What is the Right to Counsel?

The right to counsel upon arrest is a constitutionally protected right under section 10(b) of the Canadian Charter of Rights and Freedoms. Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right by police. This means that after being arrested, the police must provide you with the opportunity to call a lawyer of your choice or a free lawyer prior to eliciting evidence from you. The police must also provide you with a means of contacting including a phone and phone books. 

The right to counsel is engaged any time an individual is arrested by police. This right to counsel attempts to mitigate the legal disadvantage and promote principles of fairness. Essentially, the right to counsel assists in saving an accused from saying or doing something that can be used against him or her at trial.

Obligations Imposed by the Right to Counsel

Asserting your right to counsel imposes several obligations on the police:

• The officer musty inform you of your right to counsel without delay including your ability to call a free lawyer;
• If you have indicated a desire to call a lawyer, the officer must provide you with a reasonable opportunity to exercise that right; and
• The officer must refrain from eliciting evidence from you until you have had a reasonable opportunity to contact counsel. 

Informational Component

Your right to counsel can only be exercised when you fully understand the jeopardy you face and understand the consequences of the speaking with police. In order to fulfil the informational component of your right to counsel, police must inform you of the criminal offence for which you are being charged. Police must also inform you of your right to contact a lawyer without delay as well as the availability of duty counsel and a Legal Aid phone number to speak with a free lawyer. 

Implementation Component  

Once you have indicated a desire to contact a lawyer, the implementation component becomes engaged. This component involved two aspects:

• The officer must provide you with reasonable opportunity to exercise the right to counsel without delay.
• The officer must refrain from attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel.

Once you have expressed you desire to contact a lawyer, the police officer has an obligation to allow you to pursue that right. 

No Right to Counsel to be Present at Police Interview

Unlike what is often shown on television and movies, the right to counsel does not include the right to have counsel present during the police interview. In very rare circumstances, police may consent to your lawyer being present.   

Police Interrogation after Right to Counsel

Once you have spoken with a lawyer, the police have no obligation to inquire as to the adequacy of the legal advice obtained. If there were issues, it is up to you to inform the police that you were not satisfied with the legal advice and ask to be given another opportunity to contact a lawyer.

After you have spoken with counsel, the police are allowed to interrogate you even if you have told them your lawyer advised you not to give a statement. Any statement you give to police after you have exercised your right to counsel can be used against you. Even if you tell police that you will not give a statement and do not want to participate in an interview, police are permitted to continue the interrogation. However, in trying to elicit a statement from you, police are not permitted to belittle or make inappropriate comments regarding defence counsel. 

Breach of your Right to Counsel 

If police have breached your right to counsel, your lawyer will seek to have all evidence excluded from the point of the breach. This could include any statements you may have given to police, breath or blood samples or any derivative evidence arising from the breach. Depending on the nature of the offence, the Crown Prosecutor may withdraw the charges if the breach is serious enough. 

The most important thing you can do if you believe your right to counsel was breached, is to hire an experienced criminal defence lawyer to determine if police did violate your right to counsel. A breach of your right to counsel is taken very seriously by the courts and is one of the strongest defences in having evidence excluded at trial.  

About Cory Wilson

Cory has represented individuals from all walks of life including lawyers, police officers, athletes, corporate executives, teachers, and everything in between. Cory believes in access to justice for every person charged with a criminal offence regardless of their economic background.