In this article we discuss the rights of individuals who have been detained or arrested by police. The Canadian Charter of Rights and Freedoms is the supreme law of Canada. Section 10(a) of the Charter provides that everyone has the right on arrest or detention “to be informed promptly of the reasons therefore;” while s. 10(b) provides that everyone has the right on arrest or detention “to retain and instruct counsel without delay and to be informed of that right.” Therefore, when a person is first arrested or detained, the police have an immediate obligation to inform the person why the police are arresting or detaining them.
The police must then tell the person that he or she has the right to retain and instruct a lawyer without delay. The right to counsel is important because it allows the person to consult with a lawyer and get advice as to whether they should participate in the police investigation of them. The Supreme Court of Canada has defined the duty on police under s. 10(b) of the Charter as having an information component and an opportunity component. With respect to the information component, a police officer must tell the person under arrest or detention that they have the right to speak to counsel without delay. Of course, many people arrested or detained do not already have a lawyer in mind or even know any criminal lawyers, so the police must also tell the person that if they do not know a lawyer or cannot afford a lawyer, they can speak to duty counsel (a free lawyer), who is available 24 hours a day. Also, where it becomes apparent to the police officer that the person does not understand the English language very well, the police should take steps to obtain the assistance of an interpreter in the person’s native language who can do the translation over the telephone in order for the person to understand his or her rights to counsel.
Once the arrested or detained person is informed of these rights, the person must decide whether they wish to speak to a lawyer at that time. If the person says “no”, then the police do not have any further obligation to contact a lawyer on the person’s behalf. If the person says they wish to speak to a lawyer, then the police must provide the person with a reasonable opportunity to do so. From this point of time and until the person actually speaks with a lawyer, the police cannot ask the person any further questions or try to gather any further evidence from the person. The police will usually wait until getting back to the police station to provide the person with an opportunity to call a lawyer. Back at the station, the person is usually put in a private room with a telephone. Sometimes, the person will have a particular lawyer they wish to contact. The police will do their best to accommodate the request and make attempts at trying to reach that lawyer. However, depending on the time of day, it may be difficult to reach a particular lawyer. After waiting a reasonable amount of time in trying to contact the particular lawyer, police will then resort to offering the services of duty counsel to the arrested person.
Generally, police are only required to allow the person to speak to a lawyer once during questioning. Once the person has consulted with his or her lawyer or duty counsel, police are free to continue questioning the person. In Canada, the lawyer is not permitted to be present with the person when the police are questioning him or her. That is why it is very important that a person have the opportunity to consult with a lawyer to determine how to deal with the police questioning.
It is also important to note that if the police either fail to inform the person properly of the right to counsel or fail to provide the person with a reasonable opportunity to consult a lawyer, then a court may find that the person’s constitutional rights under s. 10(a) or 10(b) of the Charter have been violated and may find that any statement made by the accused during police questioning is not admissible at the person’s trial.