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Difference between revisions of "Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX)"
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Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX) (view source)
Revision as of 00:13, 30 August 2022
, 00:13, 30 August 2022→D. Finding legal counsel and other assistance where person is arrested and detained: s 10(b)
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Section 10 – Right on arrest or detention: (b) to retain and instruct counsel without delay and to be informed of that right. | Section 10 – Right on arrest or detention: (b) to retain and instruct counsel without delay and to be informed of that right. | ||
If an accused has been denied bail (detained), it is usually a sign that the offence is serious. | If an accused has been denied bail (detained), it is usually a sign that the offence is serious. It is important to have some knowledge of Charter issues relating to arrest and detention. | ||
Under section 10 of the ''Charter'', everyone has the right on arrest or detention: | Under section 10 of the ''Charter'', everyone has the right on arrest or detention: | ||
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* to be informed of the right to remain silent; | * to be informed of the right to remain silent; | ||
* to retain and instruct counsel without delay and to be informed of that right; and | * to retain and instruct counsel without delay and to be informed of that right; and | ||
* to be informed of the existence and availability of the applicable systems of duty counsel and Legal Aid in the jurisdiction, in order to give the detainee a full understanding of the right to retain and instruct counsel (''[https://www.canlii.org/en/ca/scc/doc/1990/1990canlii123/1990canlii123.html?searchUrlHash=AAAAAQALciB2IGJyeWRnZXMAAAAAAQ&resultIndex=1 R v Brydges]'' [1990] 1 SCR 190). | * to be informed of the existence and availability of the applicable systems of duty counsel and Legal Aid in the jurisdiction, in order to give the detainee a full understanding of the right to retain and instruct counsel (''[https://www.canlii.org/en/ca/scc/doc/1990/1990canlii123/1990canlii123.html?searchUrlHash=AAAAAQALciB2IGJyeWRnZXMAAAAAAQ&resultIndex=1 R v Brydges]'', [1990] 1 SCR 190). | ||
The wording of the ''Charter'' suggests that the right to counsel is not absolute, but rather that it is available only to a person who is under arrest or in detention. The ''Charter'' right to counsel is thus triggered where a person is arrested or detained (see ''R | The wording of the ''Charter'' suggests that the right to counsel is not absolute, but rather that it is available only to a person who is under arrest or in detention. The ''Charter'' right to counsel is thus triggered where a person is arrested or detained (see ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7799/index.do R v Grant]'', [2009] SCC 32). | ||
Under s 10(b), the arresting officer has a duty to cease questioning or otherwise | Under s 10(b), the arresting officer has a duty to cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel (''[https://www.canlii.org/en/ca/scc/doc/1987/1987canlii67/1987canlii67.html?searchUrlHash=AAAAAQAMciB2IG1hbm5pbmVuAAAAAAE&resultIndex=1 R v Manninen]'', [1987] 1 SCR 1233). The arrested person has both the right to Legal Aid counsel and the right to be informed of this right (see ''https://www.canlii.org/en/ca/scc/doc/1990/1990canlii123/1990canlii123.html?searchUrlHash=AAAAAQALciB2IGJyeWRnZXMAAAAAAQ&resultIndex=1 R v Brydges'', [1990] 1 SCR 190 and ''[https://www.canlii.org/en/ca/scc/doc/1994/1994canlii65/1994canlii65.html?searchUrlHash=AAAAAQALciB2IHByb3NwZXIAAAAAAQ&resultIndex=1 R v Prosper]'', [1994] 3 SCR 236. | ||
Issues may arise at trial when an accused gave a statement to the police or provided bodily samples of some sort. In such cases, defence counsel should seek to have the evidence excluded under section 24(2) of the ''Charter''. | Issues may arise at trial when an accused gave a statement to the police or provided bodily samples of some sort. In such cases, defence counsel should seek to have the evidence excluded under section 24(2) of the ''Charter''. | ||
