



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Noel, 2019 ONCA 860

DATE: 20191101

DOCKET: C65221

Huscroft, Paciocco and
    Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Marlon Noel

Appellant

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

[1]

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.

[2]

The material facts are these.

[3]

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.

[4]

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.

[5]

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
    polices 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.

[6]

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.

[7]

At 11:04 p.m., Mr. Noel was transported to the
    station. At Mr. Noels 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.

[8]

Mr. Noel arrived at the station at 11:10 p.m. On
    his arrival, no one took charge of facilitating his right to counsel.

[9]

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.

[10]

At 1:25 a.m., cell staff advised Officer
    Westcott that Mr. Noels 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.

[11]

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.

[12]

The trial judge rejected all the alleged
    violations, except one. She found that Mr. Noels 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.

[13]

Ultimately, the trial judge found Officer Gills
    testimony about Mr. Noels self-incriminating statement to be unreliable but
    convicted Mr. Noel on the balance of the evidence.

[14]

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.

[15]

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.

[16]

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 judges decision to
    convict.

[17]

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. Noels right to counsel.

[18]

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.

[19]

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. Noels rights.

[20]

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. Noels 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.

[21]

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.]

[22]

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.

[23]

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
, [1994] 3 S.C.R. 173,
    at p. 191;
R v. Suberu
, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41:
R. v. Rover
, 2018 ONCA 745, 143 O.R. (3) 135, at para. 34.

[24]

For example, an arrest and the search of ones 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
, [1989] 2 S.C.R. 1140, at p. 1144.

[25]

Detention also raises questions of immediate importance
    relating to the detainees 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.

[26]

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.

[27]

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.

[28]

Given these errors in principle, the trial
    judges 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.

[29]

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.

[30]

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.

[31]

It was not until 1:25 a.m., now about two and a
    half hours after Mr. Noels arrival at the station, that Officer Wescott left a
    message with duty counsel, specifically on Mr. Noels behalf. There is then no
    confirmation that counsel actually spoke to Mr. Noel.

[32]

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.

[33]

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.

[34]

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, [2017] 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.

[35]

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. Noels 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 Crowns case against Mr. Noel.

[36]

Given this conclusion, we choose not to resolve
    Mr. Noels 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 judges rulings. It is simply unnecessary to grapple with these
    issues given the significance of the s. 10(b) implementational error.

[37]

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.



