drug offences

Drug Conviction Overturned on Appeal as Police Delayed Access to Lawyer

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal has overturned Daniel Marlon Noel’s conviction for drug offences.  The court found that Durham Regional Police breached his Charter rights by not allowing him to promptly speak to a lawyer on the night of his arrest.

WHAT HAPPENED?

On December 21, 2015 at 10:28 p.m., Durham Regional Police entered a residence where Daniel Marlon Noel (“Noel”), his partner and his brother were living pursuant to a search warrant.  All three individuals were suspected of operating a small-scale cocaine trafficking operation, which was under investigation by Durham Regional Police.  That evening, Noel was arrested at gunpoint by Officer Aiello in a bedroom containing his belongings and identification.  Officer Aiello did not advise Noel of his right to counsel.

Noel was taken to a central location in the house and within five minutes of the police’s entry into the residence Officer Gill read him his rights to counsel.  Noel asked to speak to a lawyer, however, no efforts were made to allow for his right to counsel.

The police search of Noel’s bedroom recovered $5,670 Canadian, $71 U.S., 73 grams of cocaine, 55 grams of marijuana and a digital scale.

Noel was transported to the police station at 11:04 p.m. and arrived at the station at 11:10 p.m.  Officer Gill testified that, while being led to the transport vehicle, Noel admitted ownership of the drugs and claimed that his brother was not involved. 

At 12:48 p.m., Officer Capener placed two calls to duty counsel for Noel and his partner, Stacey Long, and left messages requesting a return phone call. 

At 1:25 a.m., Noel learned that his brother had received a call from duty counsel.  Officer Westcott left another message for duty counsel to call Noel.

At his trial, Noel alleged the following Charter breaches:

  • That the entry to his home violated section 8 (right to be secure against unreasonable search and seizure);
  • That his arrest violated section 9 (right not to be arbitrarily detained); and
  • That his right to counsel was breached which violated section 10(b) (right to retain counsel without delay).

The trial judge rejected all arguments regarding Charter violations, except that Noel’s right to counsel without delay was violated.  However, Noel was denied the exclusionary remedy that he sought under the Charter, the evidence was admitted and Noel was convicted of the drug offences.

THE APPEAL

Noel appealed his conviction and argued on appeal that the trial judge erred in failing to find breaches of his Charter rights. 

The appeal court concluded that there was a violation of section 10(b) of the Charter and found that the police had a “cavalier attitude about a fundamental, important, and long-settled Charter right to consult counsel without delay”.  Furthermore, the police could not provide a reasonable explanation for the delay. 

The appeal court wrote:

Mr. Noel remained in custody without the benefit of counsel for at least three hours, unable to receive the direction, reassurance, and advice that counsel could provide.  … [Noel] asked to speak to counsel promptly but that right was denied. … We conclude that it would damage the long-term interests of the administration of justice to admit the evidence and thus be seen to condone the carelessness and disorganization exhibited by the police with respect to Mr. Noel’s right to counsel without delay.

The appeal court allowed Noel’s appeal, set aside his convictions and substituted a verdict of acquittal. 

RIGHT TO COUNSEL

The right to counsel is one of the most important and recognized rights provided by the Canadian Charter of Rights and Freedoms.  Section 10(b) of the Charter provides:

10.       Everyone has the right on arrest or detention: 

b.         to retain and instruct counsel without delay and to be informed of that right.

The rights afforded under this section are designed to inform a detained individual of the scope of their situation and to ensure that legal advice is available. 

The right to counsel consists of an informational and an implementational component.  Thus, a detained individual must be informed of the right to counsel and this right must be understood by the individual (i.e. an interpreter may be required).  The implementational component involves the obligations and restrictions upon the police in conducting their investigation once the right to counsel has been asserted. 

The right to counsel must be provided without delay.  This is often interpreted to mean immediately in order to protect the detainee from the risk of self-incrimination 

Police must advise the detainee of his/her right to counsel and explain the existence and availability of legal aid and duty counsel if one cannot afford or cannot reach a lawyer.  Thus, the right to counsel also has a corresponding right to retain counsel of one’s choice. 

When a detainee has exercised his/her right to counsel, police must refrain from trying to elicit further evidence and refrain from questioning the individual until he/she has had an opportunity to speak with counsel. 

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We have a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Study Finds Steep Rise in Opioid-Related Deaths in Ontario

Written on Behalf of Affleck & Barrison LLP

Canada is confronting a national opioid crisis. The increasing number of overdoses and deaths caused by opioids is causing a national public health disaster. In fact, in Ontario the overall rate of opioid-related deaths nearly tripled from 2000 to 2015.

A new study by researchers at St. Michael’s Hospital in Toronto reviewed all deaths in Ontario in which prescribed or illegal opioids were found to be a contributing factor between 2000 to 2015. The study found that there were 7,719 opioid-related deaths during that time period.

In Ontario, researchers found that one out of every six deaths among young adults (aged 25 to 34) was related to opioids in 2015. Research also found that one of nine deaths among those aged 15 to 24 was related to opioids (nearly double that of 2010).

Lead author and scientist, Dr. Tara Gomes, reports that young people need more information about the dangers of illicit drug use and education on how to reach out for help. She also suggested that it is time to be more tolerant to providing access to naloxone (the overdose-reversing drug) in locations where young people can access it (i.e. high schools, universities and music festivals).

Regarding the opioid crisis in Ontario, Dr. Gomes stated:

It is striking to see that despite the efforts put into harm reduction, proper prescribing practices, and education around opioid use, the number of opioid-related deaths continues to rise. The other alarming fact is how this crisis is increasingly impacting our youth and young adults.

Dr. Gomes’ research revealed that a total of 29,410 years of potential life were lost prematurely due to opioid-related causes in 2015, which exceeds the years of life lost prematurely annually from pneumonia, HIV/AIDs and influenza.

Recently, Prime Minister Justin Trudeau spoke in the city of Hamilton, a city which saw 70 opioid-related deaths between January and October in 2017, and declared that situations like theirs were a top priority for his government. The city of Hamilton’s opioid-death rate during 2017 was 78% higher than the provincial rate.

In addressing the opioid crisis, Prime Minister Trudeau stated:

We know that we have to address this. This is getting to be more and more of a problem. We have always put this at the top of our preoccupations as we deal with this public health crisis here in Hamilton and right across the country.

WHAT ARE OPIOIDS?

Opioids are drugs with pain relieving properties that are used primarily to treat pain. Opioids can be purchased at the pharmacy to treat minor aches and pains or prescribed by a doctor to relieve medium to severe pain.

Opioids can produce euphoria, or a high feeling, which leads them to be used improperly. The following are examples of opioids that can be prescribed medications:

  • Codeine;
  • Fentanyl;
  • Morphine;
  • Oxycodone;
  • Hydromorphone; and,
  • Medical heroin.

Dependency, substance use disorder and overdose are serious side effects and risks of using opioids. They have the potential for problematic use because they produce a “high” feeling.

Opioids should only be taken as prescribed, never be used by someone for whom it was not prescribed and never be taken with alcohol or other medication (except as prescribed).

Individuals prescribed with opioids are advised never to share their medication, and are cautioned to store their medication in a safe and secure place and out of reach from children and teenagers. Any unused opioid medication should be returned to a pharmacy for safe disposal to prevent the possibility of illegal use and protect the environment from contamination.

HOW IS THE GOVERNMENT RESPONDING TO THE OPIOID CRISIS?

The Canadian government has reserved $231.4 million to respond to the opioid crisis in Canada, with monies dedicated to strategies such as public health campaigns, data tracking and new equipment and tools to allow border agents to better detect dangerous opioids before they enter Canada.

The Ontario government guaranteed it will spend more than $222 million over three years to address the opioid issue. The money will be used in the following manner:

  • To support health care providers on appropriate pain management and opioid prescribing;
  • To increase addictions treatment in primary care;
  • To add more front line harm reduction outreach workers in communities across the province;
  • For specialized support for indigenous communities and developmentally appropriate care for youth.

Furthermore, Ontario is the first province to provide access to Narcan nasal spray in Ontario pharmacies, free of charge, as part of its Ontario Naloxone Program for Pharmacies. This nasal spray is the only needle-free formulation of naloxone for the emergency treatment of a known or suspected opioid overdose. It does not require assembly or any specialized medical training.

Ontario has also announced that more than 30 communities will receive new or enhanced Rapid Access Addiction Medicine (“RAAM”) clinics. There are currently seven community clinics of this kind, which allow patients to receive medical assisted therapy for their addiction and are then referred to healthcare professionals to begin recovery treatment. Kate Hardy, the manager of the RAAM pilot project in Ontario, stated:

Unlike traditional treatment programs there are no wait times, scheduled appointments, or complicated intake assessments. … RAAM clinics are outpatient to allow patients to continue with their work and family responsibilities, and the service providers are non-judgemental.

As both the federal and provincial governments continue in their efforts to tackle the opioid crisis in Canada, Affleck & Barrison LLP will continue to provide updates through this blog.

If you are facing a drug related charge or have any questions regarding your legal rights, contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week.

How the Good Samaritan Drug Overdose Act Can Help Prevent Drug Overdoses and Deaths

Written on Behalf of Affleck & Barrison LLP

There is an increasing number of Canadians overdosing or dying from the use of opioids. The Public Health Agency of Canada has estimated that at least 2,458 Canadians died from an opioid-related overdose in 2016, which amounts to almost seven deaths every day.

On May 4, 2017, the Good Samaritan Drug Overdose Act (“Act”) became law as part of the Government of Canada’s approach to address the growing number of overdoses and deaths caused by opioids (pain relieving drugs, including fentanyl). Many of these deaths are avoidable if medical attention is obtained quickly, but evidence demonstrates that witnesses to an overdose do not call 911 for concern of police involvement.

The Honourable Jane Philpott, Minister of Health, was quoted as saying,

During an overdose, a call to 911 can often be the difference between life and death. We hope that this new law, and the legal protection it offers, will help encourage those who experience or witness an overdose to make that important call, and save a life.

WHAT LEGAL PROTECTION IS GRANTED BY THE ACT?

This Act provides legal protection for individuals who seek emergency help or witness an overdose. An overdose is defined in the Act as a

 physiological event induced by the introduction of a controlled substance into the body of a person that results in a life-threatening situation and that a reasonable person would believe requires emergency medical or law enforcement assistance.

This Act can protect you from charges for possession of a controlled substance, i.e. drugs, under section 4(1) of the Controlled Drugs and Substances Act.

This Act also protects people in breach of the following conditions under section 4(1) of the Controlled Drugs and Substances Act:

  • Parole;
  • Pre-trial release;
  • Probation orders;
  • Simple possession; and,
  • Conditional sentences.

It does not, however, provide legal protection against more serious offences, such as:

  • Outstanding warrants;
  • Production and trafficking of controlled substances; and,
  • All other crimes not outlined within the act.

The Act applies to all people seeking emergency support during an overdose, including the person experiencing the overdose. It also protects anyone who seeks help, whether they stay or leave the overdose scene before help arrives.

WHAT ARE OPIOIDS?

Opioids are drugs with pain relieving properties that are used primarily to treat pain. Over the counter opioids (i.e. Tylenol 1) can be purchased at the pharmacy without visiting a doctor to treat minor aches and pains, like headaches or tooth aches. There are also opioids that are prescribed by a doctor to relieve medium to severe pain, like after surgery.

Fentanyl is an extremely strong opioid that is prescribed for people with extreme pain, like cancer, and should only be used under medical supervision.

This type of drug can produce euphoria, or a high feeling, which leads them to be used improperly. Examples of opioids that can be prescribed medications, such as:

  • Codeine;
  • Fentanyl;
  • Morphine;
  • Oxycodone;
  • Hydromorphone; and,
  • Medical heroin.

Doctors sometimes prescribe opioids for conditions, such as:

  • Acute moderate to severe pain;
  • Chronic pain;
  • Moderate to severe diarrhea; and,
  • Moderate to severe cough.

Dependency, substance use disorder and overdose are serious side effects and risks of using opioids. They have the potential for problematic use because they produce a “high” feeling.

WHAT IS AN OVERDOSE?

An overdose can occur when one has ingested too much of an opioid. Opioids slow down the part of the brain that controls breathing. If you take more opioids than your body can handle, your breathing slows, which can lead to unconsciousness or death. Signs of an overdose include:

  • Person can’t be woken up;
  • Breathing is slow or has stopped;
  • Snoring or gurgling sounds;
  • Fingernails and lips turn blue or purple;
  • Pupils are tiny (pinned) or eyes are rolled back;
  • Body is limp.

WHAT TO DO IN CASE OF A SUSPECTED OVERDOSE

In case of a suspected overdose, the following is recommended:

  • Check to see if the person is breathing. Look, listen and feel.
  • Call 911 immediately. Tell the operator that this is a suspected overdose, so the emergency crew can bring naloxone (a medication that can temporarily stop or reverse an opioid overdose).
  • Do not leave the person alone. Wait until help arrives. If you must leave, turn the person on their side to avoid possible choking.
  • Try to keep the person awake and remind them to take frequent deep breaths.
  • If you are concerned that people you know are using opioids, you can get a naloxone kit from the public health unit or a local pharmacy.

If you are facing a drug related charge or have any questions regarding your legal rights, contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week.

 

 

 

Police Had No Reason to Search a Home, Drug Conviction Overturned

Written on Behalf of Affleck & Barrison LLP

A man operating a marijuana grow-op in his basement has had his drug conviction thrown out after the Court of Appeal found that the police had no right to enter his home, despite the fact that the man’s four-year old child was found wandering by himself, wearing a diaper, near a busy intersection close to the home.

What Happened?

A passing motorist called 911 to report a child standing alone at the side of a busy road. By the time the police arrived, the child’s mother had intercepted him, and had him safely in her arms. The child’s father arrived shortly thereafter and explained to police that the boy was autistic, “tended to wander”, and had managed to get out of the house despite a special lock on the door.

The man permitted the police to visit his home to inspect the lock. When police arrived, they insisted on going inside the home, claiming that they were entitled to do so in order to check on the boy’s well-being.

Once inside the home, the officers smelled marijuana and began to look around, including inside cupboards and inside the fridge. The officers eventually made it to the basement and found marijuana plants. They arrested the man and charged him with a number of drug-related offences.

The Original Trial Decision

At the original trial, the man argued that the police had violated his constitutional rights when they conducted the search.

Superior Court Justice McIsaac rejected this assertion, finding that the police had been entitled to conduct a “protective sweep” of the home due to their “child-protection concerns.” The judge rejected any suggestion that the police had used the child as a pretext to “insinuate themselves into a suspected drug operation”. The marijuana evidence was admitted, and the man was convicted.

The man appealed the conviction.

The Court of Appeal Decision

On appeal, prosecutors argued that the search had been appropriate and justified. However, the Court of Appeal ultimately disagreed and quashed the conviction. The Court of Appeal found that the police’s actions had amounted to an illegal search and a breach of the man’s rights.

The Court’s decision was based largely on evidence from the lead police investigator who had testified that he had no concerns that the boy was in serious danger in the home, and that there would have been no grounds to obtain a search warrant.

Justice John Laskin, writing on behalf of the court, noted that the police have a duty to investigate 911 calls, as well as a limited right to enter a home without a warrant; however once inside a home, police do not have any additional authority to search a home or intrude on a resident’s privacy or property:

Police can enter a home without a warrant if they have reasonable grounds to believe it is necessary to do so to protect a person’s life or safety…[that] does not give the police sweeping authority to enter a home without a warrant to investigate whether a child’s mother and father are good parents.

Justice Laskin ultimately found that the breaches of the man’s rights in this case were serious enough to merit throwing out the drug evidence. The man was acquitted.

If you have been charged with a drug offence contact one of the Oshawa drug offence lawyers at Affleck & Barrison. You can reach us  online or at 905-404-1947. We maintain a 24-hour phone service and we accept cases by private retainers and Legal Aid. Trust our experienced lawyers to handle your defence with diligence and expertise.