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September 04, 2015

Section 10(b) of the Canadian Charter of Rights and Freedoms provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

The courts have interpreted s. 10(b) to convey three duties on the police at the time of arrest:

1. To inform the detainee of the right to retain and instruct counsel without delay.
2. To provide the detainee with the opportunity to retain and instruct counsel as soon as possible;
3. To cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel.

In R. v. Manninen [1987] 1 S.C.R. 1233, Lamer J. (as he then was), stated:

[21] In my view, s. 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so.

[23] Further, s. 10(b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights. (Confirmed in R. v. Bartle, [1994] 3 S.C.R. 173).

In R. v. Taylor, 2014 SCC 50, the Supreme Court confirmed their rulings in Manninen, Suberu, and Sinclair stating:

[21] … The right to retain and instruct counsel is also “meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination” (R. v. Suberu, [2009] 2 S.C.R. 460, at para. 40). Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy “is able to make a choice to speak to the police investigators that is both free and informed” (R. v. Sinclair, [2010] 2 S.C.R. 310, at para. 25).

The court went on to state:

[24] The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a criminal or civil lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel.

[27-28] While the police are under no legal duty to provide their own cell phone to an arrested or detained individual (due to privacy and safety concerns), they nonetheless have a duty both to provide phone access at the first reasonable opportunity to avoid self‑incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated.

It is also important to note that these rights are not just triggered on arrest but also on detention. Detention under s. 10 of the Charter was discussed at great length in R. v. Grant, [2009] 2 SCR 353, in which the Supreme court summarized the definition of detention (at paras. 32, 43-44) as follows:

Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with a restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors: (a) the circumstances giving rise to the encounter as they would reasonably be perceived by the individual; (b) the nature of the police conduct; and (c) the particular characteristics or circumstances of the individual where relevant. To answer the question whether there is a detention involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements. In those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual, it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go. It is for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed between police conduct that respects liberty and the individual’s right to choose, and conduct that does not. Deference is owed to the trial judge’s findings of fact, although application of the law to the facts is a question of law.

Robert Karrass is a partner at Morton Karrass LLP and specializes in the areas of criminal law, administrative/regulatory law, and appeals.

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