The term “counsel” is frequently used in Canada. What many people don’t know is that the word counsel is another word for “lawyer”.
Upon arrest or detention, a person must be advised of certain “rights”. Section 10 of the Canadian Charter of Rights and Freedoms sets out rights to protect an individual who has been arrested or detained. Of particular importance are sections 10(a) and 10(b):
“S. 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;”
Section 10(a) requires that a police officer promptly inform an arrested or detained individual of the reason(s) for their arrest or detention. Section 10(b) involves the “right to counsel”. Upon arrest or detention, “rights to counsel” (right to speak to a lawyer) will be read by the “arresting officer”. It will sound like this:
- It is my duty to inform you that you have the right to retain and instruct counsel without delay. Do you understand?
- You have the right to telephone any lawyer you wish. Do you understand?
- If you are charged with an offence, you may apply to the Ontario Legal Aid plan for assistance. Do you understand?
- 1-800-***-**** is a toll-free number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand?
- Do you wish to call a lawyer now?
So what does this all mean?
First of all, a person who is arrested or detained must understand that they have the right to speak to a lawyer (the informational component of S.10(b) rights). It is incumbent on the respective police officer to ensure that the arrested party understands this right. Secondly, the arrested party is entitled to speak to any lawyer they wish, and the police officer in charge is obliged to facilitate that request (the implementational component). If the individual asks to speak a certain lawyer and does not have their contact information, the officer in charge is required to take steps to locate the contact information. Similarly, if a detained individual advises the arresting officer that the name and number of their lawyer is in their wallet or in their cellular phone, there is a duty upon the officer to attempt to locate that information.
What if you don’t know a lawyer?
If an arrested or detained party does not know any specific lawyers, they have the option of using a Legal Aid Duty Counsel Lawyer. This is a service provided by Legal Aid Ontario whereby a 1-800 number is called, and the individual is put in contact with a lawyer who will give them advice over the telephone at no charge. This program and their respective lawyers have no affiliation with the police and are there to assist individuals that have just been arrested and require immediate advice.
Conversations with Counsel are in Private
Once an individual is put in touch with a lawyer, the conversation must take place in a private room. Police officers cannot be present. This allows the detained person to have an open and frank discussion with counsel without fear of reprisal or fear that something that they say during the conversation will be used as evidence against them.
Why are “Rights to Counsel” so Important?
Section 10(b) rights in Canada are highly protected. The purpose of Section 10(b) rights are described in R. v. Sinclair,  2 S.C.R. 310, “as ensuring that a suspect is able to make a choice to speak to the police investigators that is both free and informed.” Further, it is stated in R. v. Willier,  2 S.C.R. 429 that Section 10(b) accomplishes this “by ensuring that detainees have an opportunity to be informed of their rights and obligations under the law and to obtain advice on how to exercise those rights and perform those obligations.”
When an individual is arrested or detained, they are under the control of the state and therefore deprived of their liberties. As a result, they are considered to be vulnerable to the exercise of the state’s power. Section 10(b) is therefore intended to provide them with an “opportunity to mitigate this legal disadvantage.” (R. v. Willier,  2 S.C.R. 429)