The right to counsel is one of the most fundamental protections available to anyone detained or arrested by police in Canada. Under section 10(b) of the Canadian Charter of Rights and Freedoms, police must inform a detainee of their right to speak to a lawyer and must provide a meaningful opportunity to do so. When police fail in this duty, statements obtained during questioning may be excluded from evidence.
An experienced criminal defence lawyer understands that section 10(b) breaches frequently occur during fast-moving arrests and interrogations. In many cases, identifying these breaches is how the best criminal defence lawyer prevents damaging statements from being used against an accused.
This article explains right to counsel Canada, when section 10(b) is triggered, common police errors, and how statements can be excluded following unconstitutional questioning.
What section 10(b) of the Charter guarantees
Section 10(b) guarantees that anyone who is arrested or detained has the right:
– To be informed promptly of the right to counsel
– To retain and instruct counsel without delay
– To have a reasonable opportunity to exercise that right
Police obligations do not end after reading rights from a card. Courts require police to actively facilitate access to counsel and to respect that right throughout the detention.
When the right to counsel is triggered
The right to counsel is triggered upon arrest or detention. Detention is interpreted broadly and includes situations where a reasonable person would feel they are not free to leave, even if they are not formally arrested.
Common triggering scenarios include:
– Being placed in handcuffs
– Being told you are under arrest
– Being subjected to sustained or coercive police questioning
– Being detained during traffic stops beyond brief roadside inquiries
A top criminal lawyer in Vancouver will carefully examine the moment detention occurred, as this determines when police obligations began.
Police obligations after the right is triggered
Once section 10(b) is triggered, police must:
– Inform the detainee of the existence and availability of legal aid and duty counsel
– Provide a reasonable opportunity to contact a lawyer
– Refrain from questioning until the right has been exercised
Police must also accommodate language barriers, intoxication, and emotional distress where necessary. Failure to do so can result in a Charter breach.
Common section 10(b) Charter breaches
Section 10(b) breaches often arise from routine police practices. Common errors include:
– Continuing to question an accused before they speak to a lawyer
– Failing to provide privacy for the lawyer call
– Rushing or interrupting the consultation
– Discouraging access to counsel through misleading statements
– Failing to provide a second opportunity to call a lawyer when circumstances change
These breaches frequently lead to statement excluded police questioning arguments at trial.
The right to silence and post-consultation questioning
Even after an accused has spoken with a lawyer, police must respect the right to silence. While police may attempt to question an accused after consultation, they cannot undermine the legal advice given or pressure the accused to speak.
Improper tactics include:
– Suggesting the lawyer’s advice was wrong
– Repeatedly urging cooperation after a clear assertion of silence
– Using psychological pressure to elicit a statement
An experienced Charter lawyer will assess whether post-consultation questioning crossed constitutional lines.
Excluding statements under section 24(2)
When a section 10(b) breach is established, the court must decide whether the accused’s statement should be excluded under section 24(2) of the Charter.
Courts apply the Grant test, considering:
– The seriousness of the police misconduct
– The impact on the accused’s Charter-protected interests
– Society’s interest in adjudicating the case on its merits
Statements obtained through deliberate or reckless disregard of the right to counsel are often excluded. In many cases, exclusion of a statement significantly weakens or ends the Crown’s case.
Why section 10(b) issues are decisive
Statements to police are among the most powerful forms of evidence in criminal cases. Once admitted, they are difficult to overcome. This is why section 10(b) Charter litigation is a cornerstone of effective criminal defence.
The best criminal defence lawyer will scrutinize every interaction between police and the accused to determine whether the right to counsel was properly respected.
Early legal advice matters
Section 10(b) issues arise at the very beginning of a criminal case. Identifying them early allows defence counsel to preserve evidence, challenge police conduct, and position the case for exclusion of statements.
A top criminal lawyer in Vancouver understands that Charter breaches are not technicalities—they are constitutional failures that courts must remedy.
Contact Vayeghan Litigation today for a confidential consultation and take the first step toward protecting your future.
Call us at 778-653-3995 or email law@mvlitigation.com now to discuss your case.
