The right to counsel is the one the most familiar and one of the most important rights afforded in the Canadian Charter of Rights and Freedoms. Owing to American television shows, most people are able to rhyme off the “Miranda” warning. However there are some key differences between the American and Canadian approach to the right to counsel.
In Canadian, the rights afforded under s. 10 are designed to inform a detained individual of the scope of their jeopardy, and to ensure that expert legal advice is available to assist the individual to navigate their current situation.
According to the Supreme Court of Canada, “The purpose of the s. 10(b) right is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights.”
Section 10 of the Charter reads as follows:
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Under section 10(a), police must inform an individual of the reason for their arrest of detention. This obligation arises immediately upon either a formal arrest, or an investigative detention by police.
Section 10(b) guarantees the right of arrested or detained individuals to retain and instruct counsel without delay.
The Content of the Right to Counsel
The Supreme Court of Canada has held that the right to counsel consists of a number of important components. Specifically, the right consists of:
1) an informational component, and;
2) an implementational component.
Generally, this means that the detained individual must be informed of both the right to counsel and its content in a manner that can be understood. In circumstances where a suspect does not understand English, for example, the police have an obligation to provide an interpreter. A suspect must be afforded the opportunity to make an informed decision whether to not to exercise their right to counsel, and to understand the advice provided.
There are also corresponding duties, obligations, and restrictions upon the manner that the police conduct their investigation once the right has been asserted. These relate to the right’s “implementational component.”
It must be understood that the right to counsel must be facilitated “without delay.” In a case called R. v. Bartle, the Supreme Court of Canada explained why the right to counsel must be facilitated without delay. The Court explained:
“This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty … . Under s. 10(b), a detainee is entitled as of right to seek such legal advice “without delay” and upon request… . [T]he right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process.”
The content of the right to counsel does not merely end with the simple reading of a police caution immediately upon arrest or detention.
Police must inform the detainee of his/her right to counsel and explain the existence and availability of legal aid and duty counsel to assist if one does not have a lawyer, or if a private lawyer cannot be reached at the time. Police must also provide the detainee with a free 1-800 number to contact duty counsel and the means to do so. Duty counsel are available 24 hours a day, 7 days a week, to provide summary legal advice to detained individuals.
Importantly, the right to counsel contains a corresponding right to retain and instruct counsel of “one’s choice.” Generally, detainees cannot be compelled to simply speak with or accept advice from duty counsel where a specific lawyer has been requested. However, after an appropriate period of time, if a detainee’s counsel of choice cannot be located or reached, the individual may be required to accept the assistance of duty counsel.
If a detainee has indicated a desire to exercise their rights under s. 10(b), the police must provide the individual with a reasonable opportunity to exercise the right. Recent case law has held that in certain circumstances, police must even provide the detainee with a phone book or other directories to try to locate their own lawyer to assist.
It is important to note that the opportunity to contact counsel does not simply arise at the police station. In certain cases where a phone is immediately available upon arrest, and there are no compelling reasons to delay access, police must allow the detainee to use the phone.
Finally, when a detainee has exercised their right to counsel, police must refrain from trying to elicit further evidence and refrain from further questioning until he or she has had a reasonable opportunity to speak with counsel.
Limitations Upon the Right to Counsel
Recent caselaw has outlined a number of important limitations to the s.10(b) right to counsel.
First, suspects are not entitled to have a lawyer present during the course of an interrogation or interview. A slight exception involves youth matters. In these cases, a young person who wishes to provide a statement is entitled to have a parent or lawyer present. Statements will not be admissible as evidence unless the young person is advised of this right, and if requested, a parent/adult or counsel is present.
Secondly, suspects and accused persons do not have a right to demand an unlimited number of conversations with counsel. After obtaining initial advice, a detainee’s right to consult with counsel again can be limited by police. However, there are particular situations that will necessitate a renewed right to speak with counsel. These include:
- New processes or procedures involving the detainee. This might include the decision to proceed with a line-up, a request for DNA samples, or a request for a polygraph examination at the police station.
- A change in the detainee’s jeopardy. This includes the decision by police to add new charges or to upgrade existing charges. This also includes a situation where an individual attends the police station as a mere suspect, but it is subsequently decided that they will actually be charged.
- A reason by police to believe that the initial advice provided by counsel was deficient, that the detainee did not understand the advice, or that the detainee explicitly stated that they were not satisfied with the advice provided.
Waiver of the Right to Counsel
In some circumstances, a detained person may waive their right to contact/consult with counsel. In these cases, the police are entitled to continue with their investigation and may attempt to elicit evidence. In these cases, however, the police must ensure that the detainee freely waives their right to counsel, and that they understand the right that they are giving up. In waiver situations, the police are obligated to provide a further warning to this effect. If waiver becomes an issue at an eventual trial, the Crown/police will bare the burden of establishing an informed an unequivocal waiver of the right to counsel.