The Canadian constitution provides an individual with an opportunity to obtain immediate legal advice if a state official exercises a power of arrest or detention. Section 10(b) of the Canadian Charter of Rights and Freedoms states:

10. Everyone has the right on arrest or detention…

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

An individual should understand why it is important to say ‘yes’ when a state official asks if the individual would like to contact a lawyer.

It is also important for a lawyer who is called upon to provide emergency legal advice to have a clear understanding of counsel’s role at this critical stage of the process.

The purpose of the right to counsel on arrest or detention is best understood by considering the following comments from the Supreme Court of Canada:

The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfill those obligations...

…This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself….

… Accordingly, a person who is "detained" ...is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty…

...the right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process.

                                                         R. v. Bartle, [1994] 3 S.C.R. 173 at para. 16

 

The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is his right to silence. The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers at the disposal of the state, is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he is aware of his right not to speak to the police and obtains appropriate advice with respect to the choice he faces…

                                                        R. v. Hebert, [1990] 2 S.C.R.151, at para. 52

 

Perhaps the single most important organizing principle in criminal law is the right of an accused not to be forced into assisting in his or her own prosecution…

…Before trial, the criminal law seeks to protect an accused from being conscripted against him- or herself by ...the right to remain silent in the face of state interrogation into suspected criminal conduct…

...it is up to the state, with its greater resources, to investigate and prove its own case, and that the individual should not be conscripted into helping the state fulfill this task….

                                     R. v. M.B.P., [1994] S.C.J. No. 27, beginning at para. 36

 

…the purpose of the right to counsel under s. 10(b) is about providing detainees with meaningful choices…

                                                                                     Bartle, supra, at para. 21

 

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