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Delay in facilitating counsel renders evidence inadmissible

Convictions related to drug offences have been overturned because the police waited almost three hours before arranging access to a lawyer, a serious Charter breach that significantly impacted an accused, the Ontario Court of Appeal has ruled.

In R. v. Noel, 2019 ONCA 860, the police obtained a warrant, based on confidential information and surveillance, to search the accused’s residence for cocaine, other controlled substances, and other evidence of drug trafficking. He lived with his partner and his brother, and all three were suspected of small-scale cocaine trafficking.

When the warrant was executed, police used a dynamic entry. Noel was arrested at gunpoint in a bedroom containing his belongings and identification. His partner and his brother were also arrested. Noel was not immediately advised of his right to counsel. Instead, he was brought to a central location in the house where, within five minutes of police entry, he was read his right to counsel. He asked to speak to a lawyer, but no steps were taken to facilitate his right to counsel at that time.

Police found $5,670 in Canadian and another $71 in U.S. funds, 73 grams of cocaine, 55 grams of marijuana, and a digital scale in the same bedroom where Noel was arrested. He was taken to the police station but no one facilitated his right to counsel. Police called duty counsel and left a message requesting a return call, but there was no evidence duty counsel ever called back.

A judge in the Ontario Superior Court of Justice ruled Noel’s right to consult counsel without delay was violated due to an implementational breach. However, the judge refused to exclude the evidence under s. 24(2). She found the seriousness of the breach was attenuated because the police complied with their obligation to hold off questioning Noel until after contact with counsel was facilitated.

Further, the judge found there was no evidence Noel’s s. 10(b) right to counsel was denied, or that the delay impacted adversely on his ability to have a meaningful conversation with counsel. Convictions for drug related offences followed.

Noel appealed his convictions to Ontario’s top court. He argued, among other things, that the trial judge erred in not excluding the evidence under s. 24(2). The Court of Appeal agreed, finding the trial judge erred in determining the seriousness and impact of the delay in facilitating Noel’s right to counsel.

As for the seriousness of the breach, it was not lessened because the police held off questioning. If the police tried to question Noel before providing a reasonable opportunity to speak to counsel, that would have been an additional s. 10(b) breach.

Moreover, there was no evidence Noel ever spoke to a lawyer. The best that could be said was that the police left a message for duty counsel about three hours after his arrest, but there was no evidence that anyone followed up to ensure contact occurred. The trial judge inappropriately proceeded on the assumption that Noel ultimately spoke to counsel.

As for the impact of the Charter breach on Noel, it was not neutralized because the right to counsel was delayed, as opposed to denied. Nor did Noel need to demonstrate the delay caused him the inability to have meaningful conversation with counsel albeit late.

“The right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of their detention,” the Court of Appeal said. “Detention also raises questions of immediate importance relating to the detainee’s rights during detention, including the right against self-incrimination. Beyond this, the right to counsel is also important in providing ‘reassurance’ and advice on such questions as how long the detention is apt to last, and what can or should be done to regain liberty.”

In this case, Noel asked to speak to counsel promptly but that right was denied. He was not required to offer direct evidence about why he required access to counsel without delay.

Since the trial judge erred in her admissibility analysis, the Court of Appeal did a fresh s. 24(2) determination and came to a different conclusion. First, the s. 10(b) violation was serious. Noel was under the control of the police and no one took charge to ensure he had access to counsel as he requested. He was placed in a cell and left there. Three hours passed between the time of the arrest and the first confirmed attempt by the police to contact counsel for him.

“From the beginning, the police appear to have had a somewhat cavalier attitude about a fundamental, important, and long-settled Charter right to consult counsel without delay,” the appeal court said.

Second, the impact of the breach on Noel’s Charter-protected interest was significant, not neutral as the trial judge held. He remained in custody without the benefit of a lawyer for at least three hours. He was unable to receive the direction, reassurance, and advice that counsel could provide.

Although the evidence was reliable and necessary to the Crown’s case, the Court of Appeal nevertheless excluded it.

“This was a clear violation of a well-established rule,” it said. “The law around s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out. Furthermore, it is troubling that the police in this case could not provide any reasonable explanation for the delay, nor could they even say whether Mr. Noel did, in fact, speak to counsel.”

Noel’s appeal was allowed, the evidence was excluded, his convictions were set aside and verdicts of acquittal were entered.

Mike Novakowski is Blue Line’s case law columnist.