While you have a number of constitutionally protected rights once you are arrested, this blog focuses on educating you about your right to a lawyer. Section 10(b) of the Charter of Rights and Freedoms provides detainees or individuals under arrest who are in police custody the right to choose the lawyer to whom they wish to speak to for legal advice.
When in custody, you have a right to speak to any lawyer that you choose. What this implies is important. This right means that not only do you have the right to call a lawyer but are also afforded the related right to a reasonable opportunity to choose a lawyer. The police are obliged to make reasonable efforts to assist you with contacting a counsel of choice. What constitutes reasonable efforts is a highly fact specific and often times good faith-perfunctory efforts by the police. The police must fulfill their constitutional obligations to facilitate your right of counsel following an arrest. This can include offering you a phone book, access to a telephone or even your own cell phone. Officers can also search the Internet and also look through a lawyer directory to further attempts to locate a lawyer of choice. The police are expected to allow an accused person to use the telephone to call counsels themselves or to provide them with resources to find or choose a lawyer with whom they wished to consult.
The police do not need to hold off indefinitely for you to speak to a lawyer. The availability of duty counsel is a factor in which courts consider when weighing what efforts police should have made in the circumstances, such as if it was the middle of the night. There is an informational and implementation duty imposed on police officers in providing your right to counsel. Despite this expectation, there is increased judicial dissatisfaction with the current practice of law enforcement officials in facilitating rights to counsel.
At Aitken Robertson, our role as defence lawyers is to shine a light on any breaches of your Charter right in challenging the case against you. We illustrate how serious the Charter breach was by demonstrating the officer’s negligent understanding of the importance of their constitutional obligations to facilitate contact with counsel of choice.
A breach of section 10(b) can lead to the exclusion of the results of breath tests under section 24(2) of the Charter, where the police do not make sufficient efforts to facilitate contact with counsel of choice and rather, funnel the accused person towards duty counsel.
These are some inquiries we make into your interaction with the officer post-arrest:
- Did the officer search the lawyer’s name on the Internet?
- Did the officer search the phone book or the lawyer directory for the lawyer’s name?
- How limiting was the search conducted by the officer?
- How many sources did the officer use in the attempt to locate the counsel of choice?
- Were any additional steps taken to search for the lawyer of choice’s contact information?
- Did the officer allow the accused person to call a friend or family member who know the contact information of the lawyer or were in a better position to find that information?
- Did the officer inform the accused person that a telephone or a telephone book would be made available to him or her to find a lawyer to call?
- Was the officer’s efforts adequate and did it fulfil his or her constitutional obligations to implement the accused person’s Charter rights?
- Was the officer’s actions in facilitating contact with the lawyer of choice constitutionally reasonable?
- Did the accused person believe he had no other choice but to contact duty counsel?
- Did the accused person request access to his phone, which was denied?
- Did the accused person express dissatisfaction with the conversation with duty counsel?
If you speak with duty counsel notwithstanding that you never chose to do so, and the police presented you with no other choice, then this does not relieve the police of their obligations. Essentially, it cannot be a “duty counsel or nothing” option for the accused person. By agreeing to speak to duty counsel does not mean that you waive your section 10(b) right to counsel. This, a defence lawyer would argue, was the officer’s effort to channel your decision to duty counsel rather than facilitating your ability to decide to choose between consulting private counsel or duty counsel. In essence, this would amount to a breach of your section 10(b) rights and can potentially lead to an acquittal.
The Take Away
You have a right to “search for” and “choose” a lawyer. If you fell prey to a false dichotomy to either calling your lawyer (presuming you have one), or if you do not have access to that lawyer, you get the impression that you are left with no choice but to speak to duty counsel, then let Aitken Robertson advance your case for you and challenge the prosecution’s case. If this has happened to you in Cornwall or area, our eastern region lawyer, Virginia Dolinska, would be happy to assist you.