When you watch movies and TV shows, you might think that if the police arrest you in Canada, you just need to say you want a lawyer to stop the questioning. But that’s not true.

In Canada, there are limits to your right to counsel. Not knowing how to use your rights can really hurt your case. Keep reading to find out how to protect your right to a Toronto criminal defense lawyer you can trust.

What is the Right to Counsel Definition in Canada?

The Canadian Charter of Rights and Freedoms talks about the right to a lawyer in section 10(b). It says, “Everyone has the right on arrest or detention… to hire and talk to a lawyer right away and to be told about that right.” While this text is clear, seeing how it works in real-life criminal cases can be very complicated.

To understand how the right to counsel works in Canada, begin by reading section 10(a) of the Charter. After that, read section 10(b).

  1. Everyone has the right on arrest or detention:
  • to be informed quickly of the reasons for it;
  • to keep and hire a lawyer without delay and to know about that right;

If the police want to hold you while they look into a crime or arrest you for one, they must tell you that you are being held or arrested. They need to explain why. You also have the right to get a lawyer right away. But what does that really mean?

Your rights in criminal cases, like breaking probation rules in Canada, come from laws made by the federal and provincial governments. The courts decide how to read and use those rights. To understand your rights during a criminal investigation, including your right to a lawyer, you need to know what the courts have said about them. It doesn’t matter if you don’t know where these rules came from.

The Supreme Court of Canada is the top court in the country. Its choices are final for all other courts. It has read and decided many cases related to section 10(b) that have helped shape the right to have a lawyer in Canada. It keeps hearing and ruling on these rights often.

The Supreme Court of Canada Helps Shape the Right To Counsel in Canada

The Right to Counsel lets me have a lawyer if I am detained or arrested.

The right to counsel, as explained by Supreme Court cases, means that if you get arrested or taken in, the police must tell you that you can talk to a lawyer. They should also give you a fair chance to do this. The police will usually search you first. However, the rules about how they search you depend on if you are being held or are under arrest.

If the police are just holding you, they can only feel you down to check for weapons. They can’t go through your pockets, bags, or search your car. If you are arrested, the police will put on handcuffs and can search you more carefully. They will also handle your booking after that.

Here are the important things to keep in mind about your right to have a lawyer at this stage:

  • When you learn about your arrest or being held, and your right to a lawyer, tell the police you want to speak to a lawyer right away. Do not say anything else.
  • The police have to tell you about your right to a lawyer, but they do not have to let you talk to one unless you ask.
  • If you do ask to speak to a lawyer, the police should stop asking you questions until you have spoken with them.
  • If you do not say that you want to talk to a lawyer, the police can keep asking you questions, and they probably will.
  • You can call any lawyer you want or ask someone to help you find one.
  • If your lawyer does not answer, the police should let you try a few more times. If you still cannot reach them, you can call another lawyer or the Legal Aid duty counsel who is there all the time. The police must give you that number.

Knowing your rights is just like knowing if you need to identify yourself to the police in Canada. Here are your rights to get a lawyer when you talk to one:

  • You have the right to talk to your lawyer alone.
  • You can talk to your lawyer for as long as you need to feel clear on their advice.
  • If you do not understand what your lawyer says, or if you feel unhappy with it, tell the police right away. Ask to talk to another lawyer and do not say anything else. You don’t need to explain why the advice isn’t useful.
  • They may not let you reach out to another lawyer, but it is important to remember that and keep saying it if needed.
  • You have the right to stay quiet, but the police do not have to tell you that right or follow it.

Don’t say anything until you talk to a lawyer. Police have ways of questioning that make what you say look bad for you. This is especially true for serious crimes, like a charge for making threats under the Criminal Code of Canada. They can mix up what you say, even if you are telling the truth. This could hurt your chance in court.

Unlike the U.S. Constitution’s right to a lawyer under the fifth amendment, section 10(b) of the Charter and the right to a lawyer given by Supreme Court cases do not let your lawyer be with you during questioning. This means that after you talk to your lawyer, it could be hours or days before you see them again. The police will try every chance they get to get a statement from you that could lead to your conviction.

The Right to Effective Assistance of Counsel

In Canada, everyone has the right to get help from a lawyer. This is part of basic justice. If a lawyer does not represent their client well, that person is not given a fair trial.

In these cases, the decision might change. To change a verdict because of bad help from a lawyer, you must show that:

  • The lawyer’s performance was very poor.
  • This affected the defence, causing the client to lose their right to a fair trial, which led to a wrong decision in justice.

Don’t risk your freedom and future. Jeff Reisman is a skilled criminal defense lawyer. He is also a respected former prosecutor.