Right to Counsel
One of the biggest misconceptions, perpetuated by tv cop shows, is that when a person has been arrested he or she is allowed only a single phone call and woe to that person if no one answers. This is not how things work north of the border. The Canadian Charter of Rights and Freedoms sets out a number of protections afforded to accused persons. Section 10(b) outlines a person’s rights upon arrest.
Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.
When a person is arrested or detained in Canada, that person must
o be told without delay that he or she may contact a lawyer of their choice,
o be allowed to actually contact a lawyer within a reasonable time and if the lawyer is not available, the accused has a right to wait or to contact a different lawyer,
o be allowed to consult with the lawyer in privacy.
It is the responsibility of the police, or other authority, to make sure that an accused is aware of these rights. In addition to reading an accused these rights, the police must also ensure that an accused understands them, particularly if the accused does not have a good command of the English language. Further, the police must facilitate the exercise of the right to counsel, for instance by making a phone available to the accused.
Once an accused has made known that he or she wishes to speak to a lawyer the police must stop their questioning. They may resume their interrogation if the accused does not act diligently in trying to contact counsel.
Should you ever find yourself detained or under arrest, it is important to contact a lawyer. Deciding to exercise this right in no way affects your guilt or innocence. But failing to speak to a lawyer could prove costly, even if you have done nothing wrong.
Jerry Birenbaum works in the area of criminal law and would be pleased to speak with you.
Share