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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 19:31, 23 August 2023
, 19:31, 23 August 2023no edit summary
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* 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 ''Charter'' right to counsel is thus triggered where a person is arrested or detained. 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 | The ''Charter'' right to counsel is thus triggered where a person is arrested or detained. 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<nowiki>]</nowiki> 2 SCR 353], for more details. | ||
Under section 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<nowiki>]</nowiki> 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<nowiki>]</nowiki> 1 SCR 190] and [https://www.canlii.org/en/ca/scc/doc/1994/1994canlii65/1994canlii65.html?searchUrlHash=AAAAAQALciB2IHByb3NwZXIAAAAAAQ&resultIndex=1 ''R v Prosper'' [1994<nowiki>]</nowiki> 3 SCR 236]. Some exceptions regarding the timing and access to these rights exist. | Under section 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<nowiki>]</nowiki> 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<nowiki>]</nowiki> 1 SCR 190] and [https://www.canlii.org/en/ca/scc/doc/1994/1994canlii65/1994canlii65.html?searchUrlHash=AAAAAQALciB2IHByb3NwZXIAAAAAAQ&resultIndex=1 ''R v Prosper'' [1994<nowiki>]</nowiki> 3 SCR 236]. Some exceptions regarding the timing and access to these rights exist. | ||