R. v. Noel, 2019 ONCA 860

RIGHT TO COUNSEL - 10(B) - CHARTER REMEDIES - 24(2)

Facts

Noel, his partner Stacey Long, and his brother shared a residence. Police obtained a warrant to search Noel’s residence; all three were suspected of small-scale cocaine trafficking. The warrant, granted on confidential information, authorized search for cocaine, controlled substances and evidence of drug trafficking. Shortly after the execution of the search warrant, around 10:30 pm, the appellant was arrested at gunpoint by Officer Aiello. He was not advised of his right to counsel. The appellant was brought to a central location in the house where, within five minutes, a separate office read him his rights to counsel. He asked to speak to a lawyer, neither office took steps to facilitate his right to counsel. The search produced approximately $5000 CAD, 73 grams of cocaine, 55 grams of marijuana and a digital scale. About 30 minutes after the entry into the appellant’s residence (11:00 pm), the appellant was transported to the station where he claimed ownership of the drugs. Upon his arrival at the station, no one facilitated his right to counsel. Around 12:50 am, an officer called duty counsel and left a message requesting they return his call. At 1:25 am, duty counsel called Noel’s brother back. An officer called duty counsel office and left a message for someone to call Noel. It is unclear whether duty counsel ever called back. The trial judge found that the appellant’s s. 10(b) rights were violated but admitted the evidence under 24(2).

Section 24(2) Analysis

(i) Seriousness of the Breach

The trial judge found the seriousness of the 10(b) breach to be attenuated by the police holding off questioning until the appellant’s contact with counsel was facilitated. In doing so, the trial judge committed errors of principle. First, the seriousness of a Charter breach cannot be minimized by the fact that the police did not commit additional breaches of the appellant’s rights. Second, there is no evidence that the appellant ever actually spoke to counsel. While the onus is on Mr. Noel to establish a Charter breach, there is no affirmative proof that duty counsel ever called him back.

(ii) Impact of the Breach

The trial judge held that this factor was neutral in determining whether the evidence ought to be admitted as “there was no evidence that [right to counsel] was denied or that the delay impacted adversely on his impact to have meaningful connection with counsel.” The Charter interest protected by s. 10(b) is the right to consult counsel without delay. This right exists because those who are arrested or detained require immediate legal advice that they cannot access without help, due to their detention.

“The loss of this right is in no way neutralized because the right to 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”

The appellant was not required to offer direct evidence about why he required access to counsel without delay. The impact of the breach of this right should be evaluated based on the interests the right is meant to protect and the length of the delay.

Application 

The ONCA therefore concludes that the s. 10(b) violation was serious. Three hours passed between the time of arrest and first attempt to secure counsel. It was not until two and a half hours after the appellant’s arrival at the station that an office left a message with duty counsel. There is no confirmation that he ever spoke to counsel. The police appeared to have a “cavalier attitude” towards the appellant’s right to counsel.

The impact of the breach was significant. The appellant remained in custody for over three hours without benefit of counsel to receive direction, reassurance or legal advice. While the evidence was necessary and reliable in the prosecution of a serious offence, the ONCA finds that the administration of justice would be in disrepute if the evidence were to be admitted as it would condone the police’s carelessness. The court relies on R v Paterson, 2017 SCC 15, which confirmed that the exclusion of reliable evidence is warranted for clear violations of well-established rules governing state conduct.

Huscroft JA, writing for the court, allows the appeal, sets aside the conviction against Mr. Noel and enters verdicts of acquittal.