Her Majesty The Queen Appellant v. Nigel Vernon Lafrance, 2022 SCC 32

SUPREME COURT OF CANADA Citation: R. v. Lafrance, 2022 SCC 32 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) Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

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 of alberta Constitutional law — Charter of Rights — Detention — Right to counsel — Police entering suspect’s home in early morningto execute search warrant and driving him to police station for interview without advising him of right to counsel — Police laterarresting suspect and conducting second interview after legal aid lawyer consulted — Suspect requesting during second interview to callhis father for assistance in obtaining legal advice but request refused — Suspect confessing during second interview to killing victim butseeking exclusion of confession at trial on basis that police breached his right to counsel — Whether police detained suspect andbreached his right to counsel on day of execution of warrant — Whether police breached suspect’s right to counsel on day of arrest byrefusing to allow him to have further consultation with lawyer — If so, whether admission of evidence would bring administration ofjustice 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 ofarmed 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 dressand 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 astatement regarding the alleged murder.

The police drove him to the police station, took him to a secure environment and interviewedhim for over three hours. Approximately three weeks later, the police arrested L for murder. That day, after allowing him to call LegalAid, they interviewed him. Several hours into the interview, L asked to call his father because that would be his only chance of getting alawyer and because Legal Aid told him to get a lawyer before he continued talking. The police refused the request and pushed foranswers. 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 thewarrant 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 ofhis arrest. The trial judge admitted the evidence, finding that L had not been detained on the day of the execution of the warrant, and thepolice 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 ofsecond-degree murder. The majority of the Court of Appeal allowed his appeal, excluded the evidence under s. 24(2) of the Charter andordered 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 warrantand 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 ofthe arrest by refusing to allow L to contact a lawyer in circumstances which showed that his initial conversation with Legal Aid wasinsufficient for the purposes of s. 10(b). These were serious breaches, substantially impacting L’s Charter-protected interests, andadmitting 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 ofcircumstances that engage the right against self-incrimination protected by s. 10 of the Charter, including investigative detention. Trialjudges must not consider the factors in R. v. Moran (1987), (ON CA), 36 C.C.C. (3d) 225 (Ont. C.A.). The test fordetention set out in Grant and expanded in Le is objective, and it was restated to direct the inquiry to the perspective of the reasonableperson 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 bythe individual — more specifically, whether the police were providing general assistance; maintaining general order; making generalinquiries regarding a particular occurrence; or singling them out for focused investigation. The analysis properly begins at the momentthe encounter itself begins.

In the instant case, on the day of the execution of the warrant, it is inconceivable that a reasonable person inL’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 nothave a full opportunity to consult with counsel and the detainee merely asking for a second consultation with a lawyer is not enough tosupport a right to a second consultation. Mere confusion or an incorrect belief in a constitutional right to have a lawyer present is also notenough to trigger a constitutional obligation under s. 10(b). A review of L’s interactions with police indicates that his choice to speak tothe police investigators was both free and informed.

While his request to speak to his father was an implicit request for a secondconsultation with a lawyer, that is not enough to support a right to a second consultation. The police officer confirmed that L understoodand 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 policeofficer. 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 subsequentlyprovided on the day of his arrest was not sufficiently connected to that Charter breach and there is therefore no basis on which toexclude such evidence under s. 24(2). Cases Cited By Brown J. Overruled: R. v. Moran (1987), (ON CA), 36 C.C.C. (3d) 225; applied: R. v. Le, 2019 SCC 34, [2019] 2S.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, (SCC), [1987] 1 S.C.R. 1233; R. v.

Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460; R. v. Shepherd, 2009 SCC35, [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, Bulletin of Proceedings, March 4, 2021, at p. 2; R. v. Eaton, 2019 ONCA 891; R. v. N.B., 2018 ONCA 556, 362C.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. VanWissen, 2018 MBCA 110, 367 C.C.C. (3d) 186; R. v. Theriault, 2021 ONCA 517, 157 O.R. (3d) 241; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v.

Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; Clarkson v. The Queen, (SCC), [1986] 1S.C.R. 383; R. v. Hebert, (SCC), [1990] 2 S.C.R. 151; R. v. Dussault, 2022 SCC 16; R. v. Pagé, 2018 QCCS 5553; R. v.Smith, 2015 ABQB 624; R. v. Ejigu, 2012 BCSC 1673; R. v. Jongbloets, 2017 BCSC 740; R. v. A.R.M., 2011 ABCA 98, 599 A.R. 343;R. v. Laquette, 2021 MBQB 177; R. v. Hunt, 2020 ONCJ 627; R. v. Fedoseev, 2014 ABPC 192, 597 A.R. 1; R. v. Big M Drug Mart Ltd., (SCC), [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; R. v.

Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; R. v. Reilly, 2021 SCC 38; 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.), (SCC),[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 SCC32, [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. Hermkens & Moran, 2021 ABQB 885; R. v. Heppner, 2017 BCSC 894; R. v.

Roach, (NL SC), 2012 NLTD(G) 21, 319 Nfld. & P.E.I.R. 231; R. v. Bristol, 2011 ABQB 73; R. v. Bucknell, 2021 BCPC 308; R. v.Giulioni, 2011 NLTD(G) 117, 313 Nfld. & P.E.I.R. 220; R. v. Wheeler, 2010 YKTC 7; R. v. Rodh, 2010 SKPC 150, 364 Sask. R. 96; R.v. Jackman, 2011 NLTD 116 , 2011 NLTD(G) 116, 313 Nfld. & P.E.I.R. 203; 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] 2S.C.R 402; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429; R. v. Hebert, (SCC), [1990] 2 S.C.R. 151; R. v.

Prosper, (SCC), [1994] 3 S.C.R. 236; R. v. Dussault, 2022 SCC 16; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3; R. v. Tim, 2022SCC 12; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235; R. v. Collins, (SCC), [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 andthe 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 FalseConfessions” (2012), 57 S.C.L.R. (2d) 263. Watkins, Kerry G. “The Vulnerability of Aboriginal Suspects When Questioned by Police: Mitigating Risk and Maximizing theReliability of Statement Evidence” (2016), 63 Crim. L.Q. 474. 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. andMoldaver, 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. 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, andR. v.

Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, respectively, on two points: (1) evaluating whether an individual has been detained bythe police; and (2) applying the framework in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, in the purposive and generous mannerrequired by our jurisprudence. [2] The police suspected that Nigel Vernon Lafrance might have been involved in the death of an individual that tookplace on March 17, 2015. In the early morning of March 19, 2015, a team of armed police officers entered his home to execute a searchwarrant. 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 ABCA51, 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 toidentify himself and come to the police station to provide a statement regarding the alleged murder.

The police drove him to the policestation, 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, theyinterviewed him. Several hours into the interview, Mr. Lafrance asked to call his father because that would be his “only chance of gettinga lawyer” (A.R., vol. V, at p. 137). The police refused the request and pushed for answers. Mr. Lafrance eventually confessed to killingthe 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 trialjudge 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 toinform 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 incircumstances which showed that his initial conversation with Legal Aid was insufficient for the purposes of s. 10(b), being “to allowthe detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as tohow to exercise those rights” (Sinclair, at para. 26, citing R. v. Manninen, (SCC), [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 therebyobtained 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’sinvolvement, 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 ofMarch 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 theresidence, making their way to Mr. Lafrance’s room and waking him. When he opened the door, they directed him to dress and leave hishouse immediately. When he asked the police for permission to look for his cat (which had run outside when the police entered theresidence), 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, unbeknownstto 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 andprobable 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 themoment, it is not always easy for ordinary citizens, who may be uninformed of their rights or the scope of the police’s powers, to knowwhether they have a choice to comply with a request by the police. An individual may perceive “a routine interaction with the police asdemanding 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 restraintby the state, a detention exists in situations where a reasonable person in the accused’s shoes would feel obligated to comply . . . and thatthey 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 individualvoluntarily 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 byway of psychological constraints. Psychological detention exists where an individual is legally required to comply with a direction ordemand by the police, or where “a reasonable person in [that individual’s] position would feel so obligated” and would “conclude that heor 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 hiscircumstances. 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 trialjudge’s analysis and conclusion thereon. This is not to say that the voir dire is irrelevant, since the trial judge’s findings of facts receivedeference, 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 judgefor not considering the factors pertinent to identifying a detention in R. v. Moran (1987), (ON CA), 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 statingthe test for detention. [25] In Moran, an issue before the Court of Appeal for Ontario was whether the trial judge had erred in concluding thatMr.

Moran, who had been interviewed twice by police in connection with the murder of which he was eventually convicted, had not beendetained during those interviews. In dismissing this ground of appeal, Martin J.A. identified a series of non-exhaustive factors to assist indetermining 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, leaveto appeal granted, Bulletin of Proceedings, March 4, 2021, at p. 2; R. v. Eaton, 2019 ONCA 891, at para. 12 ; R. v. N.B., 2018ONCA 556, 362 C.C.C. (3d) 302, at para. 121). The view, whether stated explicitly or necessarily implicit in these judgments, is that theMoran 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 wasrestated to direct the inquiry to the perspective of the reasonable person in the accused’s shoes. In contrast, the Moran factors focusprincipally on police conduct and information that will not be readily available to the accused at the time of detention (such as the stageof the police investigation).

And, while the test in Grant is objective, Moran encourages courts to consider the subjective perceptionsand beliefs of the accused, thereby emphasizing considerations that play a limited (if any) role in an objective assessment (Le, atparas. 111-17). [28] Further, and as noted, the scope of Moran is, by its own terms, confined to deciding whether a person who isquestioned 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 againstself-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 perceivedby Mr. Lafrance ⸺ more specifically, “whether the police were providing general assistance; maintaining general order; makinggeneral inquiries regarding a particular occurrence; or, singling [him out] for focused investigation” (Le, at para. 31(a); Grant, atpara. 44(2)(a)). [30] I observe that the trial judge began by looking to the background information available to Sgt.

Eros and the policeduring the initial steps of their investigation, including his assignment to speak to Mr. Lafrance outside the home. In Le, however (whichI note was unavailable to the trial judge at the time of decision), the Court explained that “investigative purposes are important whenassessing whether the detention was arbitrary and whether the police were acting in good faith”, but “are less relevant” when reviewingthe first Grant factor (paras. 37-38). Behind-the-scenes knowledge of a police investigation would not be known by a reasonable personin 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 they had arrived to “provid[e] general assistance”, “maintai[n] general order” or make “general inquiries”. The reasonable person would immediately understand that he or she is being singled out for investigation. 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 ( Le , at paras. 37-38).

Indeed, the warrant itself, by authorizing the police to search Mr. Lafrance’s home, reveals a targeted investigation. [ 33 ] While the trial judgment recounts the facts of this initial police encounter (at para. 37), little consideration is given to the possibility that they gave rise to a detention. The trial judge’s focus, rather, was on the initial interaction between Mr. Lafrance and Sgt. Eros. But again, it is the moment that the interaction with police begins that must be considered. Mr. Lafrance’s interaction with Sgt. Eros was an extension of a series of events that began when the police entered Mr.

Lafrance’s home, woke him up and ordered him to dress and leave. In any event, even had the conversation between Sgt. Eros and Mr. Lafrance corresponded to the moment that detention arose, my conclusion would be the same: a reasonable person in Mr. Lafrance’s position would have felt singled out for investigation purposes when Sgt. Eros approached him, asked him to confirm his identity, and informed him that the police wanted to speak with him about a murder. This weighs in favour of a finding of detention. (

b) The Nature of the Police Conduct [ 34 ] The second Grant 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 accused’s shoes ( Grant , at para. 44 (2)(b); Le , at paras. 31(

b) and 43). (

i) Actions and Language of the Police [ 35 ] A central feature of the Crown’s position is its argument that an encounter is prima facie voluntary where the police explicitly inform an individual that he or she need not cooperate. This, the Crown says, functions as an intervening event that informs the

interpretation of preceding and subsequent events so as to eliminate any possibility of police detention. The Crown relies particularly on these passages from Grant : The objective nature of this inquiry recognizes that the police must be able to know when a detention occurs, in order to allow them to fulfill their attendant obligations under the Charter and afford the individual its added protections.

However, the subjective intentions of the police are not determinative. (Questions such as police “good faith” may become relevant when the test for exclusion of evidence under s. 24(2) is applied, in cases where a Charter breach is found.) While the test is objective, the individual’s particular circumstances and perceptions at the time may be relevant in assessing the reasonableness of any perceived power imbalance between the individual and the police, and thus the reasonableness of any perception that he or she had no choice but to comply with the police directive.

To answer the question whether there is a detention involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements. In those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual, it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go.

It is for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed between police conduct that respects liberty and the individual’s right to choose, and conduct that does not. . . . Effective law enforcement is highly dependent on the cooperation of members of the public. The police must be able to act in a manner that fosters this cooperation, not discourage it. However, police investigative powers are not without limits.

The notion of psychological detention recognizes the reality that police tactics, even in the absence of exercising actual physical restraint, may be coercive enough to effectively remove the individual’s choice to walk away from the police. This creates the risk that the person may reasonably feel compelled to incriminate himself or herself. Where that is the case, the police are no longer entitled simply to expect cooperation from an individual.

Unless, as stated earlier, the police inform the person that he or she is under no obligation to answer questions and is free to go, a detention may well crystallize and, when it does, the police must provide the subject with his or her s. 10(

b) rights. That the obligation arises only on detention represents part of the balance between, on the one hand, the individual rights protected by ss. 9 and 10 and enjoyed by all members of society, and on the other, the collective interest of all members of society in the ability of the police to act on their behalf to investigate and prevent crime. [Emphasis added; paras. 32 and 39.] [ 36 ] On their own, these passages might support the Crown’s position. But in light of the entire judgment in Grant , they do not support the view that such a police statement precludes finding a detention.

In Grant , the Court conceived the test for detention so that no single consideration — including a statement from the police that the individual need not speak to them or could leave — would be determinative. Rather, what is required, as the first of these passages also states, is “a realistic appraisal of the entire interaction as it developed” (para. 32 (emphasis added)).

The passages in Grant relied on by the Crown were, therefore, immediately coupled with the caution that it is ultimately “for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed between police conduct that respects liberty and the individual’s right to choose, and conduct that does not” (para. 32).

In other words, the assessment requires a broad view directed to all circumstances of the case, from which view a court should not be distracted by a police officer’s statement that might, taken in isolation, militate against the finding of a detention. It is entirely possible that such an assurance, given at a very specific point and time of the interaction with the police, might lose any

significance to a reasonable person in the detainee’s circumstances once the entirety of the encounter is accounted for. [ 37 ] So understood, the test in Grant is premised upon a practical reality of interactions between police and citizen, especially where the interaction concerns a criminal investigation.

While words uttered by the police may hold a certain significance to trained and experienced police officers or to those trained in the law or otherwise already aware of their rights and how to exercise them, they may hold less significance, or different significance, to vulnerable individuals unfamiliar with their Charter rights.

This particular instance of the imbalance of power between state and citizen that characterizes our criminal justice system is exacerbated by the psychological dynamics of police interrogation, where even repeated assurances that a detainee is free to leave may be disregarded, especially by innocent persons seeking to absolve themselves of any wrongdoing. [ 38 ] None of this is undermined by the appellate caselaw relied upon by the Crown, which either predates Grant (e.g. R. v.

Rajaratnam , 2006 ABCA 333 , 397 A.R. 126), or confirms that all the circumstances of a case must be examined to determine whether a detention occurred (e.g. Seagull , at paras. 49-60 ; R. v. Van Wissen , 2018 MBCA 110 , 367 C.C.C. (3d) 186). I therefore reject the Crown’s submission that a detention prima facie cannot arise where police state that the individual may decline to speak with them or may leave whenever a statement is presented. In this regard, my colleagues also place substantial weight upon such statements.

Indeed, they treat them as all but determinative (as one might in considering the words used by police under the Moran framework), rather than focussing on the contextual factors that would affect the perception of the reasonable person in the accused’s shoes (as required by Grant and Le ). [ 39 ] To summarize: 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.

Where present, it is a single consideration among others for which a court should account in deciding whether a reasonable person in the shoes of the accused would feel obliged to cooperate. It does not automatically turn the tide, and may not turn the tide at all, where other factors point to a finding of detention. [ 40 ] Indeed, Sgt. Eros’ statements to Mr. Lafrance [3] do not turn the tide here.

While they militate against a finding of detention, they are outweighed by circumstances that support the opposite conclusion, namely that a reasonable person in his position would have felt compelled to comply and unfree to leave. For example: • Mr. Lafrance awoke to 11 police officers at his residence, with vans, firearms and bulletproof vests, ordering him to dress and get out of the house; • The police accompanied Mr. Lafrance while he searched for his cat; • Sgt. Eros approached Mr.

Lafrance after he went outside, asked him to confirm his identity and told him that he wanted to ask him questions relating to Mr. Yasinski’s death; • The only practical means available to Mr. Lafrance for getting to the police station was for him to be driven, which he was in an unmarked police vehicle accompanied by two police officers; • At the station, the police brought Mr. Lafrance to an interview room at the back of the police station that was behind two sets of locked doors; • The police left Mr.

Lafrance in the interview room for at least 17 minutes, having closed the door behind them, and did not inform him that the doors were unlocked; and • The police told Mr.

Lafrance that he was in a secure environment, controlled his access to the outside of the interview room, and kept him under surveillance during the course of the interview, including escorting him to the bathroom. (ii) The Use of Physical Contact [ 41 ] As is evident from the analysis in Le (at para. 50) and Grant (at paras. 50-52 ), considering the use by police of physical contact with a subject extends to their physical proximity to a subject.

Even where, strictly speaking, there is no physical contact, deliberate physical proximity within a small space can create an atmosphere that would lead a reasonable person to conclude that leaving is not possible ( Le , at para. 50; Grant , at para. 50 ). This makes sense, since physical proximity can indicate the possibility of physical contact. And so, while nothing suggests that the police made any physical contact with Mr. Lafrance on March 19, that is not exhaustive of this consideration. For example, a reasonable person in Mr.

Lafrance’s shoes might, particularly after he was escorted to the bathroom, view the investigating officers’ constant proximity as suggesting that any attempt to leave, at least on his own, would be met with physical resistance. [ 42 ] All that said, and while the police chose to interview Mr. Lafrance in what Sgt. Eros described as the “secure environment” of an interview room, their conduct here is a far cry from Le , where the police officers intentionally positioned themselves in a way to block the exit from the backyard (para. 50).

Neither the evidence here nor the trial judge’s findings suggest that the police sought to take advantage of the physical proximity in such a way. In my view, considerations of physical proximity alone would have little if any impact on whether a reasonable person in Mr. Lafrance’s position would feel free to decline to speak to police or to leave. (iii) The Presence of Others [ 43 ] This is a significant consideration here. Except while he was left alone in the interview room and in the bathroom, Mr.

Lafrance was in the presence of at least one police officer throughout his interaction with the police, from the moment they awoke him in his home. Initially, he was under the supervision of an armed police search team that executed the warrant and monitored him while he was in and out of the home. Following this, Sgt. Eros and S/Sgt. Zazulak were present throughout, from their initial encounter outside the home, to the ride to the police station, and the interview. These officers weighed approximately 220 lb. to 245 lb., respectively (while Mr. Lafrance weighed 130 lb.), and S/Sgt.

Zazulak was armed and wearing a bulletproof vest. 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. [ 44 ] My colleagues appear to understand this consideration, as it was stated in Le , as applying only to the presence of witnesses, as opposed to the police (para. 152). Putting aside that the police were witnesses here, I see no good reason to keep to such a narrow purview. The “presence of others” was not a novel consideration in Le .

It is one of the factors listed in Grant to evaluate “[t]he nature of police conduct” (para. 44(2)(b) (emphasis added)). For that reason, the Court, in support of its finding of psychological detention in Grant , pointed to the presence of other police at the time of the encounter (paras. 49-52). The point is that all police conduct relevant to whether a reasonable person in Mr. Lafrance’s shoes would have understood himself or herself as free to leave must be considered.

Indeed, that the witnesses were police, if anything, weighs more heavily in finding a detention than if they were mere bystanders. (iv) The Place and Duration of the Encounter [ 45 ] The entirety of Mr. Lafrance’s encounter with the police spans several locations and various periods of time. In my view, considerations of place and time would lead a reasonable person in Mr. Lafrance’s shoes to believe he had to cooperate with the police. [ 46 ] The initial early morning encounter occurred inside Mr. Lafrance’s home.

Any police intrusion into a home “is reasonably experienced as more forceful, coercive and threatening than when similar state action occurs in public” ( Le , at para. 51). This remains true, irrespective of whether the intrusion is authorized by warrant, although depending on the circumstances of the intrusion, its impact may be mitigated where, as here, police inform the occupant that they have a search warrant. [ 47 ] Even where that happens, however, the mode of entry into the household, while authorized by law, may be reasonably perceived as intimidating.

It is to my mind indisputable that this would have been so in the circumstances of this intrusion. No reasonable person in Mr. Lafrance’s shoes would have had all misgivings just melt away with the assurance that the 11 police officers who had just awoken him inside his home and ordered him out had first obtained a search warrant. Thus, the impact of a police intrusion into a home may be mitigated where they inform the occupant that they have a search warrant.

But police and reviewing courts must also be alive to the possibility that the execution of a warrant at a residence — being a means by which the police exercises control of the home — can itself support the finding of a detention where it is also applied in such a manner as to take control of the person . This is precisely what occurred here: police ordered Mr. Lafrance to get dressed and leave, then monitored him as he made his way outside to a pre-arranged encounter with a waiting Sgt. Eros. [ 48 ] The encounter continued after Sgt.

Eros took over and made the request for a statement, and during the ride to the police station. I note that, in concluding that Mr. Lafrance was not detained at that time, the trial judge considered that he had agreed to go to the detachment to allay suspicion. My colleagues do the same, stressing Mr. Lafrance’s subjective perceptions as “particularly significant” (para. 162). The test is principally objective ( Le , at para. 114). Undue focus on an individual’s subjective perception detracts from the rationales underlying the objective test (para. 115).

Therefore, rather than focusing on “what was in the accused’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 behavi[our] would be reasonably perceived” (para. 116). [ 49 ] This is not to suggest that police are to be taken as detaining an individual by giving them a ride to the police station.

The question is whether a reasonable person in the passenger’s shoes would believe that he or she could cease cooperating by asking the police to stop the vehicle and leave; the answer will depend on all the circumstances of the case (Coughlan and Luther, at p. 291), including what has already transpired. And given what had already transpired in this case, a reasonable person in Mr. Lafrance’s position would not in my judgment have felt remotely free to do so. [ 50 ] The encounter then persisted through a three-and-a-half-hour interview at the police station, in an interview room described by Sgt.

Eros as a “secure environment”, accessible as I have already noted through two sets of locked doors. The “security” of that environment — comprising both the interview room and the surrounding facility through which it was accessed — would tend to affirm in the mind of someone in Mr. Lafrance’s position that he or she is not free to leave at will. [ 51 ] In sum, this was a single, lengthy police encounter.

While it spanned several locations, 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 Mr. Lafrance’s position would reasonably have perceived that he or she could not leave ( Le , at para. 66). This supports a finding of detention. (

c) The Particular Circumstances of the Accused [ 52 ] The final Grant factor requires a court to consider, where relevant, the individual’s “age[,] physical stature[,] minority status[, and] level of sophistication” ( Grant , at para. 44 (2)(c); Le , at para. 31(c)). [ 53 ] While the trial judge acknowledged that Mr. Lafrance was young, Indigenous and had minimal police exposure at that time (para. 79), in my respectful view more was required to properly account for how the characteristics he quite rightly identified — Mr.

Lafrance’s youth, his Indigenous background and his inexperience — might shape the perspective of the reasonable person in his shoes, imbued with those characteristics. These are not factors to be checked off a list; Grant requires more than a straightforward acknowledgement of their presence, but actual consideration of how these various characteristics might impact the reasonable view of the matter as held by someone in like circumstances. I turn now to doing just that. (

i) Youth [ 54 ] Mr. Lafrance’s youth — he was 19 years old — is a crucial consideration that I say, again respectfully, should have received more attention. A reasonable person’s perceptions are inevitably shaped by the knowledge and powers of discernment that comes with age and life experience ( Le , at para. 122). Youth — even the youth of early adulthood — aggravates the power imbalance

between the state and the individual, making it “more pronounced, evident and acute” (para. 122).

It is simply unrealistic to suggest thata reasonable 19-year-old will, even in the presence of police statements to the contrary, feel anything but constrained to respondpositively to the request to give a statement, following immediately upon the sort of police entry into his home that occurred here. (ii) Race [55] This Court in Le emphasized that the objective analysis in Grant must be applied in a manner that accounts for thedistinct experiences and particular knowledge of racialized communities in Canada: In Grant, this Court recognized how the legal standard on which a detention is measured is based on a reasonable person in likecircumstances and that this norm needs to account for diverse realities.

By expressly including the race of the accused as a potentiallyrelevant consideration, this Court acknowledged that, based on distinct experiences and particular knowledge, various groups of peoplemay have their own history with law enforcement and that this experience and knowledge could bear on whether and when a detentionhas reasonably occurred.

Thus, to truly engage in the “realistic appraisal of the entire interaction”, as required in Grant (at para. 32),courts must appreciate that individuals in some communities may have different experiences and relationships with police than othersand such may impact upon their reasonable perceptions of whether and when they are being detained. [para. 73] [56] The question that trial judges must answer is “how a reasonable person of a similar racial background would perceivethe interaction with the police” (Le, at para. 75).

To answer this question, courts must take into consideration “the larger, historic andsocial context of race relations between the police and the various racial groups and individuals in our society” (Le, at para. 75). Thereasonable person in an accused’s shoes is presumed to be aware of this (Le, at para. 75). Moreover, this consideration is to beundertaken with sensitivity and prudence. Even in the absence of testimony on the point, trial judges assessing whether a racializedperson was detained must be alive to the potential significance of this consideration (Le, at paras. 98 and 106; R. v.

Theriault, 2021ONCA 517, 157 O.R. (3d) 241, at para. 143). [57] As recognized by the trial judge, Mr. Lafrance is Indigenous. As such, he is a member of a population that continuesto be disproportionally subjected to police encounters and overrepresented in the criminal justice system (R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, at paras. 58-65; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 57-60; Le, at paras. 90-97 and108).

The assessment of whether an Indigenous person was detained must be mindful of “[g]enerations of systematic racism,discriminatory policies and practices directed at Indigenous people” and of the role of police in implementing these policies and practices(Statistics Canada, Perceptions of and experiences with police and the justice system among the Black and Indigenous populations inCanada (February 2022), at p. 12).

This has fostered mistrust, confirmed by the finding of a February 2022 study that “[a] higherproportion of Indigenous people under 40 felt police were doing poorly at enforcing the laws, promptly responding to calls, ensuring thesafety of citizens, and treating people fairly compared to the similarly aged non-Indigenous, non-visible minority population” (StatisticsCanada, at p. 11). This finding applied equally to older Indigenous people (Statistics Canada, at p. 11). [58] This consideration will often weigh in favour of finding a detention, but not invariably.

A court cannot simply assumethat all Indigenous people’s experiences with the police are Charter non-compliant or otherwise oppressive. And not all Indigenouspeople will be vulnerable, at all or in the same way, when interacting with police (K. G. Watkins, “The Vulnerability of AboriginalSuspects When Questioned by Police: Mitigating Risk and Maximizing the Reliability of Statement Evidence” (2016), 63 Crim. L.Q.474, at p. 479).

The point is not that Grant or Le leave no room for nuance in evaluating interactions between Indigenous people and thepolice; it is, rather, that trial judges must be alive to (1) “the relational aspect” between the police and Indigenous persons (Le, atpara. 81), characterized as it has been by an overwhelming power imbalance and history of discrimination; and (2) the resultingpossibility that their interactions would reasonably be perceived by Indigenous persons as depriving them of choice to cooperate. [59] Taking the foregoing and the record of this case into account, it would appear that Mr.

Lafrance’s Indigenousbackground played no significant role in shaping his perception of his obligation to cooperate with the police on March 19. But, to beclear, that is not the question. Again, the inquiry is objective, not grounded in his subjective impressions. The question, then, is whetherthe reasonable person in Mr. Lafrance’s position would understand his or her options as limited to cooperating by reason of anIndigenous background. On this slender record, and absent any evidence to the contrary regarding Mr.

Lafrance’s circumstances, hisIndigenous background is a factor that weighs somewhat in favour of detention, albeit not heavily. This accounts for what I have alreadydescribed as the overrepresentation of Indigenous peoples in the criminal justice system, and the “relational aspect” of the interactionbetween Indigenous people and police that must always be borne in mind. (iii) Level of Sophistication [60] The trial judge held that Mr. Lafrance was a “not unsophisticated” individual with minimal exposure to the police(paras. 79 and 81). He characterized Mr.

Lafrance, a high school graduate who had studied power engineering, as intelligent. I see nopalpable and overriding error in these findings. [61] My point of respectful departure from the trial judge is in applying these findings to decide how a reasonable personin Mr.

Lafrance’s position would perceive his options in his interactions with the police. “Sophistication”, without elaboration, may bean unhelpful ascription; here, the trial judge noted only that “[a]t best, the accused was naïve in deciding his participation would counterpolice suspicion” (para. 81), which tends to undermine, not explain, the ascription. “Intelligence”, while more precise, does notnecessarily connote an understanding of legal rights, including the right to refuse to cooperate with the police. Mr.

Lafrance, for example,had never before found himself in circumstances requiring him to know his rights (which, if anything, suggests a lack of sophistication ina crucial respect here). [62] All told, the trial judge’s finding of Mr. Lafrance’s sophistication (or, more accurately, lack of unsophistication) doesnot undermine the case for finding a detention. Rather, his lack of experience with the police and unfamiliarity with his Charter rightsbolsters it.

(4) Conclusion Regarding the Encounter of March 19, 2015

[63] All three Grant factors — the circumstances giving rise to the encounter, the nature of the police conduct, and theparticular characteristics or circumstances of the individual — weigh decisively here, on the facts of this case, in favour of finding thatMr. Lafrance was first detained when he, a young Indigenous man with minimal police exposure, was awoken in the early morning bythe police inside his home, and commanded to get dressed and leave.

He continued to be detained throughout the encounter, includingoutside the home, in the police van and in the interview room of the police station, all of which involved the near-continuous supervisionand presence of the police, until the conclusion of his interview on March 19, and I so find. [64] It follows that police were required to inform Mr. Lafrance of his s. 10(

b) right to counsel and to afford him theopportunity of exercising it, and breached that right by failing to do so. My colleagues say that this conclusion means that thecombination of an accused young person and the execution of a search warrant will always result in a finding of detention (para. 160).But that is not so; it is only where the police execute a warrant in a way that leads the reasonable person in the accused’s shoes to believethat, in the entirety of the circumstances, he or she is not free to leave, that a detention would arise.

Such was the case here: given theoverwhelming force in which a team of police officers arrived at Mr. Lafrance’s home, ordered him to get dressed and leave his home,and monitored his every movement, the officers should have recognized that a reasonable person in Mr. Lafrance’s shoes would feelobliged to comply with their demands and would conclude that he or she was not free to go. In such situations, the police should haveinformed him of his rights under s. 10(

b) of the Charter. I will turn to the consequences of this breach below, after considering hisencounter with police on April 7. B. April 7, 2015 [65] Mr. Lafrance says that he could not properly exercise his right to counsel under s. 10(

b) on April 7, after he wasarrested. Sgt. Eros, he says, should have allowed him to speak with his father so he could obtain his own lawyer and receive further legaladvice. [66] Citing Sinclair, the trial judge concluded that the Charter did not compel Sgt. Eros to accede to Mr. Lafrance’srequest for a further consultation. The majority of the Court of Appeal, however, viewed Mr. Lafrance’s request to speak with his fatheras falling within what Sinclair described as a “change in circumstances” suggesting a significant alteration of the choice to be made bythe accused. Mr. Lafrance’s request, said the majority, “show[ed] that [he] may not have understood the initial s. 10(

b) advice hereceived from legal aid counsel [. . .], that he needed the opportunity to pose further questions of counsel and have those questionsanswered, and that the initial advice he received, viewed contextually, was no longer sufficient” (para. 53). Alternatively, the majoritywould have held that Mr. Lafrance’s case would “fall within an open category, one not expressly defined in Sinclair” (paras. 53 and 64). [67] For the reasons that follow, I am closer to the Court of Appeal’s view of the matter. As I will explain, this matter fallswithin the “change in circumstances” category described in Sinclair.

Given this conclusion, I need not address the Court of Appeal’salternative position that this case falls within an open-ended Sinclair category.

(1) The Purpose of

Section 10(

b) and the Sinclair Framework [68] In Sinclair, the accused was arrested for second-degree murder, advised of his right to counsel and allowed twothree-minute conversations with a lawyer of his choice. He was then interviewed for five hours, during which time his repeated requeststo have his lawyer present or to speak with him again were refused. Eventually, he confessed after the interviewing officer made himbelieve that police had found incriminating evidence confirming his involvement. The accused sought to have his confession excluded,alleging a breach of s. 10(b). [69] This Court ruled his confession admissible.

Section 10(

b) does not confer the right to have a lawyer present during apolice investigation. And, a single consultation with a lawyer is constitutionally sufficient, absent a change in circumstances or newdevelopments that suggest that the choice faced by the accused has been “significantly altered, requiring further advice on the newsituation, in order to fulfill the purpose of s. 10(

b) of providing the accused with legal advice relevant to the choice of whether tocooperate with the police investigation or not” (Sinclair, at para. 65).

Such a change in circumstances or new development is notdemonstrated, the Court added, where police engage in “the common . . . tactic of gradually revealing (actual or fake) evidence to thedetainee in order to demonstrate or exaggerate the strength of the case against [them]” (para. 60). [70] This followed, said the Court, from the purpose of s. 10(b), being “to provide a detainee with an opportunity to obtainlegal advice relevant to his legal situation” (Sinclair, at para. 24) or, more particularly, “to allow the detainee not only to be informed ofhis rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights” (para. 26,citing Manninen, at pp. 1242-43).

In the context of a custodial interrogation, the Court added that s. 10(

b) seeks “to support thedetainee’s right to choose whether to cooperate with the police investigation or not, by giving him access to legal advice on the situation[they are] facing” (para. 32). [71] So und

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