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CONSTITUTIONAL ISSUES - Right to retain and instruct counsel without delay

Wednesday, November 14, 2018 @ 8:35 AM  


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Appeal by the accused from convictions for drug-related offences. The police, after receiving an anonymous tip and observing the appellant’s residence, arrested the appellant for suspected drug trafficking. Police immediately applied for a search warrant for the residence. Police executed the warrant and found drugs in the home. The appellant argued the trial judge erred in not excluding the drugs on the ground that the search was unlawful due to his alleged arbitrary detention and the breach of his right to counsel. Police did not allow the appellant to speak to his lawyer until after the warrant had been executed several hours after his arrest. The officers followed a practice that routinely prevented arrested persons from accessing counsel if the police intended to obtain a warrant to search a place for drugs and believed that the place had a connection to the arrested person. The rationale behind this practice was that there was always a possibility that allowing an arrested person to speak to their lawyer could put the officers executing the warrant at risk or jeopardize the preservation of evidence. The trial judge held that a search of a suspected drug dealer’s residence engaged sufficient concerns about officer safety and the preservation of evidence to justify some delay in providing the arrested individual with access to counsel. The trial judge concluded, however, that there was no justification for the delay of about 80 minutes after the residence had been secured before the appellant was permitted to contact counsel. In considering the impact of the breach on the appellant’s rights, the trial judge noted that the police did not question the appellant while he was detained without access to counsel. The trial judge found no causal connection between the breach and the obtaining of the evidence during the search. He characterized the interference with the appellant’s Charter-protected interests as moderate. The trial judge determined that the police misconduct made a strong case for exclusion, the nature of the interference with the appellant’s rights made a moderate case for exclusion but society’s interest in an adjudication on the merits tipped the balance in favour of admissibility.

HELD: Appeal allowed. The appellant was acquitted. The police had reasonable and probable grounds to arrest the occupants of the vehicle and the appellant and there was no s. 9 Charter breach. The appellant’s right to speak with counsel was denied at the time of his arrest when the police refused his request to speak with counsel. To fall within the exception to the requirement that an arrested person be allowed to speak to counsel without delay, the police must actually turn their mind to the specific circumstances of the case and must have reasonable grounds to justify the delay. Police efficiency and convenience could not justify delaying an arrested person’s right to speak with counsel for several hours. None of the officers turned their mind to the specific circumstances of this case before deciding that the appellant would be arrested and denied access to counsel for several hours while the police sought, obtained, and executed a search warrant. While there was no causal connection between the discovery of the drugs and the s. 10(b) breach, there was a close temporal connection. Although the trial judge recognized that the police misconduct was serious, he understated its seriousness by failing to connect it to a police practice that routinely denied detainees access to counsel in situations in which the police were intending to apply for search warrants. A police practice that routinely held detained individuals incommunicado while the police obtained and executed a search warrant must, over time, bring the administration of justice into disrepute. The unconstitutional delay in allowing the appellant to speak to his lawyer was almost six hours. Such delay, even when the police did not attempt to question the arrested person, had a significant impact on the arrested person’s rights. Society’s interests in an adjudication on the merits did not tip the balance in favour of admissibility in these circumstances.

R. v. Rover, [2018] O.J. No. 4646, Ontario Court of Appeal, D.H. Doherty, S.E. Pepall and I.V.B. Nordheimer JJ.A., September 12, 2018. Digest No. TLD-November122018006