Police blamed as conviction quashed

Access to lawyer delayed in drug case: panel

TORONTO • A man convicted of drug-related offences has been acquitted on appeal because police officers delayed his access to a lawyer.

In its ruling, the Ontario Court of Appeal said police made their first attempt to reach Daniel Noel’s lawyer only three hours after his arrest.

“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 panel said in its decision. “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.”

Court documents show police forced their entry into Noel’s home near Oshawa, Ont., on a night in December 2015 and held him at gunpoint in his bedroom. They arrested him after finding thousands of dollars in cash and a small amount of cocaine.

Officers did not immediately inform Noel of his right to counsel, and took no immediate steps to help him contact his lawyer even after he asked.

Superior Court Justice Jocelyn Speyer found police did breach his rights, but that the breach wasn’t serious. Speyer allowed the seized material to be entered as evidence and convicted him in February of 2018.

The higher court, however, said the trial judge was wrong in her evaluation of the impact of the breach of his right to counsel. As a result, the court ruled the drug evidence and a self-incriminating statement Noel made should have been excluded because of the violation.

“The impact of the breach was significant,” the panel wrote, saying that Noel remained in custody without being able to receive any direction, reassurance or advice that a counsel would provide. “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.”

Noel had also argued that the “dynamic” nature of the police raid violated his rights to be secure from unreasonable search or seizure. However, the Appeal Court said there was no need to rule on that issue because the breach of his right to counsel without delay was enough to quash the conviction and enter an acquittal.

The court did say if the officers had behaved properly, Noel’s convictions would have been reasonable because the evidence discovered during the search of his bedroom gave solid support for Speyer’s decision to convict. “It is not difficult for the police to understand their obligations and carry them out.”