Canadian Criminal Procedure and Practice/Arrest and Detention/Right to Counsel

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

This right is divided into an informational component and a implementation component. 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.

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 accused acted diligently.

The police must inform the detainee of their right to counsel without delay and the availability of legal aid and duty 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. The detained person must be reasonably diligent in exercising their 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.

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.

There is no right to an accused to contact family members such as wife, even if it were for the purpose of contacting a lawyer. However, a recent Alberta decision came to the opposite conclusion It is only where the accused informs the police that the purpose of the call is to assist in contacting a specific lawyer that the police should permit the phone call. However, the phone call would not be private or privileged.

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".

The goal of the right is to foster the "principles of adjudicative fairness".

Informational Component
The right can only be exercised where the accused fully understands the jeopardy that they are in and appreciate the consequences of the decision to speak to counsel. Thus, they must be informed of the offence as part of the informational component.

The informational duty requires the officer to inform the detainee of his right to retain and instruct counsel without delay. The police must also inform the accused of the availability of duty counsel and legal aid. As well was provide detail on accessing 24 hours duty counsel phone by giving a toll-free number to call. The failure to provide a specific telephone number to Legal Aid is fatal to the fulfillment of the right.

Absent proof of circumstances showing that the accused did not understand his right to counsel when he was informed of it, then the onus is on the detainee to prove that he was denied an opportunity to ask for counsel at the time of detention.

There is a right to an opportunity to contact counsel of choice.

If the accused asks for a specific lawyer but that lawyer is not available, then they are expected to choose someone else.

The police have an obligation to hold off from questioning while the accused is given reasonable opportunity to contact a lawyer.

Implementation Component
The implementation component is engaged once the detainee indicates a desire to exercise the right to counsel.

The implementation component involves two aspects:
 * 1) the officer must provide the detainee with reasonable opportunity to exercise the right to retain counsel without delay except in urgent or dangerous circumstances.
 * 2) refrain from attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel except in urgent or dangerous circumstances.

The implementation component does not arise until there is an expressed desire to exercise those rights.

Once the accused has been informed of his rights, he has an obligation to pursue them.

The right to counsel includes the right to counsel of choice and that the counsel represent the accused throughout. This right is limited to counsel who are competent to undertake the retainer; willing to act; available to represent the accused within a reasonable time; and free of any conflicts.

If the chosen lawyer is not available within a reasonable amount of time, the detainee is expected to call another lawyer or else the police duty to hold off questioning. What amount to reasonable time depends on the circumstances.

The accused must possess an operating mind for the right to be properly exercised.

The right to be informed of the right to counsel does not go so far as to guarantee the appreciation of all the information given.

Police must allow the detainee to contact a third-party such as spouse, parent, neighbour, friend, etc., if it is for the purpose of facilitating contact with legal counsel.

However, officer can be the intermediary in this contact and does not need to allow the accused to speak to the third-party directly, so long as the accused can properly exercise their right to contact counsel.

If the Implementational component was not satisfied then there is a breach of the Charter right.

Diligence of the Detainee
The right to counsel is not an absolute right. The accused must be reasonably diligent to exercise it.

If the first part of the implementational duty is satisfied, the judge will only then consider whether the detainee has been reasonably diligent in exercising the right. The onus is on the accused to establish reasonable diligence.

If the detainee failed to be reasonably diligent in exercising their right, the implementational duties do not arise or are suspended and so there cannot be a violation.

Choice of Counsel
The right to counsel includes a limited right to a choice of counsel. This right extends only to the point where the lawyer chosen cannot be made available after a reasonable delay at which time the detainee is expected to call another lawyer, including duty counsel.

The issue at all times is whether the officer provided the detainee with the necessary information and assistance to allow the detainee a reasonable opportunity to exercise his rights.

Where good faith efforts are made by the police, there cannot be a violation simply because the officer failed to do more where there was some feasible step the officer failed to take to arrange contact with counsel of choice.

A detained person must be reasonably diligent in exercising his right to choose counsel. If he fails to do so, then the related duties are suspended.

An accused who waits an hour after a failed attempt to contact a lawyer of choice and refuses to speak with duty counsel may have failed to be reasonably diligent, if the evidence requested by police has an expiry date of two hours. In this case, the accused was refusing to give a breath sample at a police station until speaking to his lawyer. His lawyer could not be contacted within an hour, and the appeal judge determined that the accused's 10(b) right was not infringed by his lack of choice. It is unclear how this impacts cases where there is no pressing expiration time.

Police Methods
The police have a right to try to persuade a person to speak to them.

It is not permissible for a police officer to belittle or make inappropriate comments regarding defence counsel. Where police do so, it has the effect of nullifying the reliance the advice given. To rebut this nullification, it would be necessary to have the detainee be given a further opportunity to contact a lawyer.

Post-fulfillment
The advice received in privileged and so police do not need to inquire about the adequacy of the legal advice the detainee received. If there is any issue with the advice given that is for the detainee to raise.

If the detainee is unsuccessful in reaching a lawyer, for example, if he receives a busy signal, no answer, disconnected phone, recorded message, or someone other than the lawyer, it is for the accused to inform the police about so that they can fulfil their duty. It is not for the police to "play twenty questions".

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. However, if counsel is on the way, they must wait for counsel to arrive.

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.

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

Delay
The degree of delay permitted is a matter of context.

The police wait of 10 minutes after a second failed attempt to contact counsel to conduct breath test breached s. 10(b) rights.

Examples Evidence obtained from a motorist’s involvement in screening tests, without being given their right to counsel, should be excluded from evidence incriminating the driver.

Special Issues
Where there has been a breach of s. 10(b) right for a statement and then a later statement was taken that on its face may not be an independent breach, the subsequent breach may still be "tainted" by the earlier breach allowing for a potential remedy under s. 24(2).

The court have adopted a "purposive and generous approach" when considering tainting by earlier Charter breaches. The accused does not need to establish a strict causal relationship between the breach and subsequent statement. The statement is tainted where the breach and subsequent statement were "part of the same transaction or course of conduct. The connection is "temporal, contextual, causal, or combination of the three."

A "remote" or "tenuous" connection is not sufficient.

Change of Jeopardy
While a detainee is in custody on charges and has received access to counsel, but at some point later the circumstances of the detainment change and further charges are being investigated resulting in a change in jeopardy in the detainee, the accused must be given a further opportunity to consult with counsel on the new situation.

Communication difficulties
Where a detainee may not understand the information being told to them, it cannot be resolved by simply reading the standard text.

Limited signs of comprehension of English can be enough for the court to find that the accused did not understand his rights.

Where the officer is aware that the person's first language is not English, then they should be cautious and slow when going through the instructions.

It should only be in exceptional circumstances where the officer is under an obligation to arrange for an interpreter to ensure that they understand their rights.

Waiver of Right to Counsel
The onus is on the Crown to prove that there was a valid waiver of Charter rights.

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.

Answers such as “what will they do for me?” was equivocal and so was not sufficient.

However, several answers have been found to be unequivocal and so amount to a waiver:
 * “No, I have no use to call one”
 * “No, I’ll talk to one tomorrow”

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.

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.

Prosper Warning
Where an accused is detained and asserts the right to counsel in a dilligent 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. If the officer fails to give the Prosper warning, there will be a Charter violation.

Young Persons
Section 25(1) of the YCJA gives the youth a right to retain and instruct counsel without delay.

The basic adult rights regarding counsel are still in effect for a youth. However, section 146 creates additional benefits upon the young accused and obligations upon the police when providing the right to counsel. The additional rights not otherwise available to adults include:
 * the youth will be given a reasonable opportunity to consult with a parent or responsible adult
 * any statement must be given in front of a lawyer and parent or responsible adult unless the right is waived;
 * the waiver of this right must be audio or video taped or be in writing.

Proof of compliance with these standards is proof beyond a reasonable doubt.

The reason for these additional protections and high standard of proof on the Crown is because of the constitutional requirement of a separate system arising from the youth's reduced moral blameworthiness and culpability. More to the point, youths are "far more easily impressed and influenced by authoritarian figures".

Foreign Nationals
Upon arrest of a foreign national, the accused has a right to contact the consul of his native country pursuant to Article 36 of the Vienna Convention which states: