Your Right to a Lawyer on Arrest: Brydges, Bartle, Suberu and Sinclair
Section 10(b) of the Charter gives everyone who is arrested or detained the right to retain and instruct counsel without delay and to be informed of that right. A series of Supreme Court of Canada cases explains what that means in the police station and at the roadside.
- Police must tell you of your right to a lawyer immediately on detention (Suberu, 2009).
- They must tell you about free legal aid and duty counsel, including a toll-free number where one exists (Brydges, 1990; Bartle, 1994).
- If you ask to speak to a lawyer, police must give you a reasonable opportunity and stop questioning you until you have one.
- You don't have the right to a lawyer in the room during questioning, but you may get a second consultation if circumstances change (Sinclair, 2010).
What police must do
- Informational duty: tell you, without delay, that you can speak to a lawyer, and that free duty counsel is available.
- Implementation duty: if you want to talk to a lawyer, give you a reasonable opportunity, in private, to do so.
- Hold off: not try to get evidence from you until you have had that opportunity, unless you clearly waive it or don't exercise it diligently.
Limits
- At the roadside, the right can be briefly suspended for screening tests authorized by law, such as a breath screening test.
- Police can keep questioning you after you've spoken to a lawyer; you can choose not to answer.
- You may get a renewed right to speak to a lawyer if there's a new procedure, such as a lineup, or if your legal jeopardy changes, for example if a more serious charge is laid.
Practical tips
- Say clearly: 'I want to speak to a lawyer.'
- You can choose a specific lawyer, or use duty counsel if yours can't be reached in a reasonable time.
- You have the right to remain silent. Use it.
- Breaches can lead to evidence being excluded under the Grant test.
Licensed paralegals in Ontario can defend provincial offences, such as Highway Traffic Act charges, and some less serious summary conviction criminal matters permitted by the Law Society. More serious criminal charges need a criminal lawyer.
This article is general information for people in Ontario, not legal advice. Rules, forms and deadlines change, and every situation is different. Check the current rule or speak to a licensed legal professional before you act.
Not sure where you stand? A licensed paralegal can look at your documents and tell you your options.
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