The Right to Counsel
The right to counsel as provided in s. 10(b) of the Charter is of critical importance. The right to the effective assistance of counsel, which is promoted by section 10(b), is also viewed as one of the principles of fundamental justice under section 7 of the Charter.
There are many aspects to the right to counsel and much nuance. Book chapters are easily written on the subject. That said, for the purposes of this post we will hit the highlights.
Immediately upon arrest or detention, police must undertake specific informational and implementational duties intended to facilitate the fulfillment of the s. 10(b) Charter right to counsel.
When a person is arrested or detained, the police must inform them immediately of their right to retain and instruct counsel without delay. This applies whether the offence is more minor like theft or more serious like murder or sexual assault.
Given that the purpose of the right to counsel is to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises. The police must also inform the person of the availability of Legal Aid and Duty Counsel: R. v. Suberu, 2009 SCC 33 at para. 41.
Waiver
Once informed of their right to counsel a detainee will need to either assert that they wish to speak to counsel or decline to do so. When a detainee declines to speak to counsel it is referred to as a waiver of their right. Any waiver of the right to counsel must be clear and unequivocal. This is a very high threshold. The clear and unequivocal waiver must be accompanied by a proper understanding of the purpose the right was meant to serve and an appreciation of the consequences of declining its protection: R. v. L.T.H., 2008 SCC 49 at para. 41 and 43.
Implementational Duties
Once a detainee asserts their right to counsel, the following implementational duties are triggered:
if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger): R. v. Bartle, [1994] 3 S.C.R. at para. 17
It should go without saying that anyone who has been detained or arrested should assert their right to counsel and get legal advice.