Section 10(a) of the Canadian Charter of Rights and Freedoms provides:
Everyone has the right on arrest or detention to be informed promptly of the reasons therefor.
Article 10 (b) 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 right to be informed without delay of the reasons for their arrest or detention
Now that he is subject to the coercive power of the State and faced with the imbalance of resources between the arrested or detained individual and the agents of the State, it is only natural that this individual should be informed as soon as possible of the reasons for their arrest or detention.
Indeed, the individual is not required to submit to an arrest for which they do not know the reason. Moreover, it is not enough for the person to be informed of the reasons for his arrest or detention, he must also understand the content of those reasons.
In addition, the informed individual is better able to measure the degree of risk to which they are exposed and to make their right to counsel more efficient. In Smith, the Supreme Court held that the accused does not necessarily have to be made aware of the specific charge they are facing, but must have sufficient information to make an informed decision about the need to contact counsel.
It is clear that the duty of the police is to inform the individual of the reason for their arrest, even if, at that stage, the individual is not made aware of the wording of the offence with which they are charged.
The right to counsel
This right is twofold. First of all, to be informed of the right to counsel. Secondly, the right to exercise that right effectively.
The obligation to provide information arises immediately after the arrest of the individual. The term ” without delay” means from the moment the accused is informed that they are under arrest. Except as provided by law and except in cases where the safety of officers or the public is threatened, a police officer shall, as soon as he informs the accused of their arrest, inform them of their right to consult counsel without delay.
As for the effective implementation of this right, it arises as soon as the accused expresses their desire to speak to a lawyer.
Is it sufficient to inform the individual of their right in order to satisfy the Charter obligation?
The answer is no. Indeed, the accused must understand what this right means. If the individual indicates to the officer that they do not understand what this right entails, or if there are indications that they do not understand it, the officer must take reasonable steps to explain what the right to retain and instruct counsel means. However, it is well established that in the absence of evidence to suggest that the accused did not understand the meaning of this right, the police have no obligation to go beyond their duty to inform at this stage.
If, in the course of an arrest, the nature of the facts with which the individual is accused changes to the point of constituting a new offence, the police have a duty to inform the individual, once again, of his or her right to retain and instruct counsel. This right must also be renewed if the nature and direction of the police investigation changes.
After being informed of their right to counsel, the individual must be able to exercise that right effectively. It is therefore the duty of the police to give the individual a reasonable opportunity to contact a lawyer. In addition, the police must refrain from questioning the individual until the individual has spoken to a lawyer.
What happens if the right to counsel was not granted immediately upon arrest?
Although the right to counsel must be given and made possible without delay after arrest, there are situations in which it is possible to delay it.
In determining whether the deferral of this right complies with the requirements of the Charter, the circumstances of the arrest must be considered. For example, in impaired driving cases, the right to counsel may be delayed to allow police to ask questions that will allow them to acquire reasonable grounds to order the driver to provide a breath sample.
Obviously, each case is a case in question and the facts must be analyzed to determine whether the deferral is reasonable and justified in the circumstances. The fact that the individual owns a cell phone will be a relevant factor to consider in determining whether or not the delay is justifiable.
Can an accused waive their right to counsel?
The right to counsel belongs to the accused. As a result, the latter may waive its exercise.
Please note that in certain circumstances, waiver may not be considered. Think of the individual who is heavily intoxicated or agitated.
In addition, the waiver must be free and informed. The individual must understand the consequences of waiving their right to retain and instruct counsel in order for the waiver to be valid.
If you have just been arrested for a criminal offence, it is important to consult a criminal lawyer immediately to protect your rights. Call us at any time if you are arrested.