Section 10(b) - Right to Counsel
Section 10 - Everyone has the right on arrest or detention:
(b) to retain and instruct counsel without delay and to be informed of that right.
PURPOSE & RATIONALE
Section 10(b) provides a detainee with the opportunity to consult a lawyer and obtain legal advice regarding the reason(s) for which they are being detained (R v Sinclair, 2010 SCC 35). The purpose of the provision is to ensure that in deciding whether to cooperate with an investigation or not, the detainee’s decision is free and informed. This section is not only concerned with informing the detainee of their rights, but also to inform them as to how to exercise those rights (Sinclair at para 26).
This section addresses issues such as the vulnerability of the detainee at the hands of authorities, concerns of self-incriminations due to the inherent power imbalance between a detainee and law enforcement, and an interference with their liberty (R v Manninen, [1987] 1 SCR 1233).
The right to counsel under section 10(b) supports the right to silence under section 7 of the Charter. The right of a detainee to make a meaningful choice of whether to cooperate with a police investigation is one aspect of protecting the right to silence (Sinclair at para 29)
ONUS
In establishing that the accused’s s. 10(b) rights were violated, the defence bears the onus of establishing the breach. This includes the onus of establishing that the detainee acted diligently.
RIGHTS OF DETAINEES
To ensure the purpose and objective of section 10(b) can be met, detainees are afforded the following rights (R v Manninen, [1987] 1 SCR 1233; R v Sinclair, 2010 SCC 35):
To be informed of their rights as a detainee, one of those rights being the right to counsel; and
To obtain legal advice as to how to exercise their rights.
It is important to note that section 10(b) does not provide the right to have defence counsel present during the interrogation of the detainee. This section simply guarantees the right to retain and instruct counsel (R v Sinclair at para 36).
THE DUTIES OF POLICE OFFICERS
Three correlated positive obligations are imposed on police officers (R v Bartle, [1994] 3 SCR 172 at 192; R v Willier, 2010 SCC 37 at para 30).
THE INFORMATIONAL COMPONENT
1. The duty to inform an individual who has been arrested or detained of their rights and obligations under the law;
THE IMPLEMENTATIONAL COMPONENT
2. The duty to provide the individual with a reasonable opportunity to exercise their right to retain or instruct counsel, should the detainee choose to exercise their right; and
3. The obligation to refrain from attempting to obtain evidence until the detainee has received reasonable opportunity to retain and instruct counsel.
The duty to inform is triggered immediately upon detention. The second and third duties only arise once the detainee has indicated that they’d like to exercise their right to counsel.
1. The duty to inform
The duty to inform requires police to provide the detainee with sufficient information concerning their arrest or detention in order to meaningfully choose whether to exercise their right to counsel.
Moreover, the detainee must be informed of this right at a time where they are capable
(i) of understanding the information being given, and
(ii) of appreciating the consequences of waiving their right to counsel. (See R v Mohl, [1989] 1 SCR 1389 re: intoxication)
Understanding the Right to Counsel
If a detainee indicates to officers that they have not understood the information provided, officers must communicate in a way to assist with comprehension. Officers cannot simply repeat the information in same way as they did previously (R v Evans, [1991] 1 SCR 869). Officers have an obligation to communicate the right to counsel to the particular detainee - this means they must explain what the right means in a way that takes into account the detainee’s particular characteristics such as youth or mental capacity. Similarly, where the detainee does not speak English or French well, the police must be satisfied that the language barrier did not impede the detainee’s understanding of the right to counsel (See R v Vanstaceghem (1987) ONCA).
Waiving the Right to Counsel
Once informed of the right to counsel, the detainee may waive the right, choosing not to consult with consult (Sinclair at para 28).
The threshold for constituting a valid waiver is “very high” (see R v LTH, 2008 SCC 49 at para 41) and must be premised on the detainee’s appreciation of the consequences of waiving such a right (LTH at para 43).
Change in Jeopardy
During an investigation, if there is a substantial change in the detainee’s jeopardy, officers must once again inform the accused of their right to counsel and the accused has the right to re-consult with legal counsel. A detainee’s decision as to whether they would like to consult a lawyer may be affected by the seriousness or nature of the charges (R v Sinclair).
Availability of Duty Counsel and Legal Aid
Detainees have the right to retain an instruct counsel regardless of financial situation. The existence and availability of duty counsel and legal aid services must be brought to the detainee’s attention if they are available in that jurisdiction (R v Brydges, [1990] 1 SCR 190; R v Willier, 2010 SCC 37 at para 29).
Section 10(b), however, does not impose a constitutional obligation on the government to provide free legal advice 24 hours per day (R v Prosper, [1994] 3 SCR 236 at 302). If duty counsel is not available at the time of the arrest or detention, police must wait a reasonable amount of time in order for the detainee to exercise their right.
2. The duty to provide reasonable opportunity
A “reasonable opportunity” is decided on a case-by-case basis (R v Prosper). If the detainee has the opportunity to access a telephone in a private space, the duty is usually met (R v Manninen).
3. The obligation to refrain from attempting to obtain evidence
When a detainee wishes to exercise their section 10(b) rights, police must cease an interrogation until the detainee has had a reasonable amount of time retain and instruct counsel.
THE DUTIES OF DETAINEES
The detainee is under a positive obligation to remain reasonably diligent in attempting to contact counsel (R v Smith, [1989] 2 SCR 368 at 385). That is to say, a detainee must be diligent in exercising their right to counsel; if they. are not, the duties imposed on police are suspended (Willier at para 35).
ADDITIONAL CONSIDERATIONS
The interpretation of “undue delay”
Courts have interpreted the right to “retain and instruct counsel without delay” as immediately (R v Suberu, 2009 SCC 33 at para 41). Therefore, immediately upon arrest or detention, officers must inform the detainee and provide an opportunity for the detainee to seek legal advice.
If a detainee chooses to exercise their right to counsel, police must wait a reasonable amount of time in order to allow the detainee to retain and instruct counsel before attempting to obtain incriminating evidence from the detainee. It is important to note, however, that the right to counsel is subject to limitations, such as addressing concerns for officer and public safety (R v Debot, [1989] 2 SCR 1140).
Right to Retain Counsel of Choice
If the detainee wishes to speak to a specific lawyer, they are entitled to a reasonable opportunity to contact this lawyer before police continue questioning (Willier at para 35).
If this lawyer is not immediately available, the detainee may refuse to speak with other counsel and wait a “reasonable amount of time” for their lawyer of choice to respond.
If this lawyer is not available within a “reasonable amount of time”, detainees must call another lawyer, duty counsel or legal aid services. If the detainee does not, the police’s duty to hold off questioning will be suspended.
Note: This post was co-written by Marla Bouffard and Sara Little. This post was copy-edited by Sara Little.