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May Advocate 2017

THE ADVOCATE V O L . 7 5 P A R T 3 M A Y 2 0 1 7 355 SECTION 10(B) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS: LEGAL ADVICE By Glen Orris, Q.C. Sections 10(a) and (b) of the Canadian Charter of Rights and Freedoms1 (the “Charter”), read as follows: 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. There has, of course, been extensive litigation as to whether an accused’s rights under s. 10(b) have been infringed or denied. Often this litigation focuses on whether the accused, having been detained, has had access or adequate access to counsel. Often in rejecting such an application the judge will ask the rhetorical question: “When a detainee is given access to counsel, usually over the telephone, what more can a lawyer do than tell the detainee that he2 has a right to remain silent?” I am going to answer that question, but first I will set the scene. The suspect is arrested or detained in some way by the police. Under s. 10(a) of the Charter the police are obliged to tell that detainee the reasons for this inconvenience. Thereafter, the police are obliged to tell the detainee that he has the right to obtain and instruct counsel without delay. There then follows generally a recitation by the police as to how the legal advice is free and covered by the Legal Services Society and that the detainee does not have to pay anything if he does not have any money, etc. What usually follows such advice is the question: “Do you want to talk to a lawyer?” In response to this question, hopefully the detainee says words to the effect of “yes” or “absolutely” or “of course, I take great pride in my rights and freedoms under Canada’s Charter and I wish to exercise all of them.” As a consequence of the above, the police are then obliged to put the detainee in contact with a lawyer. This lawyer is typically contacted


May Advocate 2017
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