Drug conviction overturned over s. 10(b) Charter breach

The Ontario Court of Appeal has thrown out a man’s drug trafficking conviction because he was denied his s. 10(b) Charter right to legal counsel.

The man’s lawyer, Leo Salloum of Grill Barristers, says his client’s case R. v. Noel as well as the 2018 decision in R. v. Rover, show consistency from the Court of Appeal in the view that right to counsel is not a “merely procedural,” “paper right.”

“The Court of Appeal has long been consistent about the fact that your right to speak to your lawyer as soon as you're being detained by police is a matter of personal autonomy. It's a matter of grave importance,” Salloum says. “… The Court of Appeal is reminding trial courts around Ontario that this isn't a question of a minor bureaucratic obligation for the police.”

In R. v. Noel, the police raided the accused’s Oshawa, Ont.-area home at 10:28 pm, arresting the suspect at gunpoint shortly after. The police found 73 grams of cocaine and over $5,000 in cash. Shortly after the arrest, when he was read his rights to counsel, Noel asked to speak to a lawyer. The police arrived at the station with their suspect at 11:10 pm. It wasn’t until 12:48 am that one of the police officers called duty counsel on Noel’s behalf. Though Noel’s brother – also arrested at the scene – received a call from duty counsel, Noel did not and “the evidence did not establish whether duty counsel ever called back,” states the decision reached by Justices Grant Huscroft, David Paciocco and Ian Nordheimer.

“This decision is significant as it emphasizes how important it is for police to be focused, organized and efficient in ensuring that all arrested persons receive timely access to counsel,” says Marie Comiskey, who acted for the Crown in the case.

At his trial, Noel argued that the search warrant was invalid, that the police raid violated his s. 8 protection against unreasonable search and seizure, that his arrest was “arbitrary” and counter to s. 9 and that police to facilitate his s. 10(b) right to counsel.

Section 10(b) has two parts, says Salloum. There is both an information component – telling the arrested suspect they have a right to a lawyer, as well as an implementation component – taking steps to put the detained person in touch with a lawyer. There is often delay in the implementation component, but that delay cannot be unreasonable or unnecessary, he says.

“They should be putting you in touch with a lawyer as quickly as they practically can,” he says.  

In 2018, Justice Jocelyn Speyer of the Superior Court of Justice rejected all but one of Noel’s arguments, agreeing the implementational aspect of his right to counsel was infringed. Speyer, however, denied Noel’s attempt – under s.24(2) of the Charter – to exclude the cocaine and cash from evidence on that basis.

Noel repurposed his Charter-breach arguments for the Court of Appeal, which found the Speyer’s s. 24(2) ruling erred in evaluating the seriousness and impact of the s. 10(b) breach. Speyer had found the seriousness of the breach was attenuated by the fact the police held off questioning Noel until he spoke with a lawyer. The Court of Appeal found the police had, in fact, tried to use Noel “as a source of self-incriminating evidence” and there was no evidence he ever succeeded in speaking to counsel, said the decision.

Speyer had found there was evidence that right to counsel was delayed but not that it was denied, nor that the delay had an adverse impact on his ability to “have a meaningful conversation with counsel,” said the decision. Speyer added the onus was on Noel to testify on the breach’s impact on his protected right, which he didn’t.

“With respect, this passage reflects a misunderstanding of the relevant Charter protected interest,” the Court of Appeal Justices wrote in the decision. “That interest is the right is to consult counsel without delay. The loss of this right is in no way neutralized because the right to consult counsel is delayed, as opposed to denied. Nor is the impact of delayed access to counsel neutralized where an accused fails to demonstrate that the delay caused them to be unable to have a late but meaningful conversation with counsel. It would be inconsistent with solicitor-client privilege to expect a detainee to lead evidence about the quality of their solicitor-client conversation. More importantly, this inquiry misses the mark.”

Those arrested require “immediate” legal advice, which they can’t access without the police’s help because they are detained, said the decision. The lawfulness of the arrest and search of private property, the obligation to submit, validity of search warrant and the scope of authority it gives to police are all questions a lawyer needs to answer for the accused, said the decision. The court cited R v. Rover to show the psychological value of access to counsel, which shows the accused “they are not entirely at the mercy of the police.”

On appeal, the Crown’s position was that “the trial judge correctly found that the lack of careful attention to ensuring timely access to counsel for Mr. Daniel Noel resulted in a s.10(b) breach” but the judge “had correctly exercised her discretion” in admitting the evidence, says Comiskey. She adds that the evidence suggests there may have been confusion by the police, because Noel’s brother and girlfriend were also arrested. When, at 1:25 am, the police discovered the others had heard from duty counsel “corrective action was taken” by the police, she says.

The Court of Appeal made no finding on Noel’s other Charter motions, finding it unnecessary to deal with them because of “the significance of the s. 10(b) implementational error,” said the decision. Noel’s appeal was allowed, convictions set aside and verdicts of acquittal substituted.

As house-raids such as the one in R v. Noel are so meticulously planned, strategically, by police, Salloum says police should also be planning on how they’re going to ensure the accused talks to a lawyer, so the case makes it through the courts.

“They bring a battering ram to get the door down. They talk about what order people are going to be in as they go through the door. They should be planning a strategy, in advance, ‘how are we going to make sure that if we detain anybody, that they get to talk to their lawyer.’ Because otherwise, cases like this will keep happening,” he says.