- On arrest or detention you must be told the reason and informed of the right to counsel without delay.
- The right to counsel means a real opportunity to speak with a lawyer in private before questioning.
- There is no general obligation to answer police questions beyond identification in defined circumstances.
- Free duty counsel is available at any hour.
The rights on arrest or detention
Section 10 of the Charter provides that on arrest or detention a person has the right to be informed promptly of the reasons, and to retain and instruct counsel without delay and to be informed of that right.
Detention is broader than arrest. It includes psychological detention, where a reasonable person would conclude they were not free to leave. Rights can be engaged before any formal arrest.
Section 9 protects against arbitrary detention, and section 8 against unreasonable search and seizure.
What the right to counsel involves
Two components. The informational component requires the police to tell the person of the right and of the availability of free duty counsel and legal aid. The implementational component requires them to provide a reasonable opportunity to exercise it, and to hold off on questioning until that has happened.
The conversation is confidential and should take place in private. A person who is not given a genuine opportunity to speak privately with counsel has an argument that the right was breached.
The right can be waived, but a waiver must be clear and informed. Saying “I do not need a lawyer” after being told the right may be a valid waiver, which is why the decision matters.
Duty counsel is available free and around the clock. Nobody should decline to speak to a lawyer because of cost.
Answering questions
There is no general legal obligation to answer police questions. In defined circumstances, for example when driving, or where a specific statute requires it, identification must be provided, but that is different from answering questions about an alleged offence.
Police are permitted to continue asking questions after a person has spoken to counsel and said they will not answer. Persistence is lawful; it does not create an obligation.
The practical reality worth stating plainly: statements made to police are very frequently the most damaging evidence in a prosecution, and explanations given at the roadside or in an interview room rarely help. What a person says is the part of the process they control.
Searches
Searches generally require a warrant, with recognised exceptions including search incident to a lawful arrest, exigent circumstances, and consent.
Consent must be voluntary and informed, and it can be refused. A person who consents to a search cannot later complain about it, which is worth understanding before agreeing.
Devices attract particular protection. There are limits on searching a phone incident to arrest, and password compulsion is a contested area. This is a question to raise with counsel rather than resolve at the scene.
Where a search breaches section 8, the remedy is not automatic exclusion of the evidence. A court conducts a separate analysis under section 24(2) to decide whether admitting it would bring the administration of justice into disrepute.
After arrest
A person arrested is either released by police with conditions and a court date, or held for a bail hearing, which must occur within a prescribed period.
Release conditions are enforceable, and breaching them is a separate offence. Conditions that cannot realistically be complied with should be addressed at the time rather than breached later.
The obligation to attend court is absolute. Failing to appear generates a further charge and a warrant.
Practical conduct
Do not resist, even where the arrest appears unlawful. Resisting creates a new charge and the lawfulness of the arrest is argued in court, not on the street.
Ask for a lawyer clearly and early, and use the opportunity when it is given.
Write down what happened as soon as possible: times, officers, what was said, who was present. Charter arguments turn on details that fade quickly.
Common questions
Do I have to identify myself?
It depends on the circumstances. Certain statutes require identification, for example while driving. There is no general obligation in every encounter.
Can I call my own lawyer at night?
Yes, and duty counsel is available free at any hour. The police must provide a reasonable opportunity.
What if my rights were breached?
A breach may support an application to exclude evidence or, in some cases, a stay. Whether a remedy follows is decided by the court after argument.
Should I explain my side to the police?
That is a decision to make after speaking with counsel. Statements are frequently the strongest evidence against an accused.
Contacting us does not create a solicitor-client relationship. Please do not send confidential information until we have confirmed we can act for you. We aim to reply within 2 business days. Sending this form does not meet any court deadline or limitation period.
If you or a child are in immediate danger, call 911. This form is not an emergency service and is read during business hours. Assaulted Women’s Helpline 1-866-863-0511, Talk4Healing 1-855-554-4325, both open around the clock.
