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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 00:18, 30 August 2022
, 00:18, 30 August 2022→D. Finding legal counsel and other assistance where person is arrested and detained: s 10(b)
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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). | 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 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. | 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 without being given the opportunity to retain and instruct counsel. In such cases, defence counsel should seek to have the evidence excluded under section 24(2) of the ''Charter''. | ||
:'''NOTE:''' ''Brydges'' | :'''NOTE:''' ''Brydges'' Line is a province-wide service that is available for arrested persons 24 hours a day, 7 days a week. A lawyer is always available to speak to the person for free. . It is available toll-free at 1-800-458-5500. | ||
:'''NOTE:''' Detention under sections 9 and 10 of the ''Charter'' refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with a restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that they had no choice but to comply. ''See [https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html?searchUrlHash=AAAAAQAJciB2IGdyYW50AAAAAAE&resultIndex=1 R v Grant]'', [2009] 2 SCR 353, for more details. | :'''NOTE:''' Detention under sections 9 and 10 of the ''Charter'' refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with a restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that they had no choice but to comply. ''See [https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html?searchUrlHash=AAAAAQAJciB2IGdyYW50AAAAAAE&resultIndex=1 R v Grant]'', [2009] 2 SCR 353, for more details. | ||
