Right to Counsel: General Principles and Informational Obligations

• Author: Brian H. Greenspan, Vincenzo Rondinelli
• Profession: General Editors
• Pages: 319-357

319

Right to Counsel:

General Principles

and Informational

Obligations

10

I. Introduction ............................................. 320

II. General Principles ........................................ 324

A. Suspension or Inapplicability of the Right to Counsel ...... 326

B. Short Detentions .................................... 334

III. Initial Informational Obligations ............................. 336

A. Content ........................................... 337

B. Existence and Availability of Legal Aid and Duty Counsel .... 340

C. Timing ............................................ 344

D. Positive Indications That the Detainee Does

Not Understand .................................... 349

E. Waiver ............................................ 355

F. Young Persons ...................................... 357

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320Detention, Arrest, and the Right to Counsel

I. Introduction

Section 10(b) of the Canadian Charter of Rights and Freedoms1 occupies a pivotal role in

a free and democratic society. It is through consultation with counsel, or “l’assistance

d’un avocat,” that a detainee receives vital information during their deprivation of

liberty, including strategies on how to assert their right to silence and resist participa-

tion in the police investigation. When the police arrest someone and seek to interview

them, an ocer will usually alert them to their right to remain silent and caution

them that anything they say could be used as evidence in court. The value of consult-

ing with counsel goes beyond mere repetition of this warning. Instead, counsel can

provide tailored advice that will better position the detainee to navigate their legal

situation. The detainee may still decide that their best option is to cooperate with the

investigation or to share their side of the story. But consultation with counsel can help

the detainee in making an informed decision.

Understanding the scope of section 10(b) starts with understanding the purpose of

the right.2 The purpose of a Charter right “must always be the dominant concern in

its interpretation.”3 Dedication to the purposive approach balances society’s interest

in eective policing with robust protection for constitutional rights.4“While a nar-

row approach risks impoverishing a Charter right, an overly generous approach risks

expanding its protection beyond its intended purposes.”5 When defining the contours

of a Charter right, the courts will consider both the protection of individual interests

and the societal interest in investigating and solving crimes.6

The purpose of section 10(b) has evolved since its inception. Despite various

articulations by the Supreme Court of Canada, a common thread has emerged. In

a nutshell, the purpose of section 10(b) is to oer a detainee meaningful access to

legal advice to navigate their detention.7 A run through of the jurisprudence will

showcase the dierent formulations over the years. Starting in 1986 with the deci-

sion in Clarkson v The Queen,8 the Court expressed the purpose of section 10(b) in

loose terms. The Court held that the purpose is “aimed at fostering the principles

1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11

[the Charter].

2 R v Brydges, infra note 133 at 202.

3

R v Grant, 2009 SCC 32 at para 17. See also R v Therens, [1985] 1 SCR 613 at 641, 1985 CanLII 29.

4

R vSuberu, infra note 13 at para24 (cited to SCC); R v Thompson, 2020 ONCA 264 at

para29.

5 Grant, supra note 3 at para 17.

6 R v Sinclair, infra note 16 at para 63.

7 See R v Dussault, infra note 19 at para 45.

8 1986 CanLII 61 (SCC).

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Chapter 10 Right to Counsel: General Principles and Informational Obligations 321

of adjudicative fairness” and the “fair treatment of an accused person.”9 The Court

built on this foundation one year later in R vManninen,10 holding that the purpose 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.”11 Over a decade later, the Court in R vBartle12 described how a detainee

requires immediate legal advice to exercise their right against self-incrimination

and to assist them in regaining their liberty. The Court in R vSuberu13 converted

this description into the purpose of section 10(b): “the right to counsel is meant to

assist detainees regain their liberty, and guard against the risk of involuntary self-

incrimination.”14 The Court in Suberu also linked the purpose of section 10(b) to its

triggering event of a detention. Section 10(b) ensures that people “know of their right

to counsel, and have access to it, in situations where they suer a significant depriva-

tion of liberty due to state coercion which leaves them vulnerable to the exercise of

state power and in a position of legal jeopardy.”15 One year later, in R vSinclair,16

the Court arguably reframed the purpose of section 10(b). After acknowledging the

purpose articulated in Manninen, the Court stated that the purpose of section 10(b) is

simply to give a detainee the opportunity to access legal advice relevant to their deci-

sion on whether to cooperate with the investigation.17 Through this lens, the primary

purpose of section 10(b) is to correct information asymmetry between the detainee

and the police. A consultation with counsel addresses this asymmetry by advising the

detainee about their rights and how to exercise them, including the right to remain

silent.18 The Court in R vDussault19 confirmed this goal as the core purpose of sec-

tion 10(b): “Simply put, the purpose of s. 10(b) is to provide the detainee with an

opportunity to obtain legal advice relevant to their legal situation.”20 Months later

9 Ibid at paras 17, 18. See also Brydges, infra note 133 at 203.

101987 CanLII 67 (SCC).

11Ibid at para 23.

12[1994] 3 SCR 173 at 191, 1994 CanLII 64.

132009 SCC 33, a’g 2007 ONCA 60.

14Ibid at para 40 (cited to SCC). See also R v Whittaker, 2024 ONCA 182 at para 51. (“In addi-

tion to providing a safeguard against self-incrimination, contact with counsel also provides a

detained person with information about the procedures they will be subjected to, advice on

questions about how long their detention is likely to be, and guidance on what can or should be

done to regain liberty.”)

15Suberu, ibid.

162010 SCC 35.

17Ibid at paras 26, 32.

18 See R v Singh, 2007 SCC 48 at para 33.

192022 SCC 16.

20Ibid at para 45.

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