Late one October evening, Ms. C and a longtime friend, Ms. S, were sitting in a parked car with the intention of recreationally smoking marijuana. They were not driving the car. While rolling a joint the car was approached by officers of the York Regional Police, who were immediately able to see the bag of marijuana in the car. Ms. C and Ms. S were honest and informed the officer that they had not yet smoked any marijuana and were in the process of rolling it. The two were removed from the car so the officer could perform a search.
During the search the officer found one container of marijuana belonging to Ms. C and one bag of marijuana belonging to Ms. S. In the glove compartment the officer found a small bag of white powder, which upon testing was revealed to be cocaine. The two were charged and read their right to counsel. This is where Ms. C and the officer’s recollection of the events diverge.
The arresting officer claims he fully explained the right to counsel and that Ms. C waived her right. The notes kept by the officer indicate only that he read the rights and was asked for clarification.
Ms. C insists that she was not made aware of the existence of duty counsel as a 24/7 service, or of her right to contact counsel from the roadside before being brought to the police station. Had she known, she claims would have engaged her right to speak to a lawyer without delay.
When she came to us, Ms. C insisted that she was not the owner of the cocaine and had never seen it before. She claimed it must have belonged to Ms. S, who likely hid it in the glove box when she saw the police officer approaching the car. She was also adamant that she hadn’t known duty counsel was available 24/7 and that she had a right to contact counsel during the initial encounter, and if she had known she would have engaged that right. Ms. C was an innocent woman caught in a difficult situation, and our goal was to ensure she walked away without an undue criminal record.
We focused our efforts on the errors made by the officer in providing Ms. C with her right to counsel. A violation of any Charter right, such as the 10(b) right to counsel, can unravel a Crown’s entire case. Your right to counsel exists to prevent state actors, like police, from taking advantage of your lack of legal knowledge. You have a right to contact counsel to advise you to ensure your rights are upheld.
We submitted to the Crown Attorney that Ms. C did not in fact waive her right to counsel, and that the arresting officer had both failed to properly clarify the scope of that right and incorrectly presumed the right was waived. As such Ms. C had her s10(b) rights violated and the evidence obtained during the search should be deemed inadmissible.
We supplemented our claim by having Ms. C enroll in a counselling program for addictions. While she was firm that the cocaine was not hers, this would help satisfy the Crown that if they dropped the charges because they risked losing against our s10(b) challenge, they could at least note that non-criminal diversionary measures had been taken (the counselling).
We presented the Crown with proof that Ms. C was attending addictions counselling and they agreed to withdraw the charge. Ms. C came to us an innocent woman, and we ensured she had the lack of a record to match.