Section 10(b) – Right to counsel

Provision

10. Everyone has the right on arrest or detention:

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

Similar provisions

Related provisions may be found in the following Canadian laws and international instruments that are binding on Canada; section 2(c) of the Canadian Bill of Rights; articles 14(3)(b) and (d) of the International Covenant on Civil and Political Rights; and article 37(d) of the Convention on the Rights of the Child.

See also the following international, regional and comparative law instruments that are not legally binding on Canada but include similar provisions: the Sixth Amendment to the Constitution of the United States of America (Bill of Rights); and article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Purpose

The purpose of section 10(b) is to provide an individual who has been arrested or detained with an opportunity to obtain legal advice relevant to his or her legal situation (R. v. Sinclair, [2010] 2 S.C.R. 310). More specifically, the purpose of the right to counsel is "to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights" (R. v. Manninen, [1987] 1 S.C.R. 1233 at 1242-43, as reaffirmed in Sinclair, supra at paragraph 26). The emphasis is on ensuring that the detainee’s decision to cooperate with the investigation or to decline to do so is free and informed. Section 10(b) does not guarantee that the detainee’s decision is wise; nor does it guard against subjective factors that may influence the decision. Rather, it aims to give detainees the opportunity to access legal advice relevant to that choice (Sinclair, supra at paragraph 26).

The meaningful exercise of the section 10(b) right to counsel is ensured through the section 10(a) right to be informed promptly of the reasons for one’s arrest or detention (see R. v. Evans, [1991] 1 S.C.R. 869 at paragraph 31).

Analysis

1. What constitutes "arrest" or "detention"?

See the general discussion of section 10.

2. How soon is "without delay"?

The detainee has the right to be informed of the right to retain and instruct counsel “without delay”. This has been interpreted to mean “immediately”. The courts have recognized that a situation of vulnerability relative to the state is created at the outset of a detention and accordingly, the concerns about self-incrimination and the interference with liberty that section 10(b) seeks to address are present as soon as a detention begins. In order to protect against the risk of self-incrimination that results from individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase “without delay” means “immediately” (R. v. Suberu, [2009] 2 S.C.R. 460 at paragraph 41).

While the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate the exercise of that right immediately upon detention, this duty is subject to concerns for officer or public safety and such limitations as prescribed by law and justified under section 1 of the Charter (Suberu, supra at paragraph 42). For instance, the police are not generally required to suspend a search incident to arrest until the detainee has had the opportunity to retain counsel (R. v. Debot, [1989] 2 S.C.R. 1140).

There are meaningful limits to the delays that can be justified by exceptional circumstances. Once the police have secured control over a potentially volatile situation, for example by arresting the accused, locating the weapons and ensuring all other persons have vacated the premises, there is no reason why they should not allow the accused to telephone a lawyer (R. v. Strachan, [1988] 2 S.C.R. 980). The Supreme Court did not consider a delay by the police in complying with their section 10 informational duties, in order to protect the integrity of a separate and ongoing investigation, to be an exceptional circumstance capable of justifying the suspension of section 10(b) rights (R. v. Mian, [2014] 2 S.C.R. 689 at paragraph 74). A routine policy of delaying an arrested person’s exercise of the right to counsel until a search warrant is executed violates s. 10(b): while it may sometimes be justifiable for police to delay for this purpose, any such delay must be based on specific pressing circumstances, such as a risk of destruction of evidence or police or public safety (R. v. Rover, 2018 ONCA 745).

Where a detained person is receiving medical treatment in a hospital, the police nonetheless must provide access to counsel at the earliest practical opportunity. While there may be circumstances where it will not be reasonably possible to facilitate private access to a lawyer for a detained person receiving medical treatment, the right to counsel cannot be displaced by the mere assumption of impracticality. Police officers have a duty to take proactive steps to facilitate access (R v. Taylor, [2014] 2 S.C.R. 495 at paragraphs 31-35).

While “without delay” emphasizes the right’s temporal aspect, where the warning is given before the detention, the key concern will be “a close factual connection relating the warning to the detention and the reason therefor” (R. v. Schmautz, [1990] 1 S.C.R. 398 at paragraph 27). Because in this case the initial investigation and the subsequent breathalyzer demand were directly connected and part of a single incident, the warning given at the outset of the investigation was sufficiently connected, factually, to the detention which occurred upon demand for the breathalyzer.

Police officers may ask preliminary questions, such as asking someone to identify his or her room in a shared residence before executing a search warrant, before being required to inform that person of his or her right to counsel (R. v. Boca, 2012 ONCA 367 at paragraph 13).

Considerations particular to the impaired driving context

The meaning of “without delay” has given rise to litigation in the context of roadside screening measures. The section 10(b) rights of drivers are limited by police when they stop drivers at the roadside and, prior to advising them of their right to counsel, take steps to assess their sobriety (namely, asking questions about prior alcohol consumption and requesting performance of physical sobriety tests, including administering a roadside screening device) in order to determine whether there are grounds to make a demand under former section 254 of the Criminal Code for a breathalyzer test (R. v. Thomsen, [1988] 1 S.C.R. 640, R. v. Orbanski; R. v. Elias, [2005] 2 S.C.R. 3 at paragraphs 49-53; analogous police powers exist in the recently-enacted sections 320.27 and 320.28 of the Criminal Code). However, such a limit is justified under section 1 because of the importance of reducing the harm caused by impaired driving (Thomsen, Orbanski; Elias, supra at paragraphs 54-60; R. v. Woods, [2005] 2 S.C.R. 205 at paragraphs 30-35).

Former section 254(2) of the Criminal Code provided that a police officer may demand a breath screening test “forthwith” where he or she suspects a person has been drinking and driving (see the analogous power at current section 320.27(1) of the Criminal Code). In R. v. Bernshaw, [1995] 1 S.C.R. 254, a majority of the Supreme Court held that this requirement was flexible enough to allow the officer to delay taking the sample where he or she knows that the test results might be unreliable because alcohol was consumed within the last 15 minutes. The majority decided that a delay in the order of 15 minutes for the purpose of obtaining a proper sample of breath was not an unreasonable limit on the right to counsel under paragraph 10(b).

A 30 minute delay to allow police to bring a screening device to the location of a roadside stop does not comply with the “forthwith” requirement of the Criminal Code and, in the absence of an opportunity of the detained driver to access counsel, leads to an unjustified limit of section 10(b) rights: R. v. Grant, [1991] 3 S.C.R. 139. There is appellate authority, however, that a shorter delay to allow a screening device to arrive complies with the Criminal Code requirement and is a justified limit on right to counsel (see, e.g., R. c. Petit, 2005 QCCA 687 and R. v. Ritchie, 2004 SKCA 9). The appropriateness of permitting a shorter delay in these circumstances was doubted in a recent appellate decision, but the Court of Appeal felt constrained to follow its own earlier precedent on the question and found no violation (R. c. Piazza, 2018 QCCA 948, application for leave to appeal to the Supreme Court of Canada dismissed March 7, 2019).

Compliance with section 10(b) does not necessarily require the officer to inform a detainee that, should he or she choose to contact counsel, contact will occur when the detainee is brought to the station as opposed to when the detainee is at the roadside (R. v. Devries (2009), 244 C.C.C. (3d) 354 (Ont. C.A.)).

3. When does a previous section 10(b) violation taint a subsequent taking of a statement?

In considering whether a statement is tainted by an earlier breach of an accused’s constitutional rights, the courts have adopted a purposive and generous approach (R. v. Wittwer, [2008] 2 S.C.R. 235 at paragraph 21). It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct (Wittwer, supra at paragraph 21; Strachan, supra at 1005).

The required connection between the breach and the subsequent statement may be temporal, contextual, causal or a combination of the three (Wittwer, supra at paragraph 21). However, a connection that is merely “remote” or “tenuous” will not suffice (R. v. Goldhart, [1996] 2 S.C.R. 463 at paragraph 40; Wittwer, supra at paragraph 21).

A close temporal connection between a statement given before compliance with section 10(b), and one given following compliance with it, will suffice to establish that the latter statement was taken in a manner that infringed section 10(b) (R. v. Caputo (1997), 114 C.C.C. (3d) 1 (Ont. C.A.)). In a case where only about five minutes passed between the first statement (after which the right was communicated) and the subsequent statements, the temporal connection was sufficient to conclude that the subsequent statements were obtained in a manner that infringed section 10(b). Because the first statement was found to be taken in violation of section 10(b), and because all the statements were seen to be part of a single transaction, the subsequent statements were found to be taken in a manner that infringed the appellant's rights as well (Caputo, supra).

4. What are the duties imposed by section 10(b) on the person effecting the arrest or detention?

Once there is an arrest or detention, section 10(b) imposes a number of positive duties on the detaining officer: (i) the duty to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; (ii) if a detainee has indicated a desire to exercise this right, the duty to provide the detainee with a reasonable opportunity to exercise this right (except in urgent and dangerous circumstances); and (iii) the duty to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases or urgency or danger) (R. v. Bartle, [1994] 3 S.C.R. 173 at 192, as affirmed in R. v. Willier, [2010] 2 S.C.R. 429). The first duty is an informational duty, while the second and third duties are implementational in nature and are not triggered until detainees actually indicate a desire to exercise their right to counsel (Willier, supra at paragraph 30).

The police obligations flowing from section 10(b) are not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duties on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended (R. v. Tremblay, [1987] 2 S.C.R. 435 at 439; R. v. Black, [1989] 2 S.C.R. 138 at 154-155; Sinclair, supra at paragraph 27).

(i) Duty to inform

(a) Did the person have sufficient information and understand it?

Section 10(b) must be considered in light of section 10(a). One is not obliged to submit to an arrest if one does not know the reasons for the arrest. A person needs to know the reasons for an arrest in order to be able to exercise the right to instruct counsel (Evans, supra; R. v. Smith, [1991] 1 S.C.R. 714; Black, supra).

In a case where a detainee is being investigated for a series of offences, he or she must be advised of the right to counsel in relation to all of the offences being investigated at the time of detention. The police may not arrest an accused and advise of the right to counsel only in connection with a particular offence when they are using the opportunity to pursue the investigation of another offence in which the accused may be implicated (R. v. Borden, [1994] 3 S.C.R. 145).

It is central to the section 10(b) obligation that detainees be informed of their right to retain and instruct counsel at a time when they are capable of understanding the choice offered and appreciating the consequences of waiving the right. Where an accused is so intoxicated that he or she cannot understand the information being provided, section 10(b) may be infringed (R. v. Mohl, [1989] 1 S.C.R. 1389).

Should a detainee positively indicate that he or she does not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate the detainee’s understanding (Evans, supra).

When dealing with a detainee who is young and lacking in the mental capacity required to understand the standard section 10(b) warning, there is a further duty on the police to take special care to make sure that the detainee understands the warnings being given. In such situations it is important that the police not merely recite what the detainee's rights are, but also explain what the rights mean in terms that can be understood. Thus, the duty on the police is to communicate the right to counsel to the particular detainee (Evans, supra).

An accused alleged to suffer from mental disability who has an "operating mind", including sufficient mental capacity to understand what is said and to whom, and that any statements can be used in court proceedings, can make voluntary statements, exercise the right to silence and to counsel, or waive these rights. The fact that an accused may appear to disregard counsel's advice to remain silent and make voluntary statements because he or she feels led to do so by "inner voices", cannot displace the finding of an "operating mind" (R. v. Whittle, [1994] 2 S.C.R. 914).

If the detainee does not speak English or French well, the police must satisfy themselves that the requisite components of the section 10(b) warning have been understood: i.e., that language does not act as an impediment to such understanding (R. v. Vanstaceghem (1987), 36 C.C.C. (3d) 142 (Ont. C.A.)).

If there is no evidence that the detainee did not understand the right to counsel when he or she was informed of it, the onus is on the detainee to prove that the right was denied. There is no duty on the prosecution to probe into the suspect's degree of understanding or to adduce positive evidence in the absence of special circumstances or words or conduct from which it could be reasonably inferred that the detainee did not understand his or her rights (R. v. Baig, [1987] 2 S.C.R. 537).

(b) Was there a radical change in the subject-matter of the investigation?

There is a duty to repeat the warning concerning the right to retain and instruct counsel where the extent of the risk incurred legally changes or where there is a radical and clear change in the subject-matter of the investigation (Black, supra; Smith, supra; Schmautz, supra; Evans, supra; R. v. Burlingham, [1995] 2 S.C.R. 206; R. v. Paternak, [1996] 3 S.C.R. 607). Furthermore, when the police decide that they are investigating a different and more serious offence, they should advise the detainee of the right to counsel a second time, and indicate to the detainee that he or she is now a suspect for a different and more serious crime. This is because the detainee's decision as to whether to obtain a lawyer might well be affected by the seriousness of the charges (Evans, supra).

(c) Was the person informed of the accessibility of legal aid and duty counsel?

Sometimes a detainee will not exercise the right to counsel because of concern about the cost. The courts have thus made it clear that an arrested or detained person must be informed of the existence and availability of legal aid and duty counsel (R. v. Brydges, [1990] 1 S.C.R. 190).

More particularly, police have a duty to inform the detainee if duty counsel and legal aid are available (Willier, supra at paragraph 44; Brydges, supra) and give information concerning "whatever system for free and immediate, preliminary legal advice exists in the jurisdiction, if one exists, and how such advice can be accessed" (Bartle, supra at paragraph 33). There is, however, no constitutional requirement that provinces establish and maintain a system of 24-hour access to duty counsel (R. v. Prosper, [1994] 3 S.C.R. 236; Bartle, supra).

Basic information must be provided on how to access the free preliminary legal advice that is available to an arrested or detained person (Bartle, supra). Regard must be had to all the circumstances of the case, in particular the availability of services at the time of arrest or detention (Bartle, supra; Prosper, supra; R. v. Matheson, [1994] 3 S.C.R. 328; R. v. Latimer, [1997] 1 S.C.R. 217 at paragraphs 36-37, 39). More information could be necessary in circumstances where, for example, a person has a visual impairment or does not speak the language (Latimer, supra; Vanstaceghem, supra).

(d) Did the detainee initially indicate a desire to contact counsel and then subsequently change his or her mind about contacting counsel?

When a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue contact with a lawyer, section 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. This additional informational obligation, referred to as the duty to give a “Prosper warning”, is warranted in such circumstances so as to ensure that a detainee is informed that his or her unsuccessful attempts to reach counsel did not exhaust the section 10(b) right, to ensure that any choice to speak with the police does not derive from such a misconception, and to ensure that a decision to waive the right to counsel is fully informed (Willier, supra at paragraph 32, referring to Prosper, supra at 274).

Police are under no obligation to provide such a warning, however, where a detainee is simply unsuccessful in contacting a specific lawyer and, accordingly, opts to speak to another lawyer (Willier, supra at paragraph 39).

(ii) Obligation to provide a reasonable opportunity to exercise the right

The police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The detainee is in the control of the police and cannot exercise this right to counsel unless the police provide a reasonable opportunity to do so. What constitutes a “reasonable opportunity" depends on the circumstances (Prosper, supra; Bartle, supra).

The duty to facilitate contact with counsel entails the duty to offer an available telephone to the detainee (Manninen, supra; R. v. Ross, [1989] 1 S.C.R. 3; Black, supra; Brydges, supra; Evans, supra; Bartle, supra). This includes ensuring that there is a telephone located on the premises (R. v. Feeney, [1997] 2 S.C.R. 13). However, police officers are not required to provide their own cell phone for a person to contact counsel. The duty to offer an available telephone is met as long as the person is provided with access to a telephone (Taylor, supra). The person must also be able to consult with counsel in private (see, e.g., R. v. Cairns (2004), 182 O.A.C. 181; R. v. O'Donnell, 2004 NBCA 26).

There is no constitutional right to have a lawyer present throughout a police interview (Sinclair, supra at paragraphs 34-38). Rather, in most cases an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right to counsel, satisfies section 10(b) (Sinclair, supra at paragraph 2).

Nonetheless, there is a right to re-consult counsel where developments in the course of the investigation make this necessary to serve the purpose of section 10(b). The majority of the Supreme Court has stated that, “[w]hat is required [to retrigger the section 10(b) right to counsel and to be advised thereof] is a change in circumstances suggesting that the choice faced by the accused has been significantly altered, requiring further advice on the new situation” (Sinclair, supra at paragraph 65). The right to a second consultation with counsel has been recognized where changed circumstances result from new procedures involving the detainee, where there is a change in jeopardy facing the detainee, or where there is reason to believe that the first information provided was deficient (Sinclair, supra at paragraphs 47-55). These categories are not closed, though additions to them should be developed only where necessary to ensure that the purpose of section 10(b) is fulfilled (Sinclair, supra at paragraph 52). Any change in circumstances giving rise to a right to re-consult with counsel must be objectively discernable (Sinclair, supra at paragraph 55; R. v. McCrimmon, [2010] 2 S.C.R 402 at paragraph 22).

What amounts to a change in jeopardy will depend on the circumstances. For an accused charged with murder, a remand order issued after the accused had consulted counsel did not amount to a change in jeopardy so as to trigger a right to re-consult counsel (R. v. Bhander, 2012 BCCA 441 at paragraph 45). Where the accused understands “generally” the sort of jeopardy he or she faces, the accused is not entitled to re-consult counsel (Bhander, supra at paragraph 36).

(iii) Obligation to refrain from eliciting incriminating evidence from the detainee

Paragraph 10(b) imposes on the police the duty to cease questioning and to otherwise cease attempting to elicit incriminating evidence from the detainee (for example, by interrogation and a breathalyzer test (Prosper, supra; Bartle, supra) until they afford the detainee a reasonable opportunity to consult counsel. The purpose of the right is to allow the detainee not only to be informed of their rights and obligations under the law, but also to obtain advice as to how to exercise those rights. For the right to counsel to be effective, the detainee must have access to this advice before being questioned or otherwise being required to provide evidence (Bartle, supra). In cases of urgency, the police may be allowed some delay in satisfying this duty (Manninen, supra; Ross, supra; Black, supra; Brydges, supra; Evans, supra; Burlingham, supra; Strachan, supra). The evidentiary presumption in former section 258(1)(c) of the Criminal Code (breathalyzer test) does not constitute an urgent or compelling circumstance (Prosper, supra; Bartle, supra – an analogous evidentiary provision now exists in the recently-enacted section 320.31(1) of the Criminal Code). (See also R. v. Cobham, [1994] 3 S.C.R. 360; R. v. Pozniak, [1994] 3 S.C.R. 310; Matheson, supra; R. v. Harper, [1994] 3 S.C.R. 343).

In the case of a plea bargain, section 10(b) requires the Crown or police to tender a plea bargain either to the accused's counsel or to the accused in counsel's presence, unless the accused has expressly waived the right to counsel (Burlingham, supra).

One cannot infer simply from the brevity of an accused’s conversations with duty counsel that such consultations were inadequate (Willier, supra). Unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview (Willier, supra at paragraph 42). 

If an accused is provided with a standard caution and invokes the right to counsel, asking the accused if he or she wishes to say anything violates the duty of the police to hold off from questioning (R. v. G.T.D., [2018] 1 S.C.R. 220).

5. Was the person diligent in attempting to obtain counsel?

Like the other rights in the Charter, the right to retain and instruct counsel is not absolute and must be exercised in a way that is reconcilable with the needs of society (Smith, supra at 385, as cited in Willier, supra at paragraph 34).

The obligation on the police to provide a detainee with a reasonable opportunity to exercise the right to retain and instruct counsel is contingent upon a detainee’s reasonable diligence in attempting to contact counsel (Tremblay, supra; Black, supra; R. v. Smith, [1989] 2 S.C.R. 368 (hereinafter Smith (1989)). Likewise, the duty of the police to refrain from questioning the detainee until a reasonable opportunity to contact counsel has been provided is also contingent on a detainee’s reasonable diligence in attempting to contact counsel (Tremblay, supra). What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the particular circumstances (Black, supra at 154-155; Tremblay, supra).

The imposition of such a limit on the rights of a detainee has been held to be necessary “because without it, it would be possible to delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence to be lost, destroyed or rendered impossible to obtain” (Smith (1989), supra at 385).

The existence of duty counsel services may have consequences for what constitutes "reasonable diligence" (Prosper, supra; Bartle, supra). (See further the discussion below of the right to counsel of choice).

6. Right to retain counsel of choice

The right to retain counsel of choice is inferentially entrenched under section 7, section 10(b) and 11(d) (Ross, supra), but this right is not absolute and is subject to reasonable limitations (Willier, supra at paragraph 24; R. v. Speid, [1983] O.J. No. 3198 (C.A.); R. v. Robillard, [1986] O.J. No. 261 (C.A.)). The right must be defined in light of the purpose of section 10(b), which is to provide detainees with an opportunity to mitigate their legal vulnerability while under state control by allowing them to make a free and fully informed choice as to whether or not to speak to the authorities (Willier, supra at paragraphs 27-28, 38).

Diligence must accompany a detainee’s exercise of the right to counsel of choice (Ross, supra at 10-11; Willier, supra at paragraph 35). A detainee must be reasonably diligent in the exercise of this right and if he or she is not, the correlative duties imposed on the police are suspended (Tremblay, supra at paragraph 9). Reasonable diligence in the exercise of the right to retain one’s counsel of choice depends upon the context facing the accused or detained person (Ross, supra at 10-11).

Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, section 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning (Black, supra; Willier, supra at paragraph 35). If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and to wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation (Black, supra). If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended (Ross, supra; Black, supra). Thus, it is only if the choice necessitates an unreasonable delay that an obligation arises to accept another lawyer (Black, supra).

Absent evidence of coercion, no interference with the right to counsel of choice arises where police simply remind an accused of the immediate availability of duty counsel after a detainee has made an unsuccessful attempt to call a particular lawyer (Willier, supra at paragraph 44). Indeed, the police have an informational duty to ensure that a detainee is aware of the availability of legal aid (Willier, supra at paragraph 44). Further, where an accused has spoken to duty counsel prior to the start of an interrogation, has expressed satisfaction with the advice received, and has not pursued further opportunities to contact his or her lawyer, it can be inferred that there is no deprivation of the right to counsel of choice, even if the interval between the attempt to contact counsel and the start of the interrogation itself was brief (Willier, supra at paragraph 42).

While section 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. Imposing such a duty would be incompatible with the privileged nature of the solicitor-client relationship (Willier, supra at paragraph 42). Where an accused’s limited financial means dictate state-funded counsel, there is no obligation on the state to provide funds for counsel of choice (Prosper, supra at 374; Ontario v. Criminal Lawyers’ Association of Ontario, [2013] 3 S.C.R. 3 at paragraph 70).

7. Did the person waive the right to counsel?

Once informed of his or her right to consult counsel, a detainee may waive the right, deciding not to avail him- or herself of the opportunity to consult. The right to choose whether to cooperate with the police, the basic purpose of section 10(b), has been respected in the event of a valid waiver, and there is consequently no breach of the section 10(b) right (Sinclair, supra at paragraph 28).

The standard for valid waiver of a Charter right, including the right to counsel, is “very high” (R. v. L.T.H., [2008] 2 S.C.R. 739 at paragraph 41). A waiver of a Charter right must be “premised on a true appreciation of the consequences of giving up the right” (L.T.H., supra at paragraph 43, citing Wilson J. in Clarkson v. The Queen, [1986] 1 S.C.R. 383 at 396). “A clear and unequivocal waiver is thus essential, but not sufficient: it must be accompanied by a proper understanding of the purpose the right was meant to serve and an appreciation of the consequences of declining its protection” (L.T.H., supra at paragraph 43).

A person can waive the right to retain and instruct counsel expressly or implicitly, although the standard will be very strict where the alleged renunciation is implicit (Clarkson, supra; Manninen, supra; Brydges, supra). The person must have sufficient information to be able to make an informed and appropriate decision. Some additional precautions may have to be taken, for example, in the case of a young offender (L.T.H., supra; R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504) or where the accused is lacking in the mental capacity required to understand the standard section 10(b) warning (Evans, supra). Police must comply with both section 10(a) and (b) to justify a finding that the accused has waived the right to counsel (Smith, supra; Borden, supra).

As noted above, when a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue contact with a lawyer, section 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 (Willier, supra at paragraph 32; Prosper, supra at 274). This additional informational obligation is warranted so as to ensure, among other things, that a decision to waive the right to counsel is fully informed (Willier, supra at paragraph 32).

If events indicate that a detainee who has waived his or her right to counsel may not actually have understood that right, the police should reiterate his right to consult counsel to ensure that the purpose of section 10(b) is fulfilled (Sinclair, supra at paragraph 52).

8. Broad general right to counsel

The fact that section 10(b) does not preclude a finding of a constitutional right to legal assistance in situations other than arrest or detention (under section 7 of the Charter) does not support a general right to legal assistance whenever a proceeding before a court or tribunal deals with rights and obligations (British Columbia (Attorney General) v. Christie, [2007] 1 S.C.R. 873 at paragraphs 25, 27). A broad general right to legal counsel as an aspect of the rule of law is not supported by relevant jurisprudence and would significantly alter the legal landscape (Christie, supra at paragraphs 22-23).

9. Relationship between the section 10(b) right to counsel and section 7

The section 10(b) right to consult and retain counsel, and to be advised of that right, supports the broader section 7 right to silence. However, this right is not to be confused with the right to silence (Sinclair, supra at paragraph 29).

An important purpose of legal advice is to inform the accused about his or her right to choose whether to cooperate with the police investigation and how to exercise this right. Section 10(b) is a specific right directed at one aspect of protecting the right to silence, namely the opportunity to secure legal assistance (Sinclair, supra at paragraph 29).

In some cases, both section 10(b) and section 7 issues may arise. Where it is alleged under section 7 and the confessions rule that a statement is involuntary because of denial of the right to consult counsel, the factual underpinning of the two inquiries may overlap (R. v. Singh, [2007] 3 S.C.R. 405), yet they remain distinct inquiries (Sinclair, supra at paragraph 29). In other words, “[t]he fact that the police complied with section 10(b) does not mean that a statement is voluntary under the confessions rules. Conversely, the fact that a statement is made voluntarily does not rule out a breach of section 10(b)” (Sinclair, supra at paragraph 29).

The right to the effective assistance of counsel, which is promoted by section 10(b), is also viewed as one of the principles of fundamental justice under section 7 of the Charter (R. v. G.D.B., [2000] 1 S.C.R. 520 at paragraph 24; Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209 at paragraph 65). It has been found that failure to provide effective representation for the accused may affect the fairness of the trial (G.D.B., supra), and that paragraph 7 implies a right to counsel as an aspect of procedural fairness where life, liberty and security of the person are affected (Christie, supra at paragraph 25; Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053 at 1077; New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46).

10. The right to counsel for youths

Young persons, even more than adults, are inclined to feel vulnerable when questioned by police officers who suspect them of a crime and who can influence their fate. There are enhanced procedural safeguards in paragraph 146 of the Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA), which governs the admissibility of statements made to persons in authority by young persons who are accused of committing offences (L.T.H, supra at paragraph 1).

Section 146 of the YCJA gives statutory expression to common law rules and constitutional rights that apply to adults and to young persons alike, and also reaffirms the right to counsel enshrined in section 10 of the Charter (L.T.H., supra at paragraph 2). In addition, section 146 imposes additional statutory requirements that must be satisfied in order for statements made by young persons to be admissible against them at their trials (L.T.H., supra at paragraph 3). These statutory requirements are not necessarily requirements under the Charter.

The compelled attendance of a student at a principal’s office or some other form of restraint by a school authority, even if it could be understood as falling within the strict terms of the definition of “detention”, should not be considered as “detention” for the purposes of section 10(b) and therefore does not trigger the section 10(b) right to counsel (R. v. M. (M.R.), [1998] 3 S.C.R. 393 at paragraph 67).

11. What are the consequences of a violation of section 10(b)?

If the arresting officer fails in his or her paragraph 10(b) duties, any evidence that was obtained in a manner that violated paragraph 10(b) may be found to be inadmissible in subsequent proceedings if its admission would bring the administration of justice into disrepute pursuant to subsection 24(2) of the Charter (Feeney, supra; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Collins, [1987] 1 S.C.R. 265; see also R. v. Chaisson, [2006] 1 S.C.R. 415).

The content is current up until 2022-07-31.