What Does It Mean That I Have a Right to Counsel?

PUBLISHED ON January 14, 2024

Section 10(b) of the Canadian Charter of Rights and Freedoms guarantees that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. So, what does that really mean?

What is written below provides a brief and general explanation of the law’s surroundings. 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.

The Purpose of Section 10(b) of the Charter

In essence, the purpose of the right to counsel is to ensure that those who are subject to the coercive power of the state know of their right to counsel and are permitted the opportunity to use it so that they may make an informed decision about whether to participate in the state’s investigation of them and protect themselves against the risk of involuntary self-incrimination. Put another way, the right to counsel is a lifeline for detained persons.

Duties and Obligations

Again, under section 10(b) of the Charter, a person who has been detained or arrested has the right to be informed of their rights to counsel and exercise that right without delay. Accordingly, police who arrest or detain an individual have the following duties.

(a) to inform the detainee of their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel in an understandable way;

(b) if a detainee indicates a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances) in a meaningful way;

(c) to refrain from eliciting evidence from the detainee until they have had the reasonable opportunity to exercise their rights.

What does “without delay” mean?

The duty to inform a detained person of their right to counsel arises “immediately” upon arrest or detention. This is the informational component of the right to counsel. The duty to facilitate access to a lawyer, in turn, arises immediately upon their request to speak to counsel. This is the implementational component. Arresting officers are, therefore, under a constitutional obligation to facilitate the request to access a lawyer at the first available opportunity. The police are expected to take proactive steps to ensure access to counsel.

Also, the law has long been settled that once a detainee invokes the right to counsel, the police have a duty to hold off questioning until the detainee has had a reasonable opportunity to consult with counsel. 

The Right to Re-Consult with Counsel

Section 10(b), the right to counsel, is not satisfied merely because the accused has been afforded one opportunity to consult counsel. Situations may arise where a second consultation is required. The Supreme Court has held that police are required to provide a second opportunity to consult counsel where “changed circumstances suggest that reconsultation is necessary in order for the detainee to have the information relevant to choosing whether to cooperate with the police investigation or not”. Situations where a consultation is required include new procedures involving the detainee, a change in the jeopardy facing the detainee, or reason to believe that the first information provided was, in some manner, deficient. 

Should you be charged with a criminal offence and need to speak with a lawyer, contact Brian Ross at (416) 658-5855 for answers to further questions or to schedule a consultation.

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Brian Ross is a founding partner at Canada’s largest criminal Law firm, Rusonik, O’Connor, Robbins, Ross & Angelini, LLP. Prior to founding this firm, Brian was a partner at Pinkofskys, a leading law firm famous for its vigorous defence of its clients.

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