Arrested? Your Right to Counsel in British Columbia

What does the right to counsel mean?

Most people are aware that they have a right to consult a lawyer if they're arrested, but what exactly does that mean? Right to counsel in Canada is based on section 10 of the Charter of Rights and Freedoms and means police have to follow certain rules when you are detained. Specifically, section 10 states that on arrest or detention everyone has the right "to retain and instruct counsel without delay and to be informed of that right."

What does "on arrest or detention" mean?

Arrest or detention means that you are in some way physically restrained by the police. It can mean taken into custody with or without your consent or when the police demand that you do something that could have legal consequence for you (such as take a breathalyser).

What does it mean to be "informed of that right?"

Police will normally read you your rights off a card. This will include telling you that you have a right to counsel without delay, that counsel is available, and the details of how to actually contact a lawyer.

What does "without delay" mean?

Police need to tell you about this right and allow you to exercise it as soon as possible after you are arrested or detained. The reason for this is so that you can make informed decisions when the police try to collect statements or evidence from you.

How do you exercise the right to counsel?

If you say you want to exercise your right to counsel, police have to give you a way to contact a lawyer right away, such as privately accessing a telephone, and can't keep questioning you until you've had that chance.
If you understand this right, but you don't say you want to contact a lawyer within a reasonable time, the police can continue questioning you.

You should also be told why you're being arrested or detained. If, after you've waived your right to counsel, the reason you're being detained changes and becomes more serious, you should be told of your right again and have another chance to contact a lawyer.

What if the lawyer I want is not available?

If the lawyer you want or first try to contact is not available, the police must give you a way to contact a different lawyer. This usually means the number for another firm or for legal aid.

What if my right to counsel wasn't respected?

If you weren't informed of your right to counsel, you weren't given a chance to actually contact a lawyer, or you were forced to waive the right, then any statement you made to police may not be allowed as evidence in court if you go to trial. You and your lawyer, however, will need to prove to the court that your right was not respected.

This is why, regardless the circumstances of your arrest in BC that you talk to a criminal defence lawyer about your arrest and charges. 

Please keep in mind that this blog post about your right to counsel upon arrest in BC is fairly generalized.  Each case is different and that's why it's important you speak with a BC criminal defence lawyer to learn how this right and perhaps other legal rights affect your case.