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.

Truth-seeking? R v J.J., 2022 SCC 28

I don’t know how well the person who determines the wording of Canada’s federal laws speaks English. Look at this:

“(3) The judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel.”

“Their” right? Why not say “the” right? Gratuitously bunging in unnecessary pronouns is surely one of the more shameful habits that can be picked up at university.

The provision I quoted is part of s 278.94 of the Criminal Code, so the Supreme Court of Canada is not entirely to blame for adopting this ugly usage in R v J.J., 2022 SCC 28 (June 30, 2022).

The case is of limited interest to those who are not subject to the law of Canada, but there are some points that catch one’s attention.

The Court follows its long-established practice of referring to a criminal trial as a “search for truth” (at [1]). Is this accurate? A commission of inquiry is a search for truth. A police investigation should be a search for truth. But a criminal trial is a test of the prosecution’s case as measured against the high standard of proof. Consequently, an acquittal is not a declaration of innocence. An acquittal is not a finding of truth. So, calling a criminal trial a search for truth is, to say the least, misleading.

The idea of the trial as a search for truth goes back to R v Mills, 1990 CanLII 135 (SCC) at [73]-[74], giving this as an example of a “principle of fundamental justice” which may embrace interests and perspectives beyond those of the defendant. It is “society’s interest in having the trial process arrive at the truth.” This, in my view, is a poorly examined concept.

And at [2] the majority judgment refers to the “bleak picture” painted by accounts of the experiences of complainants in trials of a sexual nature and the tendency of victims not to report such crimes. Parliament has made procedural reforms to address this, but, the majority say, “More needs to be done.” It is unusual for judges to comment on legislative policy in this way, and it may give some readers the impression that now the Court is going to do what it can to help with the task, instead of addressing the constitutionality of the legislation in an unbiased way.

Another attention-catching point is the habit in Canadian jurisprudence of treating the requirement that a trial must be fair as meaning that it must be fair to all concerned: the defendant, the prosecution, witnesses, and the community (at [2], [125]). And why not throw in anyone else you can think of. This is, in non-Canadian terms, nonsense. A criminal trial must be fair to the defendant. It is the defendant who has the right to a fair trial. This is an absolute right. However, there may be procedural constituents of that right (for example, the right to confront witnesses for the prosecution) that can be subject to some limitation without compromise to the absolute nature of the defendant’s right to a fair trial. A witness may be screened from the defendant, or may give evidence remotely by video link, or may - within very circumscribed limits - give evidence anonymously, without affecting the defendant’s ability to cross-examine the witness.

While I agree with the majority judgment, I must admit that I find parts of it incredible. The suggestion that a witness (here, complainant) will not be tainted by disclosure of a tactic that will be used as a challenge to credibility at trial (at [186]-[187}), is optimistic. And the conclusory opinion, at [186], that “ambush” is not an effective weapon is contrary to common sense and experience. By including these points the majority is over-stating its case.

Even so, apart from these quirks, the majority judgment is persuasive. It has the excellent quality of addressing the concerns expressed by the dissenting judges. It is persuasive because the sort of evidence that the legislation deals with is (a) only rarely going to be available to the defendant, and (b) it would, in any event, be subject to the basic rules of evidence concerning relevance and the need for it not to have an improperly prejudicial effect on the proceeding. And it should come as no surprise to a complainant that the defendant has the relevant record, and that the defendant might seek to use it at trial, so pre-trial announcement of that intention is unlikely to damage the defence.

Pre-trial disclosure of the defence position may take some of the drama out of the trial. In Auckland a few years ago (actually, a good few years ago) in a rape trial the defendant had - most wisely as it turned out - made a secret video recording of the events which all occurred in his bedroom. The complainant wasn’t aware of this and at trial gave a convincing account of having been raped, but when confronted with the recording in cross-examination, her claim of lack of consent was shown, when the recording was played, to be plainly absurd.

Quite possibly, such a video recording would be outside the definition of record in this legislation (see [55]), and therefore would remain admissible subject to the basic requirements of relevance and absence of improper prejudice, but the point is that the law should be hesitant to restrict cross-examination of complainants on matters such as whether there was an actus reus and whether there were reasonable grounds for absence of mens rea.