Right to Counsel on Detention or Arrest

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General Principles

Upon arrest or detention, an accused has a constitutional right to counsel under s. 10(b) of the Charter.

10. Everyone has the right on arrest or detention...

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


Section 10(b) is engaged any time where an individual is "deprived of liberty and in control of the state", consequently are "vulnerable to the exercise of its power and in a position of legal jeopardy". This right attempts to "mitigate this legal disadvantage" and promote "principles of adjudicative fairness".[1]

Obligations Imposed by Right
Section 10(b), when invoked, imposes several obligations:[2]

  1. the officer must inform the detainee of his right to instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel;
  2. if the detainee has indicated a desire to exercise this right, the officer must provide the detainee with a reasonable opportunity to exercise that right, except in urgent and dangerous circumstances;
  3. the officer must refrain from eliciting evidence from the detainee until he has had that reasonable opportunity to contact counsel, except in urgent and dangerous circumstances.

The first two obligations are known as the informational component and implementation component.[3] These components impose a duty on the detaining or arresting officer to inform the accused that they have the right to counsel and to ensure that they have the opportunity to exercise the right.

Onus or Burden
The onus is upon the accused to establish they right s. 10(b) Charter rights were violated. This includes the burden to show that the detainee acted diligently.[4]

Where the detainee has invoked the right to counsel, the Crown has the onus of establishing that the detainee was provided with a reasonable opportunity to exercise that right.[5]

The purpose of the right to counsel is to permit a detainee "to be informed of his rights and obligations" and "to obtain advice as to how to exercise those rights".[6] It is intended to "ensure a level legal terrain for the detainee".[7]

It is also to assist the detainee to determine whether to cooperate or not.[8] For this reason there should only be access to counsel once.[9]

  1. R v Willier, 2010 SCC 37 (CanLII), per McLachlin CJ and Charron J, at para 28
    R v Clarkson, 1986 CanLII 61 (SCC), [1986] 1 SCR 383, per Wilson J
    R v Brydges, 1990 CanLII 123 (SCC), [1990] 1 SCR 190, per Lamer J
  2. R v Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236, per Lamer CJ at para 34
    R v Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173, per Lamer CJ at para 17
    R v MacLean, 2013 ABQB 60 (CanLII), per Ouellette J summarizing at para 18
  3. R v Luong 2000 ABCA 301 (CanLII) at para 12
  4. Luong, ibid. at para 12
    R v Willier, 2010 SCC 37 (CanLII), per McLachlin CJ and Charron J - the onus is on applicant to show access to counsel did not correct "power imbalance"
  5. Luong, supra at para 12
  6. R v Manninen, 1987 CanLII 67 (SCC), [1987] 1 SCR 1233, per Lamer J, at pp. 1242 to 43
    Brydges, supra
  7. R v Briscoe, 2015 ABCA 2 (CanLII), per Watson JA at para 47
  8. R v Sinclair 2010 SCC 35 (CanLII), per McLachlin CJ and Charron J
  9. Sinclair, ibid.

Effect of Right Once Engaged

The police must inform the detainee of their right to counsel without delay and the availability of legal aid and duty counsel.[1] The police must advise the detainee "of whatever system for free and immediate, preliminary legal advice exists in the jurisdiction at the time of detention and of how such advice can be accessed".[2]

If the detainee wishes to access counsel, the police must provide a reasonable opportunity to exercise that right and stop from taking any statements. [3]

The detained person must be reasonably diligent in exercising their right. [4]

The right does not extend to guaranteeing a "right of the detainee to appreciate the evidential situation when he intersects with the police."[5]

As soon as the right is properly asserted, the police have an obligation to assist the detainee in exercising that right without delay.[6] The police must also cease questioning or otherwise attempting to elicit evidence until the detainee has been given a reasonable opportunity to retain and instruct counsel.[7] The only exception to this is where there has been a clear waiver.[8]

The police are obliged to comply with s. 10(b) "immediately" subject to officer safety or other necessary limitations justifiable under s. 1 of the Charter.[9]

The detainee or accused does not need to "make an express request to use the telephone"[10]

Police must cease questioning while under the obligation to facilitate access to counsel unless in the case of urgency.[11]

Answering questions that are asked in violation of s. 10(b) cannot be held to be a waiver of those rights.[12]

After the right has been invoked, police cannot include as part of any of their rights recitation the question: "Do you wish to say anything?".[13]

Satisfying Right
The judge must first determine whether, in all of the circumstances, the police provided the detainee with a reasonable opportunity to exercise the right to counsel.[14]

It is suggested that in "most cases" where the detainee invokes their 10(b) rights, a caution followed by an opportunity to consult counsel will be sufficient.[15]

  1. R v Brydges, [1990] 1 SCR 190, 1990 CanLII 123 (SCC), per Lamer J
  2. R v Pozniak, [1994] 3 SCR 310, 1994 CanLII 66 (SCC), per Lamer CJ
  3. R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 SCR 1233, per Lamer J
  4. R v Basko 2007 SKCA 111 (CanLII), per Wilkinson JA at para 21
  5. Briscoe, supra at para 48
  6. Manninen, supra at para 22
  7. R v Burlingham, 1995 CanLII 88 (SCC), [1995] 2 SCR 206, per Iacobucci J at para 13
    Manninen, supra at para 23
  8. Manninen, supra at para 23
  9. R v Suberu, 2009 SCC 33 (CanLII), per McLachlin CJ and Charron J at paras 2, 37, 39, 41-42
  10. Manninen, supra
  11. Manninen, supra
  12. Manninen, supra
  13. R v GTD, 2017 ABCA 274 (CanLII), per curiam (2:1) aff'd at 2018 SCC 7 (CanLII), per Brown J
  14. Luong, supra at para 12
  15. R v Sinclair 2010 SCC 35 (CanLII), per McLachlin CJ and Charron J at para 2

Cautioning Without Detention or Arrest

Anytime where a peace officer is interviewing a person for whom "there are reasonable grounds to suspect that the person ... has committed an offence", the officer should caution them.[1]

The basis of suspicion must be based on more than "mere speculation...or...even...reliable information that may warrant further inquiry".[2]

  1. R v Singh, 2007 SCC 48 (CanLII), per Charron J at para 32
  2. R v AD, [2003] OJ No 4901 (SCJ)(*no CanLII links) at para 75
    R v Chui, 2015 ONSC 552 (CanLII), per Clark J

Informational Component

Implementation Component


Once the right to speaking with counsel has been fulfilled the officer need to cease the interview simply because the accused does not want to speak with them.[1]

Once the obligations have been fulfilled the police may undertake questioning at will and do not need to stop by further requests for a chance to speak with a lawyer.[2] However, if counsel is on the way, they must wait for counsel to arrive.[3]

The police do not need to cease a lawful search while the accused seeks counsel.[4]

Once the suspect has been given access to counsel, the police may interview him even after he has been remanded under a detention order without any need to provide him with counsel again.[5]

The exercise of the right to silence in response to any question, unless justified another rule of evidence, cannot be admitted against the accused for any purpose.[6]

  1. R v Baidwan, 2001 BCSC 1889 (CanLII), per Holmes J
    R v Singh, [2007] 3 SCR 405, 2007 SCC 48 (CanLII), per Charron J
    R v Bohnet, 2003 ABCA 207 (CanLII), per Hunt JA
    R v Gormley, 1999 CanLII 4160 (PE S.C.A.D.), per Carruthers CJ
    R v Reddick (1987), 77 NSR 92d) 439 (NSCA)(*no CanLII links)
  2. R v Wood, 1994 CanLII 3976 (NS CA), per Chipman JA
  3. R v Howard, 1983 CanLII 3507 (ON CA), per Howland CJ
  4. R v Borden 1994 CanLII 63 (SCC), [1994] 3 SCR 145, per Iacobucci J
  5. R v Bhander, 2012 BCCA 441 (CanLII), per Saunders JA
    c.f. R v Precourt, 1976 CanLII 692 (ON CA), per Martin JA (1976), 39 CCC (2d) 311 (Ont. C.A.)
  6. R v Chambers, [1990] 2 SCR 1293, 1990 CanLII 47 (SCC), per Cory J

Additional Access to Counsel

Waiver of Right to Counsel

The onus is on the Crown to prove that there was a valid waiver of Charter rights.[1]

A line of cases suggests that answers along the line of “no, not right now” is a equivocal answer due to its ambiguity of interpretation.[2]

Answers such as “what will they do for me?” was equivocal and so was not sufficient.[3] Other equivocal answers include:

  • "no, what for?"[4]
  • "I don't have a lawyer, it's just a waste of time, I'm fine to drive" [5]

However, several answers have been found to be unequivocal and so amount to a waiver:

  • “No, I have no use to call one”[6]
  • “No, I’ll talk to one tomorrow”[7]

In response to a comment such as “not right now”, if the officer explains how to engage the right at a later point--such as stating, “if you change your mind at any time tonight during this whole process”--then the waiver will be considered valid.[8]

Wording such as “no, I don’t think so” will often turn on the wording used, including whether it was confidently said, quickly said, or subjectively showed some doubt to the officer.[9]

  1. R v Luong 2000 ABCA 301 (CanLII), per Berger JA at para 12
  2. e.g. R v Jackman 2008 ABPC 201 (CanLII), per Anderson J
    R v Turcott 2008 ABPC 16 (CanLII), per Bascom J
    R v Bruno 2009 ABPC 232 (CanLII), per Henderson J
  3. R v Shaw 2001 ABPC 84 (CanLII), per Lefever J
  4. R v Wycislak, 2011 BCPC 175 (CanLII), per Pendleton J
  5. R v Watt, 2009 MBQB 297 (CanLII), per McKelvey J
  6. R v Moore 2007 ABQB 638 (CanLII), per Greckol J
  7. R v Mwangi, 2010 ABPC 243 (CanLII), per Henderson J - court said it was unequivocal because there was only one interpretation of wording
  8. R v MacGregor, 2012 NSCA 18 (CanLII), per Bryson JA at para 31
    R v Seehra, 2009 BCPC 194 (CanLII), per Gulbransen J
  9. e.g. R v Korn, 2012 ABPC 20 (CanLII), per Henderson J at para 46

Prosper Warning

Where an accused is detained and asserts the right to counsel in a diligent manner and then changes their mind, the police must administer a “Prosper Warning”. This warning requires the officer to tell the detainee that he still has a right to a reasonable opportunity to contact a lawyer, and that during this time the police cannot take any statements until he had had a reasonable opportunity to contact a lawyer.[1] If the officer fails to give the Prosper warning, there will be a Charter violation.

  1. R v Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236, per Lamer CJ at p. 378-79

Special Issues in Right to Counsel

See Also