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What are my Charter Protected Rights to Counsel Following an Arrest

The Charter of Rights and Freedoms reflects an important protection of rights for the members of the public. This is especially so when one is charged with a criminal offence. A host of Charter rights are immediately triggered following an arrest. It is helpful for you to be aware of these rights and to understand their significance in your case. While the information below may be a little technical, it is worth the extra effort to appreciate the scope of your rights. This is particularly so given the jeopardy you may be facing, which depends on the type of criminal charge(s) you are facing. 

Section 10 (b) of the Charter

Section 10(b) of the Charter places three duties on state authorities, in other words, the police officers:

  • the duty to inform detainees of the right to counsel
  • the duty to provide them with a reasonable opportunity to exercise this right, and
  • the duty to curtail questioning until that reasonable opportunity has been exercised.

The first duty is an informational one. The second and third are implementation duties that are triggered only if a detainee expresses the wish to exercise the right to counsel. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended.

The rights guaranteed by section 10 (b) may be waived by the detainee. However, the standard for waiver is high. The information component of the right to counsel must be comprehensive in scope and be presented by police authorities in a “timely and comprehensible” manner.  Unless detainees are clearly and fully informed of their rights at the onset, they cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as the right to silence. In light of the rule that police are not required to assure themselves that a detainee fully understands his or her rights, absent special circumstances indicating that a detainee does not understand the section 10 (b) caution, it is important that the standard caution given to detainees be as instructive and clear as possible.

The Availability of Duty Counsel

Police authorities are required to inform detainees about Legal Aid and duty counsel services at the time of detention.  Basic information about how to access available services which provide free, preliminary legal advice should be included in the standard section 10 (b) caution.  Failure to provide such information amounts to a breach of section 10 (b). It is important to retain a lawyer to assess whether or not your case involved a breach of your Charter rights. The implications of this can be far-reaching in how your matter is dealt with.

What the Aitken Robertson Team Can Do For You

The lawyers at Aitken Robertson are trained to detect any breaches of Charter-protected rights. Our goal is to work with you to assess the manner in which the police handled your case. If we are able to challenge the case against you based on your Charter rights, we zealously do so. By doing this, we are able to give you a better fighting changes to battle your charges. We provide 30-minute free consultations and explain the potential avenues to resolving your case. Give us a call today to learn about how our team can assist you.

Yasmine Al-Zaman

Yasmine’s patience, compassion and understanding allow her to work collaboratively and effectively with her clients. She appreciates the level of fear and confusion most people feel when confronted with the legal system. With that in mind, Yasmine puts her best foot forward to offer quality legal services.

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