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Drug conviction tossed because woman not told she had right to lawyer

Posted by on 24/01/2019

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.

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“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.

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Superior Court Justice Russell Raikes convicted Daley her 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.

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