Right to Counsel

Section 10(b) of the Charter of Rights and Freedoms stipulates that everyone, upon arrest or detention, has the right to retain and instruct counsel without delay and to be informed of that right. This means that where a person is arrested or detained, they have the right to speak with a lawyer and get advice on their current legal situation. They also have the right to be informed of their right to counsel by arresting officers.

The purpose of section 10(b) is to allow those who have been detained by government actors to speak with a lawyer regarding their rights and liabilities and get advice on how to exercise those rights to avoid self-incrimination.

What is the Right to Counsel?

The section 10(b) right to counsel ensures everyone being detained or arrested the right to speak with a lawyer about their rights and how to exercise those rights prior to being questioned by law enforcement. The right ensures a suspect or accused has one opportunity to speak with a lawyer.

If the accused’s jeopardy changes significantly during the interrogation, that may trigger a right so speak with counsel a second time. If the accused does not understand their rights as explained by the first lawyer they speak with, they must be given an opportunity to speak with another lawyer. Police must consider the characteristics of the accused including their age, education and sophistication levels when analyzing whether they understand their rights. Where it becomes clear to officers that an individual has misunderstood their right to counsel, they must provide the accused with another opportunity to seek advice.

When is the Right Triggered?

An individual’s section 10(b) right to counsel is triggered immediately upon detention or arrest by a government actor.

The Supreme Court of Canada has indicated that arrest involves the seizure of a person and involves law enforcement physically touching the individual to take them into custody while telling them they are under arrest. Detaining an individual has an added psychological component. An individual can be considered detained without being placed under arrest. An individual is said to be detained when they reasonably believe that they are not free to exit the situation. Detention can be both physical and psychological.

Example

Person A is suspected of murder and a warrant is issued for his arrest. Police attend his residence and take him into custody. He is provided with his right to counsel inside his home, immediately after police make contact with him. He is provided with information about free legal services in the area and given an opportunity to use the phone once at the police station.

Do you have a Right to have Counsel with you?

No. While everyone has the right to seek advice from counsel before being questioned by police, there is no right to have a lawyer in the room during questioning. Law enforcement will typically not allow a lawyer to be present during questioning.

What Happens if the Right is Violated?

In situations where an individual’s right to counsel is violated and the individual is criminally charged, they may bring a pre-trial motion arguing that their right has been violated. Typically, this type of pre-trial motion is brought where an individual provides police with self-incriminating evidence which leads to an arrest. If the pre-trial motion is successful, any evidence gathered as a result of the violation may be deemed inadmissible and excluded from evidence.

Example

Person A, an 18-year-old high school dropout, is arrested for murder and brought to the police station. He is not provided with an opportunity to speak with counsel nor is he informed of his right to do so. Instead, he is brought into an interrogation room and asked questions about the crime. Person A provides a confession. Person A hires a lawyer who files a pre-trial motion for person A’s confession to be excluded from evidence. The court rules that person A’s right to counsel was violated and the confession is deemed inadmissible pursuant to section 24(2) of the Charter.

Cases

R. v. Sinclair, (2010) SCC 35

In the case Supreme Court of Canada case of R. v. Sinclair, the court set out the specific principles of the right to counsel. The Court stated that the right to counsel has two parts: an informational component and an implementational component. The information component ensures that individuals detained by law enforcement have the right to speak with counsel. The implementational component ensures individuals are made aware of that right by the police before they are questioned and again if there is a change in the situation that would make a second consultation with a lawyer necessary.

R. v. Lafrance, (2022) SCC 32

In the case of R. v. Lafrance, the Supreme Court of Canada held that the accused’s 10(b) right to counsel had been violated. Eleven armed officers attended the accused’s home and entered his house in the early morning, waking him from his sleep and ordering him to leave his residence. Outside, he was asked to confirm who he was and to come to the police station to provide a statement regarding a murder that had occurred. Officers indicated doing so would be voluntary.

The accused attended the station and provided a statement. Officers indicated to the court that he was free to leave, however an officer accompanied him the entire time he was in the station, including to the bathroom. The accused provided his DNA, fingerprints, his clothing, and his cell phone to officers. He was later arrested and charged with murder. He spoke with duty counsel but later during an interrogation asked for a lawyer again. He was denied and ultimately confessed to the murder. Prior to trial, his lawyer filed a motion to have the confession excluded.

The Court determined that the accused’s right to counsel had been violated on both occasions. On the first occasion, the Court argued that the accused was being detained and that a reasonable person in his position would believe they were being detained. They argued that he should have also been given a second opportunity to speak with counsel before officers continued the interrogation, citing Sinclair, because it was clear the accused did not fully understand his rights.

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