Informational Component to Right to Counsel

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General Principles

See also: Right to Counsel

The right to counsel can only be properly realized where the accused is given an opportunity to fully understand the jeopardy that they are in and appreciate the consequences of the decision to speak to counsel. Thus, they must be informed of the offence as part of the informational component.[1]

The informational duty requires the officer to inform the detainee of his right to retain and instruct counsel without delay.

Legal Aid
The police must also inform the accused of the availability of duty counsel and legal aid.[2] The police must provide details on accessing 24 hours duty counsel phone by giving a toll-free number to call.[3] The failure to provide a specific telephone number to Legal Aid is fatal to the fulfillment of the right.[4]

Burden of Proof
Absent proof of circumstances showing that the accused did not understand his right to counsel when he was informed of it, then the onus is on the detainee to prove that he was denied an opportunity to ask for counsel at the time of detention.[5]

Choice of Counsel
There is a right to an opportunity to contact counsel of choice.[6]

If the accused asks for a specific lawyer but that lawyer is not available, then they are expected to choose someone else.

Consequence of Invoking the Right
The police have an obligation to hold off from questioning while the accused is given reasonable opportunity to contact a lawyer.[7]

When Detainee Changes Their Mind (Prosper Warning)
If a detainee changes their mind after initially expressing a desire to access counsel and then changes their mind about counsel after being "diligent but unsuccessful", the police have an obligation to to "inform the detainee of his or her right to a reasonable opportunity to contact counsel".[8] The police also have an obligation to hold off on questioning until after they have informed the detainee of this additional right.[9]

Other Consequences
Police are not obliged to notify the detainee that the access to counsel will occur at the police station.[10]

The instructions asking whether they want to speak to counsel "now" does not oblige on-site access to counsel.[11]

It does not necessarily result in a breach if the officer fails to re-advise the detainee of the right to counsel once they are at the station. However, it is generally preferable that officers do so.[12]

  1. R v Black, 1989 CanLII 75 (SCC), [1989] 2 SCR 138
    R v O'Donnell, 1991 CanLII 2695 (NB C.A.)
  2. R v Brydges, [1990] 1 SCR 190 1990 CanLII 123
    R v Luong, 2000 ABCA 31 (CanLII)
  3. R v Bartle, [1994] 3 SCR 173, 1994 CanLII 64
    R v Pozniak, [1994] 3 SCR 310, 1994 CanLII 66
    R v Cobham, [1994] 3 SCR 360, 1994 CanLII 69
    R v Matheson, [1994] 3 SCR 328, 1994 CanLII 67
  4. R v Deabreu, 1994 CanLII 1186 (ON C.A.)
  5. R v Baig, 1987 CanLII 40 (SCC), [1987] 2 SCR 537
  6. R v Kowalchuk, 1999 CanLII 12437 (SK QB)
    R v Keagan, 2003 NLSCTD 48 (CanLII)
    R v Top, 1989 ABCA 98
    R v Nelson, 1991 CanLII 1446 (BC CA)
    R v Tremblay, [1987] 2 SCR 435 1987 CanLII 28
    R v Playford, 1987 CanLII 125 (ON CA)
  7. R v Cutknife, 2000 ABQB 641 (CanLII)
    R v Russell, 2000 NBCA 53 (CanLII)
  8. R v Willier, 2010 SCC 37 (CanLII) ("[W]hen a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue contact with a lawyer, s. 10(b) mandates that the police explicitly inform the detainee of his or her right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning until then.")
  9. Prosper, ibid.
  10. R v Devries, ONCA 477 (CanLII)
  11. Devries
  12. Devries

Procedure

Typically, the officer will read from a script such as this:

I am arresting you for [name of offence(s)].

You have the right to retain and instruct counsel without delay. 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.

Do you understand?

Do you wish to call a lawyer?

You also have the right to apply for legal assistance through the provincial legal aid program.

Do you understand?

See Also