Understanding Canadian Criminal Law

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The Advocates Society AIDWYC Criminal Lawyers Association Ontario Bar Association Toronto Lawyers Association Certified as a Specialist in Criminal Law by the Law Society of Upper Canada

Your Right to Speak With a Lawyer After You Are Arrested: What You Need to Know.

Calling your lawyerUnder section 10(b) of the Canadian Charter of Rights and Freedoms, everyone who has been arrested by the police on a criminal charge has the “right to retain and instruct counsel without delay and to be informed of that right”. Police have to tell you that you can speak to a lawyer – but do they have any other obligations? Do they have to help you contact a lawyer? Do they have to help you contact your lawyer? The answer is: yes.

What do police have to do to help me contact my lawyer after I’ve been arrested?

Once you have told the police that you want to speak to a lawyer, they have a duty to help you contact a lawyer as soon as practicable. If you tell the police that you want to speak to a particular lawyer – a lawyer who has helped you or a friend in the past, for example – the police officers have to help you contact that particular lawyer. This is because you have a right to choose your lawyer.

While you are trying to contact your lawyer, the police cannot interview you. They must give you a “reasonable opportunity” to speak with your lawyer before they can ask you questions that might be used as evidence in your case or force you to participate in any police procedures, like breath tests used to determine whether you were impaired by alcohol.

What steps should police take to help me contact my lawyer?

Different police forces approach their duty to help you speak with your lawyer in different ways. In some places, police might give you a telephone, phone book, and maybe even access to the internet. It is then up to you to find your lawyer’s phone number and call them. In other places, police might take on the responsibility of contacting your lawyer for you and then hand you the phone once your lawyer is on the line.

If police take on this responsibility, they must be as diligent as you would have been in contacting your lawyer. The police might ask you if you have your lawyer’s phone number or if you know anyone who has the phone number. If someone else (like your parent, spouse, or friend) knows the name of your lawyer or has their contact information, the police should call this person to get that information. If you tell the police that the number is on your cell phone, the police should give you your phone so that you can find the number. Most lawyers have websites, with different methods of contact (e-mail, cell phone number, office phone number, etc.). The police can search your lawyer’s website to find their contact information. The police can also search online and paper directories. What is important is that the police try various ways of getting in touch with your lawyer if a simple phone call to one of the lawyer’s phone numbers does not work. It normally isn’t enough for the police to simply call and leave a message on the law office answering machine if more could have been done to locate the lawyer you were requesting to speak with.

Do I only get one phone call?

You might have seen on television that a person only gets one call to their lawyer when they are arrested. That is not true in Canada. To help you speak to a lawyer, the police might need to make multiple calls to multiple people. You might need to speak with more than one lawyer to get advice you are satisfied with. You are entitled to a reasonable opportunity to get legal advice even if that requires you to speak with multiple sources to obtain the advice you need..

What if my lawyer is not answering?

Except in urgent and dangerous circumstances, the police must give you a “reasonable opportunity” to speak with your lawyer. This means that, if they do not reach your lawyer right away, the police should leave a message and give that lawyer a reasonable period of time to respond. The length of time the police will wait before your lawyer calls back will depend on the circumstances of the case, which may include the seriousness of the charge and the urgency of the police investigation. Courts have found that the police violated an arrested person’s right to counsel when they did not give the lawyer a reasonable chance to call back. If your rights have been violated, the prosecutor might not be able to use the evidence the police collected – such as breath samples or a police statement – against you at your trial.

If, after a reasonable period of time, your lawyer has still not returned the call or e-mail, you are entitled to call a different lawyer. If you know the name of another lawyer you would like to speak to, you can ask the police to get in touch with that lawyer. You can also speak to duty counsel.

If you change your mind, and tell the police that you no longer want to speak to a lawyer because you cannot speak to your lawyer, the police must warn you that you have a right to wait for a reasonable period of time to hear back from your lawyer and that they (the police) cannot interview you during this time.

Do I have any obligations when requesting a lawyer?

Yes. You must be “reasonably diligent” in exercising your right to requesting counsel. This means that you should continue telling the police that you want to speak to your lawyer and provide suggestions on how the police may assist you with reaching your lawyer. If you are not reasonably diligent, the police can stop trying to contact your lawyer and are allowed to begin questioning you or insisting you provide breath samples to determine whether you have consumed too much alcohol while driving. A failure to provide the police with a breath sample after they have made reasonable attempts to put you in contact with a lawyer could lead to a separate criminal charge for refusing a breath sample.

For more information on your legal rights, see: R. v. Prosper, [1994] 3 SCR 236; R. v. Fountain, 2017 ONCA 596; R. v. Maciel, 2016 ONCJ 563; R. v. Vernon, 2015 ONSC 3943; R. v. Clayton, 2017 ONCJ 199.

 

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