Section 10 of the Canadian Charter of Rights & Freedoms: The Right to Counsel

April 7, 2021

What is the Right to Counsel?

Section 10 of the Canadian Charter of Rights and Freedoms contains three rights that every individual has upon arrest or detention. This section states that everyone has the right on arrest or detention to:

a. Be informed promptly of the reasons therefore
b. Retain and instruct counsel without delay and to be informed of that right
c. Have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful

Any individual who is arrested or detained by the police or any other government agency are protected by these aforementioned rights. Section 10(b) creates a duty for the police to provide the individual they have detained or arrested with the opportunity to exercise their Charter rights.

What Qualifies as Detention in Section 10 of the Canadian Charter of Rights?

The meaning of the word “detention” in section 10 is not the same as the everyday ordinary meaning of “detain.”

The police cannot be said to “detain” a person in this context every time they stop a person to ask questions or for a person’s identification. The constitutional rights in s. 10 are only engaged when an individual is put in a situation, physically or psychologically, where they cannot reasonably choose to walk away or disobey instructions from the police.

Generally speaking, most individuals don’t feel free to choose to disobey a demand or direction from a police officer.

In R. v. Therens, the Supreme Court of Canada recognized that the average individual experiences a psychological compulsion to adhere to the requests of an officer. When compliance becomes involuntary, “detention” has occurred and the rights in s. 10 are engaged.

On the other hand, the Charter rights in s. 10 don’t apply when there is no significant physical or psychological restraint on the individual.

Understanding your Rights During Detention

Under s. 10(a), once an individual is detained, they must be informed of the reason for their detention.

The s. 10(a) right attaches sooner than the other rights in s. 10. According to the Supreme Court of Canada in R. v. Mann, when an individual is detained for investigative purposes – for example, when they are asked for identification or stopped for questioning – the police are obliged to advise that individual, in clear and simple language, of the reason for his or her detention.

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Section 10(a) requires that every individual be notified “promptly” of the reasons for his or her arrest or detention. When it comes to detention, “promptly” is context specific. No person has to submit to an arrest without being given a reasons for it.

In fact, you are free to resist arrest if you are not notified of the reasons for your arrest.

The duty to notify exists partially to allow an individual to make a meaningful decision about whether or not to submit to arrest or detention, and to allow the individual an opportunity to make a meaningful decision about whether to invoke their s. 10(b) right to counsel.

To determine whether or not the duty to notify has been breached, the Court must consider whether the individual was notified in a way that reasonably allowed him or her to make meaningful decisions about whether to submit to arrest and/or contact a criminal defence lawyer. These same principles are used to determine whether the information relayed to the individual was sufficient to fulfill the duty in s. 10(a).

Are Police Always Required to Give a Reason for Arrest?

The police need not always verbally spell out why the individual is being arrested. If the individual is caught “red-handed” committing a crime, then it is reasonable for the police to assume that he or she understands the reasons for his or her arrest.

However, in a situation where the accused is not caught in the act, the police must fulfill the duty to notify immediately at the scene of the arrest. An officer cannot rectify any failure to do so by informing the accused of the reasons for his or her arrest after he or she has already submitted to the arrested, but there is no requirement that the notification be made in writing.

The Right to Retain Counsel

The second right under s. 10(b) is the right to retain and instruct counsel without delay and to be informed of that right. This section makes it your constitutional right to be advised by a criminal defence lawyer soon after your arrest and detention.

Moreover, the police are obliged to notify you of your right to obtain counsel upon your arrest or detention. This right does not attach every time a person is pulled over or stopped by the police. However, it does attach as soon as the individual’s delay can be said to be involuntary.

For example, the Supreme Court of Canada has ruled that the right does not attach when going through customs at the airport, but does attach when an individual is taken aside for further investigation (such as a strip search).

The right does not attach every time the police pull someone over to the side of the road – for example, to warn the driver of upcoming road conditions or observe the driver to assess whether he or she has been drinking. However, the Supreme Court ruled in R. v. Therens that the right to be informed and to retain counsel does attach when the police demand a roadside breath sample.

Since every individual is required by law to submit to a roadside breathalyzer test, the decision to do so cannot properly be considered voluntary. Thus, an officer must inform you of your right to counsel contemporaneously to making a breathalyzer demand.

Retaining Counsel without Delay VS Retaining Counsel Promptly

Section 10(b) states that every individual has a right to retain a counsel “without delay.” The term “without delay” is subtly different than the term “promptly” from s. 10(a).

While “promptly” was a positive term that suggests immediacy is required, “without delay” is a more passive term that means that the police must not delay or postpone or unduly interfere with the individual’s efforts to obtain counsel.

Section 10(b) imposes three duties on the police:

  • The police must form the individual of his or her right to retain and instruct counsel.
  • Since the detained individual is under the effective control of the police, the police are obliged to provide him or her with a reasonable opportunity to exercise his or her s. 10(b) right without delay.

    This creates a duty for the police to offer the individual use of a telephone and to provide the individual with contact information for “duty counsel,” which refers to a criminal defence lawyer who works for legal aid services.

  • The third duty on the police is the duty to stop questioning the individual and to stop trying to illicit evidence from the detainee until he or she has had a reasonable opportunity to speak with a defence lawyer.

Although the latter of the three applies in most cases, there may be urgent circumstances that justify the police in questioning an individual before providing him or her with a reasonable opportunity to speak with a criminal defence lawyer. For the most part, however, the police are obliged by s. 10(b) to comply with all three duties.

Finally, if the nature of the charge against the individual changes – especially if the charge becomes more serious – the court is obliged to inform the individual of his or her s. 10(a) and 10(b) rights again. This allows the individual to make a meaningful decision about whether or not to retain counsel given that the nature of the charged against him or her has changed.

Understanding Writ of Habeas Corpus

Section 10(c) gives every individual a right to have the validity of his or her detention determined by a writ of habeas corpus. Not all issues can be resolved in the court system. To say that an individual has a “writ” is to say that this is an issue for which a person has a right to seek legal action.

Any detainee may petition to court for a writ of habeas corpus; the court will then issue the writ. The specific writ of habeas corpus allows individuals to seek relief from the court if the police or another arm of the government has unlawfully detained them.

This right allows a detainee to demand that he or she is brought before the court so that the state may justify his or her detention. The court will determine whether or not the state has lawful justification to detain the individual. If the state cannot justify the detention, the individual must be released. If the individual has already been lawfully convicted by a court of law, his or her detention is considered justified, and the right to habeas corpus no longer exists.

The rights under s. 10 of the Charter protect the individual throughout their investigation, arrest, and detention from undue interference by the police. The rights recognize that every person has a right to be advised by a criminal defence lawyer in their interactions with the criminal justice system.

The s. 10 rights are premised on the notion that the state cannot arrest or detain an individual without proper justification. If the police interfere with these rights in any way, there are several remedies available under the Charter.

According to section 10(b) of the Charter of Rights, an individual has the right to counsel. Choose your counsel wisely. Kostman and Pyzer, Barristers, are criminal defence lawyers with a proven track record in the criminal courts.

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