Right to Counsel on Detention or Arrest

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 92829)

General Principles

See also: Investigative Detention, Warrantless Arrests, and Warrant Arrests

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; ...

– 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."[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 the 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]

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."[6] It is intended to "ensure a level legal terrain for the detainee."[7]

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

Other interests served include:[10]

  • acting as a "lifeline to the outside world"[11]
  • educating the person of the anticipated procedures, such as bail, fingerprinting, etc.
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.[12]

  1. ↑ R v Willier, 2010 SCC 37 (CanLII), [2010] 2 SCR 429, 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), 551 AR 274, per Ouellette J summarizing, at para 18
  3. ↑ R v Luong, 2000 ABCA 301 (CanLII), 149 CCC (3d) 571, per Berger JA (3:0), at para 12
  4. ↑ Luong, ibid., at para 12
    R v Willier, 2010 SCC 37 (CanLII), [2010] 2 SCR 429, 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), 593 AR 102, per Watson JA, at para 47
  8. ↑ R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310, per McLachlin CJ and Charron J
  9. ↑ Sinclair, ibid.
  10. ↑ R v O'Brien, 2023 ONCA 197 (CanLII), at para 49
  11. ↑ R v Pino, 2016 ONCA 389 (CanLII), at para 105
  12. ↑ Sinclair, ibid.

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.[1]

The advent of cellphones and 24 hour duty counsel does not render the suspension of the right to counsel under s. 254(2) unreasonable.[2]

  1. ↑ see R v Thomsen, 1988 CanLII 73 (SCC), [1988] 1 SCR 640, per Le Dain J
  2. ↑ R v Jaycox, 2012 BCCA 365 (CanLII), per Hinkson JA

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]

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. [3]

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

The detainee or accused does not need to "make an express request to use the telephone"[5]

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.[6]

Obligation to Cease Questioning

Police must cease questioning while under the obligation to facilitate access to counsel unless in the case of urgency.[7]

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?."[8]

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."[9]

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.[10]

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.[11]

  1. ↑ R v Brydges, 1990 CanLII 123 (SCC), [1990] 1 SCR 190, per Lamer J
  2. ↑ R v Pozniak, 1994 CanLII 66 (SCC), [1994] 3 SCR 310, 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), 226 CCC (3d) 425, per Wilkinson JA, at para 21
  5. ↑ Manninen, supra
  6. ↑ R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310, per McLachlin CJ and Charron J, at para 2
  7. ↑ Manninen, supra
  8. ↑ R v GTD, 2017 ABCA 274 (CanLII), 355 CCC (3d) 431, per curiam (2:1) aff'd at 2018 SCC 7 (CanLII), per Brown J
  9. ↑ Briscoe, supra, at para 48
  10. ↑ Manninen, supra
  11. ↑ R v Luong, 2000 ABCA 301 (CanLII), 149 CCC (3d) 571, per Berger JA, at para 12

Without Delay

As soon as the right is engaged, the police have an obligation to assist the detainee in exercising that right "without delay."[1] 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.[2] The only exception to this is where there has been a clear waiver.[3]

The interpretation of the phrase "without delay" must be read "with a purposive understanding of the Charter provision."[4]

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.[5]

"Immediately" must be read in practical terms. Whether a "short delay" violates s. 10(b) will depend on the duration and purpose of the delay.[6] Purposes can include:

  • officer safety, including pat-down[7]
  • a quick look-up on the in-car computer.[8]
  • searching for detainee's personal effects[9]
  • Calm the detainee down[10]

However, excessive time to do any of these things can create a breach.[11]

Activities that can just as easily be done after will not usually be permitted. That can include:

  • speaking to the detainee's passengers.[12]
  • completing officer notes.[13]
  • arranging for a tow truck[14]
  • counting seized money.[15]
  • securing open liquor[16]
  • consulting a follow officer about the identity of the detainee[17]

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.[18]

  1. ↑ R v Manninen, 1987 CanLII 67 (SCC), [1987] 1 SCR 1233, per Lamer J, at para 21 R v Suberu, 2009 SCC 33 (CanLII), [2009] 2 SCR 460, per McLachlin CJ and Charron J
  2. ↑ R v Burlingham, 1995 CanLII 88 (SCC), [1995] 2 SCR 206, per Iacobucci J, at para 13
    Manninen, supra, at para 23
  3. ↑ Manninen, supra, at para 23
  4. ↑ Suberu, supra, at para 40
  5. ↑ Suberu, supra, at paras 2, 37, 39, 41 to 42
  6. ↑ e.g. R v Turcotte, 2017 ONCJ 716 (CanLII), per McInnes J at paras 11 to 17
  7. ↑ Suberu, supra, at para 42
    R v Singh, 2017 ONCJ 386 (CanLII) - five-minute delay for pat-down and CPIC check R v Foster, 2017 ONCJ 624 (CanLII) - five-minute delay for pat-down and re-cuffing in front R v Coates, [2021 O.J. No. 2774 (C.J.)] four-minute delay for pat-down and re-cuffing in front
  8. ↑ Turcotte, supra at para 17
    Singh, supra - five-minute delay for pat-down and CPIC check
  9. ↑ Rossi, 2017 ONCJ 443, where there was a seven-minute delay for search incident to arrest, to retrieve a cell phone at the accused’s request, and to calm the accused down R. v. Gowan, 2019 ONSC 3791, at paras. 24-29, where the summary conviction appeal court found that a ten-minute delay between arrest and rights to counsel as the officer searched for the accused person’s missing wallet did not breach the immediacy requirement.
  10. ↑ Rossi, supra
  11. ↑ e.g. R v Simpson, 2017 ONCJ 321 (CanLII), 383 CRR (2d) 134, per Schreck J nine-minute delay to retrieve the accused’s wallet from vehicle
    R v Pillar, 2020 ONCJ 394 (CanLII), per Doody J 8 min for pat-down, handcuff, put in cruiser and check CPIC
  12. ↑ R v Sandhu, 2017 ONCJ 226 (CanLII), per Schreck J 7 min delay for talking and doing notes
  13. ↑ Sandhu, ibid.
  14. ↑ R v Campbell, 2017 ONCJ 570 (CanLII), per Felix J - 7 min delay
  15. ↑ Campbell, ibid.
  16. ↑ Campbell, ibid.
  17. ↑ R v Cairney, 2022 ONCJ 458 (CanLII), per Monohan J - 3 minute chat but found the breach to be "minor".
  18. ↑ e.g. R v Do, 2019 ONCA 482 (CanLII), OJ No 3018

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.[1]

The basis of suspicion must be based on more than "mere speculation...or...even...reliable information that may warrant further inquiry."[2] 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.[3]

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.[4]

  1. ↑ R v Singh, 2007 SCC 48 (CanLII), [2007] 3 SCR 405, 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), OJ No 382, per Clark J
  3. ↑ R v Hutt, 2013 ONSC 2267 (CanLII), per Watt J, at paras 10 to 11
    R v Worral, [2002] OJ No 2711(*no CanLII links) , per Dambrot J
  4. ↑ R v Teng, 2017 ONSC 567 (CanLII), per MacDonnell J
    R v Hoyeck, 2018 NSSC 59 (CanLII), per Chipman J, at para 47

Informational Component

Implementation Component

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.[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 SCC 48 (CanLII), [2007] 3 SCR 405, per Charron J
    R v Bohnet, 2003 ABCA 207 (CanLII), 111 CRR (2d) 131, per Hunt JA
    R v Gormley, 1999 CanLII 4160 (PE SCAD), 140 CCC (3d) 110, per Carruthers CJ
    R v Reddick, 1987 CanLII 9250 (NS CA), 77 NSR (2d) 439, per Macdonald JA
  2. ↑ R v Wood, 1994 CanLII 3976 (NS CA), 94 CCC (3d) 193, per Chipman JA
  3. ↑ R v Howard, 1983 CanLII 3507 (ON CA), 3 CCC (3d) 399, 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), 292 CCC (3d) 545, per Saunders JA
    cf. R v Precourt, 1976 CanLII 692 (ON CA), 39 CCC (2d) 311, per Martin JA (1976), 39 CCC (2d) 311 (Ont. C.A.)
  6. ↑ R v Chambers, 1990 CanLII 47 (SCC), [1990] 2 SCR 1293, per Cory J

Additional Access to Counsel

Waiver of Right to Counsel

See also: Waiver of Charter Rights

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]

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.[10]

  1. ↑ R v Luong, 2000 ABCA 301 (CanLII), 149 CCC (3d) 571, per Berger JA, at para 12
  2. ↑ e.g. R v Jackman, 2008 ABPC 201 (CanLII), 174 CRR (2d) 224, per Anderson J
    R v Turcott, 2008 ABPC 16 (CanLII), 172 CRR (2d) 52, per Bascom J
    R v Bruno, 2009 ABPC 232 (CanLII), per Henderson J
  3. ↑ R v Shaw, 2001 ABPC 84 (CanLII), 288 AR 87, per Lefever J
  4. ↑ R v Wycislak, 2011 BCPC 175 (CanLII), per Pendleton J
  5. ↑ R v Watt, 2009 MBQB 297 (CanLII), 249 Man R (2d) 3, per McKelvey J
  6. ↑ R v Moore, 2007 ABQB 638 (CanLII), 435 AR 342, per Greckol J
  7. ↑ R v Mwangi, 2010 ABPC 243 (CanLII), AJ No 896, per Henderson J - court said it was unequivocal because there was only one interpretation of wording
  8. ↑ R v MacGregor, 2012 NSCA 18 (CanLII), 289 CCC (3d) 512, 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
  10. ↑ R v Young, 1992 CanLII 7607 (ON CA), 73 CCC (3d) 289, per Finlayson JA leave refused (1993), 78 CCC (3d) vi

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 pp. 378-79

Special Issues in Right to Counsel

Consequences of Finding a Charter Breach

See Also

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