Drug con­vic­tion axed af­ter cops de­lay sus­pect’s ac­cess to lawyer

Court says that of­fi­cers waited three hours be­fore try­ing to reach coun­sel

The Standard (St. Catharines) - - Canada & World - SAL­MAAN FA­ROOQUI AND COLIN PERKEL THE CANA­DIAN PRESS

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 only made their first at­tempt to reach Daniel Noel’s lawyer 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 self­in­crim­i­nat­ing state­ment Noel made should have been ex­cluded be­cause of the vi­o­la­tion.

“The im­pact of the breach was sig­nif­i­cant,” the panel wrote. “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.

COLIN N. PERKEL THE CANA­DIAN PRESS

Os­goode Hall in Toronto is home to On­tario’s Court of Ap­peal, which has over­ruled the Su­pe­rior Court of Jus­tice and ac­quit­ted a man be­cause po­lice de­layed his ac­cess to a lawyer.

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