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The text of the full decision can be found here.

For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

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

I: Overview: 0:00:26, paragraphs 1 to 5

II: Facts: 0:03:19, paragraphs 6 to 7

II(A): March 19, 2015: 0:03:42, paragraphs 8 to 14

II(B): April 7, 2015: 0:06:54, paragraphs 15 to 18

III: Issues: 0:08:45, paragraph 19

IV: Analysis: 0:09:16

IV(A): March 19, 2015: 0:09:19, paragraph 20

IV(A)(1): Detention: 0:09:46, paragraphs 21 to 23

IV(A)(2): R. v. Moran: 0:11:42, paragraphs 24 to 28

IV(A)(3): Applying Grant to the Events of March 19, 2015: 0:13:46

IV(A)(3)(a): The Circumstances Giving Rise to the Encounter: 0:13:51, paragraphs 29 to 33

IV(A)(3)(b): The Nature of the Police Conduct: 0:16:36, paragraph 34

IV(A)(3)(b)(i): Actions and Language of the Police: paragraphs 35 to 40

IV(A)(3)(b)(ii): The Use of Physical Contact: paragraphs 41 to 42

IV(A)(3)(b)(iii): The Presence of Others: paragraphs 43 to 44

IV(A)(3)(b)(iv): The Place and Duration of the Encounter: paragraphs 45 to 51

IV(A)(3)(c): The Particular Circumstances of the Accused: 0:30:35, paragraphs 52 to 53

IV(A)(3)(c)(i): Youth: paragraph 54

IV(A)(3)(c)(ii): Race: paragraphs 55 to 59

IV(A)(3)(c)(iii): Level of Sophistication: paragraphs 60 to 62

IV(A)(4): Conclusion Regarding the Encounter of March 19, 2015: 0:37:17, paragraphs 63 to 64

IV(B): April 7, 2015: 0:39:02, paragraphs 65 to 67

IV(B)(1): The Purpose of Section 10(b) and the Sinclair Framework: 0:40:23, paragraphs 68 to 79

IV(B)(2): The Need for a Second Consultation on April 7, 2015: 0:50:25, paragraphs 80 to 87

IV(B)(3): Conclusion on Breach of Section 10(b) on April 7, 2015: 0:56:25, paragraph 88

IV(C): Section 24(2) of the Charter: 0:56:52, paragraphs 89 to 92

IV(C)(1): Seriousness of the Charter‑Infringing Conduct: 1:00:25, paragraphs 93 to 95

IV(C)(2): Impact of the Breaches on the Charter‑Protected Interests of the Accused: 1:02:02, paragraphs 96 to 97

IV(C)(3): Society’s Interest in the Adjudication for the Case on its Merits: 1:03:31, paragraphs 98 to 100

IV(C)(4): Admission of the Evidence Would Bring the Administration of Justice Into Disrepute: 1:05:22, paragraphs 101 to 102

V: Conclusion: 1:06:09, paragraph 103

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

I: Introduction: 1:06:22, paragraph 104

II: Facts and Decisions Below: 1:06:58, paragraphs 105 to 117

III: Analysis: 1:12:42, paragraph 118

III(A): Mr. Lafrance Was Not Detained Within the Meaning of Sections 9 and 10(b) of the Charter on March 19, 2015: 1:13:18, paragraphs 119 to 127

III(A)(1): Circumstances Giving Rise to the Encounter: 1:17:49, paragraphs 128 to 131

III(A)(2): Police Conduct: 1:20:08, paragraphs 132 to 133

III(A)(2)(a): Actions and Language of Police: 1:21:04, paragraphs 134 to 136

III(A)(2)(a)(i): Execution of the Search Warrant: paragraphs 137 to 141

III(A)(2)(a)(ii): Ride to the Police Station: paragraphs 142 to 144

III(A)(2)(a)(iii): Interview: paragraphs 145 to 146

III(A)(2)(a)(iv): Collection of Physical Evidence: paragraphs 147 to 149

III(A)(2)(b): Physical Contact: 1:28:46, paragraphs 150 to 151

III(A)(2)(c): Presence of Others: 1:29:31, paragraphs 152 to 153

III(A)(2)(d): Place and Duration of the Encounter: 1:30:52, paragraphs 154 to 156

III(A)(2)(e): Summary: 1:33:10, paragraphs 157 to 158

III(A)(3): Particular Circumstances of the Individual: 1:34:17, paragraphs 159 to 163

III(A)(4): Conclusion: 1:37:01, paragraph 164

III(B): Mr. Lafrance’s Section 10(b) Right to Counsel Was Not Violated on April 7, 2015, When He Was Not Permitted a Second Consultation With Counsel: 1:37:37, paragraph 165

III(B)(1): Legal Principles: 1:38:04, paragraphs 166 to 173

III(B)(2): Application to the Case: 1:41:40, paragraphs 174 to 187

III(C): 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): 1:48:58, paragraphs 188 to 193

IV: Conclusion: 1:51:39, paragraphs 194

Headnote provided by the Supreme Court of Canada:

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 JamalJJ.: 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 Charterby 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 Charterinfringing 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 Charterbreach and there is therefore no basis on which to exclude such evidence under s. 24(2).

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