Your rights:
Where there are no police safety concerns or security issues arrest, upon arrest:
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You are entitled to be advised of the right to speak to counsel without delay
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You are entitled to be advise that you can speak to any lawyer you want
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You are entitled to be provided the 1-800 number for Legal Aid Duty Counsel.
The purpose and history of s. 10(b) of the Charter
Section 10(b)’s declaration of the substantive right “to retain and instruct counsel without delay” was intended to put a detained individual on equal footing with a not-detained person.
What if I am not detained?
A not detained person, by definition, at any time may act to retain and instruct counsel. A person not detained or arrested has the power to consult a lawyer at any time they choose to (and similarly has the right to say nothing in response to a question from a policeman).
What does the Supreme Court of Canada Say?
As the Supreme Court stated in Bartle, s. 10(b) imposes the following requirements on the police in order to restore this power imbalance:
(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and Duty Counsel [informational component];
(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances) [implementational component]; and
(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger) [duty to hold off]
In practice, what happens upon arrest?
The police will read out the following from a card:
It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free legal advice from a legal aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid Plan for legal assistance. 1-800-265-0451 is a toll free number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice now. Do you understand and do you wish to call a lawyer now?
The bulk of that caution is about Duty Counsel. It explains the Legal Aid Duty Counsel is free and that the phone number is known and available for the detainee and is even read out.
What do I do next?
You should reply “yes”.
What does this effectively mean?
The police commonly offer a binary choice – calling a specific lawyer or duty counsel. The issue with this approach is that it omits the accused person’s right under s. 10(b) to conduct his/her own search for counsel with the appropriate resources being provided was improper, thereby creating grounds for a s. 10(b) violation.
How does this happen?
A typical exchange between the officer and an accused person:
Police: You’re, you’re entitled to speak to a lawyer okay, if there is a specific lawyer that you want to talk to …
Accused person: I have, I don’t have any.
What is the issue here?
Any reasonable person who does not have his own lawyer would understand that obtaining legal advice means that the police will call Duty Counsel.
Common police practices:
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When asked about contacting a lawyer, most accused persons will reply “duty counsel”. This is unsurprising since he/she had just been told that “we’ll call duty counsel”, since he/she doesn’t have a lawyer.
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It is common for the police to undertake steps in order to find them a specific lawyer only if you’ve requested a specific lawyer. The police have access to a lawyers’ directory and online resources to locate your counsel of choice.
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If you simply respond, “I just want duty counsel”, the police will arrange duty counsel. In other words, most officers take the position that the accused person must have the name of the lawyer for them to find it. They also will not give you a directory and say here, go ahead, choose a lawyer?
What’s the problem?
Any reasonable person would see this phrase as consistent with the information provided earlier information provided: ‘You have the right to telephone any lawyer you wish’ which means you can call either a lawyer you already have or Duty Counsel.
How various police forces across the country choose to comply with the informational component directly impacts the steps they must take to discharge their burden to provide the detainee (who expresses a wish to do so) with a reasonable opportunity to exercise that right.
The choices the accused does make are done in a near vacuum. That near vacuum effectively whittles down the options: call no lawyer, call the one provided by the police, or take a more combative stance with the armed uniformed officer who holds him/her in custody and demand rights many would not know exist.
In doing so, the officer is subverting the freedom to make informed decisions by restricting the information available to the accused.
The subversion is exacerbated if:
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The detainees are not told of the right to search for any other counsel
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If the accused is not provided any other means by which to search for a different counsel
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If the officer completely controls the actual physical process of contacting counsel on the phone.
It is often the case that an accused did not have a lawyer and did not know one at the time of arrest.
When asked to assert his right to a lawyer, the accused was standing at the roadside.
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There was no phone book.
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There was no legal directory.
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Indeed, there was no phone yet.
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Upon arrival at the police station, the police officer made the phone call on behalf of the accused.
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The police controlled 100% of the means by which the accused was put in contact with counsel .
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The accused did not even have the opportunity to dial the toll free number previously recited by the police officer.
Deficient and inaccurate information
Where the police provide deficient or inaccurate information to a detainee upon arrest regarding their right to conduct their own search for counsel, it is unfair to require the detainee to insist on something of which he may have no knowledge or about which the police have clearly signaled he had no right to do.
Put differently, unless the police “clearly and fully” inform a detainee of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether and how to contact a lawyer. Failing to do so violates the informational component of s. 10(b) of the Charter .
R. v. Bartle, [1994] 3 S.C.R. 173 (S.C.C.), at para. 19.
Other issues:
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Often upon arrest, an accused person is clearly stressed and confused.
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This was the accused person’s first time under arrest.
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There may be comprehension issues. The accused person’s first language may not be English
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The accused person is often told “we’ll call duty counsel” since ‘you don’t already have one’; the sentence refers to “telephoning” any lawyer, which reasonably understood means a lawyer whose telephone number is known, which is a reprise of a ‘lawyer you have’;
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in the circumstances this sentence is simply incapable of conveying to the accused person that he/she had the right to pause and take the time to conduct a search through directories for a lawyer to offer him the advice and support to which he was entitled;
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This sentence was consistent with the binary choice and insufficiently clear to overcome and correct the error
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There is simply no reasonable basis to think that the sentence “you have the right to telephone any lawyer you wish” could be taken as informing a detainee that they can start finding a lawyer on their own or accessing telephone books or other resources to find a lawyers number on their own.
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The informational component must first compliance with s. 10(b).An accused’s person’s call to duty counsel may be based on not a knowing and informed choice on his part as to how he wished to implement his right to counsel but rather the result of police maneuvering.
Well you didn’t complain…
Effectively, what the police are taking the view that unless an accused person express demand for telephone resources, they will not provide it.
However, the onus is on the police to correctly inform the detainee of his/her constitutional rights so that he/she has the information necessary to exercise those rights.
Where the right of the an accused person to find his/her own lawyers and the resources to do so was categorically denied by the police, this could be grounds to a section 10(b) breach.
The dissatisfaction issue is only relevant where there has been proper fulfillment of the informational duty and the implementational duty. An accused’s right to directories as mentioned by duty counsel was a choice he never knew about but had been entitled to know about.
His right to that option existed however adequate duty counsel advice was and regardless of whether he was asking because of dissatisfaction or not.
Language difficulties:
Language difficulties is a circumstance that will trigger a constitutional duty on the police to do more than simply reading a standard caution in English. This circumstance on its own requires the police to take further steps to ensure the detainee understands his rights and can make informed decisions.
R. v. El Hariti, [2017] O.J. No. 2722, 2017 ONSC 3144, at para. 60.
R. v. Vanstaceghem, [1987] O.J. NO. 509 (C.A.).
R. v. Bartle, [1994] 3 S.C.R. 173 (S.C.C.), at para. 19, 39.
This duty is heightened where an ESL detainee is provided wrong information at the outset – such as that he could either speak to a lawyer he already had or Duty Counsel.
What next?
Police should then ask you whether you are satisfied with your call with your duty counsel. If there is a language issue or any comprehension language, you should articulate these concerns. If the police fail to ameliorate these issues, then this may be a ground for a 10(b) challenge – your right to counsel.
Can I complain?
Yes. As a matter of fact, you must complain. Often we 10(b) issues are litigated, the court will assess the following:
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Did you tell anyone that you did not understand your right to call any lawyer, as read from the standard caution?
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Did you ever express explicitly that you were not satisfied with the advice you received from Duty Counsel
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Did you ever expressly request to use the lawyer directory to find a lawyer?
Other questions to ask:
Was there a delay in providing your right to counsel upon arrest?
Did the police ever offered you access to the lawyer’s directory that the police detachment had in its possession?
Were you ever cautioned that the interview would be used against you in court or did they tell you at any point that the exact charges that you are facing?
Were you expressly told that you could only call a lawyer that you already had or Duty Counsel?
Did the police unfairly place the onus on you, after asserting your wish to speak to a lawyer, to know of and claim your right to make your own efforts to locate counsel of choice?
