Right to Counsel
The right to counsel is one of the most important Charter protections in Canadian criminal practice. Section 10(b) of the Charter guarantees that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. The right is triggered immediately upon arrest or detention — physical or psychological — and police must implement it before continuing the investigation in most circumstances.
Mass Tsang's criminal lawyers examine the implementation of section 10(b) carefully in every file where the right was engaged. For more, see our blog posts on the rights of the charged or arrested and the differences between Miranda and Charter rights.
The two components
Section 10(b) has two components: an informational component — police must promptly advise the detained person of the right; and an implementational component — police must provide a reasonable opportunity to exercise the right and must hold off on questioning or evidence-gathering until the person has had that opportunity, subject to specified exceptions. Both components must be met for the right to be properly implemented.
What police must do
On arrest or detention, police must: inform the person of the reason for the detention or arrest; inform the person of the right to retain and instruct counsel; provide information about Legal Aid and duty counsel services where the person cannot afford private counsel; and provide a reasonable opportunity — including access to a phone, privacy, and time — for the person to contact and instruct counsel of their choice. The information must be given in language the person understands.
Holding off
Once the right is invoked, police must hold off on attempting to elicit evidence until counsel has been consulted. The duty to hold off extends to interrogation, physical evidence collection (in most contexts), and demands for breath, blood, or other samples (with narrow statutory exceptions). Police cannot circumvent the right by continuing to question informally or by claiming the conversation was "just chat."
Limits and exceptions
The right is not absolute. Statutory exceptions include: roadside ASD demands and standardized field sobriety tests under sections 320.27 and 320.28, which proceed without prior counsel consultation; certain emergency situations where delay would endanger life or safety. The Supreme Court has also recognized limits where the detained person is uncooperative, abusive, or makes the right impracticable to implement.
Charter remedies
Where section 10(b) is breached, the resulting evidence — statements, samples, derivative physical evidence — may be excluded under section 24(2) of the Charter using the three-part Grant test. Right-to-counsel breaches are among the most common bases for Charter motions in impaired driving and statement cases. A successful motion can be case-ending.
Related glossary terms
