The Right to Counsel

Section 10(b) of the Canadian Charter of Rights and Freedoms guarantees you the right to speak with a lawyer (counsel) before answering the police questions once arrested or detained.^[1] Where evidence is collected in breach of your right to counsel, it may be held inadmissible and excluded from legal proceedings.^[2]

What Obligations Does Your Right to Counsel Place on The Police?

The right to counsel places a number of obligations on the police. Firstly, the police must inform you of your right to counsel immediately when they detain you.^[3] Although delays may be allowed in exceptional circumstances where the safety of officers or the public is concerned, the courts are stringent about the type of limits that are justified.^[4] For example, the police may delay informing you of your right to counsel during a traffic stop in order to conduct roadside sobriety tests, but only as long as would reasonably be necessary to determine whether they have the grounds to request a breath sample (at which point they must inform you of your rights).^[5]

Beyond just informing you that you have the right to counsel, the police must also ensure that you understand it. While the police are permitted to infer that you understand from the circumstances, they must take steps to clarify your understanding if they have reason to believe it is insufficient.^[6] In particular, where there is evidence of a language barrier, the police must also inform you of the right to speak to counsel in another language and may be required to explain your rights through an interpreter or an officer that speaks your language.^[7]

Second, the police must provide you with a reasonable opportunity to exercise your right to counsel. This includes providing you with access to a phone and providing privacy for you to speak with counsel.^[8]

Third, the police have a duty to refrain from further questioning or attempts to elicit incriminating evidence until you speak with a lawyer.^[9] This comes with the exception that the police may still ask some preliminary questions to determine how to proceed with their investigation, such as asking you to identify yourself.^[10]

Finally, the police must offer you another consultation with counsel if a change in circumstances significantly alters the choice you face of whether and how to cooperate with their investigation.^[11] Examples include the addition of new procedures that your lawyer may not have been aware of at the time of your initial consultation, new charges being laid against you, or where there are objective reasons for the police to believe that you do not understand your rights after speaking with counsel.^[12]

Does This Place Any Obligations On You?

For practical reasons, the police are only bound by these obligations if you make a diligent, good-faith effort to contact counsel.^[13] You have the right to choose which lawyer you would like to speak with and you are entitled to wait a reasonable amount of time for them to respond.^[14] However, you may be expected to seek another lawyer if the delay becomes unreasonable.^[15] Similarly to the police duty to immediately inform you of your right to counsel, what is considered reasonable is determined by the context. Relevant factors include the urgency of the investigation and the seriousness of your charges.^[16]