The right to counsel: section 10(b)

Prosecutor Margaret Liu visits the class in Week 7 with a stack of files. In the last year, she says, more cases in her office were weakened by mistakes about the right to counsel than by any other single issue, and almost none of those mistakes involved bad faith. Officers advised people late, asked 'just one quick question' before a lawyer call, or let a detainee use a phone in a hallway where everyone could hear. She tells the class that the rules on counsel are among the clearest in Charter law, and that following them precisely is the easiest way for an officer to protect a case.

Why the right to counsel exists

A person who has just been arrested is frightened, often confused, and facing an organization that knows the law far better than they do. The Supreme Court has described the purpose of section 10(b) as helping detained persons regain their liberty and guarding against the risk of involuntary self-incrimination. A lawyer can explain the person's legal situation, including the right to remain silent, and help them make an informed choice about whether to speak to police. Desjardins adds a practical point: statements obtained after a properly handled right to counsel are far harder for the defence to attack.

Section 10(b): what officers must tell people

Section 10(b) gives everyone on arrest or detention the right to retain and instruct counsel without delay and to be informed of that right. The duty is triggered immediately on arrest or detention, as R. v. Suberu held in 2009, subject only to concerns for officer or public safety. The informational component requires telling the person that they have the right to speak to a lawyer without delay, that they may call any lawyer they wish, and, since R. v. Brydges in 1990, that free legal advice is available from duty counsel and how to reach it, including the toll-free number. If the person is not likely to understand, for instance because of language, intoxication or a mental condition, the officer must take reasonable steps to make sure they do, as R. v. Evans held in 1991. Most services use a standard card so the wording is complete.

Custody is judged objectively: would a reasonable person in the suspect's position have felt they were not at liberty to end the interrogation and leave? In J.D.B. v. North Carolina in 2011, the Court held that a child's age, when known to the officer or objectively apparent, is part of that analysis. Interrogation includes not only express questioning but its functional equivalent: words or actions the police should know are reasonably likely to elicit an incriminating response, as Rhode Island v. Innis held in 1980. Routine booking questions, such as name and address, are generally not interrogation.

Once a person asks for a lawyer

If the person says they want to speak to a lawyer, two implementational duties arise, as the Supreme Court explained in R. v. Manninen in 1987. Police must give the person a reasonable opportunity to exercise the right, which includes access to a phone and privacy for the call, and they must refrain from eliciting evidence from the person until that opportunity has been provided. The person must be reasonably diligent in exercising the right; if they are, police must hold off. The person may choose their own lawyer, and police must make reasonable efforts to reach that lawyer, but if the chosen lawyer cannot be reached within a reasonable time the person may be expected to call another or duty counsel, as R. v. Willier held in 2010. Police may not belittle the person's lawyer or discourage the call.

In R. v. Sinclair in 2010, the Supreme Court held that section 10(b) does not give a detained person the right to have a lawyer present during the interrogation, and that police may continue questioning after the person has consulted counsel, even if the person repeatedly says they do not want to talk. But the person has the right to a second consultation if there is a material change in circumstances, such as a new and more serious charge, a new procedure like a lineup, or reason to believe the person did not understand the first advice. Officers must stay alert for those changes. Liu tells the class that this rule is where the two countries differ most sharply, and officers who move between jurisdictions in training videos and media need to remember which rules apply where they work.

Waiver and special circumstances

A detained person can waive the right to counsel, but the standard is high. In R. v. Prosper in 1994, the Court held that a waiver must be free and voluntary and made with full knowledge of the rights being given up and the consequences, and that where a person has asserted the right and then appears to change their mind, police must give them an additional warning, sometimes called a Prosper warning, explaining that they have a right to a reasonable opportunity to reach a lawyer and that police must hold off questioning until they do. Youths have additional protections: under section 146 of the Youth Criminal Justice Act, a statement by a young person is admissible only if the officer explained the rights in clear language appropriate to their age and understanding and gave them the opportunity to consult a lawyer and a parent or other adult.

Exceptions and consequences

The duty to inform can be delayed briefly for genuine officer or public safety concerns, such as an unsecured weapon or an ongoing threat, and implementation can be delayed while a person is transported to a place where a private call is possible. Police cannot delay simply because they want to search first or because a lawyer might advise silence. When a breach occurs, statements obtained afterward are at serious risk of exclusion under section 24(2), and in some cases derivative evidence can be lost too.

Timing the Lakeshore Hardware arrest

The class reviews the times recorded during Kyle Brandt's arrest after the Lakeshore Hardware break-in, from detention on the sidewalk to his first call with a lawyer. The program computes the gaps that a court would look at.

# Times from the Lakeshore Hardware arrest, March 14, 2026 (24-hour clock)
events = [
    ("detained on Pine Street", "02:29:15"),
    ("arrested", "02:29:40"),
    ("rights to counsel read", "02:36:00"),
    ("asks for a lawyer", "02:36:30"),
    ("arrives at the station", "02:58:00"),
    ("call with a lawyer begins", "03:12:00"),
]
def seconds(t):
    h, m, s = (int(x) for x in t.split(":"))
    return h * 3600 + m * 60 + s
start = seconds(events[0][1])
for name, t in events:
    print(f"{t}  +{(seconds(t) - start) / 60:5.1f} min  {name}")
delay_advice = (seconds("02:36:00") - start) / 60
delay_call = (seconds("03:12:00") - seconds("02:36:30")) / 60
print("minutes from detention to advice:", round(delay_advice, 1))
print("minutes from request to call:", round(delay_call, 1))

02:29:15  +  0.0 min  detained on Pine Street
02:29:40  +  0.4 min  arrested
02:36:00  +  6.8 min  rights to counsel read
02:36:30  +  7.2 min  asks for a lawyer
02:58:00  + 28.8 min  arrives at the station
03:12:00  + 42.8 min  call with a lawyer begins
minutes from detention to advice: 6.8
minutes from request to call: 35.5

The advice came about 6.8 minutes after detention, and the call began about 35.5 minutes after Brandt asked. Under Suberu, advice should be immediate, so the officers will need to explain the 6.8 minutes, perhaps by pointing to securing the scene and Brandt's backpack. The 35.5 minutes to the call is likely reasonable if he was taken straight to the station and given a private phone on arrival, and as long as no one questioned him in the meantime. His unprompted remark in the cruiser, that the owner's tools were not worth much, raises a separate question for Lesson 8.

Giving the rights properly

Liu shows the class two body camera clips of rights advice. In the first, an officer reads the card quickly while walking the person to the cruiser, finishes with 'Got it?', and moves on when the person mumbles. In the second, the officer stops, faces the person, reads the card at a normal pace, then asks, 'Do you understand?' and 'Do you want to call a lawyer now?', waits for the answers and repeats them back. The second clip takes about forty seconds longer. Liu says that in court the first clip invites a long argument about whether the person understood, while the second ends the argument before it starts.

Courts have held that the informational duty is not satisfied by reciting words the person plainly did not hear or understand. When an officer has reason to think the person did not understand, because of language, intoxication, injury, a hearing impairment or a mental condition, the officer must take reasonable steps to convey the right in a meaningful way, which may mean using an interpreter, waiting until the person is calmer or explaining in simpler words. Officers should record the person's exact response, including any request for a specific lawyer, and should note whether a duty counsel number was provided and when.

Desjardins adds the practical details that trip up new officers. Write down the exact time the rights were given, not an approximation. Note who was present. If the person asks a question about the rights, such as whether a lawyer will cost money, answer accurately and record the answer. If the person says they do not want a lawyer, ask once more, clearly, and record the words. And never offer opinions about whether a lawyer would help, which courts treat as undermining the right.

Young people and vulnerable detainees

Young people and vulnerable adults need particular care. Research shows that adolescents are more likely than adults to waive their rights without understanding them, more susceptible to pressure, and more likely to make false confessions. The Youth Criminal Justice Act responds by requiring officers to explain rights in language appropriate to the young person's age and understanding, and by giving the young person the right to consult a parent or other appropriate adult as well as a lawyer, and to have that person present during questioning unless the young person waives it in writing or on video. Desjardins tells the class that the safest practice with any young or vulnerable person is to slow down, use plain words, check understanding by asking the person to explain the right back, and record everything on video.