In the recent decision of R. v Noel, 2019 ONCA 860, the Court of Appeal reaffirms the right to immediately speak to counsel upon arrest.

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 police entered the residence at 10:30pm and arrested the three individuals.

As Mr. Noel was being handcuffed, he was not advised of his right to speak to a lawyer. Several minutes later, he was brought to the living room and read his right to a lawyer. Mr. Noel requested to speak to a lawyer, but no steps were taken to facilitate this request at that time. Instead, the police searched the residence and found currency, narcotics, and a digital scale.

At 11:04pm, Mr. Noel was driven to the police station. At trial, the officer testified that during this car ride, Mr. Noel admitted that the drugs were his and that his brother was not involved.

They arrived at the station at 11:10pm – no officer took charge of ensuring he spoke to a lawyer.

At 12:48am, one officer called duty counsel requesting that duty counsel speak to two individuals. At trial, the officer claimed Mr. Noel was one of the two, but the trial judge found the officer’s testimony on this point uncertain.

At 1:25am, Mr. Noel’s brother had had a chance to speak with duty counsel, but Mr. Noel had not. An officer phoned duty counsel again, leaving a message for them to call back to speak with Mr. Noel. The evidence did not establish if duty counsel ever did call back.

At trial, the judge found that Mr. Noel’s Charter right to speak to a lawyer without delay was violated. However, finding that a Charter right has been breached does not end the matter – if the defendant can show their rights have been violated, they must also identify what negative repercussion flowed from the violation of the right and what remedy would rectify the violation. Typically, counsel will request that the evidence obtained after the Charter violation be excluded. In this case, that would be the self-incriminating comments that Mr. Noel made in the police vehicle.

Even though the trial judge agreed that Mr. Noel’s Charter right was violated, the trial judge refused to exclude the statement made by Mr. Noel, and convicted Mr. Noel in light of all the evidence. Mr. Noel appealed this conviction, arguing that the self-incriminating statement should have been excluded.

The Court of Appeal agreed.

The Court of Appeal took issue with the trial judge’s reasoning that the delay in getting Mr. Noel in touch with counsel was not an issue as the police held off questioning Mr. Noel until “after contact with counsel was facilitated.” First, it does not matter that the police “held off questioning” Mr. Noel – Mr. Noel made a self-incriminating statement before speaking to a lawyer and police relied on that statement; that is a violation of Charter rights. Second, there was no evidence that duty counsel ever called back; there was no evidence that Mr. Noel, at any point, actually spoke to a lawyer. The Court of Appeal said that it was wrong for the trial judge to assume that Mr. Noel eventually spoke to a lawyer.

The Court of Appeal also took issue with the trial judge’s finding that there was no evidence that a) Mr. Noel had been denied the right to speak to counsel and b) the delay negatively affected his right to have a meaningful talk with a lawyer.

The Court of Appeal found that this was a misunderstanding of the interest the Charter right protects. That is, the protected interest is the right to consult without delay. The loss of this right is in no way neutralized because the right is delayed, as opposed to denied.

Nor can it be said that the impact of delayed access is neutralized because Mr. Noel could not give evidence of how the delay prevented him from having a meaningful (albeit late) conversation with counsel. The Court of Appeal found this position strange because defendants cannot be asked to provide evidence on how “meaningful” their conversation with the lawyer was – that violates lawyer-client privilege.

But most importantly, focusing on the defendant’s ability to have a “meaningful” conversation, rather than when that conversation happens, is wrong. The Charter right to speak to counsel without delay exists because people who are arrested or detained need legal advice immediately.

This is so for two reasons: first, an arrest or detention can sometimes include a whirlwind of activity, and the detained or arrested person has no idea what, if any, of these activities are legal or what their rights are in face of this activity. 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. Second, someone who has been arrested needs to be told immediately of their right to not provide a statement (their right to not self-incriminate themselves).

In Mr. Noel’s case, three hours had passed between the time of his arrest, and the officer’s call to duty counsel. During those three hours, Mr. Noel had not received any legal advice regarding the search that occurred of his home, and he had not received any legal advice on his right to not self-incriminate – which he did, during the ride back to the station.

The Court of Appeal was quite frank that because the law around the Charter right to counsel is clear and long-settled, it is not difficult for the police to understand their obligations and carry them out. The Court of Appeal was especially troubled by the fact that the police could not give any reason for why it took three hours and that no one could state with certainty if Mr. Noel ever did speak to a lawyer.

If you find yourself arrested or detained, remember that you have the right to speak to a lawyer without delay. Contact the team at DeMelo Law.