Rights to Counsel
The right to counsel encompasses the following elements: the right to be informed of the right to counsel in a comprehensible and meaningful way, and the right to exercise the right to counsel in a meaningful and comprehensible way. Not only do you have the legal right to know you have the right to contact a lawyer, the right to speak to a lawyer in private, but additionally you must understand that conversation. Without comprehension of the informational component, you cannot meaningfully exercise your rights. Canada is a multicultural society, and for many people, English is their second language, thus accommodations may need to be made for those whose first language is not English.
What Are Special Circumstances?
Special Circumstances exist where a police officer is required to take additional steps to reasonably ascertain that an accused understands their right to counsel. In circumstances where there is a recognizable issue with language comprehension, there is an additional onus on police officers to take meaningful steps to ensure the accused person understands their rights. Thus not only must the accused be read his/her s. 10 rights, but they must also be understood. Without comprehension of what those rights are, the accused is unable to exercise those guaranteed Charter rights in a meaningful way. A primary purpose of s. 10 is to ensure an accused understands their rights, so they can make informed decisions.
Indicators of Special Circumstances
When evaluating if an accused understands his/her rights, officers should be looking for indicators such as:
– Where a party says “I don’t speak the best English” (R. v. Lukavecki,  O.J. No. 2123)
– Asking the officer to speak slowly
– If they have an accent, and it becomes apparent that English is clearly their second language
– Not answering questions by the police correctly
– Limited verbalizations
– Asking to have questions repeated questions etc.
What Language Assistance is Available?
Both officers and duty counsel have access to translation services. Officers can request for duty counsel that speak a specific language. Once special circumstances are evident, officers have a duty to accommodate assistance from a lawyer that speaks the same language of the accused, or requesting a translation service. Most often accused parties are not aware that they have this right. If you are struggling to understand, bring this to the attention of the officer, and say “my English is not great, I am having trouble understanding”.
We at Passi & Patel, criminal lawyers with offices in Brampton, Mississauga & Milton understand legal issues can be stressful. Please call us at 905-459-0004 or e-mail us at [email protected] to schedule a telephone or virtual consultation.