What must the Police Tell Me upon Arrest?

What must the Police Tell Me upon Arrest?

Section 10(b) of the Canadian Charter of Rights and Freedoms fulfills its purpose in two ways.  First, it requires that the detainee be advised of his right to counsel.  This is called the informational component.  Second, it requires that the detainee be given an opportunity to exercise his right to consult counsel.  This is called the implementational component.

In today’s blog entry, I discuss the informational component of the section 10(b) Charter right.  Or more simply: what must the police tell you upon arrest/detention?

Canadian Charter of Rights and Freedoms

10. Everyone has the right on arrest or detention

                a. to be informed promptly of the reasons therefor;

                b. to retain and instruct counsel without delay and to be informed of that right.

Overview of the 10(b) right

The Supreme Court of Canada has recognized that the purpose of the right to retain and instruct counsel guaranteed by section 10(b) of the Charter is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”.

R. v. Manninen, 1987 CanLII 67 (SCC),
[1987] 1 S.C.R. 1233 at 1242-43.  See also R. v. Taylor, 2014 SCC 50 (CanLII), [2014] 2 S.C.R. 495 at para. 21.

 A person who is detained or arrested is, “in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty.” The assistance of counsel helps to ensure that those who are in custody, and therefore in legal jeopardy, are positioned to make a voluntary and informed decision whether or not to speak, or otherwise cooperate, with the police.

R. v. Sinclair, 2010 SCC 35 (CanLII), [2010] 2 S.C.R. 310 at para. 25; R. v. Willier, [2010] S.C.R. 429 at para. 27. 

The rights created by s.10 (b) attach immediately upon detention, subject to legitimate concerns for officer or public safety.

 R. v. Suberu, [2009] 2 SCR 460, 2009 SCC 33 (CanLII) at para 2, 42.

The Standard Police Script

 It is the usual practice of police upon the arrest or detention of an individual to inform the individual of his/her rights by reading those rights from a laminated card.  This is generally prudent, as if there is a question as to what was conveyed to the detainee, the content of the card can be put in as evidence and the officer can give evidence that she read verbatim off it (assuming she did).  Of course, that practice is only as good as what is written on the card, which may be under-inclusive or confusing.  In my experience, the content of such cards changes subtly depending upon jurisdiction of the police force.

Below I set out a typical script that a police officer would use to inform a detainee of her right to retain and instruct counsel, along with the rationale for each component of that script.

Standard Script for Police Officers
Rationale
I am arresting you for [name of offence(s)].
The right conferred by s. 10 (a) of the Charter gives rise to a corresponding duty on the police to inform a detainee of all of the reasons for his or her arrest or detention.
R. v. Borden (1994), 1994 CanLII 63 (SCC), 92 C.C.C.(3d) 404 (S.C.C.).
Given the necessary interaction between s.10(a) and s.10(b) of the Charter and given that s.10(b) must be complied with “immediately” with upon detention so too must s.10(a).
See for instance R. v. Spiry, 2010 ABPC 61 (CanLII) at para 32.
The duty to inform a person of the reasons for his or her arrest or detention is founded on two principles: (1) a person is not obliged to submit to an arrest or detention if he or she does not know the reason for it, and (2) the right to counsel can be exercised in a meaningful way only if the person knows the extent of his or her jeopardy.

R. v. Evans, [1991] 1 SCR 869, 1991 CanLII 98 (SCC) at para 43.
You have the right to retain and instruct counsel without delay.
Immediately upon detention, the detainee has the right to be informed of the right to retain and instruct counsel.

See for instance R. v. Suberu, [2009] 2 SCR 460, 2009 SCC 33 (CanLII)  
You have the right to telephone any lawyer you wish
The Supreme Court of Canada has interpreted the right to retain and instruct counsel, guaranteed by section 10(b) of the Charter, as including a concomitant right to consult a lawyer of one’s choosing. 

  R. v. Ross, [1989] 1 SCR 3, 1989 CanLII 134 (SCC); R. v. Willier, [2010] 2 SCR 429, 2010 SCC 37 (CanLII).
As a mistaken belief on the part of the detainee that she is limited in her choice of lawyers to contact may affect her decision to contact counsel at that critical juncture, it makes sense that this aspect of the right must be expressly communicated to the accused.
If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance.
The Existence of Brydges Duty Counsel” and Legal Aid

There is a duty on police to inform a detainee of the existence of duty counsel and the ability to apply for Legal Aid.
R. v. Brydges, 1990 CanLII 123 (SCC)

You also have the right to free and immediate legal advice from duty counsel by making free telephone calls to [toll-free phone number(s)] during business hours and [toll-free phone number(s)] during non-business hours.
The Availability of Free immediate preliminary legal advice
“A detainee is entitled under the informational component of 10(b) of the Charter to be advised of whatever system for free, preliminary legal advice exists in the jurisdiction and how such advice can be accessed (e.g. by calling a 1-800 number, or being provided with a list of telephone numbers for lawyers acting as duty counsel.”
R. v. Bartle, 1994 CanLII 64 (SCC)
Toll-free number
If there is in existence a 24-hour duty counsel service which can be accessed by dialing a toll-free
number, as there is in Ontario, this must be communicated to all detainees as part of the standard s. 10(b) caution delivered by police.
R. v. Bartle; see also R. v. Prosper, per Lamer C.J.
The police must provide an arrested or detained suspect with the toll-free number at the moment when he or she wishes to take advantage of the right to contact the 24-hour duty counsel service.
If a detained or arrested suspect has been fully informed of his or her rights under section 10(b), and knowingly declines to pursue the opportunity to contact counsel, then it is clearly not necessary for the police to provide the specific toll-free number that will connect him or her with duty counsel.
See for instance R. v. Baldwin, 2016 ONCJ 589 (CanLII), per Kenkel J., where the court held that the failure of the officer to read out the digits of the 1-800 number when advising the accused of
his right to counsel (in circumstances where the officer had immediately told the accused that the police could arrange for him to call a free lawyer, and where the accused had declined) did not breach s.10(b) breach.  The officer explained the right to counsel advice in simple terms
that were plainly understood by the accused.
Do you understand?
When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern.  The question is
whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).
R. v. Evans, [1991] 1 SCR 869, 1991 CanLII 98 (SCC)
Do you wish to call a lawyer?
The implementational duties on police are not triggered until the detainee indicates his desire to exercise his right to counsel.
                           See R. v. Baig [1987] 2 S.C.R. 537
I wish to give you the following warning: You need not say anything. You have nothing to hope from any promise or favour and nothing to fear from any threat whether or not you say anything. Anything you do or say may be used as evidence.
Do you understand?
Caution
This warning is not constitutionally-mandated, however police would be wise to provide it the event that the voluntariness of any statement made by the detainee to a person in authority is challenged.
In evaluating the voluntariness of a confession, it is commonly understood that the presence or absence of a caution is only one factor to be taken into account with all the other circumstances.
Boudreau v. R., [1949] S.C.R. 262, 7 C.R. 427 (S.C.C.).
I wish to give you the following warning: You must clearly understand that anything said to you previously should not influence you or make you feel compelled to say anything at this time. Whatever you felt influenced or compelled to say earlier, you are now not obliged to repeat, nor are you obliged to say anything further, but whatever you do say may be given as evidence.
Do you understand?
Secondary Police Caution
This warning is not constitutionally-mandated; but again, police would be wise to provide it.

Additional informational obligations

Prosper Warning

An additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had this opportunity.

Waiver of 10(b)Rights

Although detainees can waive their s.10(b) rights, valid waivers of the informational component of s.10(b) will be rare and waiver requires clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect.

                                                                                                      R. v. Bartle; R. v. Korponay v. AG. Canada

Change in Legal Jeopardy

Police have the duty to advise a suspect of the right to counsel where there is a fundamental and discrete change in the purpose of an investigation which involves a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the original instruction of the right to counsel.

Evans; R. v. Burlingham

If Reason for Detention is different from Subject Matter police intend to address

The police also have a duty under s.10 (a), if the reason for the detention is different from the subject-matter that the police intend to address, to inform the detainee of both the reasons for detention and the subject-matter that the police intend to address.

R. v. Sawatsky (1997), 1997 CanLII 511 (ON CA), 118 C.C.C.(3d) 17 (Ont.C.A.), at para. 29.

Stuart O'Connell - http://www.leadersinlaw.ca/
Stuart is Lead Counsel at O’Connell Law Group (http://www.leadersinlaw.ca/) and works in association with the Firm.
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