The Charter of Rights and Freedoms: Section 10

Section 10 of the Charter reads: “Everyone has the right on arrest or detention a) to be informed promptly of the reasons therefor; b) to retain and instruct counsel without delay and to be informed of that right; and c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

This rights provides you with your right to understand why the police have detained or arrested you, and provides you with the right to speak to a lawyer.  This is an issue that frequently arises in drinking and driving cases.

Section 10 rights are engaged upon detention or arrest. An arrest is easy to identify, as the police officer will indicate that you are under arrest. A detention is less easy to identify as that detention can be either physical or psychological. In R v Grant the Supreme Court defined a psychological detention as one where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude from the state conduct that there was no choice but to comply.

Section 10(a) requires that if you are detained or arrested that the police tell you the reason why. The purpose of this right is to ensure that you understand the gravity of the situation. Knowing you are under arrest, or a suspect of a crime, is an important piece of information to know when dealing with police as it may affect whether you answer the police’s questions or not.

Section 10(b) has two components. The informational component, which is that the police must tell you that you have the right to speak to a lawyer without delay, and the implementational component, which is actually putting you in contact, by phone, with a lawyer if you choose to exercise that right. If, upon being told you have a right to speak to a lawyer, you decide not to do so, then the police have no obligation to put you touch in a lawyer. This right has to be invoked by you. If you initially decide not to speak to a lawyer, but later change your mind, if you tell the police that you have changed your mind and now want to speak to a lawyer, they have an obligation to put you in contact with a lawyer.

The right to speak to a lawyer is possibly the most important Charter right for someone who has been arrested for a crime, especially if they have never been arrested before. It is the conversation with a lawyer that provides you with legal information to understand your situation and to properly understand your other rights.

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