Delay in access to legal advice following arrest in accused’s home results in conviction being overturned and substituted acquittal being entered. Read the case below.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Noel, 2019 ONCA 860
Huscroft, Paciocco and Nordheimer JJ.A.
Her Majesty the Queen
Daniel Marlon Noel
Leo Salloum, for the appellant
Marie Comiskey, for the respondent
Heard: September 26, 2019
On appeal from the conviction entered on February 21, 2018 by Justice Jocelyn Speyer of the Superior Court of Justice, sitting without a jury.
REASONS FOR DECISION
substituted acquittal Mr. Daniel Noel (Mr. Noel) appeals his drug related convictions. For reasons that follow, we allow his appeal, set aside his convictions, and substitute verdicts of acquittal.  The material facts are these. On December 21, 2015, Durham Regional Police obtained a warrant to search a residence where Mr. Noel lived with his partner, Ms. Stacey Long, and his brother, Mr. Prince Noel. All three residents were suspected of small-scale cocaine trafficking in the Oshawa area. The warrant, which was based on confidential information and surveillance, authorized a search for cocaine, other controlled substances, and related evidence of drug trafficking.  The police, armed with the search warrant, executed a dynamic entry into the residence at 10:28 p.m. Shortly thereafter, Mr. Noel was arrested by Officer Aiello at gunpoint in a bedroom containing his belongings and identification. He was taken to the floor and handcuffed. His partner, Ms. Long, and his brother, Mr. Prince Noel, were also arrested. Officer Aiello did not advise Mr. Noel of his right to counsel. As previously arranged by the police entry team, Mr. Noel was brought to a central location in the house where, within five minutes of the police’s entry into the residence, another officer, Officer Gill, read him his rights to counsel. He asked to speak to a lawyer, but no steps were taken to facilitate his right to counsel.  The search of the bedroom in which he had been arrested led to the discovery of $5,670 Canadian, $71 USD, 73 grams of cocaine, 55 grams of marijuana, and a digital scale.  At 11:04 p.m., Mr. Noel was transported to the station. At Mr. Noel’s trial, Officer Gill testified that as he was leading Mr. Noel to the transport vehicle, Mr. Noel claimed ownership of the drugs and that his brother was not involved. Mr. Noel arrived at the station at 11:10 p.m. On his arrival, no one took charge of facilitating his right to counsel.  At 12:48 a.m., Officer Capener placed two calls to duty counsel on behalf of two of the persons arrested at the residence and left messages requesting that duty counsel return the calls. Officer Capener testified that these calls were placed for Mr. Noel and Ms. Long, but the trial judge had concerns about the accuracy of his evidence as to who the calls were placed for.  At 1:25 a.m., cell staff advised Officer Westcott that Mr. Noel’s brother received a call from duty counsel, but that Mr. Noel had not. Officer Westcott called the duty counsel office and left a message for someone to call Mr. Noel. The evidence did not establish whether duty counsel ever called back. During trial, Mr. Noel alleged several Charter breaches. He attacked the validity of the search warrant, contended that the dynamic entry violated s. 8, argued that his arrest was arbitrary contrary to s. 9, and claimed violations of both the informational and implementational components of his s. 10(b) right to counsel. The trial judge rejected all the alleged violations, except one. She found that Mr. Noel’s right to consult counsel without delay was violated, an implementational breach. However, she denied Mr. Noel the exclusionary remedy he sought under s. 24(2) and admitted the evidence.  Ultimately, the trial judge found Officer Gill’s testimony about Mr. Noel’s self-incriminating statement to be unreliable but convicted Mr. Noel on the balance of the evidence. Mr. Noel appeals his convictions. He urges that the trial judge erred in failing to find that the dynamic entry violated s. 8, in finding the arrest not to be arbitrary contrary to s. 9, and in finding that there was no s. 10(b) informational breach. He also argues that the trial judge committed errors of principle in her exclusionary ruling relating to the s. 10(b) implementational breach that she did find. He asks us to reconsider the s. 24(2) remedy, to exclude the evidence, and to set aside his convictions. Mr. Noel argues, in the alternative, that the conviction was unreasonable even if all the evidence was properly admitted, because the evidence could not support a finding that Mr. Noel knew the secreted narcotics were in his room. We reject this latter ground of appeal. If the evidence discovered during the search were to be admitted, the convictions would not be unreasonable. The evidence discovered during the search of the bedroom linked to Mr. Noel gave solid support for the trial judge’s decision to convict. However, we conclude that the trial judge committed errors of principle in her s. 24(2) Charter ruling. These errors were material to her findings relating to the seriousness, and impact, of the s. 10(b) implementational breach, which arose from the delay in facilitating Mr. Noel’s right to counsel.  Specifically, the trial judge found the seriousness of the breach to have been “attenuated somewhat in this case, because the police complied with their obligation to hold off questioning the arrestee until after contact with counsel was facilitated.” This passage contains two errors.  First, had the police attempted to use Mr. Noel as a source of self-incriminating evidence before he had a reasonable opportunity to speak to counsel, that would have been yet another s. 10(b) breach. The seriousness of the breach the trial judge did find cannot be attenuated by the fact that the police did not commit an additional breach of Mr. Noel’s rights.  Second, there is no evidence that Mr. Noel ever succeeded in speaking to counsel. The evidence was that at 1:25 a.m., approximately three hours after his arrest, Officer Westcott left a message with duty counsel on Mr. Noel’s behalf, but there was no evidence that anyone followed up to ensure contact occurred. It is true that the onus is on Mr. Noel to establish the s. 10(b) breach, and that he did not lead affirmative evidence that he never managed to speak to counsel. That does not change the fact, though, that there is no affirmative proof that he did. It was not appropriate for the trial judge to proceed on the assumption that Mr. Noel did ultimately speak to counsel. It was also not appropriate for the trial judge to conclude that the seriousness of the breach was mitigated by that assumed consultation.  In addition, the trial judge erred in evaluating the impact of the breach. She said:
I have heard no evidence about the impact of the breach on the protected interest of the accused. He did not testify on this application about any impact. It is his onus to demonstrate that a breach occurred and that the evidence should be excluded. While the evidence is that his right to confer with counsel was delayed, and there is necessarily an impact on his constitutionally protected interests as a result, there is no evidence that it was denied, or that the delay impacted adversely on his ability to have a meaningful conversation with counsel. On balance, I conclude that this factor is quite neutral in the s. 24(2) analysis. [Emphasis added.]
substituted acquittal With respect, this passage reflects a misunderstanding of the relevant Charter protected interest. 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.  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: R. v. Bartle,  3 S.C.R. 173, at p. 191; R v. Suberu, 2009 SCC 33,  2 S.C.R. 460, at para. 41: R. v. Rover, 2018 ONCA 745, 143 O.R. (3) 135, at para. 34.  For example, an arrest and the search of one’s home can raise urgent legal issues about the lawfulness of the arrest and the obligation to submit, as well as the validity of the search warrant and the scope of authority that the search warrant gives to the police. Such information could be useful in preventing an unjustified search, before it happens: R. v. Debot,  2 S.C.R. 1140, at p. 1144.  Detention also raises questions of immediate importance relating to the detainee’s rights during detention, including the right against self-incrimination: Bartle, at p. 191;R. v. T.G.H, 2014 ONCA 460, 120 O.R. (3d) 581, at para. 4.  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: Debot, at p. 1144; Suberu, at para. 41. As Doherty J.A. said in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45:
The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.
substituted acquittal Mr. Noel was not required to offer direct evidence about why he required access to counsel without delay. He asked to speak to counsel promptly but that right was denied. In assessing the impact of such breaches, it is not appropriate for courts to plumb the content and significance of the conversations a detainee would have had, if his right to consult counsel without delay had been respected, or to treat such breaches as “quite neutral” in the absence of such evidence. The impact of the loss of the right to consult counsel without delay can be evaluated based on the interests it is meant to protect along with the length of the delay.  Given these errors in principle, the trial judge’s determination that the admission of the evidence would not bring the administration of justice into disrepute does not require deference, nor do her assessments of the seriousness and impact of the breach. In considering these matters afresh, we come to a different conclusion. The s. 10(b) violation found by the trial judge was serious. Three hours passed between the time of the arrest and the first confirmed attempt by the police to secure counsel for Mr. Noel. When Mr. Noel arrived at the station at 11:10 p.m., entirely under the control of the police, no one took charge of ensuring that he could speak to counsel as he had requested. Instead, he was placed in a cell and left there.  Rather, it was about an hour and a half later that Officer Capener called duty counsel on behalf of only two of the three detainees, keeping insufficient records to confirm who those detainees were.  It was not until 1:25 a.m., now about two and a half hours after Mr. Noel’s arrival at the station, that Officer Wescott left a message with duty counsel, specifically on Mr. Noel’s behalf. There is then no confirmation that counsel actually spoke to Mr. Noel.  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. Indeed, the trial judge characterized the police conduct in this regard as demonstrating “carelessness” – a characterization with which the Crown does not take issue. Moreover, the impact of the breach was significant, not neutral. Mr. Noel remained in custody without the benefit of counsel for at least three hours, unable to receive the direction, reassurance, and advice that counsel could provide. We are mindful of the impact of excluding necessary, reliable evidence in this serious prosecution on the repute of the administration of justice. However, this was a clear violation of a well-established rule. 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. As noted by Brown J. in R. v. Paterson, 2017 SCC 15,  1 S.C.R. 202, at para. 44: “… exclusion has been found to be warranted for clear violations of well-established rules governing state conduct”. We conclude that it would damage the long-term interests of the administration of justice to admit the evidence and thus be seen to condone the carelessness and disorganization exhibited by the police with respect to Mr. Noel’s right to consult counsel without delay. Given the collection of facts in this case, we conclude that the evidence must be excluded, notwithstanding that doing so undermines the Crown’s case against Mr. Noel. Given this conclusion, we choose not to resolve Mr. Noel’s grounds of appeal relating to s. 8, s. 9, and the informational branch of s. 10(b). In doing so, we should not be taken as expressing agreement with the trial judge’s rulings. It is simply unnecessary to grapple with these issues given the significance of the s. 10(b) implementational error. We therefore allow the appeal, set aside the convictions against Mr. Noel, and substitute verdicts of acquittal.
“Grant Huscroft J.A.”
“David M. Paciocco J.A.”
“I.V.B. Nordheimer J.A.”