The right to counsel and the right to speak to a lawyer is the lifeline of the arrested and the accused. Under section 10(b) of the Canadian Charter of Rights and Freedoms, everyone detained or arrested has the “right to retain and instruct counsel without delay and to be informed of that right.”
The Police have Called and They Want to Speak with Me. What Should I Do?
You may receive a call from the police stating that they would like to speak with you. This does not mean you are a suspect or a person of interest; you could be only a witness to a crime. Nevertheless, you should speak to a lawyer before meeting with the police so you understand your rights in order to help you make an informed decision whether to speak to the police.
I have Been Arrested, What Should I Do?
The police must advise you that you have the right to speak with counsel. Once you have exercised your right to speak with a lawyer, the police have a duty to contact a lawyer as soon as practicable. This could be a lawyer of your choice – for example, your prior or current counsel, or a lawyer you are familiar with – or duty counsel if you do not have your own counsel.
If your lawyer of choice does not answer their phone right away, except in urgent and dangerous circumstances, you are allowed a reasonable opportunity to speak with your lawyer. This means that the police must hold off questioning you until your lawyer has called back. How long the police must wait for your lawyer to call back depends on the circumstances of each case. If your lawyer fails to call back, the police are obligated to advise you, and ask if you want to speak with a different counsel or with duty counsel.
Police officers’ failure to properly advise arrested citizens and to properly implement right to counsel calls is a commonly litigated area. A failure to fulfill their duties can be a section 10(b) Charter breach. If a Charter breach is established, the Court can exclude evidence which could mean the Crown has no evidence against you (for example, the exclusion of a breath sample in an “over 80” case would lead to an acquittal on that charge, or the exclusion of drugs would mean the Crown could not prove their case).
If you or someone you know has been contacted by the police or has been charged with a criminal offence, contact the lawyers of Lockyer Zaduk Zeeh to assist you.