Right to Counsel

Right to Counsel

The right to counsel is one of the most fundamental protections guaranteed to individuals in Canada’s justice system. It is enshrined in the Canadian Charter of Rights and Freedoms and ensures that every person facing arrest or detention has immediate access to legal advice. This right is not just a procedural safeguard—it is a cornerstone of fairness and due process in criminal law. Understanding the scope of this right, its limitations, and what it means in practice can be critical for anyone navigating the Canadian legal system.

The Legal Foundation of the Right to Counsel

Section 10(b) of the Canadian Charter of Rights and Freedoms provides that everyone has the right “on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” This provision ensures that individuals are aware of their entitlement to legal assistance and can obtain timely advice on how to respond to police questioning or actions.

The right to counsel applies the moment a person is detained or arrested, even before formal charges are laid. This means that as soon as police restrict an individual’s freedom in a meaningful way, the right comes into play.

Why the Right to Counsel Matters

The right to counsel protects individuals from self-incrimination and ensures they understand their rights when facing the power of the state. Without access to legal advice, a person might unknowingly provide information that could be used against them, waive important rights, or make decisions without understanding the consequences.

A lawyer can explain the nature of the charges, advise on whether to answer questions, and ensure that law enforcement respects procedural safeguards. This helps level the playing field between individuals and the criminal justice system.

When the Right to Counsel Applies

The right to counsel arises in situations such as:

• Being placed under arrest for a criminal offence
• Being detained for questioning by police
• Being held during a roadside stop where detention goes beyond routine checks
• Any situation where an officer restricts your freedom in a significant way

It does not apply to every interaction with police. For example, casual conversations with officers or routine traffic stops where you are free to go generally do not trigger the right.

Police Obligations Under Section 10(b)

When someone is arrested or detained, the police have specific obligations to uphold the right to counsel:

1. Informing of the right: Police must clearly tell the person that they have the right to speak with a lawyer without delay.
2. Providing an opportunity: Police must provide a reasonable opportunity to contact counsel. This means access to a phone and privacy to make the call.
3. Facilitating contact: If the person asks to speak to a lawyer, police must stop questioning until the consultation has occurred.
4. Respecting the choice: The person has the right to speak with a lawyer of their choice, though if unavailable, duty counsel can provide immediate advice.

Failure by the police to follow these steps can render an arrest unlawful or lead to evidence being excluded at trial.

Limits to the Right to Counsel

While robust, the right to counsel is not absolute. Canadian courts have recognized certain limitations, such as:

• Immediate danger or urgent circumstances: If delay in police action could jeopardize public safety, the right may be temporarily limited.
• Reasonable diligence required: The person must exercise reasonable efforts to contact a lawyer; refusing to do so may waive the right.
• No guarantee of lengthy consultation: The right ensures access to initial advice, but not necessarily prolonged discussions before questioning resumes.

Consequences of Charter Breaches

If the police fail to respect the right to counsel, it can have serious implications for the case. Under section 24(2) of the Charter, evidence obtained as a result of the violation may be excluded if admitting it would bring the administration of justice into disrepute.

For example, if an accused person is interrogated without being allowed to speak to a lawyer, any statements they make may be inadmissible in court. In some cases, the charges themselves may be stayed or withdrawn because of the Charter breach.

Real-World Examples

Canadian courts have dealt with numerous cases where the right to counsel has been central:

• Statements to police: If someone confesses before being informed of their right to counsel, the statement may not be admissible.
• Roadside stops: Extended detention without informing the driver of their rights can lead to breath test results being excluded.
• Delayed access to lawyers: If police fail to provide timely access, any subsequent evidence may be challenged.

These examples highlight how closely courts scrutinize police conduct to ensure compliance with the Charter.

Practical Advice for Individuals

If you are arrested or detained, it is crucial to assert your right to counsel clearly and promptly. Practical steps include:

• Immediately stating, “I want to speak to a lawyer.”
• Refusing to answer questions until you have consulted with counsel.
• Taking note of the circumstances if police deny or delay access to a lawyer.
• Using duty counsel services if your personal lawyer is unavailable.

Remaining calm and respectful while insisting on your rights will help protect your legal position.

The Role of a Defence Lawyer

Defence lawyers play an essential role in upholding the right to counsel. They provide immediate advice during the critical early stages of detention and later challenge any violations in court. A lawyer can also advise on whether Charter breaches occurred and seek remedies that could significantly impact the outcome of a case.

Contact Us for a Free Consultation

If you believe your right to counsel was violated during an arrest or detention, it is important to act quickly. Contact us now to schedule a free, confidential consultation with De Boyrie Law.

Alex De Boyrie

Alex is a dedicated criminal defence lawyer serving Toronto and the GTA. He has experience handling a wide range of charges including bail hearings, assault, sexual offences, drug crimes, firearms, impaired driving, and more. Known for his professionalism, availability, and strong advocacy, Alex takes pride in guiding each client with care and consistency. If you’ve been charged with a criminal offence, we offer a free consultation so you can explore your legal options with no financial risk.