Your Rights to Speak to a Lawyer When You Are Arrested

PUBLISHED ON December 12, 2022

As a Canadian citizen, the Canadian Charter of Rights and Freedoms affords you specific rights. Among these rights is your right to speak to a lawyer when you are arrested or detained. 

The right to speak to a lawyer and to remain silent are critical rights afforded to you: they assist you in avoiding making statements that may later be used in evidence against you. Upon detention or arrest, you may feel anxious. You may feel overwhelmed. You are at an informational disadvantage. You don’t know your options. For these reasons, your right to speak to a lawyer has been given constitutional protection. So important is your need for a lawyer’s advice in the critical situation of your arrest that even if you do not have a lawyer, the police must assist you in contacting a lawyer.  

This article outlines, in a general sense, what your right to counsel under the Canadian Charter of Rights and Freedoms really means. This is not legal advice; it is for informational purposes only. Should you require legal advice, contact Brian Ross today. 

The Police Must Accommodate Your Right to Legal Counsel

Upon arrest, the officer must promptly inform the detained person of their right to retain and instruct counsel. That information alone would be useless unless the detained individual had the means to implement the right. Because of this, and the fact that most people don’t have a criminal defence lawyer, the police officer is required to inform the detained person about the existence and availability of legal aid and the ability to call ‘duty counsel’ (criminal defence lawyers who assist in these situations) to provide the detained person with legal advice. There is no cost to the arrested person for this service. Sometimes an accused person will only have a lawyer’s name but not a phone number. Sometimes, the lawyer’s full name won’t even be known. In these circumstances, a police officer is required to provide access to a lawyer and will use phonebooks and the internet to find a phone number for the lawyer. To be clear, when contacting a lawyer, the police must honour an arrested person’s rights and explore every avenue reasonably available to facilitate the call with counsel. The arrested person must also be afforded the opportunity to speak to counsel in private. 

You can see that there is both an informational component and an implementational component to this Charter right. There is a further implementational component. Suppose the detained person has indicated a wish to speak to counsel (either their own lawyer or with duty counsel). In that case, the police officer must stop questioning the detained person until they have had a reasonable opportunity to exercise their rights.    

Obligations for Contacting a Lawyer Upon Your Arrest

There are obligations on the arrested party, too. If the detained/arrested person does not invoke their right to speak to a lawyer or is not diligent in exercising their right, the officer’s corresponding duties are not triggered. While you have the right to contact legal counsel upon your detention/arrest, this right still has certain restrictions. For example, the police are not required to wait an infinite number of hours for your lawyer to pick up the phone and consult with you. How long is a ‘reasonable amount of time’? It depends on the case and the circumstances surrounding it: the term “reasonable” can vary depending on the specific circumstances of each case.

Let Brian Ross’s Law Help You Understand Your Rights

Knowing your rights and your right to speak to a lawyer when you are arrested is one of your most critical rights. 

Brian Ross and the lawyers at R.O.R.R.A. LLP are here to assist. Brian Ross Law is here to pick up the phone when needed. For legal representation, call us at (416) 658-5855.