View source for Right to Counsel on Detention or Arrest

{{LevelZero}}{{HeaderCounsel}}
==General Principles==
{{seealso|Investigative Detention|Warrantless Arrests|Warrant Arrests}}
Upon arrest or detention, an accused has a constitutional right to counsel under s. 10(b) of the Charter.  
{{quotation1|10. Everyone has the right on arrest or detention...
:b) to retain and instruct counsel without delay and to be informed of that right; ...

|[http://canlii.ca/t/8q7l CCRF]
}}

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".<ref>
{{CanLIIR|Willier|2cvjv|2010 SCC 37 (CanLII)}}{{perSCC|McLachlin CJ and Charron J}}{{atL|2cvjv |28}}<br>
{{CanLIIRP|Clarkson|1ftt0|1986 CanLII 61 (SCC)|, [1986] 1 SCR 383}}{{perSCC|Wilson J}}<br>
{{CanLIIRP|Brydges|1ft0k|1990 CanLII 123 (SCC)|, [1990] 1 SCR 190}}{{perSCC|Lamer J}}<br>
</ref>

; Obligations Imposed by Right
Section 10(b), when invoked, imposes several obligations:<ref>
{{CanLIIRP|Prosper|1frrj|1994 CanLII 65 (SCC)|, [1994] 3 SCR 236}}{{perSCC|Lamer CJ}}{{atL|1frrj|34}}<br> 
{{CanLIIRP|Bartle|1frrg|1994 CanLII 64 (SCC)|, [1994] 3 SCR 173}}{{perSCC|Lamer CJ}}{{atL|1frrg|17}}<br>
{{canLIIR|MacLean|fw13j|2013 ABQB 60 (CanLII)}}{{perABQB|Ouellette J}} summarizing{{atL|fw13j|18}}<br>
</ref>
# 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;
# 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;
# 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.<ref>
{{CanLIIR|Luong|5rph|2000 ABCA 301 (CanLII)}}{{perABCA|Berger JA}} (3:0){{atL|5rph|12}}</ref>
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 the right s. 10(b) Charter rights were violated. This includes the burden to show that the detainee acted diligently.<ref>
{{ibid1|Luong}}{{atL|5rph|12}}<Br>
{{CanLIIR|Willier|2cvjv|2010 SCC 37 (CanLII)}}{{perSCC|McLachlin CJ and Charron J}} (the onus is on applicant to show access to counsel did not correct "power imbalance")</ref>

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.<ref>
{{supra1|Luong}}{{atL|5rph|12}}</ref>

; Purpose
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".<ref>
{{CanLIIRP|Manninen|1ftmx|1987 CanLII 67 (SCC)|, [1987] 1 SCR 1233}}{{perSCC|Lamer J}}{{atps|1242 to 43}}<br>
{{supra1|Brydges}}<br>
</ref>
It is intended to "ensure a level legal terrain for the detainee".<ref>
{{CanLIIR|Briscoe|gfv1v|2015 ABCA 2 (CanLII)}}{{perABCA|Watson JA}}{{atL|gfv1v|47}}<br>
</ref>

It is also to assist the detainee to determine whether to cooperate or not.<ref>
{{CanLIIR|Sinclair|2cvjs|2010 SCC 35 (CanLII)}}{{perSCC|McLachlin CJ and Charron J}}</ref> 
For this reason there should only be access to counsel once.<ref>
{{ibid1|Sinclair}}</ref>

; No Right to Counsel to be Present at Interview
The right to counsel does not include the right to have counsel to be present in the room while being subject to questioning. This does not prohibit the police from consenting to counsel being present, if requested.<ref>
{{ibid1|Sinclair}}
</ref>

{{reflist|2}}
==Exceptions to Right to Counsel==
Section 254(2) provides a statutory exemption to the right to counsel where an officer forms grounds to believe a conveyance offence has been committed.<ref>
see {{CanLIIRP|Thomsen|1ftg5|1988 CanLII 73 (SCC)|, [1988] 1 SCR 640}}{{perSCC|Le Dain J}}
</ref>

The advent of cellphones and 24 hour duty counsel does not render the suspension of the right to counsel under s. 254(2) unreasonable.<ref>
{{CanLIIR|Jaycox|fspct|2012 BCCA 365 (CanLII)}}{{perBCCA|Hinkson JA}}
</ref>

{{reflist|2}}

==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.<ref>
{{CanLIIRP|Brydges|1ft0k|1990 CanLII 123 (SCC)|, [1990] 1 SCR 190 (CanLII)}}{{perSCC|Lamer J}}<br>
</ref> 
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".<ref>
{{CanLIIRP|Pozniak|1frpb|1994 CanLII 66 (SCC)|, [1994] 3 SCR 310 (CanLII)}}{{perSCC|Lamer CJ}}
</ref>

; Request for Counsel
If the detainee wishes to access counsel, the police must provide a reasonable opportunity to exercise that right and stop from taking any statements. <ref>
{{CanLIIRP|Manninen|1ftmx|1987 CanLII 67 (SCC)|, [1987] 1 SCR 1233}}{{perSCC|Lamer J}}<br>
</ref>

The detained person must be reasonably diligent in exercising their right. <ref>
{{CanLIIR|Basko|1tmd1|2007 SKCA 111 (CanLII)}}{{perSKCA|Wilkinson JA}}{{atL|1tmd1|21}}</ref>

The detainee or accused does not need to "make an express request to use the telephone"<ref>
{{supra1|Manninen}}
</ref>

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.<ref>
{{CanLIIR|Sinclair|2cvjs|2010 SCC 35 (CanLII)}}{{perSCC|McLachlin CJ and Charron J}}{{atL|2cvjs|2}}</ref>

; Obligation to Cease Questioning
Police must cease questioning while under the obligation to facilitate access to counsel unless in the case of urgency.<ref>
{{supra1|Manninen}}<br>
</ref>

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?".<ref>
{{CanLIIR|GTD|h5mhj|2017 ABCA 274 (CanLII)}}{{TheCourtABCA}} (2:1) aff'd at [http://canlii.ca/t/hqh5j 2018 SCC 7] (CanLII){{perSCC|Brown J}}<br>
</ref>

; No Obligation for Police to Disclose Evidence to Counsel or Detainee
The right does not extend to guaranteeing a "right of the detainee to appreciate the evidential situation when he intersects with the police."<ref>
{{supra1|Briscoe}}{{atL|gfv1v|48}}<Br>
</ref>

; Answers to Non-Charter-Compliant Questions
Answering questions that are asked in violation of s. 10(b) cannot be held to be a waiver of those rights.<ref>
{{supra1|Manninen}}<br>
</ref>

; Process of Analysis
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.<ref>
{{CanLIIR|Luong|5rph|2000 ABCA 301 (CanLII)}}{{perABCA|Berger JA}}{{atL|5rph|12}}</ref>

{{reflist|2}}

===Without Delay===
As soon as the right is properly asserted, the police have an obligation to assist the detainee in exercising that right without delay.<ref>
{{CanLIIRP|Manninen|1ftmx|1987 CanLII 67 (SCC)|, [1987] 1 SCR 1233}}{{perSCC|Lamer J}}{{atL|1ftmx|22}}</ref>
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.<ref>
{{CanLIIRP|Burlingham|1frk6|1995 CanLII 88 (SCC)|, [1995] 2 SCR 206}}{{perSCC|Iacobucci J}}{{atL|1frk6|13}}<br>
{{supra1|Manninen}}{{atL|1ftmx|23}}</ref> 
The only exception to this is where there has been a clear waiver.<ref>
{{supra1|Manninen}}{{atL|1ftmx|23}}</ref>

Where the arresting officer is in the process of executing a search warrant, they are not permitted to use that as an excuse to delay access that would otherwise be immediate.<Ref>
e.g. {{CanLIIR|Do|j0wmg|2019 ONCA 482 (CanLII)}}
</ref>

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.<ref>
{{CanLIIR|Suberu|24kx4|2009 SCC 33 (CanLII)}}{{perSCC|McLachlin CJ and Charron J}}{{atsL|24kx4|2|}}, {{atsL-np|24kx4|37|, 39, 41 to 42}}<br>
</ref>

{{reflist|2}}

==Requirements of Caution 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.<ref>
{{CanLIIR|Singh|1tf56|2007 SCC 48 (CanLII)}}{{perSCC|Charron J}}{{atL|1tf56|32}}<br>
</ref>

The basis of suspicion must be based on more than "mere speculation...or...even...reliable information that may warrant further inquiry".<ref>
''R v AD'', [2003] OJ No 4901 (SCJ){{NOCANLII}}{{at-|75}}<br>
{{CanLIIR|Chui|gg3jm|2015 ONSC 552 (CanLII)}}{{perONSC|Clark J}}<br>
</ref>
The threshold exists where the officer has information "that would alert any reasonably competent investigator to the realistic prospect" that any utterance may implicate the witness in an unlawful act.<ref>
{{CanLIIR|Hutt|g0jrk|2013 ONSC 2267 (CanLII)}}{{perONSC|Watt J}}{{atsL|g0jrk|10| to 11}}<br>
''R v Worral'', [2002] OJ No 2711{{NOCANLII}}{{perONSC|Dambrot J}}
</ref>

Determination of whether the person is a witness, a person of interest, or a suspect depends on the "totality of the facts" and not simply the subjective belief of the officer.<ref>
{{CanLIIR|Teng|gx4nl|2017 ONSC 567 (CanLII)}}{{perONSC|MacDonnell J}}<br>
{{CanLIIR|Hoyeck|hw6z5|2018 NSSC 59 (CanLII)}}{{perNSSC|Chipman J}}{{atL|hw6z5|47}}
</ref>

{{reflist|2}}

==Informational Component==
* [[Informational Component to Right to Counsel]]

==Implementation Component==
* [[Implementation Component to Right to Counsel]]
** [[Right to Choice of Counsel]]
** [[Right to Additional Opportunities to Consult with Counsel]]

==Post-Fulfillment==
Once the right to speak with counsel has been fulfilled, the officer need not cease the interview simply because the accused does not want to speak with them.<ref>
{{CanLIIR|Baidwan|1qk7t|2001 BCSC 1889 (CanLII)}}{{perBCSC|Holmes J}} <br>
{{CanLIIR|Singh|1tf56|2007 SCC 48 (CanLII)|[2007] 3 SCR 405}}{{perSCC|Charron J}}<br>
{{CanLIIR|Bohnet|1tgbw|2003 ABCA 207 (CanLII)}}{{perABCA|Hunt JA}}<br>
{{CanLIIR|Gormley|1ct24|1999 CanLII 4160 (PE S.C.A.D.)}}{{perPEICA|Carruthers CJ}}<Br>
{{CanLIIR-N|Reddick| (1987), 77 NSR (2d) 439 (NSCA)}}<Br>
</ref>

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.<ref>
{{CanLIIR|Wood|1mqcn|1994 CanLII 3976 (NS CA)}}{{perNSCA|Chipman JA}}</ref> 
However, if counsel is on the way, they must wait for counsel to arrive.<ref>
{{CanLIIR|Howard|g9dlm|1983 CanLII 3507 (ON CA)}}{{perONCA|Howland CJ}}</ref>

The police do not need to cease a lawful search while the accused seeks counsel.<ref>
{{CanLIIRP|Borden|1frrd|1994 CanLII 63 (SCC)|, [1994] 3 SCR 145}}{{perSCC|Iacobucci J}}</ref>

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.<ref>
{{CanLIIR|Bhander|ftnc4|2012 BCCA 441 (CanLII)}}{{perABCA|Saunders JA}}<br>
cf. {{CanLIIR|Precourt|g18t2|1976 CanLII 692 (ON CA)}}{{perONCA-H|Martin JA}} <!--CANLII case called something different but text is right--> (1976), 39 CCC (2d) 311 (Ont. C.A.)<br>
</ref>

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.<ref>
{{CanLIIRP|Chambers|1fsrt|1990 CanLII 47 (SCC)|, [1990] 2 SCR 1293}}{{perSCC|Cory J}}<br>
</ref>

{{Reflist|2}}

===Additional Access to Counsel===
* [[Right to Additional Opportunities to Consult with Counsel]]

==Waiver of Right to Counsel==
{{seealso|Waiver of Charter Rights}}
The onus is on the Crown to prove that there was a valid waiver of Charter rights.<ref>
{{CanLIIR|Luong|5rph|2000 ABCA 301 (CanLII)}}{{perABCA|Berger JA}}{{atL|5rph|12}}</ref>

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.<ref>
e.g. {{CanLIIR|Jackman|1zp0k|2008 ABPC 201 (CanLII)}}{{perABPC|Anderson J}}<br>
{{CanLIIR|Turcott|1w9tr|2008 ABPC 16 (CanLII)}}{{perABPC|Bascom J}}<br>
{{CanLIIR|Bruno|258r0|2009 ABPC 232 (CanLII)}}{{perABPC| Henderson J}}<br>
</ref>

Answers such as “what will they do for me?” was equivocal and so was not sufficient.<ref>
{{CanLIIR|Shaw|5qsz|2001 ABPC 84 (CanLII)}}{{perABPC|Lefever J}}</ref> 
Other equivocal answers include:
* "no, what for?"<ref>
{{CanLIIR|Wycislak|fmk21|2011 BCPC 175 (CanLII)}}{{perBCPC|Pendleton J}}</ref>
*"I don't have a lawyer, it's just a waste of time, I'm fine to drive" <ref>
{{CanLIIR|Watt|26w96|2009 MBQB 297 (CanLII)}}{{perMBQB|McKelvey J}}</ref>
However, several answers have been found to be unequivocal and so amount to a waiver: 
* “No, I have no use to call one”<ref>
{{CanLIIR|Moore|1tf2z|2007 ABQB 638 (CanLII)}}{{perABQB|Greckol J}}</ref> 
* “No, I’ll talk to one tomorrow”<ref> 
{{CanLIIR|Mwangi|2c052|2010 ABPC 243 (CanLII)}}{{perABPC| Henderson J}} - court said it was unequivocal because there was only one interpretation of wording</ref>

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.<ref>
{{CanLIIR|MacGregor|fq34m|2012 NSCA 18 (CanLII)}}{{perNSCA|Bryson JA}}{{atL|fq34m|31}}<br>
{{CanLIIR|Seehra|249td|2009 BCPC 194 (CanLII)}}{{perBCPC|Gulbransen J}}<Br>
</ref>

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.<ref>
e.g. {{CanLIIR|Korn|fq13w|2012 ABPC 20 (CanLII)}}{{perABPC|Henderson J}}{{atL|fq13w|46}}</ref>

; Waiver Applies Only to Relevant Subjects
Where a suspect agrees to speak to the police after being notified of their rights, this only permits the police to question concerning the relevant investigation. It does not presume the accused waived rights in relation to unrelated criminal activity.<ref>
{{CanLIIRP|Young|g18bn|1992 CanLII 7607 (ON CA)|, 73 CCC (3d) 289}}{{perONCA|Finlayson JA}} leave refused (1993), 78 CCC (3d) vi
</ref>

{{reflist|2}}
===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.<ref>
{{CanLIIRP|Prosper|1frrj|1994 CanLII 65 (SCC)|, [1994] 3 SCR 236}}{{perSCC|Lamer CJ}}{{Atps|378-79}}</ref>
If the officer fails to give the Prosper warning, there will be a Charter violation.

{{Reflist|2}}

==Special Issues in Right to Counsel==
* [[Special Issues with Right to Counsel]]

==Consequences of Finding a Charter Breach==
* [[Exclusion of Evidence Under Section 24(2) of the Charter]]

==See Also==
* [[Right to Counsel (Cases)]]
* [[Charter Applications]]
* [[Representation at Trial]]

[[Category:Canadian Charter Rights]]