Sunday, July 31, 2022

Arbitrary detention, right to legal advice, a 5-4 split on final appeal: R v Lafrance, 2022 SCC 32

The first thing that strikes one on reading R v Lafrance, 2022 SCC 32 (22 July 2022), is that the Supreme Court of Canada was divided 5-4. This difference of opinion between the two judgments centred on evaluating the evidence on the issues of detention and access to counsel. The majority held that the Charter rights had been breached and on application of the balancing exercise set out in R v Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 the evidence was inadmissible. The minority found no Charter breaches and so did not need to consider the balancing exercise.

My impression is that this difference in evaluation of the evidence is illustrative of the inappropriateness, in the different context of appeals against conviction, of allowing appellate judges to act as juries. But don’t get me started on that topic.

More positively, or just positively, the majority in Lafrance set out at [90] the current approach to the balancing exercise in Grant. I have previously, and somewhat sarcastically, suggested that the original description of the process as a “decision tree” would be more appropriately put as an “impenetrable thicket”. But it seems that the thicket has been given the severe pruning it so richly deserved, a development going back at least as far as R v Le, 2019 SCC 34.

As you can see, in deciding whether or not admission of the evidence would bring the administration of justice into disrepute, the seriousness of the impropriety and its impact on the defendant’s rights are assessed cumulatively, and then weighed against society’s interests in adjudication of the case on its merits.

This admirably clear decision process is comparable to that which is set out in case law interpreting New Zealand’s s 30 of the Evidence Act 2006.