Police did not breach right to counsel of man convicted of cocaine, MDMA possession: OCA

Accused was under surveillance in connection with joint Windsor/Toronto investigation

Police did not breach right to counsel of man convicted of cocaine, MDMA possession: OCA

Police officers carrying out a drug-related arrest did not breach the accused’s right to retain and to instruct counsel without delay nor their right to be informed of that right, the Ontario Court of Appeal said in a recent case.

Toronto police had the appellant under surveillance in connection with a joint Windsor/Toronto drug investigation. In November 2017, as he was exiting a store, eight officers approached him. Two officers, including Officers Hutchings, detained him.

Officer Hutchings, according to his testimony at trial, gave the appellant a warning under s. 10(b) of the Canadian Charter of Rights and Freedoms. He informed the appellant that he had the right to retain and to instruct counsel without delay, to phone any lawyer he wanted, or to contact a legal aid lawyer at the phone number that the officer provided.

The appellant admitted that he had drugs in his car and in his home. Police officers conducted a search and indeed found drugs.

Justice Bonnie Croll of the Ontario Superior Court of Justice convicted the appellant of two counts of possession of cocaine for the purpose of trafficking, possession of MDMA, and possession of the proceeds of crime. The trial judge imposed a global sentence of six years, four months, and five days.

Drug convictions upheld

In R. v. Simpson, 2023 ONCA 23, the Ontario Court of Appeal dismissed the appellant’s conviction appeal, which asked for acquittals.

First, the appellate court held that Officer Hutchings gave a proper s. 10(b) warning immediately after the appellant’s detainment. The trial judge made no palpable and overriding error in interpreting the conversation between the appellant and Officer Hutchings.

The appellate court noted that Officer Hutchings said the following in his testimony:

  • When asked if he wanted to speak to a lawyer, the appellant answered, “I will at some point.”
  • The officer advised the appellant that he was not obligated to say anything and that whatever he did say could be used against him.
  • When asked if he understood, the appellant said yes.

R. v. Taylor, 2014 SCC 50 provided that the duty of police to implement contact between a detainee and counsel would only arise if the detainee expressed a desire to contact counsel.

In R. v. Owens, 2015 ONCA 652, a detainee answered “no, not right now” to the question of whether they wanted to speak to a lawyer. The trial judge was entitled to find that this answer did not qualify as an invocation of the right to counsel, the appellate court said in that case.

In the present case, given the ruling on the s. 10(b) issue, the Court of Appeal found that it did not need to consider the appellant’s argument that it should exclude the evidence under s. 24(2) of the Charter.

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