This week’s top three summaries: R v LaFrance, 2022 SCC 32: #detention and 10(b), R v Greenwood, 2022 NSCA 53: aiding, Vetrovec, co-conspirators, and R v Polusmiak, 2022 PECA 8: #translation & 10(b).

This week's top case deals with the admissibility of a confession. For great general reference on the law of evidence, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.

R v LaFrance, 2022 SCC 32

[July 22, 2022] Charter Detention - Charter s.10(b) Right to Re-Consult with Counsel [Reasons by Brown J. with Karakatsanis, Martin, Kaiser and Jamal JJ. concurring and Wagner C.J., Moldaver, Côté, and Rowe dissenting]

AUTHOR’S NOTE: There are three important takeaways from this decision for defence counsel. First, R v Moran (1987), 36 CCC (3d) 225 is no longer good law. Grant governs the analysis of detention, even at a police station. The considerations in Moran are inconsistent with the objective analysis required by the current law and should be discarded. Second, the police telling suspects that they are free to leave does not have some magical power of ensuring they are not detained for Charter purposes - all the surrounding circumstances have to be considered and that advice from police is just one factor. Third, an accused's objective confusion about their legal rights (here, understanding the lawyer could attend at the station for the interview) after a consultation with counsel should give rise to police giving them the opportunity for a second consultation when they ask for one. 


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

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

II. Facts

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

A. March 19, 2015

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

[9] Shortly after retrieving the cat, Mr. Lafrance was approached by Sergeant (then Corporal) Eros who, unbeknownst to Mr. Lafrance, had been assigned to interview him and had been waiting for him outside....

...Sgt. Eros did not have reasonable and probable grounds to proceed to arrest Mr. Lafrance.

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

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

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

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

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

B. April 7, 2015

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

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

[17] Several hours into the interview, Sgt. Eros told Mr. Lafrance that he did not believe his version of the events and that there was no doubt in his mind that Mr. Lafrance was responsible for killing Mr. Yasinski. As the tone of the interview shifted, Mr. Lafrance asked to speak with his father before continuing to answer Sgt. Eros’ questions. When Sgt. Eros asked him why, Mr. Lafrance explained that his father was his “only chance of getting a lawyer” and that he wanted a lawyer before going forward with anything else. He said that Legal Aid told him “to get a lawyer before [he] continue[s] talking” to sit down and talk about his situation (A.R., vol. V, at p. 139). In response, Sgt. Eros explained that he “ha[d] no problem” letting him talk to his father (A.R., vol. V, at p. 138), but that Mr. Lafrance had already spoken to a lawyer. Mr. Lafrance, he said, may have misinterpreted2 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.

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).

[21] Detention refers to “a suspension of an individual’s liberty interest by virtue of a significant physical or psychological restraint at the hands of the state” (R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 21; Le, at para. 27). In the heat of the moment, it is not always easy for ordinary citizens, who may be uninformed of their rights or the scope of the police’s powers, to know whether they have a choice to comply with a request by the police. An individual may perceive “a routine interaction with the police as demanding a sense of obligation to comply with every request” (Le, at para. 26, referring to S. Penney, V. Rondinelli and J. Stribopoulos, Criminal Procedure in Canada (2nd ed. 2018), at p. 83). For that reason, this Court has recognized that, “even absent physical restraint by the state, a detention exists in situations where a reasonable person in the accused’s shoes would feel obligated to comply . . . and that they are not free to leave” (Le, at para. 26 (emphasis added)). Even so, not every encounter between state and citizen effects a detention (Suberu, at para. 3; Le, at para. 27); no detention is effected, and therefore s. 10(b) rights are not breached, where an individual voluntarily assists the police by, for example, freely agreeing to provide a statement.

[22] In this case, Mr. Lafrance says that his choice to cooperate with the police on March 19 was, in substance, imposed by way of psychological constraints. Psychological detention exists where an individual is legally required to comply with a direction or demand by the police, or where “a reasonable person in [that individual’s] position would feel so obligated” and would “conclude that he or she was not free to go” (Grant, at paras.30-31; Le, at para.25). It is that latter category which Mr. Lafrance says describes his circumstances. Three factors — identified in Grant and expanded upon in Le — are to be considered and balanced:

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

(2) R. v. Moran

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

[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....

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

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

(a). The Circumstances Giving Rise to the Encounter

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

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

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

[32] In my view, it is inconceivable that a reasonable person in Mr. Lafrance’s shoes — woken and confronted by armed police officers in his home telling him to leave — would believe that 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] ...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 a 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....

[36] ...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))...

[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] ...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....

[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 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.

[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)...

...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] ...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 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...

...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.

[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 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.

(ii) Race

[55] This Court in Le emphasized that the objective analysis in Grant must be applied in a manner that accounts for the distinct experiences and particular knowledge of racialized communities in Canada:

[56] The question that trial judges must answer is “how a reasonable person of a similar racial background would perceive the interaction with the police” (Le, at para. 75). 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 our society” (Le, at para. 75). The reasonable person in an accused’s shoes is presumed to be aware of this (Le, at para. 75). Moreover, this consideration is to be undertaken with sensitivity and prudence. Even in the absence of testimony on the point, trial judges assessing whether a racialized person was detained must be alive to the potential significance of this consideration (Le, at paras. 98 and 106; R. v. Theriault, 2021 ONCA 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 continues to be disproportionally subjected to police encounters and overrepresented in the criminal justice system (R. v. Gladue, [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 and 108). 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 in Canada (February 2022), at p. 12). This has fostered mistrust, confirmed by the finding of a February 2022 study that “[a] higher proportion of Indigenous people under 40 felt police were doing poorly at enforcing the laws, promptly responding to calls, ensuring the safety of citizens, and treating people fairly compared to the similarly aged non-Indigenous, non-visible minority population” (Statistics Canada, at p. 11). This finding applied equally to older Indigenous people (Statistics Canada, at p. 11).

[58] ...The point is not that Grant or Le leave no room for nuance in evaluating interactions between Indigenous people and the police; it is, rather, that trial judges must be alive to (1) “the relational aspect” between the police and Indigenous persons (Le, at para.81), 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.

[59] ...On this slender record, and absent any evidence to the contrary regarding Mr. Lafrance’s circumstances, his Indigenous background is a factor that weighs somewhat in favour of detention, albeit not heavily. This accounts for what I have already described as the overrepresentation of Indigenous peoples in the criminal justice system, and the “relational aspect” of the interaction between Indigenous people and police that must always be borne in mind.

(iii) Level of Sophistication

[61] ...“Sophistication”, without elaboration, may be an unhelpful ascription; here, the trial judge noted only that “[a]t best, the accused was naïve in deciding his participation would counter police suspicion” (para. 81), which tends to undermine, not explain, the ascription. “Intelligence”, while more precise, does not necessarily 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 in a crucial respect here).

[62] All told, the trial judge’s finding of Mr. Lafrance’s sophistication (or, more accurately, lack of unsophistication) 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.

(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 the particular characteristics or circumstances of the individual — weigh decisively here, on the facts of this case, in favour of finding that Mr. Lafrance was first detained when he, a young Indigenous man with minimal police exposure, was awoken in the early morning by the police inside his home, and commanded to get dressed and leave. He continued to be detained throughout the encounter,...

[64] It follows that police were required to inform Mr. Lafrance 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. My colleagues say that this conclusion means that the combination 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 believe that, in the entirety of the circumstances, he or she is not free to leave, that a detention would arise....

B. April 7, 2015

[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 falls within the “change in circumstances” category described in Sinclair....

(1) The Purpose of Section 10(b) and the Sinclair Framework

[69] ...Section 10(b) does not confer the right to have a lawyer present during a police investigation. And, a single consultation with a lawyer is constitutionally sufficient, absent a change in circumstances or new developments that suggest that the choice faced by the accused has been “significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not” (Sinclair, at para. 65). Such a change in circumstances or new development is not demonstrated, the Court added, where police engage in “the common . . . tactic of gradually revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against [them]” (para. 60).

[71] ...As this Court also recognized in Clarkson v. The Queen, [1986] 1 S.C.R. 383, at pp. 394-95, underlying s. 10(b) is a concern to mitigate the unfairness that prevails where the police understand the accused’s right to choose whether to speak to them, but the accused may lack that understanding. Key to realizing s. 10(b)’s promise to detainees of fair treatment is furnishing access to legal advice, since that advice is meant to level the playing field by ensuring, first of all, that detainees do understand their rights, “chief among which is [the] right to silence” (R. v. Hebert, [1990] 2 S.C.R. 151, at p. 176); and, secondly, that they understand how to exercise those rights (Sinclair, at para. 29). This includes knowing of “the benefits and drawbacks of cooperating with the police investigation, as well as strategies to resist cooperation should that be the detainee’s choice” (C.A. reasons, at para. 48).

[72] ...Sinclair also recognized that 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 makes this necessary to fulfill s. 10(b)’s purpose (para. 53). Three non-exhaustive categories of exceptional circumstances triggering this duty were identified (at paras. 49-52): (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. It is that third category which the Court of Appeal thought applicable here. I agree.

[73] In Sinclair, this category was “broadly” stated as covering, inter alia, “circumstances indicating that the detainee may not have understood the initial s. 10(b) advice of his right to counsel”, which “impose on the police a duty to give him a further opportunity to talk to a lawyer” (para. 52). This raises the question of how such circumstances are to be identified ⸺ that is, what it means for a detainee to not understand “the initial s. 10(b) advice” such that a second legal consultation is necessary. I note, parenthetically, that the third category also covers a different type of potential s. 10(b) breach, i.e., where “the police undermine the legal advice that the detainee has received [in a way that] may have the effect of distorting or nullifying it” (para. 52; see R. v. Dussault, 2022 SCC 16, at para. 35). The Court’s recent judgment in Dussault comprehensively reviews the kind of police conduct that could be said to “undermine” the legal advice that a detainee receives (paras. 36-45).

[75] Bearing in mind that the third Sinclair category was “broadly” stated by this Court by reference to “circumstances” indicating that “the detainee may not have understood the initial s. 10(b) advice”, two points merit emphasizing (Sinclair, at para. 52). First, the inquiry is into circumstances, stated broadly. This connotes an examination not merely of whether the detainee consulted legal counsel, but of the entire context in which the police-detainee interaction occurred (as in A.R.M.), including the circumstances of the detainee (as in Laquette and Hunt). Secondly, and therefore, an inquiry strictly into whether a detainee understood that he or she could remain silent is not sufficient. The issue, after all, is not merely whether the detainee was advised; the third category presumes that to have occurred. Section 10(b) requires much more than that (a point repeatedly stressed in Sinclair: see paras. 2, 24-26, 28-29, 32, 47-48, 53, 57 and 65). Rather, it is that the detainee may not have understood the legal advice he or she received including, as the Court of Appeal correctly noted, whether and how to exercise the right to silence, which itself includes “the benefits and drawbacks of cooperating” and “strategies to resist cooperation” where that is the detainee’s choice.

[76] ...I have already stressed that s. 10(b)’s purpose is not achieved merely by allowing the detainee an opportunity to be advised of the right to silence, but also extends to advice regarding how to exercise that right in the face of police interrogation. And coupled with Sinclair’s concern for the circumstances of the detention, which I have explained include the circumstances of the detainee, it follows that the purposive and generous understanding of s. 10(b) mandated by Grant recognizes that the exercise by accused persons of that right depends on access to legal advice regarding “the [particular] situation [they are] facing”, conveyed in a manner that they understand (Sinclair, at para. 32 (emphasis added)).

[78] My colleagues say it is inaccurate to describe s. 10(b)’s purpose as being “to mitigate the imbalance between the individual and the state” (para. 168). With respect, this proposition is uncontroversial. Despite my colleagues’ view to the contrary, it follows from this Court’s statement in R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 28, that “s. 10(b) provides detainees with an opportunity to contact counsel in circumstances where they are deprived of liberty and in the control of the state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy”, and that “[t]he purpose of s. 10(b) is to provide detainees an opportunity to mitigate this legal disadvantage”....

[79] The degree of imbalance between police and detainee will of course vary from case to case, depending on the particular circumstances of the detainees themselves....

...Investigating officers and reviewing courts must be alive to the possibility that these 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. In such situations, Sinclair requires that an accused is entitled to an additional consultation to even the playing field.

(2) The Need for a Second Consultation on April 7, 2015

[83] The difficulty arises, however, from Mr. Lafrance’s request in the course of the police interview to speak with his father because that was his “only chance of getting a lawyer”. The Crown argues that there is no constitutional right to speak to a detainee’s father, but that is not a fair characterization of Mr. Lafrance’s request, which drew an explicit connection between talking to his father and talking to a lawyer:

Q. Alright so what happens Nigel?
A. Well –.
Q. What – what went on?
A. Well I would – ah I want to talk to my dad before I continue.
Q. Ok wh – why do you say that?
A. Cause well he’s – well he’s my only chance of getting a lawyer and I just – I don’t know. [Emphasis added.]

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

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

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

[84] ...Mr. Lafrance explained to Sgt. Eros that the advice he obtained from Legal Aid was to “get a lawyer before [he] continue talking” and get “someone that can come down and sit with [him]” (A.R., vol. V, at p. 139) — indicating either that Mr. Lafrance had incorrectly interpreted the advice he received or, as Sgt. Eros hinted at, that he had received “bad advice”.

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

[86] ...To explain, and as my colleagues acknowledge, a “changed circumstance” can arise “[w]hen there is reason to question the detainee’s understanding of his s. 10(b) right” (para. 172). That is this case. His confusion was an “objective indicat[or] that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so” (Sinclair, at para. 55). And this is because the information to which he had a right under s. 10(b) had not been conveyed, either at all or in a manner he understood (para. 52).

[87] The concern that should reasonably have arisen in the mind of the investigating officer that Mr. Lafrance may not have understood his rights and how to exercise them is affirmed, if not heightened, when considered in light of Mr. Lafrance’s particular characteristics. It is entirely plausible that a 19-year-old with no previous experience of detention or custodial interviews might have difficulty understanding his or her rights, not ever having had to exercise them or even speak with a lawyer before. While the trial judge found him “not unsophisticated”, as I have already explained he was obviously unsophisticated in ways that matter here....

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

[88] The police breached Mr. Lafrance's s. 10(b) right to counsel by refusing to provide another opportunity to consult with a lawyer despite there being reason to conclude that he had not understood his s. 10(b) advice, even after having spoken with Legal Aid. I now turn to the consequences that follow from this breach and from the March 19 breach of Mr. Lafrance’s s. 10(b) right.

C. Section 24(2) of the Charter

[90] ...As the Court said in Le, “[i]t is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion” (para. 141). In other words, it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry when assessing whether evidence should be excluded. That is why the third line — which typically pulls towards a finding that admission would not bring the administration of justice into disrepute — will seldom tip the scale in favour of admissibility when the two first lines, taken together, make a strong case for exclusion (Le, at para. 142; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 56).

[92] ...But we must bear in mind that this Court and the Court of Appeal are, essentially, on identical footing for an analysis under s. 24(2), neither court having had the benefit of observing the witnesses or hearing testimony first-hand. I will therefore conduct a fresh s. 24(2) analysis. As I will explain, however, I largely agree with the Court of Appeal’s analysis.

(1) Seriousness of the Charter-Infringing Conduct

[93] ...In deciding whether this is necessary, they must “situate that conduct on a scale of culpability” (Paterson, at para. 43; see also Tim, at para. 82). Inadvertent or minor violations tend only to minimally undermine public confidence in the rule of law and, consequently, bear only slightly upon the reputation of the administration of justice, while evidence obtained “through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law” (Paterson, at para. 43; Grant, at para. 74; see also Le, at para. 143; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22). And evidence obtained by police negligence in meeting Charter standards does not qualify as a “good faith” error, but instead supports a conclusion that a court should dissociate itself from such evidence (Le, at para. 143; Tim, at para. 85).

[94] The Court of Appeal described the denial of the right to counsel on March 19 and April 7 as “particularly serious given the grave nature of the offence under investigation, the potential consequences of conviction on [Mr. Lafrance] and his particular vulnerability given his young age and circumstances in life” (para. 79). While it did not believe that these breaches “occurred through a willful or reckless disregard of Charter rights”, the Court of Appeal nevertheless held that the Charter-infringing conduct remained serious (para. 80).

[95] I agree entirely....

...On both March 19 and April 7, the police conduct resulted in serious breaches of Mr. Lafrance’s Charter rights. This favours a finding that admission of the resulting evidence would bring the administration of justice into disrepute.

(2) Impact of the Breaches on the Charter-Protected Interests of the Accused

[96] ...Like the first inquiry, this inquiry is into the degree of seriousness. As a general rule, “[t]he more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute” (Grant, at para. 76; Le, at para. 151).

[97] This case involved two breaches of s. 10(b). While not determinative, I am alive to the Court’s description of the right guaranteed by s. 10(b) as “the single most important organizing principle in criminal law” (R. v. P. (M.B.), [1994] 1 S.C.R. 555, at p. 577). Any breach of this provision “undermines the detainee’s right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination” (Grant, at para. 95). As the Court of Appeal’s analysis makes plain, those particular consequences were of a serious nature here: “[Mr. Lafrance] was led to confess to killing a person without having an opportunity for a thorough, reflective discussion with a lawyer fully apprised of his jeopardy” (para. 82). I see no basis to diverge from the Court of Appeal’s assessment that this had “a serious impact” on Mr. Lafrance’s Charter rights (para. 82). The second line of Grant supports the view that admitting this evidence would bring the administration of justice into disrepute.

(3) Society’s Interest in the Adjudication for the Case on its Merits

[100] I agree with what I understand to be the Court of Appeal’s conclusion that the third Grant line supports admission, but not heavily so. The evidence relates to a serious criminal offence, but society’s interests are not strongly affected given the other evidence available to the Crown on re-trial.

(4) Admission of the Evidence Would Bring the Administration of Justice Into Disrepute

[101] Taken together, the three Grant lines of inquiry confirm that the admission of the evidence would bring the administration of justice into disrepute. These were two serious breaches with a correspondingly significant impact on the s. 10(b) rights of Mr. Lafrance. The first and second lines of inquiry therefore present 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 strength of the first two lines of inquiry overwhelms the moderate impact on society’s interest in the truth-seeking function of the criminal trial process.

[102] It follows that the evidence obtained as a result of the breaches of Mr. Lafrance’s Charter rights on March 19 and April 7 must be excluded.

V. Conclusion

[103] I would dismiss the appeal.

R v Greenwood, 2022 NSCA 53

[July 26 2022] First Degree Murder: Aiding and Abetting mens rea, Vetrovec exculpatory evidence, Co-Conspirators Exception to Hearsay [Reasons by David P.S. Farrar with Van den Eynden and Beaton JJ.A. concurring]

AUTHOR’S NOTE: There are numerous errors in the judgment below that lead to good points of law being very well explained for defence lawyers. With respect to Aiding in First Degree Murder, a jury must be instructed that the aiding accused must know that the principle intends to commit a planned and deliberate murder (ie. not just a murder). On the Vetrovec front, when such a witness gives exculpatory evidence (or mixed inculpatory and exculpatory evidence) the jury must not be instructed that their exculpatory evidence be treated the same. No confirmatory evidence is required for the exculpatory aspects of the evidence. If the evidence is mixed, the trial judge has a duty to delineate that which is subject to the confirmatory evidence requirement and that which is not.  Finally, on the co-conspirator's exception second step (determining whether the accused was probably a member of the conspiracy) only direct evidence can be considered. According the NSCA this means: both inculpatory and exculpatory evidence. The trial judge is required to review what this consists of. Also, the trial judge has to be clear that all this allows is the use of out of court statements of the other conspirators to determine if the accused committed the acts reus and had the mens rea for first degree murder (here: aiding in that offence). 


[1]            On May 9, 2012, a jury convicted the appellant, Leslie Greenwood, of two counts of first degree murder in the deaths of Kirk Mersereau and Nancy Christensen.  He appealed those convictions.  On September 8, 2014, this Court set aside the convictions and ordered a new trial (2014 NSCA 80, Greenwood #1).  The retrial before a jury took place over 17 days, starting January 8, 2018, with Justice Jamie Campbell presiding.  On February 2, 2018, Greenwood was again convicted of two counts of first degree murder.  He now appeals those convictions.

[2]            For the reasons that follow, I would allow the appeal, set aside the convictions, and order a new trial.


[3]            On September 9, 2000, Mr. Mersereau and Ms. Christensen were killed, execution style, in their home.  The Crown’s key witness was Michael Lawrence, who pleaded guilty to first degree murder in their deaths in 2012.

[4]            Lawrence also pleaded guilty to first degree murder in the death of Charles Maddison.  He killed him on September 8, 2000.

[6]            Lawrence had a criminal history, spanning from 1992 to 2012, which included drug offences, robbery, use of firearms and the three first degree murders referred to above.

Lawrence’s Testimony

[7]            Lawrence testified he had longstanding mental health issues which became “very bad” in 1998.  He suffered from symptoms of schizophrenia which went undiagnosed until 2004.  He often heard voices and suffered from hallucinations and delusions.

[8]            In September 2000, he owed Curtis Lynds a drug debt in the amount of $28,500.  He was desperate to repay the debt.  He testified that he could be hurt, even killed, over the issue....

[10]         After being released from prison, Lawrence came up with the idea of planning a robbery to get money to pay the debt.  The plan was simplistic.  He had been observing the Superstore on Lacewood Drive in Halifax.  He noticed a Brink’s truck arriving at the store every morning.  The Brink’s guard would enter the store and shortly thereafter would come out with a bag of money.  His plan was to threaten the Brink’s employee with a gun, grab the money, and leave.

[12]         Lawrence told Lynds that he needed a gun and a car.  Lynds agreed to supply him with a handgun.  To obtain a car, they came up with an idea of carjacking a vehicle and killing the person who was driving the car.

[17]         Lawrence began hitchhiking.  The first car to stop was driven by Mr. Maddison.  Mr. Maddison informed him that he was headed to Halifax to see a doctor for his back.  After driving for a few minutes, Lawrence produced the .357 Magnum and pointed it at Mr. Maddison.  Lawrence told him he was going to miss his appointment and directed Mr. Maddison to drive to Panuke Road in Hants County.

[18]         When they got to Panuke Road, Lawrence told Mr. Maddison to pull over on the side of the road and stop.  He told him they were going to go for a walk in the woods and Lawrence was “just going to leave him there for a little while and just take his truck”.  They walked a short distance into the woods where Lawrence shot Mr. Maddison in the chest and then the head to “make sure he was dead”.  He left Mr. Maddison’s body in the woods, went back to the truck, and drove away.  This was at approximately 9:00 a.m.

[20]         However, the robbery never occurred.  Lawrence arrived too late and the Brink’s truck was leaving as he was driving in.

[21] ... Lynds told Lawrence he was going to have to do it the next day.  Lawrence agreed.  Lawrence left Mr. Maddison’s truck in the business park.

[23]         Lynds and Lindsay did not arrive to pick up Lawrence as planned at 9:00 a.m.  They arrived in Lindsay’s car at approximately 11:00 a.m.  By that time, it was too late to attempt the Brink’s robbery.

[24]         Lynds advised Lawrence that there had been a change in plans.  When they got in Lindsay’s car, Lynds told Lawrence that Lawrence was going to do a hit for him to repay the debt instead of committing the robbery.

[26] ...Then, in Lindsay’s car, Lynds and Lindsay drove Lawrence past Kirk Mersereau’s home to show him where he lived. This was the first time
Lawrence was told Mersereau’s name.

[31]         When Lynds returned, Lawrence testified Greenwood was with him.  Lawrence did not know Greenwood.  He had never met him.

[32]         Lawrence claimed that Lynds informed him of another change in plans.  Greenwood was going to go with him to the Mersereau residence, and both Nancy Christensen and Kirk Mersereau were to be killed.

[33]         Lawrence said Lynds explained to him that Greenwood knew Mersereau and was trusted by Mersereau, so he could easily get into the house.

[34]         Lynds also had with him another gun, a .32 calibre pistol.  Lynds cleaned the bullets and loaded both the .357 Magnum and the .32 calibre to capacity.

[35]         Lawrence testified he was instructed by Lynds that they would drive in Greenwood’s car to retrieve Mr. Maddison’s stolen truck and then drive the truck to Mersereau’s to commit the murders.  He was also instructed Greenwood would have the .357 Magnum, enter in the house first, shoot Mr. Mersereau and Ms. Christensen.  Lawrence would come in after to ensure that they were dead.

[36]         After the killings, they were to drop the guns off the bridge on Station Road into the Kennetcook River.  They would then return to the clearing where they had previously stashed the truck, burn it, and leave in Greenwood’s car.

[37]         Lawrence testified he and Greenwood left Lynds’ house in Greenwood’s car with a jug of gasoline and the guns.  They then drove to the clearing to retrieve Mr. Maddison’s truck.

[38]         With Greenwood driving the truck, they drove to the Mersereau residence.

[39]         Lawrence said they parked near Mersereau’s home, and he stayed on the floor of the truck to avoid being seen.  Greenwood went into the house with a .357 Magnum.  Lawrence testified he was on the floor of the truck for about five minutes when he heard gunshots.  He then got out of the truck and headed toward the house.  On the way, he was attacked by a Rottweiler dog.[1]  He fired the .32 twice and shot the dog once.  He then entered the house where he observed Mr. Mersereau and Ms. Christensen who both appeared to him to be dead.

[40]         ... Lawrence walked over to Mr. Mersereau and shot him in the head twice with the .32.  He then shot Ms. Christensen in the head and returned and shot one more bullet into Mr. Mersereau’s head.  At that point, he said the gun was empty.

[41]         Lawrence then left the house where he met up with Greenwood.  He said Greenwood forgot his sneakers in the house and returned to retrieve them.  They then drove away.  It was approximately 8:00 p.m.

[42]         They stopped on the bridge on Station Road and Lawrence got out and threw the two guns in the river.

[43]         Lawrence testified they returned to the same clearing where they had picked up Mr. Maddison’s truck earlier, removed their clothing, placed the clothing inside the truck, put new clothing on, doused the truck with gasoline, and set it on fire.  At approximately 9:00 p.m., Saturday, September 9, 2000, they left in Greenwood’s car.d

[45]         The next morning, Lawrence said that he and Greenwood went to Lynds’ house at approximately 9:00 a.m. or 10:00 a.m.  When asked what happened at Lynds’ house, Lawrence replied:

  1.      We confirmed what we had did for him.
  2.      Okay. So just tell me how you confirmed what you had done.
  3.      That they were shot dead and it was over with.
  4.      Okay. So who said what?
  5.      I told them … Curtis said it was … I confirmed that I did what he sent me to do.
  6.      Okay.
  7.      Had shot them in the head after Les had shot them first.

[46]         After hearing this, Lynds confirmed to Lawrence that his drug debt had been satisfied.

Greenwood’s Statements

[49]         Greenwood did not testify, but portions of his statement to undercover police officers and subsequent arrest statement taken December 9, 2010 were played for the jury.  They also received a redacted version of his arrest statement.  In both statements, Greenwood admitted to driving Maddison’s truck to the victims’ home with Lawrence, but insisted he was only going to pick up drugs for Jeff Lynds, Curtis Lynds’ uncle, who was alleged to be the head of a criminal enterprise and associated with the Hells Angels.

[50]         The interaction with the undercover officers occurred on November 30, 2010 over the course of about three hours.  Three undercover officers posed as members of Hells Angels from Montreal sent to see if Greenwood could discredit what Jeff Lynds had been telling the police in more recent times about the then ten-year-old unsolved murders.  In his interactions with the undercover officers, Greenwood again denied having a gun, shooting either of the victims, or knowing of any murder plan.

Other Witnesses

[53]         Jeff Lynds did not testify.  He was dead before Greenwood’s first trial.  In the first trial, the recorded statement of Jeff Lynds was played during Greenwood’s police interrogation.  In Greenwood #1, Fichaud J.A. found the recorded statement of Jeff Lynds to be inadmissible.  It was not played at the second trial.

[54]         However, hearsay evidence of Jeff Lynds still found its way into the record at the second trial through the playback of Greenwood’s arrest statement as set out above.

[55]         Curtis Lynds did not testify at either trial.  Neither did Jonathan Burgoyne.

[56]         Jason Lindsay gave evidence at Greenwood’s first trial.  By the time of the second trial, he was also deceased.  The jury heard a playback of his evidence from the first trial.  Fichaud J.A. referred to Lindsay’s evidence in Greenwood #1:

[41]      Lindsay first mentions Greenwood in his account of Sunday morning, September 10. On the Crown’s direct examination, Lindsay testified:

            Q.  So on Sunday, September 10th of 2000, were you at Curtis’s house ...

            A.  Yeah. ...

            A.  I recall seeing Les and Mike come up the driveway in an old brown, I think it was like a Skylark or a smaller car.

            Q.  So when you ... when you say “Les”, which Les are you referring to?

            A.  Greenwood.

            Q.  And Mike?

            A.  Lawrence. ...

            Q.  And what happened next?

            A.  They ... Curtis ... they were outside by the front deck of Curtis’s house and Curtis confronted Mike and asked him if he did that? And Mike said,   Yeah, I got them both.

            Q.  And what did Curtis say?

            A.  Curtis, after that, he was just standing there.

            Q.  And what ... what else ...

            A.  Curtis asked Mike if he did that and that’s what Mike said, Yeah, I got them both.

            Q.  And so ...

            A. And Les never said a word, he was just standing right beside Curtis, like the three of them were (there?)

            Q.  So you described Les as looking what?

            A.  Pale.

            Q.  And any other way you could describe him?

            A.  It was like he’d seen something he shouldn’t have. [Emphasis added.] [57]         Lindsay’s recollection of the conversation on September 10, 2000 differs significantly from Lawrence’s testimony at the second trial.  Lindsay did not recall Lawrence making any reference to “we” when referring to who committed the murders.


Issue 1: The trial judge erred in his instructions on mens rea for both principal and party liability and in failing to leave second degree murder as a possible verdict.

[65]         Recently, in R. v. Goforth, 2022 SCC 25, the Supreme Court of Canada reiterated that an accused is entitled to a properly, not a perfectly, instructed jury.  This standard of review applies to Issues 1, 2, 3, 6 and 7 as I have set out above.

Instructions on Mens Rea for Principal and Party Liability

[68]         The liability of an aider for first degree murder is distinct from that of a principal.  As noted by this Court in R. v. Kelsie, 2017 NSCA 89[2]:

[78]      The liability of an aider of a planned and deliberate murder depends on two things: (i) whether the principal had in fact planned and deliberated on the murder; and (ii) whether the aider knew of the planning and deliberation by the principal. […]

[79]      In R. v. N.T.J., after canvassing the law, Beveridge, J.A. provides a useful summary ...

[80]      From this brief canvas of the law, there are some fundamental principles that emerge.  In the context of an aider’s potential liability for a planned and deliberate first degree murder, a trier of fact must be satisfied beyond a reasonable doubt that the accused:

-   did or omitted to do something that aided another person to unlawfully cause the victim’s death

-   did those things (or at least one of them) for the purpose of aiding that other person to unlawfully cause the victim’s death

-   when he did those things (or at least one of them) he either had the requisite intent for murder or knew that the principal offender had the requisite intent for murder

-   when he did those things (or at least one of them), he did so for the purpose of aiding the principal offender to commit a planned and deliberate murder

-   when he did those things, he planned and deliberated the murder, or knew that the murder was planned and deliberate

[69]         In R. v. Saleh, 2019 ONCA 819, the Ontario Court of Appeal concisely summarized the necessary mens rea for liability as a party for first degree murder:

[99]      To be found liable for first degree murder as an aider or abettor of a planned and deliberate murder, an accused must have knowledge that the murder was planned and deliberate; wilful blindness will satisfy the knowledge component of s. 21(1)(b) or (c): Briscoe, at paras. 17, 21, 25. In Almarales, this court described in more detail the mens rea element for first degree murder, at para. 70:

... An aider must know that the principal intends to commit a planned and deliberate murder, and intend to help the principal to commit a planned and deliberate murder. ...

[71]         Trial judges should describe separately the essential elements for party liability and principal liability (Kelsie, at ¶80-81).  Trial judges should refer to the essential elements of party liability as an aider when discussing the “planned and deliberate” requirement for first degree murder.

[74]         In Kelsie, the Court rejected the Crown’s argument ...

[88]      It is not sufficient for the trial judge to have charged on planning and deliberation as a principal and then, without the jury being told, assume that they would necessarily come to the conclusion that aiding first degree murder required the appellant to have knowledge of planning and deliberation by Gareau.

[76]         Likewise, in R. v. Huard, the Ontario Court of Appeal held that:

[64]      Since the actus reus and mens rea of aiding and abetting are different from the corresponding elements of the principal offence, jury instructions in a case in which an accused is alleged to have participated in the commission of an offence as an aider or an abettor should not only explain the essential elements in aiding or abetting, but should also link those elements to the essential elements of the offence charged, so that the jury understands what the Crown must prove to establish an accused’s liability for the specific offence as an aider or an abettor.  Whether the aider or abettor is tried jointly with the principal, or, as here, separately, is of no moment – the principles governing the liability of the aider or abettor remain the same: Sparrow, at pp. 457-458. [Emphasis added.]

[77]         Trial judges need to relate the description of “aiding” to the specifics of the case before the jury, or the evidence, that could assist the jury in determining whether the accused is liable as a party.  In R. v. Josipovic, 2019 ONCA 633, the Ontario Court of Appeal held:

[67]      Although the trial judge made reference to aiding in the course of discussing the elements of the offence, he never explained what the Crown had to prove to establish liability for murder as an aider. He did not relate the generic description of aiding to the specifics of this case, or the evidence that could assist the jury in determining whether either appellant was liable as an aider. [Emphasis added.]

[78]         In R. v. Mendez, 2018 ONCA 354, the Ontario Court of Appeal ordered a new trial in part because the jury was not equipped to decide the case as the trial judge had not related the essential elements of aiding to the evidence in the case (¶8).  Specifically, the trial judge told the jury to consider whether the appellant was an active participant in the offence, without relating the evidence to the essential elements of aiding in a balanced way, which had the potential to mislead the jury (¶14).  The trial judge did not “focus the jury’s attention on the absence of evidence of acts of aiding” or the “evidence that pointed away from the existence of a joint plan” (¶17).

[79]         In this case, Greenwood argues that the alleged errors made by the trial judge on mens rea for party liability are similar to that in Kelsie.  The trial judge, here, instructed the jury that a person can commit an offence in two ways, as follows:

… One, a person commits an offence if he alone or with someone else personally does everything necessary to constitute the offence. ...

The second way is this. A person commits an offence if he does anything for the purpose of helping another person to commit the offence. A person is guilty of murder, for example, if he drives another to the scene knowing that the person is going to commit murder and does so for the purpose of helping the other to commit the murder. It’s not enough to prove that the person’s action had the effect of aiding in the commission of the offence; it must be proven that the purpose of the action was to aid in committing the murder. The offence would be driving or assisting for the known purpose of committing a murder.

Aiding in the commission of the offence, which is involved here, requires proof that the accused person knew what was going to happen and acted for the purpose of aiding in making it happen and that the thing that happened is murder. [Emphasis added.]

[80]         This was the trial judge’s only discussion of aiding....

[82]         The trial judge erred in his charge to the jury on the mens rea for party liability in two respects.

[83]         First, the trial judge did not, at any point in his instructions, describe the distinct essential elements of aiding, including the mens rea for party liability, nor relate the general description of aiding to the specifics of this case, nor review the evidence that may point to the appellant as a party to the offence.

[84]         Second, the trial judge did not instruct the jury that a finding of guilt for first degree murder as a party required the appellant to have knowledge of the principal’s planning and deliberation. As in Kelsie, to assume that the jury “would necessarily come to the conclusion that aiding first degree murder required the appellant to have knowledge of planning and deliberation” is not sufficient (¶88).

[86]         The distinction between mens rea for an aider and for a principal is important in this case.  Other than Lawrence’s testimony, there was no evidence that Greenwood was involved in the planning and deliberation of the murders.  Lindsay’s evidence, which I will discuss in more detail later, certainly calls into question Greenwood’s involvement and knowledge that a murder was going to take place, let alone a planned and deliberate murder.

90]         I would allow this ground of appeal.

Issue 2: The trial judge erred in failing to provide a sufficient corrective instruction when the jury heard hearsay evidence of Jeff Lynds in Mr. Greenwood’s arrest statement.

Jeff Lynds’ Hearsay Statement and the Trial Judge’s Instruction

[91]         This issue has two elements.  The first involves the admissibility of evidence.  When the jury heard Greenwood’s arrest statement, they heard the police officer say to Greenwood, “Mike gives you up, then you’ve got Jeff who’s the head of the Organization … both of them saying you had a gun, and you pulled the trigger”.  [Emphasis added.]

[92]         As noted earlier, the Jeff referred to is Jeff Lynds.  There is no evidence Jeff Lynds was at the Mersereau residence at the time of the shooting—he could not have seen Greenwood with a gun, nor could he see him pull the trigger.  Hearsay from him should not have been admitted.  The Crown acknowledges this.  The question then becomes whether the judge’s instruction to the jury alleviated any prejudice that arose as a result of this evidence having been admitted.

[94]         After this discussion, the offending portion was removed from the transcript the jury received.  However, they had already heard the evidence from the audio-tape.  The trial judge then said this to the jury:

... It’s only what Mr. Greenwood says and the only reason you’re hearing from anybody else is to give a context to what Mr. Greenwood says.  Counsel, is that instruction satisfactory? [Emphasis added.]

[95]         Greenwood’s counsel agreed the instruction was satisfactory.  Unfortunately, it was not.

[98]         Similarly, the trial judge here instructed the jury that what Jeff Lynds said was to give context to what Greenwood said.

[100] ... There is nothing to contextualize.  The evidence was clearly inadmissible and has no probative value.  Its prejudice is obvious.  The only issue was Greenwood’s credibility in his responses to the police officer on the audio-tape.  To tell the jury they could use Jeff Lynds’ hearsay evidence to give context to what Greenwood said creates the same issue as the first trial.  Attributing any value to what Jeff Lynds said was impermissible.

[106]   The jury could also have used or relied on the hearsay statement to corroborate Lawrence’s testimony.  The trial judge had provided the jury with a Vetrovec warning in relation to Lawrence’s evidence telling the jury it would be dangerous to accept Lawrence’s testimony unless someone else confirmed what he said.  Jeff Lynds’ statement does that—it puts Greenwood at the murder scene, with a gun, and pulling the trigger.

[107]   Even though Greenwood’s counsel agreed the instruction was sufficient, that does not allow us to diminish or excuse the misdirection (R. v. Kelsie, at ¶94).

[108]   I would allow this ground of appeal.

Issue 3: The trial judge erred in failing to differentiate between Jason Lindsay’s inculpatory and exculpatory evidence in his Vetrovec caution.

Jason Lindsay’s Vetrovec Warning

[125]   Jason Lindsay’s criminal record spans from 1991 to 2009.  In 2010, police told Lindsay they were charging him with Maddison’s murder based on information they received from Jeff Lynds.

[126]   Lindsay contacted police to give his story.  He signed an agreement with the RCMP and entered the witness protection program.  He was compensated monetarily for his cooperation and was never charged.

[127]   As noted earlier, Lindsay testified at Greenwood’s first trial, but died before the second trial.  His evidence from the first trial was played to the jury.  On September 6, 2000, he was at his friend Burgoyne’s house.  Lawrence and Curtis Lynds arrived talking of a plan for Lawrence to rob a Brink’s truck.  Lindsay agreed to be the getaway driver.  In return, he was to receive a rifle from Lynds.[4]  He picked Lawrence up at Lynds’ the next morning and dropped him off at a highway overpass around 6:30 a.m.

[130]   Lynds then directed Lindsay to a remote place in the woods, about a 40 to 45 minute drive away.  The same blue truck that Lindsay had seen the day before was there.

[131]   Lindsay waited in his vehicle while Lynds and Lawrence spoke beside the truck.

[132]   Lindsay then took Lynds and Lawrence back to Lynds’ house.

[134]   On September 10, Lawrence arrived at Lynds’ with Greenwood in a small multi-coloured car.  Greenwood looked pale, like he “saw something he shouldn’t have”.  Greenwood did not say anything.  Lynds asked Lawrence if he did it and Lawrence responded, “[Y]eah, I got them both”.

[135]   After the playback of Lindsay’s evidence, the trial judge provided a detailed mid-trial Vetrovecinstruction.  After referring to Lindsay’s criminal record, compensation from police, and incentive to avoid being charged with Mr. Maddison’s murder, the trial judge instructed the jury:

 ... There’s a danger of convicting somebody of murder based on the unconfirmed evidence of someone like Jason Lindsay, though it’s possible for you to do so if you’re satisfied that it’s true.

            […] it really has to be brought to your attention now so you’ll be aware of it, now and as the trial moves on. So during the rest of the trial you should look for and look back at what you’ve seen and heard for some confirmation of Jason Lindsay’s evidence from somebody or something other than Jason Lindsay before you rely on [his evidence in] deciding whether the Crown has proven the case against Mr. Greenwood beyond a reasonable doubt. ...

[136]   In R. v. Riley, 2019 NSCA 94, Scanlan J.A.’s dissent was upheld by the Supreme Court of Canada (2020 SCC 31).  In his reasons, Scanlan J.A. distinguished between purely exculpatory, inculpatory, and mixed witnesses when giving a Vetrovec warning:

[137]   The Vetrovec instruction was developed in recognition of the pitfalls associated with evidence coming from “unsavoury” witnesses.  When a Vetrovec instruction is applied to exculpatory witnesses it places an undue burden on an accused.  It may even shift the burden to an accused to present confirmatory evidence when there is no such obligation.  In the context of Mr. Johnson’s evidence he said, he alone committed the murder.  In such circumstances the appellant’s ability to present confirmatory evidence may well have been limited or in fact impossible.  Some aspect of that assertion must be correct for Nathan Johnson is serving a life sentence for the murder of Chad Smith.  The objective of a Vetrovec instruction is to put in place safeguards to protect against wrongful convictions, not to shift the burden of proof to an accused when it comes to an unsavoury exculpatory witness.

[138]   At law there is a difference between an exculpatory verses inculpatory witness when it comes to Vetrovec instruction.  The instruction should not be given in relation to exculpatory evidence.  The trial judge referred to the fact that Mr. Johnson was a Crown witness, perhaps implying that was a determining factor in his decision to instruct the jury as he did.  Who calls a witness is not determinative of, nor in fact does it have any bearing on, whether a Vetrovec instruction should be given.  It is the nature of their evidence (exculpatory, inculpatory, or mixed) that determines whether such a instruction should be given.  As I note below, even if a witness is a mixed witness, a trial judge has a duty to separate the inculpatory from the exculpatory evidence and explain the different application of the special instruction as it relates to the different types of evidence.

[137]   More recently in R. v. Grant, 2022 ONCA 337, the Ontario Court of Appeal addressed the importance of distinguishing between a witness’s inculpatory and exculpatory evidence:


[91]      Notwithstanding the exculpatory tendency of several aspects of Kamkin’s evidence, the trial judge included his evidence in her traditional charge on eyewitness identification evidence. That was an error for several reasons.

[93]      Second, the charge did not offer the jury any assistance about how to distinguish exculpatory from inculpatory evidence and assess the exculpatory evidence. Instead, it treated Kamkin’s evidence as a single whole. […] [Emphasis added.]

[138]   In my view, the judge here erred in a similar manner as the trial judge in Grant.

[139]   Lindsay’s evidence was largely exculpatory.  It is difficult to identify anything in his evidence that is inculpatory.  The only portion of his evidence that could be interpreted as inculpatory was his evidence Greenwood showed up in the company of Lawrence on the morning following the shootings.  Greenwood denied being there on that morning.  This may be an inconsistency, but it is far from implicating him as being an active participant in the murders or the planning and deliberation of them.

[140]   Even if he could be seen as a mixed witness, the tendency of the rest of his evidence was exculpatory. ...

[142] ... As in Grant, the trial judge failed to acknowledge that some of Lindsay’s evidence could have been exculpatory, nor did he offer the jury any assistance in determining between evidence that was exculpatory and inculpatory.  He simply treated Lindsay’s evidence as a single whole and instructed the jury accordingly.  He gave the same instruction for Lindsay as he did for Lawrence.  The distinction between the two of them is obvious—Lawrence’s evidence is inculpatory whereas Lindsay’s was largely exculpatory.

[143]   This was a material error.  Neither the lawyers nor the trial judge considered the distinction between inculpatory and exculpatory witnesses when considering whether to give the Vetrovec warning.

[144]   The jury was told to look for confirmation of Lindsay’s evidence before relying on it.  The error is of a nature that cannot be cured by the fact defence counsel did not object to it.

[145]   I would allow this ground of appeal.

Issue 6: The trial judge erred in failing to review the exculpatory evidence regarding the appellant’s membership in the conspiracy at step two of his Carter instruction.

The Carter Instruction

[154]   Greenwood argues the trial judge failed to review exculpatory evidence when he instructed the jury on Greenwood’s membership in the conspiracy to kill Christensen and Mersereau.  This is commonly referred to as the Carter instruction, after the case of R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938, and addresses the co‑conspirators exception to the hearsay rule.

[156]   The Ontario Court of Appeal in R. v. Gagnon (2000), 2000 CanLII 16863 (ON CA), 136 O.A.C. 116 (ONCA), summarized Carteras follows:

[50]      In R. v. Carter (1982), 1982 CanLII 35 (SCC), 67 C.C.C. (2d) 568, the Supreme Court of Canada set out the following three-tiered approach to apply in conspiracy cases:

Considering all the evidence, the trier of fact must conclude beyond a reasonable doubt that the conspiracy charged in the indictment existed.  This determination is independent of any consideration as to whether an indicted or unindicted conspirator is actually a member of the conspiracy charged.

Once the trier of fact is satisfied beyond a reasonable doubt that the conspiracy charged existed, the trier of fact must determine, exclusively on the basis of “evidence directly receivable against the accused”, whether the accused was probably a member of the conspiracy.  The trier of fact is not to consider co-conspirator hearsay evidence at this stage of deliberations.

If the trier of fact concludes that an accused was probably a member of the conspiracy, the trier of fact must determine whether the Crown has proven that accused’s membership in the conspiracy beyond a reasonable doubt.  At this stage of deliberations, the trier of fact is entitled to consider hearsay acts and declarations of co-conspirators made in furtherance of the objects of the conspiracy.  The trier of fact must be cautioned that the mere fact that the conclusion has been reached that an accused is probably a member of a conspiracy does not make a conviction automatic. [Emphasis added.]

[158] ... I cannot agree that the failure to give a full Carter instruction was not prejudicial to Greenwood.

[159] The trial judge’s instruction is relatively short ...

... You have to consider each person separately and decide whether he was probably part of the common design.  Consider only what each person himself did or said to decide whether he was probably a participant in the plan. ...

 ... So if you’re satisfied beyond a reasonable doubt there was a plan to murder Mersereau and Christensen, you’re satisfied as to probably who participated in the plan and that Mr. Greenwood was probably part of that plan, you can consider the out-of-court statements or conduct by someone else who you find was probably a participant in deciding the case against Leslie Greenwood.  ...

[160]   Not only did he fail to review exculpatory evidence, he did not explain to the jury or outline for them what evidence would constitute direct evidence of Greenwood’s participation in the conspiracy.

[161]   In Canada Criminal Code Offences, John Gibson and Henry Waldock discuss the requirements for jury instructions of the co-conspirator’s exception to the hearsay rule.  They note that the “trial judge must clearly identify for the jury which pieces of evidence it may use at each stage of the analysis and for what purpose.”[5]

[162]   Further, Black’s Law Dictionary[6] defines “direct evidence” as:

direct evidence. (16c) 1. Evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption.

[163]   As such, the term “direct evidence” includes both inculpatory and exculpatory evidence.

[164]   In R. v. White (1997), 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225 (ONCA), the Ontario Court of Appeal stated that there is no formula required for instructions to a jury on the Carter analysis.  ...

[165]   Unlike White, the trial judge here did not go through the evidence in detail to point out to the jury the evidence they could properly consider against Greenwood at step two of Carter.

[168]   Although, as the Crown says, it may not have been necessary to give the Carter instruction, if the trial judge was going to do so, he had to review the direct evidence, both exculpatory and inculpatory, against Greenwood at step two of Carter.  He failed to do so.  This was important as the only person who testified that Greenwood was involved in the planning of the murders was Lawrence.  Lindsay’s evidence could have called into question Greenwood’s involvement in the plan.

[170]   The jury should have been told they could use the out-of-court statements or conduct of others to decide if they were satisfied beyond a reasonable doubt Greenwood was a member of the conspiracy.  The trial judge instead instructed the jury if they found that Greenwood was probably part of the plan to murder Christensen and Mersereau, they could consider out-of-court statements or conduct of other participants “in deciding the case against Greenwood”.  The way the jury was instructed suggests they could find Greenwood guilty of first degree murder if they found he was probably a member of the conspiracy.  This is incorrect.

[171]   Given my concerns on the trial judge’s instruction on party liability, this instruction provided the jury with an impermissible path to conviction.

[172]   I would allow this ground of appeal.


[179]   I would allow the appeal, overturn both convictions, and order a new trial should the Crown choose to proceed in that manner.

R v Polusmiak, 2022 PECA 8

[July 15, 2022] Charter s.10(b) - Right to Translation of Rights, Charter s.9 - Overholding [Reasons by John K. Mitchell J.A. with Michele M. Murphy and David H. Jenkins JJ.A. concurring]

AUTHOR’S NOTE: This case is a useful high level reminder that simply reading someone their s.10(b) rights does not end the informational obligations of the police. They have to ensure the person understands. Where the person has objective difficulty with English, they have an obligation to use online translation services or a translator to ensure they understand the basic rights being read. Further, the case also deals with the s.9 overholding of an individual pursuant to police policies or practices. Such polices and practices do not trump Constitutional considerations. Where the two conflict, the policies are just evidence of systemic violations. 


[2] This appeal raises the question as to whether the police have adapted their practices to meet the challenge of changing demographics so as to ensure Charter protections apply regardless of one’s language or culture.

[3] Vira Polusmiak (“Polusmiak”) was born in Ukraine in 1972 when that country was part of the Union of Soviet Socialist Republics. She grew up speaking Ukrainian and was educated in the Russian language. In 2017, at the age of 45, she immigrated to Canada. Her level of English was described by her employer as “Basic. Limited.”

[4] On the 6th of June 2019 she was involved in a single vehicle accident. Police arrived at the scene and made a demand that she provide samples of her breath so as to enable an analysis by means of an approved screening device pursuant to s. 320.27(1)(b) of the Criminal Code (ASD demand).

[5] As Polusmiak had not provided a proper sample after several attempts, she was charged with refusal contrary to s. 320.15(1). She was then transported to the Provincial Correctional Centre where she was lodged for approximately eight hours before being released.

[10] In my view the questions raised by Polusmiak have significance to the administration of justice beyond the circumstances of this case and, as well, meet the test of having a reasonable possibility of success (R. v. R.(R.), 2008 ONCA 497, R. v. Dorgan, 2009 PECA 23). For the reasons that follow, I would grant leave to appeal, allow the appeal and quash the conviction.

[12] When Constable Conwell arrived at the scene, he ascertained that the driver of the motor vehicle was Polusmiak. Constable Conwell approached the motor vehicle and asked Polusmiak for her driver’s license, registration and insurance. She opened the glovebox and handed him two service center receipts. He asked again for the driver’s license, registration and insurance. This time she gave him the owner’s manual. About that time the ambulance arrived and Constable Conwell, quite properly, turned Polusmiak over to the ambulance attendants. One ambulance attendant observed that there was “some sort of barrier as (Polusmiak) was unable to give information required for our paperwork such as her address, phone number and next of kin.” She stated that it was difficult to communicate with Polusmiak and that she had to repeat herself several times. The second ambulance attendant said “yes, I would say there was difficulty understanding. Unsure of why or what originated that difficulty understanding. She had an obvious accent.” He also stated that her gait was “straight. It didn’t appear to be staggered.”

[13] Constable Conwell noted that it was apparent that English was not Polusmiak’s first language “from her accent answering yes and no questions.”

[14] Following assessment by the ambulance attendants, Constable Conwell took control of Polusmiak. Constable Conwell detected what he described as a “slight odour of alcohol” emanating from Polusmiak. Having grounds for an ASD demand, he read the demand “a little slower” than normal because, as he said, “it was apparent that English wasn’t her first language, and the demand can be a little complex.”

[15] When asked if she understood the demand, Polusmiak answered “yes” and nodded in the affirmative. Over the next half hour or so Polusmiak made several unsuccessful attempts. Constable Conwell told Polusmiak to “take a breath and blow into the mouthpiece continuously” until he said stop. During at least one of these attempts, Constable Conwell told Polusmiak to “blow, blow, blow”. Polusmiak was re- instructed several times and Sergeant McCarron did a demonstration on the approved screening device. Constable MacIntyre did a further demonstration by having Polusmiak blow on her hand to show that the breath had to be continuous and sufficiently strong. The officers also used exaggerated gestures to communicate to Polusmiak what she was required to do. In Constable Conwell’s 14 years with the force this was the first time he had seen a police officer demonstrate an approved screening device for an accused at the scene.

[16] After several attempts the police ran out of new clean mouthpieces. Polusmiak was then arrested at 1:38 a.m. for refusal. She was then read her s. 10(b) rights. When she was asked if she understood, she said yes. She was then told she had the right to call a lawyer of her choice and that she had the right to free advice from a lawyer. She was asked “do you understand.” She replied yes. She was then asked directly if she wished to call her lawyer.

[17] When questioned on direct as to Polusmiak’s response to that question, Constable Conwell replied:

A: I don’t know what her specific response was but she wasn’t sure what – what she wanted to do, and then I re-explained to her that it’s her right upon arrest to contact a lawyer immediately.

Q: And what did she say after that?

A: After that my understanding is she indicated that she would speak to her husband the following day and contact a lawyer at that point.

[18] Constable Conwell took this as a waiver of her right to counsel “because she didn’t indicate that she wanted to speak to a lawyer immediately.” There was no discussion amongst the three police officers as to whether to release Polusmiak....

[19] Polusmiak made it clear to Constable MacIntyre on the way to the Provincial Correctional Centre that she wanted to go home to her husband. The officer knew that she lived close by the scene. The accident occurred at the intersection of the Beach Grove Road and the North River Road. Polusmiak lives on Beach Grove Road around the corner from the scene. Nonetheless, Polusmiak was then taken to and lodged overnight at the Provincial Correctional Centre.

[20] Constable MacNeil came on duty at seven a.m. when the shift changed. She attended the morning briefing and thereafter went to the Provincial Correctional Centre at approximately 8:20 to pick up Polusmiak. They returned to the police station where Polusmiak was fingerprinted and released on a Promise to Appear and she was driven home.

[21] Polusmiak’s position at trial was that she speaks Ukrainian and Russian and that her ability to communicate and understand English is limited. Her evidence was that she did not understand her s. 10(b) rights when they were read to her. She testified that she spoke “very, very little English;” that her English was tested in 2017 as “beginner, second level;” that she didn’t understand what was being said to her; that she didn’t know the word “lawyer” or its meaning; that she thought the police were taking her home when in fact they were taking her to the Provincial Correctional Centre.

[22] Cathy DesRoches is the Executive Director of Housekeeping at the Delta Hotel in Charlottetown where Polusmiak works as a housekeeper. DesRoches described Polusmiak’s level of English as “Basic. Limited”. The only reason that Polusmiak was hired because there was a Russian speaker who could do her training in Russian; therefore, she would not have to be trained in English. DesRoches described her communications with Polusmiak as being “very challenging.” She often found it necessary to use Google Translate in order to communicate with Polusmiak.

Right to retain and instruct counsel without delay and to be informed of that right - Section 10(b):
[25] The law is clear that a detainee has the right to be informed of their s. 10(b) rights in a meaningful and comprehensive way. Police are not required to go to extreme measures in order to respect a person’s s. 10(b) rights. The key question is whether a detainee had been advised of his/her rights in a meaningful, comprehensive manner. That means a detainee must understand what is being said to him/her and understand his/her options (R. v. Vanstaceghem, [1987] 21 O.A.C. 210). Where unique or special circumstances exist, as for example where the police are alerted that a detainee has difficulty understanding the language in which his or her right to counsel are read, there is an obligation on the police to take further reasonable steps to ascertain and ensure the individual’s constitutional rights are understood (R. v. Vanstaceghem, supra; R. v. Lukavecki, [1992] O.J. No. 2123 (ONCJ) ; R. v. Tsang, 2022 ONCJ 201, at para. 23; R. v. Ukumu, 2019 ONSC 3731). Those reasonable steps may, in the proper circumstances, include putting the individual in contact with an interpreter.

[27] Polusmiak argued at trial that her comprehension of the English language was such that she did not understand either the ASD demand or her s. 10(b) rights. The trial judge’s finding on the issue of Polusmiak’s comprehension of English was focussed on the ASD demand. The unstated assumption of both the trial judge and the SCAC is that if Polusmiak’s comprehension of English was such that she could understand the ASD demand, then she could understand her Charter rights. This is a dubious assumption.

[30]  The SCAC also found no error in the trial judge’s finding that the police fulfilled their obligations under s. 10(b) of the Charter. The trial judge wrote, at para. 52:

There is no evidence upon which, in this case, to find there was any breach of the right to counsel. Constable Conwell discharged his obligations under the Charter, in particular by following up with Ms. Polusmiak after reading her the initial right to counsel, by telling her she had the right to immediately contact counsel in respect of the matter. It was quite right and appropriate for him to do so in order to discharge his obligations, which is the informational component of the right to counsel.

[32] Both these findings, the finding that Polusmiak understood based on the evidence of the police officers, and the finding that police discharged their obligations under the Charter, constitute errors of law.

[33] The question is not whether the police believed Polusmiak understood nor is it whether the police are credible. The question is whether Polusmiak understood. To that end the trier of fact must assess all the evidence, not just the subjective belief of the police. The test contains an objective element which has to be applied by a court viewing the circumstances after the fact and it is not dependent only on the bona fides or the credibility of the police (R. v. Lukavecki, supra, at para. 22).

[34] A police officer does not discharge his obligations under the Charter by repeating himself in a language which the detainee does not understand.

[35] The police officer’s belief is important and relevant evidence but it is not dispositive. Evidence that there was some communication in English and that an accused person replied in the affirmative when asked if he/she understood is also relevant but also not dispositive (R. v. Vanstaceghem, supra, at para. 7; R. v. Lukavecki, supra, at para. 16; R. v. Ukumu, supra, at para. 42). Evidence that the individual is capable of day-to-day verbal communication in English at a level below average but more advanced than basic is also relevant but not dispositive (R. v. Ukumu, at para. 42).

[37] The trial judge did not make a finding of special circumstances. Instead, she dealt directly with the issue of Polusmiak’s understanding of English by relying on the credibility and bona fides of evidence of three police officers. The SCAC found there were no special circumstances again relying on the credibility and bona fides of the police. This is a reversible error of law. In addition, however, in my view a finding that Polusmiak understood her rights, even if it was based on the evidence of the police officers, was unreasonable.

[38] While the police in this case were loathe to admit it, on any fair reading of the evidence there can be no doubt that Polusmiak was struggling to understand. The police knew or ought to have known that fact.

[39] The very fact that in order to communicate the ASD demand the police found it necessary to take some rather unusual steps such as: reading the demand more slowly; communicating with exaggerated gestures; having one officer demonstrate the device (the only time in Constable Conwell’s experience that this was done); and having another officer demonstrate by blowing on Polusmiak’s hand to show the force necessary, leads one to the inexorable conclusion that Polusmiak was having difficulty understanding. It ought to have been obvious to the police that language was a real issue in this case.

[40] On the police evidence it appears they were blind to Polusmiak’s struggle with understanding. On cross-examination Sergeant McCarron agreed that the fact that the three officers went through these extra steps “could” indicate that Polusmiak was having difficulty understanding. Yet no one asked Polusmiak what was her mother tongue.

[42] In addition, the police ought to have been alerted when Constable Conwell initially asked Polusmiak for her license, registration and insurance, and she produced two receipts and her owner’s manual. Constable MacIntyre’s evidence was that when Constable Conwell asked for license, registration and insurance, Polusmiak “would look for it and then look at us again as if, like asking us what we were looking for.” Constable McCarron’s evidence was that when she was taking Polusmiak to the Provincial Correctional Centre to be lodged for the night, that Polusmiak “wasn’t really understanding the situation.”

[43] The police didn’t know when Polusmiak came to Canada, what her mother tongue was -- although Constable MacIntyre said that she may have indicated she was from Russia, whether she had taken English courses or her competency had been tested, and if so, what level her comprehension was. They didn’t know because they did not ask. They ignored the obvious; Polusmiak was having difficulty understanding English.

[45] At trial Polusmiak testified that she didn’t understand what the word “lawyer” meant. In Lukavecki, supra, the court wrote at para. 20:

Balanced against his finding of credibility is the overriding concern of our courts that persons understand their Charter rights to counsel, and when one is dealing with a person whose first language is not English, there is always a suspicion and concern with respect to the ability to comprehend, particularly information as to legal rights using words such as ‘counsel’ and ‘legal aid’.

[46] Polusmiak’s evidence was that she spoke “very, very little English” and that she did not understand the word “lawyer.” If she did not understand the word “lawyer” then she did not understand her s. 10(b) rights and she did not understand her options. Her evidence that she didn’t understand or know the meaning of “lawyer” was not subject to an adverse finding of credibility by the trial judge.

[50] In my view, the SCAC erred in finding that Polusmiak understood her s. 10(b) rights based on the police evidence without taking into account all other objective evidence. Furthermore, the SCAC erred in concluding that the police had fulfilled their constitutional duties by simply repeating the same information in the same language in which Polusmiak had a basic and limited understanding.

[51] The police were aware, or ought to have been aware, that Polusmiak’s first language was not English and that she was having difficulty understanding. That brought upon the police a duty to take further steps to ascertain and ensure that Polusmiak understood her constitutional rights. They did not fulfill that duty.

[52] The facts of this case constitute, in my view, a regrettable disregard for Polusmiak’s constitutional rights.

Section 9 -- Arbitrary detention
[60] Part XVI of the Criminal Code of Canada is entitled “Compelling Appearance of Accused before a Justice and Interim Release.” It deals with, inter alia, police powers of arrest and release. Sections 493 to 499 of Part XVI of the Code are bread and butter sections for police officers. They specifically concern a police officer’s powers and duties upon arrest. Section 493.1 states that in making any decision under Part XVI a police officer shall give the primary consideration to the release of an accused at the earliest reasonable opportunity. The heading to section 493.1 is: “Principle of Restraint.” This section serves to underline the importance of the liberty of the subject in a free and democratic society. These sections and in particular s. 498(1.1) require the police to release an individual charged with an offence (other than an offence listed in s. 469) unless it is necessary in the public interest that the person be detained having regard to all circumstances including the need to:

  1. establish the identity of the person;
  2. secure or preserve evidence of or relating to the offence;
  3. prevent the continuation or repetition of the offence or the commission of another offence; or
  4. ensure the safety and security of any victim or witnesses to the offence; and finally,
  5. if the person is released from custody, the person will fail to attend court.
[61] Alleging that her Charter rights are violated, Polusmiak has the onus of proving the violation on the balance of probabilities. In my view, she shouldered that burden.

[62] Constable Conwell was the first officer on scene. He conducted the investigation and made the arrest. The evidence points to him having been the officer- in-charge. Constable Conwell acknowledged that he did not evaluate the criteria listed in s. 498(1.1). He testified that in his interactions with Polusmiak, he detected a slight odour of alcohol on her breath, and nothing else remarkable, and that he had no discussion that he could recall with the back-up officers Constable MacIntyre and Sergeant McCarron leading up to his decision to lodge Polusmiak in custody prior to the back-up officers taking the accused to the Provincial Correctional Centre. He testified as to his practice of what considerations he takes into account when making a decision whether or not to lodge someone following an impaired driving investigation: that level of impairment is usually the big one, and the other is public safety; and that he had not cases himself, but has heard of cases where people have been released and subsequently drove again after being dealt with previously for impaired driving. Asked whether those concerns were present in this investigation, he responded there is always a concern whether somebody is going to operate a motor vehicle again. Asked whether the car the accused was driving was unable to be driven, he responded that it was definitely not drivable. Asked whether there was a sober adult to whom he could release the accused at that time, he responded that he did not look into that.

[63] Here, the police officer-in-charge applied a general policy, either his own or of the Charlottetown Police Service’s; in any event, he did not carry out an individualized assessment. There was no assessment or evidence of the officer-in-charge having developed an appreciation for whether Polusmiak, the accused person in this particular case: (i) was at risk at driving if released; (ii) had a sober person in whose care she could be placed; or (iii) the risk of effects or unintended consequences on Polusmiak in her particular circumstances. The officer-in-charge did not make an assessment of her level of impairment, except to say that the odour he smelled was slight, and there was nothing else remarkable. It is important to note that Constable Conwell made the demand under s. 320.27 and not under s. 320.28. An officer may make a legal ASD demand under s. 320.27 where he has grounds to believe that a person has alcohol in his body. In order to make a demand under s. 320.28 the officer must have reasonable grounds to believe that the person is impaired. The necessary inference to be drawn is that Constable Conwell had no grounds to believe that Polusmiak was impaired, only that she had alcohol in her body.

[66] Constable MacIntyre’s evidence was that the level of intoxication was the “big” consideration in deciding whether to release, that it is the lead officer who makes the assessment and with a refusal she “usually” incarcerates an accused because she doesn’t “know how high (the blood alcohol concentration) is,” so incarceration “is for their own safety.” She also referred to “our policy” of incarcerating individuals if their blood alcohol concentration is greater than 200 milligrams percent.

[70] Incarcerating those who are charged with refusal simply because you don’t know the individual’s blood alcohol concentration is nonsensical and contrary to the law. Finally, Constable MacIntyre did not ask whether there was a second motor vehicle at Polusmiak’s home or whether there was someone in whose care she could be placed prior to making the decision to arrest her having been made. Constable MacIntyre was, however, aware on the way to the Provincial Correctional Centre that Polusmiak was asking to be taken home to her husband. That request moved neither Constable MacIntyre nor Sergeant McCarron.

[71] It was an error of law for the trial judge and the SCAC to cobble together evidence from three police officers to conclude that incarceration was for the personal safety of Polusmiak. That is the role of the lead officer Constable Conwell. He came to no such conclusion.

[72] A detention not authorized by law is arbitrary and violates s. 9 of the Charter. The law that governs post-arrest detention is clear and should be known to peace officers. A detention is authorized by law and therefore not arbitrary if the decision is made pursuant to the Code. On the other hand, if the person is not held pursuant to these provisions, the detention is arbitrary: R. v. Grant, 2009 SCC 32, at para. 54. When a person is detained and investigative steps are complete, officers must turn their attention to the detainee’s release. The officer is required to analyze any and all of the factors present before making an informed decision of whether it is in the public interest to detain the person for a reason listed or arising from s. 498(1.1) of the Code. This is a highly contextual assessment and, is subject to review for reasonableness: R. v. Price, supra, at para. 93; R. v. Hardy, 2015 MBCA 51, at para. 49. A breach of the Charter guarantee can occur as a result of lack of knowledge, negligence, or intentional act to overhold without lawful authority.

[73] A decision to arrest and detain an individual should be based on reasons relating specifically to that individual. Section 9 of the Charter is intended to guarantee an individual, not a collective or common right. Courts should bear this in mind when searching for an appropriate meaning to attach to “arbitrarily detained.” The Supreme Court of Canada has said on numerous occasions that a purposive approach should be taken to the interpretation of the Charter (R. v. Grant, supra, at para. 15; see also: R. v. Pithart, [1987] 34 C.C.C. (3rd) 150 (BC County Court), p. 10; adopted in R. v. Hotte, 2015 ABQB 323, at para. 36).

[74] Following a blanket policy regarding the release of an individual instead of performing an individualized assessment can constitute arbitrary detention: R. v. Hotte, supra, at para. 35 (includes many additional citations). In Hotte, the police policy stated that every person who resides more than 200 kilometers outside of Edmonton cannot be released on a promise to appear. The court found that this policy effectively took away the police officer’s discretion to release pursuant to s. 498(1) of the Code. The appeal court concluded there was insufficient evidence from the Sergeant to support the trial judge’s finding that the police Sergeant had considered anything more than the distance from Edmonton that the accused lived, and accordingly, this was a palpable and overriding error in the trial judge’s finding of fact. More importantly, the SCAC found that what happened “was that the Sergeant was unaware of his duty to release pursuant to s. 498(1), and was only concerned with applying the EPS policy, which policy the trial judge did not specifically address. Accordingly, in failing to release the accused without considering s. 498(1), the Sergeant violated the mandatory requirements of that section ...”.

[75] In R. v. Ternowsky, 2014 ABPC 109, the main problematic issue was the length of time of detention. It is interesting to observe though (at para. 35) that release following arrest will be the default position absent evidence showing a basis for detention; (at para. 40) that a detention of over six hours without a reassessment of release possibilities constituted a s. 9 Charter breach; and (at para. 32) the fact that an individual’s blood alcohol level exceeds the legal limit is not in itself reason for detention: citizens cannot be detained on the basis that they are at risk of driving simply because they have access to a vehicle and are “over.”

[78] R. v. Price, supra, is a summary conviction appeal decision that is often cited for its listing of the kinds of factors that police could or should take into consideration under s. 498(1.1). Price also provides guidance as to the fundamental principles applicable to arbitrary detention. Durno J. adopts the Court of Appeal direction in Iseler for the requirement for an individualized assessment specific to the accused, and the exercise that needs to be performed. He wrote, at para. 93:

...The officer-in-charge must have consideration to all of the circumstances. A non- exhaustive list of those conditions would include: the accused's blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused's vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established.

[79] The Charter breach occurred when the officer-in-charge turned Polusmiak over to the back-up officers for transfer to be detained overnight at the Provincial Correctional Centre without giving any consideration to the factors in s. 498(1.1) and other relevant factors. The arbitrary detention continued when the back-up police officers declined Polusmiak’s request to be taken home to her spouse and forged ahead to detain her until the morning. In this case, the detention had severe consequences. Polusmiak testified she thought she was being taken to and kept in a police station, which was her understanding from being a citizen of Ukraine. Considering herself a failure because she had been detained, upon release she bought and then took sleeping pills in order to end her life. She awoke in hospital.

[80] The policy, if indeed it is such policy, referred to by both Sergeant McCarron and Constable MacIntyre of incarcerating those with a blood alcohol level greater than 200 milligrams percent without considering all of the relevant factors as well as Constable MacIntyre’s “usual” practice of incarcerating those who are charged with refusal is evidence of a systemic problem. Everybody with a blood alcohol level greater than 200 milligrams percent is impaired. Not every impaired person is a danger to himself or others or likely to commit an offence. Those who are charged with refusal may or may not be impaired. While level of intoxication is important, it must be considered with all other relevant factors. The heading of s. 493.1 is apt to remember: restraint. Incarcerating someone solely because they refused and the blood alcohol concentration is unknown without considering all other relevant factors constitutes an arbitrary detention.

Section 24(2): Obtained in a manner

[87] ...R. v. Pino, 2016 ONCA 398

[88] ...Laskin J.A. for the court, provided an extensive review of the development of law on this issue. He concluded at para. 72 that the court’s approach to whether or not evidence was obtained in a manner that infringed on an individual’s right should be guided by the following considerations.

  • The approach should be generous, consistent with the purpose of s. 24(2).
  • The court should consider the entire “chain of events” between the accused and the police.
  • The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct.
  • The connection between the evidence and the breach may be causal, temporal or contextual or any combination of the three connectors.
  • But the connection cannot be either tenuous or remote.
[89] Applying these considerations to the case at bar, there is both a s. 10(b) and a s. 9 breach. The evidence sought to be excluded and both breaches are all part and parcel of the same transaction. The issue of Polusmiak’s ability to comprehend English is the thread which weaves through the entire event. This connection is both temporal, contextual and not too remote. In my view, the evidence was obtained in a manner that infringed Polusmiak’s rights.

The Grant Factors

- Seriousness of the Charter-infringing state conduct

[94] A person’s right to counsel under s. 10(b) is more complicated. The word “counsel” or “lawyer” cannot be mimicked or demonstrated as blowing into an ASD can. Notwithstanding that it was obvious English was not Polusmiak’s first language and that she was experiencing difficulty understanding, police did nothing to ensure that she understood her constitutional right to counsel. Police should have been cognizant of this fact from the outset and taken appropriate steps including establishing the language she spoke, asking her to repeat what they had told her, perhaps accessing a digital application for language translation, and finally, if necessary, accessing a translator.

[95] The s. 9 breach was even more serious. The police arrest and release people daily. They must be familiar with ss. 493-499 of the Code and in particular, s. 498(1.1). In this case, none of the three police officers seemed to direct their mind to those sections. Sergeant McCarron’s evidence was that they “normally” incarcerate individuals who have a reading over 200. Constable MacIntyre referred to that practice as a “policy.” While it is not directly relevant to the case at bar, a reading over 200 alone is not sufficient grounds to detain a person in jail (R. v. Price, supra).

[96] Constable MacIntyre’s evidence discloses a bigger problem. She “usually” incarcerates those charged with refusal because she doesn’t know how high the blood alcohol concentration is. She concludes then if she doesn’t have a reading and doesn’t know how high the blood alcohol concentration is, she incarcerates them for their own safety. The logic in this is bewildering. If a Sergeant who has been with the police force 24 years and a Constable who has been with the police force nine years “normally” or “usually” put citizens in jail solely because they have a reading of over 200 or they are charged with failing or refusing, then the police are incarcerating a lot of individuals unnecessarily. The court cannot condone this practice.

- Impact of the Charter-protected interest of the accused

[98] The s. 10(b) breach undermined Polusmiak’s right and ability to receive legal advice at a time when she was vulnerable and in dire need of advice. A telephone call with a lawyer may well have prevented the s. 9 breach as counsel may have been able to communicate relevant information that the police hadn’t sought. For example, the fact that her husband was home and that he spoke English.

[99] The s. 9 breach goes to the liberty of the subject. Liberty is one of the fundamental norms of the rule of law. This woman, crying, upset and unfamiliar with the language was handcuffed, put in jail and kept there for approximately seven hours. Nobody thought to ask if she had a husband or family member in whose care she could be put.

- Society’s interest in the adjudication of the merits

[101] The evidence sought to be excluded is reliable and its exclusion would be fatal to the Crown’s case. Nonetheless, that fact must not deafen the court to the long- term repute of the administration of justice. The Charter is there for all Canadians.

[103] I would allow the appeal and quash the conviction.