanessa A. "R v Sinclair: Balancing Individual Rights and Societal Interests Outside of Section 1 of the Charter" (2012), 38 Queen's L.J. 137.

Penney, Steven. "Police Questioning in the Charter Era: Adjudicative versus Regulatory Rule‑making and the Problem of False Confessions" (2012), 57 S.C.L.R. (2d) 263.

Watkins, Kerry G. "The Vulnerability of Aboriginal Suspects When Questioned by Police: Mitigating Risk and Maximizing the Reliability of Statement Evidence" (2016), 63 Crim. L.Q. 474.

Appeal

APPEAL from a judgment of the Alberta Court of Appeal (Bielby, Veldhuis and Wakeling JJ.A.), 2021 ABCA 51, 20 Alta. L.R. (7th) 211, [2021] 6 W.W.R. 594, 402 C.C.C. (3d) 527, 479 C.R.R. (2d) 277, [2021] A.J. No. 171 (QL), 2021 CarswellAlta 265 (WL), setting aside the conviction of the accused for second degree murder and ordering a new trial. Appeal dismissed, Wagner C.J. and Moldaver, Côté and Rowe JJ. dissenting.

Keith A. Joyce, for the appellant.

Gregory C. Lazin, for the respondent.

Davin Michael Garg and Natalya Odorico, for the intervener the Attorney General of Ontario.

Frank Addario and Samara Secter, for the intervener the Canadian Civil Liberties Association.

Anil K. Kapoor and Victoria Cichalewska, for the intervener the Criminal Lawyers' Association.

Reasons for Judgment

The judgment of Karakatsanis, Brown, Martin, Kasirer and Jamal JJ. was delivered by

Brown J. —

I. Overview

[ 1 ] This appeal calls upon the Court to affirm and apply its holdings in R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, and R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, respectively, on two points: (1) evaluating whether an individual has been detained by the police; and (2) applying the framework in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, in the purposive and generous manner required by our jurisprudence.

[ 2 ] The police suspected that Nigel Vernon Lafrance might have been involved in the death of an individual that took place on March 17, 2015. In the early morning of March 19, 2015, a team of armed police officers entered his home to execute a search warrant. They awoke Mr. Lafrance, a recent high school graduate described by the trial judge as "youthful, [I]ndigenous and ha[ving] minimal police exposure" (2017 ABQB 746, 399 C.R.R. (2d) 184, at para. 79), and by the Court of Appeal as "19 years old, Indigenous, [with] very limited prior exposure to the police and . . . of much smaller stature than . . . the armed and uniformed officers" (2021 ABCA 51, 20 Alta. L.R. (7th) 211, at para. 29). Ordered to dress and leave the premises, he was then led to a police officer who asked him to identify himself and come to the police station to provide a statement regarding the alleged murder. The police drove him to the police station, took him to a secure environment therein, and interviewed him for over three hours.

[ 3 ] On April 7, 2015, the police arrested Mr. Lafrance for murder. After allowing him to call Legal Aid, they interviewed him. Several hours into the interview, Mr. Lafrance asked to call his father because that would be his "only chance of getting a lawyer" (A.R., vol. V, at p. 137). The police refused the request and pushed for answers. Mr. Lafrance eventually confessed to killing the victim.

[ 4 ] Mr. Lafrance sought to exclude this confession by arguing that the police had detained him on March 19 and breached his right to counsel pursuant to s. 10(b) of the Canadian Charter of Rights and Freedoms on March 19 and April 7.[^1] The trial judge admitted the evidence, finding that Mr. Lafrance had not been detained on March 19 (thereby also disposing of the s. 10(b) argument related to that date), and that police were not required to allow him a second opportunity to call a lawyer on April 7. Mr. Lafrance was convicted by a jury of second‑degree murder. The majority of the Court of Appeal of Alberta allowed his appeal, excluded the evidence under s. 24(2) of the Charter and ordered a new trial. The Crown appeals, asking us to restore the conviction.

[ 5 ] I would dismiss the appeal. The police detained Mr. Lafrance on March 19, then breached s. 10(b) by failing to inform him of his right to counsel. They committed another breach of s. 10(b) on April 7 by refusing to allow him to contact a lawyer in circumstances which showed that his initial conversation with Legal Aid was insufficient for the purposes of s. 10(b), being "to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights" (Sinclair, at para. 26, citing R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43). These were serious breaches, substantially impacting Mr. Lafrance's Charter‑protected interests, and admitting the evidence thereby obtained would bring the administration of justice into disrepute.

II. Facts

[ 6 ] On March 17, 2015, Anthony Yasinski was stabbed in the neck and died. The police suspected Mr. Lafrance's involvement, as he was the last person to have contacted Mr. Yasinski prior to his death.

[ 7 ] Two interactions between the police and Mr. Lafrance followed, on March 19, 2015, and April 7, 2015, respectively.

A. March 19, 2015

[ 8 ] The police sought and obtained a search warrant to search Mr. Lafrance's place of residence on the morning of March 19. A police search team of 11 ⸺ many of which were wearing bulletproof vests and carrying firearms, including at least one "assault rifle" ⸺ arrived in marked and unmarked police vehicles at 6:50 a.m., blocked off surrounding roads and entered the residence, making their way to Mr. Lafrance's room and waking him. When he opened the door, they directed him to dress and leave his house immediately. When he asked the police for permission to look for his cat (which had run outside when the police entered the residence), they permitted him to do so, led him outside, and accompanied him as he chased after it. At all times, Mr. Lafrance remained "in sight of police officers" and did not venture past the police cordon (A.R., vol. II, at pp. 93-94).

[ 9 ] Shortly after retrieving the cat, Mr. Lafrance was approached by Sergeant (then Corporal) Eros who, unbeknownst to Mr. Lafrance, had been assigned to interview him and had been waiting for him outside. Sgt. Eros was accompanied by Staff Sergeant (then Cpl.) Zazulak, armed and wearing a bulletproof vest. It is undisputed that, at that time, Sgt. Eros did not have reasonable and probable grounds to proceed to arrest Mr. Lafrance.

[ 10 ] Sgt. Eros asked Mr. Lafrance to confirm his identity (which Mr. Lafrance did), advised him that he wanted to speak about an incident that occurred down the road — referring, of course, to Mr. Yasinski's death — and asked him to come to the police station and provide a statement. Sgt. Eros told Mr. Lafrance that doing so would be a "completely voluntary" choice. Mr. Lafrance agreed to give a statement.

[ 11 ] Sgt. Eros and Mr. Lafrance discussed how he could make his way to the police station — whether by public transit, a ride with Sgt. Eros and S/Sgt. Zazulak in an unmarked police van, or by some alternative means. Having no money for bus fare, Mr. Lafrance chose to ride with Sgt. Eros and S/Sgt. Zazulak.

[ 12 ] After a 20- to 25‑minute ride to the police station, Mr. Lafrance was escorted by Sgt. Eros and S/Sgt. Zazulak through two controlled access key‑carded doors to an interview room at the back of the station. He was then left alone in the closed room for at least 17 minutes, unaware (because he had not been told) that the door was unlocked. When Sgt. Eros returned to the interview room and Mr. Lafrance asked to use the washroom, Sgt. Eros escorted him to the washroom, stood by while Mr. Lafrance used the washroom, then escorted him back to the interview room.

[ 13 ] Sgt. Eros then proceeded to interview Mr. Lafrance for approximately three and a half hours. He began by telling Mr. Lafrance that he did not need to speak with him, that the door to the interview room was unlocked and that he could leave at any time. But Sgt. Eros also informed him that they were currently in a "secure environment" and that, should Mr. Lafrance want to leave, use the washroom or take a smoke break, he would have to let Sgt. Eros know.

[ 14 ] Sgt. Eros then informed Mr. Lafrance that he was a suspect in Mr. Yasinski's murder, and asked him about "what [his] days have been filled with and what [he had] been doing" prior to the police search of his home (A.R., vol. IV, at p. 82). Mr. Lafrance gave answers, some of which were relayed to the search team, leading them to seize items of interest. Sgt. Eros also took Mr. Lafrance's fingerprints and DNA (prior to which he was offered a chance to speak with a lawyer) and seized his cellphone along with his clothes — all of which were taken after obtaining Mr. Lafrance's consent. At the interview's conclusion, police drove Mr. Lafrance home.

B. April 7, 2015

[ 15 ] On April 7, the police arrested Mr. Lafrance for the murder of Mr. Yasinski. Shortly after the arrest, the arresting officer informed Mr. Lafrance of his right to counsel and that he would be given an opportunity to call a lawyer. Mr. Lafrance indicated that he understood this and asked to contact a "free lawyer".

[ 16 ] At the police station, Mr. Lafrance was escorted to a telephone room and spoke on the phone with a Legal Aid lawyer. This short conversation was Mr. Lafrance's first time ever speaking with a lawyer, having never before been arrested or otherwise required to obtain legal services. When he finished the call, the arresting officer asked Mr. Lafrance if he had spoken to a lawyer and understood the advice, to which Mr. Lafrance answered yes. Mr. Lafrance was then moved to an interview room to be interviewed by Sgt. Eros.

[ 17 ] Several hours into the interview, Sgt. Eros told Mr. Lafrance that he did not believe his version of the events and that there was no doubt in his mind that Mr. Lafrance was responsible for killing Mr. Yasinski. As the tone of the interview shifted, Mr. Lafrance asked to speak with his father before continuing to answer Sgt. Eros' questions. When Sgt. Eros asked him why, Mr. Lafrance explained that his father was his "only chance of getting a lawyer" and that he wanted a lawyer before going forward with anything else. He said that Legal Aid told him "to get a lawyer before [he] continue[s] talking" to sit down and talk about his situation (A.R., vol. V, at p. 139). In response, Sgt. Eros explained that he "ha[d] no problem" letting him talk to his father (A.R., vol. V, at p. 138), but that Mr. Lafrance had already spoken to a lawyer. Mr. Lafrance, he said, may have misinterpreted[^2] the advice and so he explained to Mr. Lafrance that he could not have a lawyer present in the room with him during the custodial interview. Sgt. Eros testified, however, that he was satisfied that Mr. Lafrance understood his right to silence and his legal advice.

[ 18 ] Sgt. Eros pressed ahead with his questioning and, shortly thereafter, Mr. Lafrance confessed to stabbing Mr. Yasinski.

III. Issues

[ 19 ] This appeal presents three issues:

1. Did the police detain Mr. Lafrance and breach his s. 10(b) right to counsel on March 19, 2015?

2. Did the police breach Mr. Lafrance's s. 10(b) right to counsel by refusing to allow him to have a further consultation with a lawyer on April 7, 2015?

3. If the answer to either or both of the foregoing is "yes", would the evidence obtained therefrom bring the administration of justice into disrepute, such that it must be excluded under s. 24(2)?

IV. Analysis

A. March 19, 2015

[ 20 ] Mr. Lafrance's straightforward argument regarding the March 19 encounter is this: he was detained when the police executed their search warrant, and that detention persisted during his interview at the police station as he felt, in the circumstances, obliged to comply with the request to speak with police. It follows that the police breached s. 10(b) by failing to advise him of his right to retain and instruct counsel upon detention (Grant, at para. 28).

(1) Detention

[ 21 ] Detention refers to "a 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; Le, at para. 27). In the heat of the moment, it is not always easy for ordinary citizens, who may be uninformed of their rights or the scope of the police's powers, to know whether they have a choice to comply with a request by the police. An individual may perceive "a routine interaction with the police as demanding a sense of obligation to comply with every request" (Le, at para. 26, referring to S. Penney, V. Rondinelli and J. Stribopoulos, Criminal Procedure in Canada (2nd ed. 2018), at p. 83). For that reason, this Court has recognized that"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 (emphasis added)). Even so, not every encounter between state and citizen effects a detention (Suberu, at para. 3; Le, at para. 27); no detention is effected, and therefore s. 10(b) rights are not breached, where an individual voluntarily assists the police by, for example, freely agreeing to provide a statement.

[ 22 ] In this case, Mr. Lafrance says that his choice to cooperate with the police on March 19 was, in substance, imposed by way of psychological constraints. Psychological 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" (Grant, at paras. 30‑31; Le, at para. 25). It is that latter category which Mr. Lafrance says describes his circumstances. Three factors — identified in Grant and expanded upon in Le — are to be considered and balanced:

1. The circumstances giving rise to the encounter as they would reasonably be perceived by the individual;
2. The nature of the police conduct; and
3. The particular characteristics or circumstances of the individual where relevant (Grant, at para. 44; Le, at para. 31).

[ 23 ] The applicable standard of review here is that of correctness; the existence of a detention is a question of law (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at paras. 18 and 20; Grant, at para. 43; Le, at para. 23). No deference is owed to the trial judge's analysis and conclusion thereon. This is not to say that the voir dire is irrelevant, since the trial judge's findings of facts receive deference, absent a palpable and overriding error (Grant, at paras. 43 and 45).

(2) R. v. Moran

[ 24 ] A jurisprudential point should be addressed before proceeding further. The Court of Appeal criticized the trial judge for not considering the factors pertinent to identifying a detention in R. v. Moran (1987), 36 C.C.C. (3d) 225 (Ont. C.A.). In my view, however, the trial judge did not err in this respect, since Grant has displaced the authority of Moran as stating the test for detention.

[ 25 ] In Moran, an issue before the Court of Appeal for Ontario was whether the trial judge had erred in concluding that Mr. Moran, who had been interviewed twice by police in connection with the murder of which he was eventually convicted, had not been detained during those interviews. In dismissing this ground of appeal, Martin J.A. identified a series of non‑exhaustive factors to assist in determining whether a person is detained at the time of questioning at a police station.

[ 26 ] I recognize that lower courts continue to refer to these factors when assessing detention under Grant (see, e.g., R. v. Seagull, 2015 BCCA 164, 323 C.C.C. (3d) 361, at para. 38; R. v. Tessier, 2020 ABCA 289, 12 Alta. L.R. (7th) 55, at paras. 66‑69, leave to appeal granted, [2021] 1 S.C.R. xiii; R. v. Eaton, 2019 ONCA 891, at para. 12 ; R. v. N.B., 2018 ONCA 556, 362 C.C.C. (3d) 302, at para. 121). The view, whether stated explicitly or necessarily implicit in these judgments, is that the Moran factors are "useful" benchmarks when assessing detention per Grant (Seagull, at para. 38; N.B., at para. 121).

[ 27 ] Respectfully, the better view is that, as a result of Grant, Moran is no longer good law (S. Coughlan and G. Luther, Detention and Arrest (2nd ed. 2017), at p. 287), and it should no longer be applied or relied upon. In Grant, the test for detention was restated to direct the inquiry to the perspective of the reasonable person in the accused's shoes. In contrast, the Moran factors focus principally on police conduct and information that will not be readily available to the accused at the time of detention (such as the stage of the police investigation). And, while the test in Grant is objective, Moran encourages courts to consider the subjective perceptions and beliefs of the accused, thereby emphasizing considerations that play a limited (if any) role in an objective assessment (Le, at paras. 111-17).

[ 28 ] Further, and as noted, the scope of Moran is, by its own terms, confined to deciding whether a person who is questioned at a police station is detained. By design, then, Moran applied in limited circumstances. Grant is comprehensive in scope, applying to every instance of alleged detention by police by addressing the full breadth of circumstances that engage the right against self‑incrimination protected by s. 10 of the Charter, including investigative detentions (R. v. Folker, 2016 NLCA 1, 373 Nfld. & P.E.I.R. 49, at paras. 74-79, per White J.A. (dissenting in part)).

(3) Applying Grant to the Events of March 19, 2015

(a) The Circumstances Giving Rise to the Encounter

[ 29 ] At this stage, the Court must consider how the circumstances of the encounter would have been reasonably perceived by Mr. Lafrance ⸺ more specifically"whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling [him out] for focused investigation" (Le, at para. 31(a); Grant, at para. 44(2)(a)).

[ 30 ] I observe that the trial judge began by looking to the background information available to Sgt. Eros and the police during the initial steps of their investigation, including his assignment to speak to Mr. Lafrance outside the home. In Le, however (which I note was unavailable to the trial judge at the time of decision), the Court explained that "investigative purposes are important when assessing whether the detention was arbitrary and whether the police were acting in good faith", but "are less relevant" when reviewing the first Grant factor (paras. 37-38). Behind‑the‑scenes knowledge of a police investigation would not be known by a reasonable person in the accused's position.

[ 31 ] The analysis properly begins at the moment the encounter itself begins — in this case, when the police arrived at Mr. Lafrance's home in marked and unmarked police vehicles, and at an early hour when Mr. Lafrance was asleep. Armed and wearing bulletproof vests, they entered the house, knocked on his bedroom door, and ordered him to dress and get out. They monitored him inside and outside the house.

[ 32 ] In my view, it is inconceivable that a reasonable person in Mr. Lafrance's shoes — woken and confronted by armed police officers in his home telling him to leave — would believe that the police had arrived to provide general assistance, maintain general order or make general inquiries. The reasonable person would immediately understand that he or she is being singled out for investigation. This weighs in favour of a finding of detention. While, of course, the police were authorized by warrant and as such had legitimate reasons for the steps they took, this is not determinative of — and indeed is unlikely to affect — how a reasonable person perceives his or her interactions with the police. Indeed, the warrant itself, by authorizing the police to search Mr. Lafrance's home, reveals a targeted investigation.

[ 33 ] There may be those who feel that this conclusion is an obvious one, but I note that the trial judge appeared to conclude otherwise. His Honour found that, because of Sgt. Eros' assignment, the police had taken a "methodical and planned approach" to the operation, and that this demonstrated that the police "were not engaging in a show of force intended to coerce Mr. Lafrance into compliance, [but rather were] executing a search warrant in accordance with their legal authority". With respect, as Le makes clear, the police's investigative purposes are largely irrelevant to this aspect of the detention analysis. Nor is it pertinent that the police believed that they were acting in accordance with their legal authority: the question is simply how a reasonable person in Mr. Lafrance's position would have perceived the encounter. On the day of the execution of the warrant, the answer to this question clearly weighs in favour of a finding of detention.

(b) Nature of Police Conduct

[ 34 ] The next factor requires a broad view of the nature of police conduct throughout the encounter, focusing on "contextual factors that would affect the perceptions of the reasonable person in [the individual's] shoes" (Le, at para. 31(b)). These include: (i) the language and actions of the police; (ii) whether the police physically touched the individual; (iii) the place where the encounter occurred; (iv) the presence of others; and (v) the duration of the encounter.

[ 35 ] I pause here to note what this factor does not permit. No single consideration, including a police statement to an individual that he or she is not detained or otherwise under any obligation to cooperate or may leave, is determinative of whether a detention has occurred. While such a statement is an important consideration and it may be a weighty one in a particular case, the test for detention is principally objective. Accordingly, rather than focusing on what was in the individual's mind at a particular moment in time, the inquiry is into how the police behaved and, considering the totality of the circumstances, how such behaviour would be reasonably perceived: Grant, at para. 32.

(i) Language and Actions of Police

[ 36 ] On March 19, Sgt. Eros told Mr. Lafrance on multiple occasions[^3] that he was under no obligation to cooperate with him. These statements weigh against a finding of detention, and I will return to their significance below. For the moment, it is worth noting that the police also informed Mr. Lafrance that they were in a "secure environment" and that, should he want to leave, use the washroom or take a smoke break, he would have to let Sgt. Eros know. This has a constraining quality to it. When I say "constraining", I mean it in an objective way: a person of reasonable sensitivity would understand these statements as placing conditions on their movements. This somewhat undermines the police's more direct message to Mr. Lafrance that he was free to go.

[ 37 ] An important additional point is that, as Mr. Lafrance's counsel told us at oral argument, the police told Mr. Lafrance during the course of the interview at the police station that he was a suspect in the murder for which they were investigating. It can generally be expected that advising someone of their status as a suspect would heighten their perception of being under scrutiny, and being constrained in their movements accordingly.

[ 38 ] More broadly, I observe that this was an encounter that took place in a particular sequential context, in which each step built upon the previous. First, a significant show of force at Mr. Lafrance's home — a team of armed officers who woke him, ordered him to dress and leave, accompanied him outside his residence while he looked for his cat, and held him "in sight of police officers" throughout (see para. 8). Second, a 20- to 25‑minute car ride with police to the police station, in an unmarked van. Third, being escorted through two key‑carded secure doors to an interview room, being left alone in a closed room for some time unaware (having not been told) that the door was unlocked, and being escorted by an officer when using the washroom. Fourth, over three hours of police questioning in this "secure environment".

[ 39 ] These actions, viewed holistically, are consistent with and supportive of detention. It strains credulity to suggest that a reasonable person in Mr. Lafrance's position would experience the above and simultaneously believe that they were free to leave at any time.

(ii) Physical Contact

[ 40 ] There is no evidence in the record of physical contact between Mr. Lafrance and the police; the trial judge found that the police "did not physically restrain Mr. Lafrance". As my colleagues note at para. 145, this factor is of little relevance.

(iii) Place of Encounter

[ 41 ] There is no doubt that the place of the encounter weighed considerably in favour of a finding of detention. Of the three locations where the encounter took place — Mr. Lafrance's home, a police van and a police station — not one can be described as neutral ground. An involuntary presence at any one of these locations, let alone in a sequence as was the case here, would support a finding of detention.

(iv) Presence of Others

[ 42 ] The presence of others in the interaction may either aggravate or attenuate the perception of detention. In Le, the "presence of others" referred to the other individuals who were subject to the police intrusion at the same time as Mr. Le; it did not refer to the police officers themselves, since their presence and conduct is addressed separately in the analysis (paras. 52-54 and 63). On the other hand, the focus of this factor is broad — on "the presence of others" in general — and its assessment is quite open-ended.

[ 43 ] In the case at bar, Mr. Lafrance was in the presence of at least one police officer throughout his interaction with the police — from the time police entered his home, during the ride to the police station, and throughout his interview. Their continued presence and supervision would tend to contribute to the perception of a reasonable person in Mr. Lafrance's shoes that he or she was not free to decline to speak or to leave. This supports a finding of detention.

(v) Duration of the Encounter

[ 44 ] This was, by any measure, a long interaction between Mr. Lafrance and the police. The entire interaction spanned several hours — commencing with the waking of Mr. Lafrance from his sleep, and ending when police drove him home after more than three hours of questioning. As all of these events occurred in immediate temporal sequence, they should be considered as the totality of a single encounter.

[ 45 ] Taking all of this into account, the nature of police conduct, overall, weighs in favour of a finding of detention.

(c) Particular Characteristics of Mr. Lafrance

[ 46 ] The final factor is "the particular characteristics or circumstances of the individual where relevant" (Grant, at para. 44; Le, at para. 31). In Le, the Court expanded on this factor:

Youth is an aggravating factor in finding a detention. With respect to race, the relevant question is how a reasonable person of a similar racial background would have perceived the interaction with the police. This includes considering the historical relationship between police and Indigenous peoples, and the heightened power imbalance that may result. It also requires courts to consider the possibility that their interactions with police would reasonably be perceived by Indigenous persons as depriving them of choice.

[ 47 ] Actual consideration of how these various characteristics might impact the reasonable view of the matter, as held by someone in like circumstances, is required. As this Court said in Le (at para. 76):

The third Grant factor does not ask whether the specific individual before the court felt she was free to leave. It asks whether a reasonable person with the particular characteristics of the individual, in the particular situation of the individual, would have perceived that she was being detained.

[ 48 ] Thus:

Youth — even the youth of early adulthood — aggravates the power imbalance between the state and the individual, making it more pronounced, evident and acute. (Le, at para. 78.)

[ 49 ] This is confirmed by a consideration of the matter from the standpoint of s. 10(b) specifically. Section 10(b)'s purpose is to mitigate the imbalance between the individual and the state (Le, at paras. 73-74). A young person's inexperience, not only with the justice system generally but with lawyers more particularly, heightens the gap in knowledge and resources between a young person and the state's agents in the justice system. In short, the power imbalance that s. 10(b) is meant to mitigate is especially acute for young persons.

[ 50 ] In this case, Mr. Lafrance's youth is a crucial consideration that should have received more attention. He was 19 years old. 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.

[ 51 ] With respect to Mr. Lafrance's Indigenous background, the question that must be answered is how a reasonable person of a similar racial background would perceive the interaction with the police (Le, at para. 79). To answer this question:

[C]ourts 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 (R. v. Gladue, , [1999] 1 S.C.R. 688, at paras. 58‑61, and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 59‑77); and (2) the resulting possibility that their interactions would reasonably be perceived by Indigenous persons as depriving them of choice to cooperate. (Le, at para. 80.)

[ 52 ] The trial judge recognized Mr. Lafrance's Indigenous background as a factor, although he did not provide extensive reasons as to why it weighed against a finding of detention. The Court of Appeal addressed this gap. It found that, given Mr. Lafrance's Indigenous background, the power imbalance between himself and the police was heightened, which in turn informed how the entire encounter would have been reasonably perceived. In my view, Mr. Lafrance's Indigenous background is a factor that weighs somewhat in favour of 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.

[ 53 ] Mr. Lafrance's "level of sophistication" is also relevant (Grant, at para. 44; Le, at para. 31). The trial judge found that Mr. Lafrance was "not unsophisticated", but also that he "had little personal knowledge of the rights afforded to him under the Charter" and "no real appreciation of the implications of providing information to the police". In my view, his level of sophistication does not undermine the case for finding a detention. Rather, his lack of experience with the police and unfamiliarity with his Charter rights bolsters it.

[ 54 ] In sum, all three factors weigh decisively in favour of finding that L was detained on March 19, 2015. It follows that police were required to inform him of his s. 10(b) right to counsel and to afford him the opportunity of exercising it.

(4) Breach of Section 10(b) on March 19, 2015

[ 55 ] As there was a detention on March 19, the police were required to "inform the detainee of his or her right to retain and instruct counsel without delay, and to provide the detainee with a reasonable opportunity to exercise that right" (Grant, at para. 28). It is common ground that the police did not do so. There was therefore a breach of Mr. Lafrance's s. 10(b) rights on March 19, 2015.

B. April 7, 2015

[ 56 ] It is undisputed that when Mr. Lafrance was arrested on April 7, the police fulfilled the informational component of s. 10(b) and initially at least satisfied the implementational component upon arrival at the police station, when they allowed him to speak with a Legal Aid lawyer.

[ 57 ] The question is whether the police then breached s. 10(b) by refusing, during the April 7 interview, to allow Mr. Lafrance a further consultation with counsel.

(1) The Legal Framework: R. v. Sinclair

[ 58 ] The answer to this question requires an application of the test in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, which I am of the view has been applied in an unduly restrictive manner in this case.

[ 59 ] Section 10(b) of the Charter provides that "[e]veryone has the right on arrest or detention . . . to retain and instruct counsel without delay and to be informed of that right." The purposes of this right include to inform the detainee not only of his rights and obligations under the law (informational component) but, equally and if not more important, to allow him to obtain advice as to how to exercise those rights (implementational component): Sinclair, at para. 26, citing Manninen, at pp. 1242-43. This latter component implicitly includes a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult counsel: Clarkson v. The Queen, [1986] 1 S.C.R. 383, at p. 394.

[ 60 ] While a single consultation with a lawyer is constitutionally sufficient (Sinclair, at para. 2), 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 suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation (Sinclair, at para. 52). Sinclair identified three non‑exhaustive categories of exceptional circumstances triggering this duty:

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 (Sinclair, at paras. 53-55).

[ 61 ] These categories, as Sinclair itself acknowledged, are "not exhaustive" (para. 53). In determining whether any of the Sinclair categories are engaged, the "purpose of the right to counsel must be respected throughout" (Sinclair, at para. 52). The inquiry is therefore into whether there is a new development that suggests that the choice faced by the accused — whether to cooperate with the investigation, or not — has been "significantly altered" and whether the accused needs "further advice on the new situation" in order to make an informed choice (Sinclair, at para. 52).

[ 62 ] Given the foregoing, the third category broadly covers circumstances where the detainee may not have understood the initial s. 10(b) advice of his right to counsel, which imposes on the police a duty to give him a further opportunity to talk to a lawyer. While Sinclair said that "general confusion or a 'need' for 'help'" is not a ground for further consultation with counsel, an inquiry into whether a detainee understood that he or she could remain silent is not sufficient. As I explain below, this narrower reading, applied in this case, fails to give effect to the Sinclair framework in the purposive and generous manner required by our jurisprudence. In particular, it fails to give effect to the acknowledgment in Sinclair that the purpose of s. 10(b) is to mitigate the imbalance between the individual and the state (Sinclair, at para. 26, citing R. v. Hebert, , [1990] 2 S.C.R. 151, at p. 176).

[ 63 ] It is only by ensuring that detainees obtain legal advice that accounts for the particular situation they face, conveyed in a manner they can understand, that s. 10(b) can meaningfully redress the imbalance of power between the state (whose agents know the detainee's rights) and the detainee (who may not). It is uncontroversial that the purpose of s. 10(b) is to mitigate the imbalance between the individual and the state (Sinclair, at para. 26, citing Hebert, at p. 176). 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 capacity 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 cooperate with the police.

(2) Analysis

[ 64 ] Turning to the events of April 7, it is not in dispute that, when the police initially informed Mr. Lafrance of his s. 10(b) rights on arrest, they fulfilled the informational component of s. 10(b). They also satisfied the implementational component by providing him with a reasonable opportunity to consult with a lawyer before being questioned.

[ 65 ] During the April 7 interview, neither of the first two Sinclair categories were engaged: the police did not employ any new or unusual investigative techniques and there was no change in jeopardy. The question is whether the third Sinclair category was engaged: specifically, was there reason to question Mr. Lafrance's understanding of his s. 10(b) right?

[ 66 ] I answer that question yes.

[ 67 ] Before explaining why, I observe that, as Sgt. Eros testified, the advice Legal Aid gave to Mr. Lafrance was to "get a lawyer before [you] continue talking" — in other words, to obtain legal counsel before proceeding further with the interview. This is sensible advice, even if what it means in the practical context of a custodial interview might not be intuitively obvious: it would mean terminating the interview and arranging another consultation with a lawyer.

[ 68 ] Mr. Lafrance clearly had trouble understanding how to act on this advice in the circumstances. He asked to speak with his father in the following terms (A.R., vol. V, at pp. 137-38):

Lafrance: Well um I'm kinda like stuck like I don't – well my only chance of getting a lawyer is through my dad and I told him like.

Eros: Ok.

Lafrance: Like I'd like – I need to talk to him.

Eros: Like um, you want to talk with your dad?

Lafrance: Ya well like he's the one who can set me up with a lawyer so I can –.

(A.R., vol. V, at p. 137)

[ 69 ] It is also inaccurate to describe Mr. Lafrance, as the Crown and trial judge do, as simply requesting that a lawyer be present with him during the interview. He clarified to Sgt. Eros that what he really sought was an opportunity to get, and speak to, a lawyer:

A. Well no they told me – they told me to get a lawyer before I continue talking.

Q. Ok what do you mean by told you to get a lawyer?

A. Like someone that can come down and sit with me.

Q. Ok.

A. Instead of just over the phone.

Q. There's a person that ah you know what – and the way that that kinda goes ah – I won't say it's, it's bad advice but it's maybe miss – a little bit miss as – miss ah – interrupted. Um there's not any time or any process during our interview –.

A. Um?

Q. Where we're gonna have a lawyer sitting in the room with us.

A. No, no I – I mean, no mean like so –.

Q. Ok.

A. Like for me to sit down with them personally.

Q. Ok.

A. To talk to. [Emphasis added.]

(A.R., vol. V, at p. 139)

[ 70 ] Sgt. Eros then questioned Mr. Lafrance about his conversation with Legal Aid. While Mr. Lafrance acknowledged that he was told that he did not have to say anything, there were also clear signs that either the legal advice he obtained was incorrect, or he did not understand how his s. 10(b) rights applied to his current circumstances. Mr. Lafrance explained to Sgt. Eros that the advice he obtained from Legal Aid was to "get a lawyer before [he] continue talking" and get "someone that can come down and sit with [him]" (A.R., vol. V, at p. 139) — indicating either that Mr. Lafrance had incorrectly interpreted the advice he received or, as Sgt. Eros hinted at, that he had received "bad advice".

[ 71 ] This represents, to my mind, a critical moment in Mr. Lafrance's encounter with the police. Faced with a detainee who was obviously ignorant as to his rights, Sgt. Eros had a choice: to press ahead with the interview, whether despite or because of that ignorance; or, to allow the subject an opportunity to clarify his rights and how to exercise them in his circumstances. Sgt. Eros chose the former course; the Constitution demanded the latter.

[ 72 ] There 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. 82-83 (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 (para. 52).

[ 73 ] The concern that should reasonably have arisen in the mind of the investigating officer that Mr. Lafrance may not have understood his rights and how to exercise them is affirmed, if not heightened, when considered in light of Mr. Lafrance's particular characteristics. It is entirely plausible that a 19‑year‑old with no previous experience of detention or custodial interviews might have difficulty understanding his or her rights, not ever having had to exercise them or even speak with a lawyer before. While the trial judge found him "not unsophisticated", as I have already explained he was obviously unsophisticated in ways that matter here. Finally, and while, as I have explained, it is not clear that this was a present factor in this case, in view of Mr. Lafrance's Indigenous heritage I note that investigating officers and reviewing courts should be alive to the pronounced power imbalance that arises from the unique, historical vulnerability of Indigenous people in their encounters with the criminal justice system (Watkins, at pp. 493-95). All these considerations — none of which are taken into consideration by my colleagues — further support the conclusion that Mr. Lafrance's circumstances fall within the third Sinclair category.

(3) Conclusion on Breach of Section 10(b) on April 7, 2015

[ 74 ] The police breached Mr. Lafrance's s. 10(b) right to counsel by refusing to provide another 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. I now turn to the consequences that follow from this breach and from the March 19 breach of Mr. Lafrance's s. 10(b) right.

C. Section 24(2) of the Charter

[ 75 ] Section 24(2) of the Charter is remedial: its purpose is to uphold Charter rights by providing effective remedies to those whose rights have been breached (R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at paras. 19 and 21). And its text is categorical: where evidence was obtained in a manner that infringed a Charter right or freedom, that evidence shall be excluded if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute (Le, at para. 139). The standpoint to be adopted throughout is, therefore, that of the administration of justice. As this Court emphasized in Le:

Where the state seeks to benefit from the evidentiary fruits of Charter‑offending conduct, our focus must be directed not to the impact of state misconduct upon the criminal trial, but upon the administration of justice. Courts must also bear in mind that the fact of a Charter breach signifies, in and of itself, injustice, and a consequent diminishment of administration of justice. What courts are mandated by s. 24(2) to consider is whether the admission of evidence risks doing further damage by diminishing the reputation of the administration of justice — such that, for example, reasonable members of Canadian society might wonder whether courts take individual rights and freedoms from police misconduct seriously. We endorse this Court's caution in Grant, at para. 68, that, while the exclusion of evidence "may provoke immediate criticism", our focus is on "the overall repute of the justice system, viewed in the long term" by a reasonable person, informed of all relevant circumstances and of the importance of Charter rights. [Emphasis in original; para. 140.]

[ 76 ] Would, then, allowing the Crown to rely on the evidence obtained on March 19 and April 7 in breach of Mr. Lafrance's Charter rights bring the administration of justice into disrepute? Deciding this entails considering and balancing the three lines of inquiry identified in Grant: (1) the seriousness of the Charter‑infringing conduct; (2) the impact on the Charter‑protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits (para. 71; Le, at paras. 139-42; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, at para. 74). While the first two lines of inquiry typically work in tandem, it is not necessary that both of them support exclusion in order for a court to determine that admission would bring the administration of justice into disrepute (Le, at para. 141). As the Court said in Le"[i]t is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion" (para. 141). In other words, it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry when assessing whether evidence should be excluded. That is why the third line — which typically pulls towards a finding that admission would not bring the administration of justice into disrepute — may be overcome where the cumulative weight of the first two lines is significant.

(1) Seriousness of Charter-Infringing Conduct

[ 77 ] The analysis of the seriousness of the Charter‑infringing conduct requires a court to consider the blameworthiness of the state in engaging in the conduct that gave rise to the Charter breach. The relevant considerations include "whether the police acted in good faith or whether the situation was urgent or in some manner outside the contemplation of the police" (Le, at para. 142(a)), as well as whether they acted "with wilful or flagrant disregard for Charter rights" (Grant, at para. 74) or "whether the [conduct] was authorized by law and was reasonable in the circumstances" (Grant, at para. 74).

[ 78 ] With respect to the March 19 breach:

The police acted negligently in failing to advise Mr. Lafrance of his right to counsel. They were executing a search warrant in a murder investigation. There is no explanation for why Sgt. Eros did not advise Mr. Lafrance of his right to counsel at the time of detention. I note, moreover, that Sgt. Eros actually did advise Mr. Lafrance of his right to counsel at a later point during the interview — specifically, prior to taking his fingerprints and DNA — but not at the point of his detention. This was not a case where the police were, for example, responding to a rapidly evolving situation that precluded caution. Nor is there evidence that the police acted in good faith in not recognizing the detention, since the record indicates that Sgt. Eros knew that Mr. Lafrance was a suspect in the murder investigation at the time. If the police did not turn their mind to whether a detention had occurred, they were negligent; if they did, and concluded there was none, they were wrong, given the majority's conclusion on the detention issue (as well as the Court of Appeal's conclusion to the same effect). In either case, this conduct gives rise to a finding of serious Charter‑infringing conduct.

[ 79 ] With respect to the April 7 breach:

The circumstances of this breach represent a more flagrant disregard for Mr. Lafrance's Charter rights. Sgt. Eros failed to recognize — though he should have recognized — Mr. Lafrance's confusion over how to exercise his Charter rights. Instead of providing Mr. Lafrance with an opportunity to clear that confusion by obtaining further legal consultation, he pressed ahead with the interview and pushed for answers in circumstances where Mr. Lafrance had expressed confusion, ignorance and a desire for further legal advice. This is a marked degree of misconduct, and the seriousness of the breach is heightened by the consequences — a confession and a conviction for second-degree murder.

[ 80 ] Both breaches were serious.

(2) Impact on Charter-Protected Interests

[ 81 ] This second line of inquiry asks the court to consider the extent to which the breach actually undermined the interests protected by the infringed Charter right (Grant, at para. 76). There are two breaches to be considered.

[ 82 ] With respect to the March 19 breach, there was a significant impact on Mr. Lafrance's s. 10(b) interests. Had he been advised of his right to counsel on March 19, he could have consulted with a lawyer before providing any information to the police. Instead, he did so without any legal advice. The information provided included a false alibi. Although the Crown chose not to use the March 19 statement at trial, the fact of having given a false alibi created collateral prejudice for Mr. Lafrance.

[ 83 ] With respect to the April 7 breach, the impact on Mr. Lafrance's s. 10(b) interests was even more acute. Without a further opportunity to consult with a lawyer, he was left confused as to his right to stop the interview, and he eventually confessed to second-degree murder. The impact of this breach on his interests was significant.

[ 84 ] The cumulative impact of both breaches on Mr. Lafrance's Charter‑protected interests is significant, and both breaches present a strong case for exclusion of the evidence.

(3) Society's Interest in the Adjudication of the Case on Its Merits

[ 85 ] The third line of inquiry favours admission of the evidence, but not strongly. In Le, the Court acknowledged that society has an interest in the truth‑seeking function of the criminal trial process, including the most serious criminal offences (Le, at para. 142(c)). At the same time, admission of evidence obtained in serious breach of an accused's Charter rights does not serve the truth‑seeking function of the criminal trial process, since the administration of justice is itself brought into disrepute. Exclusion of evidence obtained through serious breaches of the Charter is not a "windfall" for the accused; rather, it reflects the court's commitment to upholding Charter values and the rule of law.

[ 86 ] While it is important that the most serious offences be prosecuted, the Crown chose to appeal rather than to seek a new trial with untainted evidence, and can still do so if it wishes. Accordingly, I would not find this factor to be a weighty one in these circumstances.

(4) Conclusion on Section 24(2)

[ 87 ] Taking account of the seriousness of the two Charter breaches (which I would characterize, respectively, as negligent and flagrant) and their significant impact on Mr. Lafrance's Charter‑protected interests, and acknowledging the limited pull of the third line of inquiry, I conclude that the admission of the evidence thereby obtained would bring the administration of justice into disrepute. I would therefore exclude the evidence under s. 24(2) of the Charter and, since the evidence is necessary to sustain the conviction, I would order a new trial.

V. Disposition

[ 88 ] I would dismiss the appeal and confirm the Court of Appeal's order for a new trial.

Joint Dissenting Reasons

Côté and Rowe JJ. (Wagner C.J. and Moldaver J. concurring) —

I. Introduction

[ 89 ] We would allow the appeal and restore the conviction of Nigel Vernon Lafrance for second degree murder. With respect, we disagree with the majority on both issues arising in this appeal: whether Mr. Lafrance was detained by police on the day of the execution of the warrant, and whether Mr. Lafrance's s. 10(b) right to counsel was violated on the day of his arrest, when he was not permitted a second consultation with counsel.

[ 90 ] We note at the outset that, as to the first issue, none of the three members of the Court of Appeal who considered the matter agreed with the majority's analysis (see 2021 ABCA 51). We accept that the applicable standard of review is correctness as a matter of law, but part company with the majority on the application of the three-factor test from Grant to the particular facts of this case.

[ 91 ] There is no dispute that the test applicable to assess whether Mr. Lafrance was detained on March 19 is the three-part test set out in Grant, as elaborated in Le. We also agree that Moran has been displaced by Grant and should no longer be relied upon when assessing detention.

[ 92 ] Our disagreement with the majority that Mr. Lafrance was detained by police on the day of the execution of the warrant turns on three key points. First, we believe that a deferential approach to the trial judge's findings of fact leads to the conclusion that police did not engage in coercive behaviour in their interactions with Mr. Lafrance that day. Second, the perspective of a reasonable person in the particular circumstances of the individual must not be overemphasized because to do so provides too little guidance to police in determining whether they have psychologically detained someone in carrying out their regular duties. The police must be able to avoid infringing the s. 9 Charter right against arbitrary detention when they are seeking to obtain information from an individual and they have no intention to detain him or her but a reasonable person may nonetheless conclude a detention exists. Third, while we agree with the majority that a finding of detention is not precluded by statements by police that an individual does not need to speak to them and is free to leave, in the instant case, we would accord greater weight to the police officers' testimony that they made clear to Mr. Lafrance that he did not need to speak to them and he was free to go.

II. Whether Mr. Lafrance Was Detained on March 19, 2015

A. Standard of Review

[ 93 ] We agree with the majority that the applicable standard of review is that of correctness; the existence of a detention is a question of law. We depart from the majority on what correctness entails. The trial judge's findings of fact are entitled to deference absent a palpable and overriding error, and should be given significant weight when determining the existence of a detention (Grant, at para. 45). The majority's reasons, with respect, do not give adequate deference to those findings.

B. The Three-Factor Test

[ 94 ] The police did not cross the line from legitimate investigative interaction to detention in their interactions with Mr. Lafrance on March 19, 2015. Applying the framework from Grant leads to the conclusion that Mr. Lafrance was not psychologically or otherwise detained at any point during his dealings with the police on the day of the execution of the warrant. Thus, there was no requirement that he be advised by police of his right to counsel under s. 10(b) of the Charter.

(1) Circumstances Giving Rise to the Encounter

[ 95 ] We agree with the majority that the analysis under this factor properly begins at the moment the encounter itself begins. We also agree that the first factor favours a finding of detention to some extent (see para. 32). However, we disagree that this weighs "decisively" in favour of a finding of detention (para. 54 (majority reasons)).

[ 96 ] The trial judge did consider the context in which police first interacted with Mr. Lafrance and its relevance to whether or not he was detained. He indicated that the search warrant was executed professionally and disclosed no signs of unnecessary coercion. While a reasonable person in Mr. Lafrance's position would have felt singled out for investigation, this did not turn the encounter into a detention.

(2) Police Conduct

[ 97 ] We find no basis to contradict the trial judge's conclusion that Mr. Lafrance was not subject to psychological detention. The police made statements on several occasions that Mr. Lafrance was under no obligation to cooperate and he was free to leave at any time, and their conduct did not undermine their statements.

[ 98 ] A careful and deferential review of the record requires us to reject the factors that, according to the majority, outweigh the police statements that Mr. Lafrance was free to go.

(i) Language and Actions of Police

[ 99 ] The majority emphasizes that Sgt. Eros told Mr. Lafrance that he was in a "secure environment" and that, should he want to leave or use the washroom, he would have to let Sgt. Eros know (para. 36). We find this to have minimal weight.

[ 100 ] With respect to the language used by police during the execution of the warrant, the trial judge's findings indicate that police avoided anything akin to accusatory interrogation. Contrary to the majority's suggestion (at para. 37), the police did not tell Mr. Lafrance that he was a suspect in the murder before asking him to come to the police station. Even if he was told he was a suspect, this occurred at the police station, not outside his home, and would not affect the analysis of the March 19 encounter from the start (A.R., vol. IV, at pp. 82-83). Also, the evidence demonstrates that Mr. Lafrance was keen to collaborate. When asked about coming to the station to provide a statement, Mr. Lafrance readily said "sure". And, indeed, Mr. Lafrance's own trial testimony confirmed his willingness to speak with police.

(ii) Physical Contact

[ 101 ] As to physical contact, we agree with the majority that there was no evidence of physical contact or oppressive proximity that could support a finding of psychological detention.

(iii) Place of Encounter

[ 102 ] As to the place of the encounter, we accept that this factor weighs in favour of detention given the police station setting, but its weight is diminished by the police's assertion that the door was unlocked. We note that the trial judge did not find that Mr. Lafrance was led through two secure key‑carded doors, but rather that he was "escorted through two doorways" (2017 ABQB 746, at para. 22).

(iv) Presence of Others

[ 103 ] As to the presence of others, we disagree with the majority that this was a significant consideration. Nothing in the record indicates the police brought in more officers than reasonably necessary to ensure police and public safety and the effectiveness of the search. Moreover, Le makes clear, at para. 63, that the "presence of others" refers to witnesses, not police officers:

In this case, the presence of others would likely increase, not decrease, a reasonable person's perception that they were being detained. Each man witnessed what was happening to them all. The presence of others clearly did not prevent the police entry in the first place or provide any privacy, security or protection against incursions thereafter. Each man saw that the police asked each of them who they were and what they were doing.

[ 104 ] Indeed, an assessment of the presence of police officers throughout the encounter at this stage, although relevant, is redundant with the considerations already assessed by the majority in discussing the actions and language of police as well as their proximity to Mr. Lafrance.

[ 105 ] In any event, the presence of other police officers (in addition to Sgt. Eros) is of no consequence in this case given how the police conducted themselves. As well, there were no other members of the public around Mr. Lafrance from the moment he accepted to go to the police station.

(v) Place and Duration of the Encounter

[ 106 ] We agree that the duration of the encounter is a factor that somewhat weighs in favour of detention. But, while the encounter of three and a half hours was lengthier than generally occurs in non-accusatory sessions, having regard to the conversational interview style and the absence of any confrontation, there is no basis to differ from the trial judge's conclusion that its length does not suffice to constitute the basis of a psychological detention.

(vi) The Police's Own Statements That Mr. Lafrance Was Free to Go

[ 107 ] The majority accepts that the police statements that Mr. Lafrance was free to leave militate against a finding of detention, while concluding they are outweighed by other factors (paras. 38-39 and 45). We disagree.

[ 108 ] Neither the majority in this Court, nor the majority of the Court of Appeal, identified specific conduct of the police that contradicted their statements that Mr. Lafrance could leave. We underscore that it is not enough to simply say that the specific conduct of the police implied they would not have let Mr. Lafrance leave — this needs to actually be supported by evidence on the record. There is no such evidence in this case.

[ 109 ] We would accord greater weight to the repeated statements by police that Mr. Lafrance was not obligated to speak with them and was free to go. We underscore the importance of the overall picture: a reasonable person would be acutely aware that he or she was in a police station and being questioned as a suspect in a murder, but would also be aware that the police had explicitly told him or her multiple times that he or she could leave and did not need to say anything. We find that a reasonable person would rely on these statements in forming his or her perception of whether he or she was detained.

[ 110 ] This is not to say that police can always avoid a detention by simply saying an individual is free to go. Police conduct matters; as the majority notes (at para. 35), if conduct contradicts such statements, they may lack credibility. However, the conduct of the police in relation to the execution of the search warrant shows no evidence giving rise to an impression of control over the person.

(3) Particular Characteristics of Mr. Lafrance

[ 111 ] The trial judge acknowledged Mr. Lafrance's youth, Indigenous background, lack of experience, and small stature. These factors are all material — without being determinative — in assessing whether police undermined statements that he was free to go.

[ 112 ] Youth is an aggravating factor in finding a detention (Le, at para. 78). But there is no evidentiary support for the majority's assertion that the execution of the search warrant was conducted in a manner that would make a reasonable person in Mr. Lafrance's position feel detained. The conduct of police towards Mr. Lafrance does not support the majority's conclusion that a 19‑year‑old would have been more likely to feel detained.

[ 113 ] L's Indigenous background is a factor that must be given weight in the analysis. But L's objective personal characteristics, although significant to the inquiry, do not turn the tide. Overall, the trial judge's findings of fact confirm what is otherwise objectively ascertainable: a reasonable person in Mr. Lafrance's shoes would not have perceived the police conduct as a significant deprivation of his liberty.

III. Whether Mr. Lafrance's Right to Counsel Was Violated on April 7, 2015

[ 114 ] L claims that his right to counsel was not implemented on the day of his arrest because he had a right to a second consultation with counsel during the police interview. This issue is governed by the Court's decision in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, and its companion cases, R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, and R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429.

[ 115 ] It is not accurate to suggest that s. 10(b)'s purpose is to mitigate the imbalance between the individual and the state; rather, its purpose is to provide a detainee with an opportunity to obtain information and legal advice relevant to his or her legal situation upon detention, in order to support the detainee's right to choose whether to cooperate with the police investigation or not (Sinclair, at paras. 25-26).

[ 116 ] In the instant case, L's situation does not fit within the category of changed circumstances that requires a second consultation when there is reason to question the detainee's understanding of his or her s. 10(b) right. There is no basis to conclude that the choice faced by Mr. Lafrance was significantly altered so as to require further advice in order to fulfill the purpose of his s. 10(b) rights. The fact that a detainee demonstrates hesitancy or concern during an interrogation is not, on its own, sufficient to establish that he or she did not have a full opportunity to consult with counsel and the detainee merely asking for a second consultation with a lawyer is not enough to support a right to a second consultation. Mere confusion or an incorrect belief in a constitutional right to have a lawyer present is also not enough to trigger a constitutional obligation under s. 10(b). A review of Mr. Lafrance's interactions with police indicates that his choice to speak to the police investigators was both free and informed.

[ 117 ] While his request to speak to his father was an implicit request for a second consultation with a lawyer, that is not enough to support a right to a second consultation. The police officer confirmed that Mr. Lafrance understood and exercised his right to counsel. Mr. Lafrance knew the legal jeopardy that he was facing and he knew he did not have to say anything to the police officer. Mr. Lafrance's discomfort in the face of difficult police questioning is not, on its own, grounds for a second consultation.

[ 118 ] The discussion which immediately follows Sgt. Eros' confirmation that Mr. Lafrance understood and exercised his right to counsel:

Q. Part of the ah – part of the – the process right, is that we need to insure that you were provided some legal advice right.

A. Ya.

Q. And that you spoke to a lawyer and that you understood that legal advice right?

A. Ya.

Q. Um and that we've gone through that process right?

A. Um.

Q. So what has to happen now is we have to kinda evaluate that and see where we're at with respect to that ok.

A. Ya.

Q. But there is ah we – we still need to have this conversation right Nigel?

A. Well – well ah the advice that was given to me is I don't have to say anything.

Q. Ya and – and that's excellent advice right. [Emphasis added.]

(A.R., vol. V, at p. 140)

[ 119 ] The above excerpt demonstrates that Mr. Lafrance fully understood his rights under s. 10(b). Mr. Lafrance knew the legal jeopardy that he was facing. He knew he did not have to say anything to Sgt. Eros. His discomfort in the face of difficult police questioning is not, on its own, grounds for a second consultation. It bears repeating that right after his first consultation, an officer had asked Mr. Lafrance if he understood the advice, to which Mr. Lafrance answered "yes". He did not indicate reasonably and diligently that the advice he received was inadequate, or was not conveyed in a manner he understood. Contrary to the majority's statements (at para. 86), there is no basis in the evidence for such a conclusion. The officer then asked him whether the lawyer he spoke to was attending the RCMP detachment, to which Mr. Lafrance answered "no". Mr. Lafrance knew no one was coming.

[ 120 ] Even if one accepts that Mr. Lafrance incorrectly believed that he had a constitutional right to have a lawyer present, mere confusion on this point is not enough to trigger a constitutional obligation under s. 10(b). Sinclair expressly held that there must be an objective basis for a second consultation to be permitted (para. 55; see also McCrimmon, at paras. 22‑23).

[ 121 ] In fact, the circumstances here are similar to those in Sinclair. In Sinclair, the accused also appeared to misunderstand what his s. 10(b) rights involved, stating during the interview that he had nothing to say "until my lawyer's around and he tells me what's going on" (Sinclair, at para. 8 (emphasis added)). The police explained to him that he had the right to consult a lawyer, but not to have a lawyer present during questioning. Mr. Sinclair then confessed. A majority of this Court found no infringement of Mr. Sinclair's s. 10(b) rights.

[ 122 ] Contrary to the majority's holdings, there is no basis to conclude that the choice faced by Mr. Lafrance was significantly altered so as to require further advice in order to fulfill the purpose of his s. 10(b) rights.

[ 123 ] While purporting to follow Sinclair, the majority unduly expands its reach so as to undermine fundamentally the framework for analysis set out in that case. Without saying so directly, the majority's logic seems to be that a detainee is entitled to further consultation with counsel, upon request, or upon a mere confusion about his or her rights. This Court has never interpreted s. 10(b) in that manner. The detainee has a right to make a decision to cooperate with the investigation or to decline to do so in a free and informed manner. However, the state is entitled to rely on legitimate means of interrogation to investigate crimes (Sinclair, at para. 25). There was no breach of Mr. Lafrance's s. 10(b) rights on April 7, 2015.

IV. Whether or Not Mr. Lafrance's Right to Counsel Was Violated on March 19, 2015, Such That His Statements and Other Evidence Obtained Should Be Excluded Under Section 24(2)

[ 124 ] As we explain above, we conclude that on March 19, 2015, Mr. Lafrance was not detained. The trial judge's conclusions on the issue of detention are owed deference and there is no basis to depart from them. However, even if it could be said that the trial judge erred, and that Mr. Lafrance was detained on March 19, 2015, without being afforded his right to counsel, we conclude that the evidence was not sufficiently connected to that Charter breach. There is therefore no basis on which to exclude such evidence under s. 24(2).

[ 125 ] Under s. 24(2) of the Charter, a court may exclude evidence obtained "in a manner" that violates Charter rights if its admission would bring the administration of justice into disrepute. "Whether evidence was 'obtained in a manner' that infringed an accused's rights under the Charter depends on the nature of the connection between the Charter violation and the evidence that was ultimately obtained" (R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, at para. 78).

[ 126 ] In R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21, this Court found that "[t]he required connection between the breach and [the evidence obtained] may be 'temporal, contextual, causal or a combination of the three': R. v. Plaha (2004), 189 O.A.C. 376, at para. 45. A connection that is merely 'remote' or 'tenuous' will not suffice." The requisite connection must be shown before a court considers whether the admission of the evidence would bring the administration of justice into disrepute (Grant, at para. 131). The burden of proving that a remedy should be granted under s. 24(2) is on the party who seeks the remedy, here Mr. Lafrance (R. v. Collins, [1987] 1 S.C.R. 265, at p. 280).

[ 127 ] During the March 19, 2015 interview, Mr. Lafrance provided police with general information, a blood sample, fingerprints, cellphone and some of his clothing. The Crown did not seek to introduce any of this evidence, nor Mr. Lafrance's March 19, 2015 police statement, at trial. There is therefore no need to consider whether this evidence should be excluded.

[ 128 ] As to the April 7, 2015 statement, the trial judge found it was not sufficiently connected to the March 19, 2015 statement. The majority of the Court of Appeal disagreed, holding that some information obtained as a result of the March 19, 2015 interview formed the basis of questions in the April 7, 2015 interview. In our view, the majority of the Court of Appeal should not have substituted its view for the view of the trial judge. The trial judge found that the March 19, 2015 statement did not substantially contribute to the April 7, 2015 statement. He based this on Mr. Lafrance's testimony that the first statement "had nothing to do with" the second. There is no proper or principled basis to interfere with the trial judge's findings in this regard.

[ 129 ] Mr. Lafrance has not shown that any evidence presented at trial has the requisite link with the alleged March 19, 2015 detention and any resulting breach of the right to counsel.

V. Conclusion

[ 130 ] For the foregoing reasons, we are of the view that there was no basis upon which the Court of Appeal, nor the majority in this Court, should interfere with the ruling of the trial judge. The appeal should be allowed and Mr. Lafrance's conviction for second degree murder restored.

Appeal dismissed, Wagner C.J. and Moldaver, Côté and Rowe JJ. dissenting.

Solicitor for the appellant: Justice and Solicitor General, Appeals, Education & Prosecution Policy Branch, Edmonton.

Solicitor for the respondent: Gregory C. Lazin, Victoria.

Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.

Solicitors for the intervener the Canadian Civil Liberties Association: Addario Law Group, Toronto.

Solicitors for the intervener the Criminal Lawyers' Association: Kapoor Barristers, Toronto.

[^1]: Mr. Lafrance also argued that his s. 8 rights were breached. Given my disposition of this appeal on ss. 10 and 24(2) of the Charter, it is unnecessary for me to decide this point.

[^2]: I glean this from Sgt. Eros' testimony: "There's a person that ah you know what – and the way that that kinda goes ah – I won't say it's, it's bad advice but it's maybe miss – a little bit miss ah – miss ah – interrupted" (A.R., vol. V, at p. 139).

[^3]: i.e."you don't have to provide me a statement . . . that it would be completely voluntary on your point""you don't hafta sit here and speak with me today""you are at any time Nigel free to leave""we (unintelligible) responsibility to ensure that you're aware of – of your rights and . . . and like I said that – that includes the ability to leave whenever you want to""[v]oluntary that you don't have to sit here and speak with me""you say you're willing to talk now . . . right in half an hour, 20 minutes, two hours you're – you decide that – that you no longer wanta speak with me . . . Um you just have to let me know . . . Okay and at that point in time, we'll stop and we'll move on", and "some people think well now that I've agreed to it . . . I'm stuck here right . . . And – that's absolutely not the case" (A.R., vol. IV, at pp. 56, 64 and 72-74).