Rights to Counsel: Section 10(b) of the Charter

• Author: Karen Jokinen/Peter Keen
• Pages: 491-514

491

Rights to

Counsel:

Section 10(b)

ofthe Charter

24

Section 10 of the Charter of Rights and Freedoms .................. 492

I. Introduction ............................................. 492

II. The Basics .............................................. 492

A. Arrest or Detention .................................. 492

B. The Suspension of the Right to Counsel During the

Screening Process ................................... 494

C. Informing the Detainee of the Reason for the Detention:

Section 10(a) ....................................... 494

D. Introduction to Section 10(b): Duties on the Police ........ 495

E. Without Delay ...................................... 495

III. Specic Issues ........................................... 503

A. Language Barriers ................................... 503

B. Lack of Understanding ............................... 504

C. Waiver of Right to Counsel and Equivocal Responses ...... 504

D. Disparaging Comments About Counsel ................. 505

E. The Need for “Reasonable Diligence” by the Accused ...... 505

F. Counsel of Choice ................................... 506

G. Steering the Accused Toward Duty Counsel .............. 506

H. No Right to Presence of Counsel ....................... 510

I. Second Consultations with Counsel ..................... 510

J. Tactical Considerations for the Crown and Defence ........ 513

IV. Conclusion .............................................. 514

© 2023 Emond Montgomery Publications. All Rights Reserved.

492 Impaired Driving and Other Criminal Code Driving Oences

Section 10 of the Charter of Rights and Freedoms

Arrest or detention

10 Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right;

and

(c) to have the validity of the detention determined by way of habeas corpus and

to be released if the detention is not lawful.

I. Introduction

When people are detained by the police, either through a formal arrest or through

a less formal detention, they are in a disadvantaged situation. They have been

deprivedof liberty and may be at risk of incriminating themselves. They need help.

Section10 of the Charter contains three rights: to be informed of the reason for arrest

or detention, to retain and instruct counsel without delay and to be informed of that

right, and the right to challenge a detention by way of habeas corpus. Legal advice is

required quickly.1 In this chapter, we examine section 10(b) of the Charter, with a

focus on the issues arising in operation cases. Charter-based section 10(b) challenges

have played an increasingly prominent part in operation trials since 2018. We begin

with the basics.

II. The Basics

A. Arrest or Detention

The right to counsel is triggered when a person is arrested or detained. An arrest

occurs when an ocer speaks words of arrest and seizes or touches the person’s body

with a view to arrest. An arrest is not complete until the person either acquiesces with

the arrest or is forcibly taken under control.2 An arrested person is detained, but not

all detained persons are under arrest. A detention is defined as a significant physical

or psychological restraint on a person, as succinctly stated in R v Grant:3

In summary, we conclude as follows:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individu-

al’s liberty interest by a significant physical or psychological restraint. Psychologi-

cal detention is established either where the individual has a legal obligation to

comply with the restrictive request or demand, or a reasonable person would con-

clude by reason of the state conduct that he or she had no choice but to comply.

1 R v Bartle, [1994] 3 SCR 173 at 191, [1994] SCJ No 74 (QL).

2 R v Asante-Mensah, 2003 SCC 38 at paras 42-47.

3 R v Grant, 2009 SCC 32 at para 44.

© 2023 Emond Montgomery Publications. All Rights Reserved.