In the United States, individuals have the right to have counsel present during custodial interrogations. The popularity of American legal dramas may lead to an expectation among detainees in Canada that they too are entitled to have counsel present, upon request, during the interrogation process.

Unfortunately, for adult detainees, this is not the law in Canada.

In R. v. Sinclair, [2010] S.C.J. No. 35, the Supreme Court of Canada affirmed that the constitutional right to retain and instruct counsel on arrest or detention does not confer a right to have a lawyer present to provide ongoing assistance during police questioning.

While detainees have an opportunity to consult with counsel to obtain information and advice as to their rights and obligations prior to the commencement of an interrogation, they must navigate the subsequent police questioning in isolation.

Other considerations:

The rules of engagement between the state and the individual are different with respect to young persons (ages 12 to 17). The Youth Criminal Justice Act provides for additional procedural protections whereby any statement made by a young person is required to be made in the presence of a lawyer and a parent unless the young person desires otherwise (s. 146(2)(b)).

 

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