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30-hour delay in facilitating counsel rendered drugs inadmissible

The Ontario Court of Appeal has excluded evidence even though a s. 10(b) Charter breach occurred after the drugs were found. In R. v. Jarrett, 2021 ONCA 758 police stopped the accused after seeing him using his cell phone while at an intersection. Jarrett produced his driver’s licence and vehicle registration on request. Through a database check, it was learned that Jarrett was on bail and not allowed to possess the cell phone because it had not been registered with the police. He was placed under arrest and asked to get out of his car. Jarrett was described by police as aggressive, confrontational, argumentative and hostile. Jarrett reached for a fanny pack as he got out of the car; an officer, concerned for his safety, also reached for it and a struggle ensued. Knee strikes and a Taser were deployed to get Jarrett under control. The fanny pack was searched and found to contain cocaine, oxycodone and hydromorphone pills, and $125 in cash. Jarrett was charged with assaulting a police officer, breach of recognizance, possessing proceeds of crime and several drug trafficking related offences.

Jarrett was advised of his right to counsel upon his arrest and he requested the opportunity to contact counsel, whom he identified by name. As a result of his arrest, he was taken to the hospital for medical attention. Police called Jarrett’s lawyer about an hour and a half after the arrest and left a voicemail message, but never followed-up when the lawyer didn’t call back nor were any other efforts made to facilitate contact with counsel.

While at the hospital, Jarrett remained in police custody, handcuffed to his bed for approximately 20 hours. He had no contact with counsel and was not offered the opportunity to contact counsel from the hospital. Jarret was only able to contact and speak with his lawyer after being transported from the hospital to the police station or courthouse, about 30 hours after his arrest.

“Section 10(b) guarantees to anyone arrested or detained the right ‘to retain and instruct counsel without delay and to be informed of that right’.” – Justice Zarnett

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In the Ontario Superior Court of Justice, the trial judge concluded that Jarrett’s rights under s. 10(b) of the Charter were infringed when he was not allowed to contact counsel for almost 30 hours. Once Jarrett had requested counsel, the police were required to implement it. Although the judge found it was reasonable for police to leave a message with Jarrett’s lawyer, they needed to do more. Since no further efforts were made to facilitate Jarrett’s right to counsel, nor any evidence to suggest that contact with counsel could not be facilitated at the hospital, s. 10(b) had been breached.

As for the evidence found in the fanny pack, it was obtained in a manner that breached the Charter. Even though the fanny pack was located before the s. 10(b) breach, its recovery was temporally connected to it. The arrest and search of the fanny pack, and resultant s. 10(b) violation were part of the same transaction or chain of events, but the judge did not exclude the evidence under s. 24(2), nor did he stay the charges under s. 24(1). Jarrett was convicted of three drug trafficking charges, proceeds of crime, breach of recognizance, and assaulting a police officer for bear hugging and headbutting an officer. He was sentenced to a total of 25 months in prison.

Jarrett appealed his convictions to Ontario’s highest Court asserting, in part, that the trial judge erred in not excluding the fanny pack evidence as a remedy for the breach of his s. 10(b) right.

“Section 10(b) guarantees to anyone arrested or detained the right ‘to retain and instruct counsel without delay and to be informed of that right’,” said Justice Zarnett for a unanimous Court of Appeal. “Where, upon being informed of the right, the detained person exercises it, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel.” Here, Jarrett exercised his s. 10(b) right by expressing the desire to speak to counsel immediately upon his arrest, but the police breached their duty to immediately provide him with a reasonable opportunity to speak to counsel. Zarnett wrote:

The single message that was left with counsel, without any follow-up, did not actually provide an immediate opportunity for the [accused] to speak to counsel. No such opportunity was provided for 30 hours. Nor was the single message, without any follow-up, reasonable, judged in all of the circumstances … [F]urther efforts were required. Yet the police took none. They did not explore whether there were other means of making contact with the counsel the [accused] had specified. Nor was the [accused] told that a message had been left with the counsel he had specified, or that it had not been answered. Thus, he was not given the opportunity to provide other contact information for that counsel if he had it, or to specify another counsel who might be more immediately responsive. [para. 42]

In this case, the police assumed responsibility for making first contact with Jarrett’s lawyer rather than providing him with direct access to a phone. The police then had the duty to pursue Jarrett’s access to counsel. Leaving a single voicemail and ending the effort was not enough.

As for s. 24(2), the Court of Appeal excluded the evidence. Despite no causal connection between the discovery of the fanny pack contents and the s. 10(b) breach, there was a sufficient temporal connection, as the trial judge found, that rendered the evidence “obtained in a manner” that infringed a Charter right. The 30-hour delay in providing Jarrett with the opportunity to contact counsel was substantial. The impact of the breach on Jarrett was also significant. These two factors were not outweighed by society’s interest in having the case decided on its merits through the admission of the relevant and reliable evidence.

As a result, the convictions for the trafficking offences and proceeds of crime possession were quashed and acquittals were entered. The convictions for the breach of recognizance and assaulting a police officer – and their respective sentences – were maintained.

Mike Novakowski is Blue Line’s case law columnist.