But I said I wanted to speak to my lawyer! Can the police hold off on putting me in contact with my lawyer?

PUBLISHED ON November 10, 2024

Section 10(b) of the Canadian Charter of Rights and Freedoms places a duty on police officers who detain suspects to immediately provide them with a reasonable opportunity to speak to counsel when they indicate a desire to do so. This opportunity must be meaningful. The police cannot limit your call to one minute, for example, or sit right beside you and participate in the call. This article addresses the topic of how quickly the police are expected to act in facilitating the right to have meaningful contact with counsel. What is written below provides a brief and general explanation of the law surrounding this aspect of section 10(b) Charter rights. This is not legal advice and is not intended to be so. Should you require legal advice about your case, you should consult with an experienced criminal defence lawyer.

How long is too long?

The duty to facilitate access to a lawyer arises immediately upon a request to speak to counsel. Arresting officers are, therefore, under a constitutional obligation to facilitate the request to access a lawyer at the first available opportunity. But when is the “first available opportunity,” and how long is too long? The answers to these questions include a consideration of:

• when were the rights to counsel provided
• when was the request to speak to counsel made
• the surrounding circumstances
• was there a situation of danger or urgency
• was there a risk evidence could be destroyed
• could privacy be afforded
• for how long did the section 10(b) Charter breach persist?

There are often no clear answers to these questions and both sides will disagree, leaving it to the Court to decide the issue. When access to counsel is delayed, the prosecutor must show that a given delay was reasonable based on the case’s specific facts.

When is it considered okay for police to delay access to counsel?

Generally, courts have considered it acceptable for the police to delay a detainee’s access to counsel in circumstances where there are concerns over police or public safety or the preservation of evidence. Recent cases from the Ontario Court of Appeal have held that the need to execute search warrants, for example, can sometimes justify delaying access to counsel. But even in those situations, police officers “must move as efficiently and reasonably as possible to minimize any ensuing delay.” That is, the police are expected to take proactive steps to ensure access to counsel.

The bottom line

The right to counsel demands that the police facilitate meaningful access to a lawyer at the first available opportunity. In practice, courts have found that police are not expected to provide a detainee with a phone to speak to a lawyer at the scene of the crime. Nor in the back of the police car. Generally, it is considered acceptable to take the detainee to the police detachment and provide phone access to counsel in a private room very shortly after arrival at the detachment. Conversely, it has been considered unacceptable for the police to delay facilitating a detainee’s access to counsel until after they search the detainee’s residence in a situation where the police could have obtained a search warrant prior to the arrest but chose to wait. Again, the police are expected to take steps in advance to ensure that an arrested individual has access to a lawyer. As the Supreme Court of Canada has stated, for arrested individuals, lawyers are their lifelines to the outside world. Police officers are duty-bound to facilitate access to this lifeline.

If you have questions about your rights to counsel or are charged with a criminal offence and need to speak with a lawyer, contact Brian Ross at (416) 658-5855.