OCA decision on woman’s right to lawyer breach a ‘proper’ ruling
TORONTO – Police violated the rights of a woman convicted of a drug offence by arbitrarily detaining her and failing to advise her of her right to a lawyer, Ontario’s top court ruled Wednesday.
As a result, the court quashed the conviction against Angel Daley, who was arrested in Sarnia, Ont., after finding that the fentanyl she was carrying should be excluded as evidence.
“The nature of the state conduct in this case militates in favour of exclusion,” the Appeal Court ruled. “These were not minor or inadvertent breaches.”
The incident arose in April 2014 when a Money Mart store alerted police that Daley was trying to pawn jewellery he thought might have been stolen based on photographs in a flyer he had seen. Officers detained her in the store for about 40 minutes without advising her of her right to counsel.
During the detention, police searched Daley’s car. An officer found a purse with a knife and arrested her for having a prohibited weapon. He then searched her and found seven fentanyl patches in her jacket pocket. Daley was charged with possession of fentanyl for the purpose of trafficking.
Superior Court Justice Russell Raikes convicted Daley last September – despite finding police had clearly acted unconstitutionally by failing to advise her of her right to a lawyer, and that there was “no excuse for it.”
Overall, however, Raikes found police conduct to have been reasonable. The 40-minute detention, he found, was not arbitrary because the officers were busy trying to compare the pieces of jewelry to the flyer pictures.
The Appeal Court, however, disagreed with Raikes’ conclusion because the number of jewellery pieces was never discussed at trial, and the flyer was not introduced into evidence. As a result, the appellate court found, the detention and failure to advise her of her right to counsel was in fact arbitrary.
In quashing the conviction, the Appeal Court found no extenuating circumstances to explain or mitigate the seriousness of the officers’ conduct.
“Overall, the police conduct in this case demonstrated a disregard for well-established Charter rights,” the court ruled. “The arbitrary detention was not fleeting.”
The court noted the broader society interest in prosecuting people who have drugs for trafficking purposes, especially a dangerous one such as fentanyl. Excluding the evidence, therefore, defeats the truth seeking function of the justice system, the court said.
Nevertheless, when all factors are weighed, the Appeal Court concluded that admitting the drug evidence would bring the administration of justice into disrepute given the serious breach of Daley’s rights.
“Given its exclusion, the conviction cannot stand,” the court decided.
In an interview with AdvocateDaily.com, Toronto criminal lawyer Roots Gadhia describes the OCA decision as the “proper” one.
“The beauty of our Charter of Rights and Freedoms is it exists not in a vacuum but as a living document that stretches and bends to accommodate simple variations of facts that come up in cases from time to time,” she tells the online legal publication.
Gadhia says it’s important to note the OCA decision indicates the court would have agreed there was a reasonable explanation for the woman being detained without being advised of her right to a lawyer for 40 minutes if the flyer had been referred into evidence. The trial judge would have had a reasonable inference he could have drawn based on that evidence, she says.
“But without police testimony about the flyer, the Court of Appeal had no choice but to indicate the trial judge failed to properly assess the time during which the defendant was arbitrarily detained,” she says.
“It goes to show the variation in testimony can bring about different conclusions when you review the evidence as a whole and assess not only explanations for why certain things are done but also why things are not done.”
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