The Right to Legal Counsel - Knowing when to call a friend for help
Being arrested or investigated for a criminal offence is intimidating and stressful, and when in that situation, understanding your rights is crucial. The right to obtain and instruct legal counsel without delay is one of the most important rights a person has when arrested or detained by police. Speaking to a lawyer as soon possible will ensure that you have all the information you need to protect yourself while in police custody. Most importantly legal advice will assist you to ensure that you don’t provide police with self-incriminating evidence, and will ensure that you are in the best possible position to deal with any criminal charges once you end up in court.
Information duty: What the Police must tell you, and when.
When the police arrest or detain someone, they are required to inform the person of their right to retain and instruct legal counsel immediately. Although calling a lawyer seems straightforward, in reality, many people choose not to call a lawyer for a number of reasons. For example, many people do not know a lawyer to call, or if they do know a lawyer, they believe that their lawyer is unavailable because it is the middle of the night. What many people do not know is that a person’s right to counsel also extends to the right to contact a third-party, or conduit, if it is for the purpose of calling the third-party to assist in obtaining a lawyer.
The issue of using a third-party to reach legal counsel was first addressed by the Supreme Court of Canada in 1987, in a case called R. v. Tremblay,  2 S.C.R. 435. Mr. Tremblay was arrested for impaired driving and taken to the police detachment to obtain breath samples. Prior to the breath samples being taken, Mr. Tremblay called his wife and asked her to call a lawyer for him. When Mr. Tremblay ended the phone call with his wife, police immediately took the breath samples without an opportunity for Mr. Tremblay’s wife to find him a lawyer. The Supreme Court of Canada found that Mr. Tremblay’s section 10(b) Charter right to counsel had been violated.
Who is a third-party that you can call? You have the right to contact anyone including a friend, family member, or any other non-lawyer but only if it’s for the purpose of assisting you in locating a lawyer. Police however are not required to inform you of that right unless special circumstances call for it. It will not be enough to tell the police officer that you do not know a lawyer or that you do not have a lawyer. The right to call a third-party is also not triggered by asking permission to call a non-lawyer third-party unless you explain that you want to call that person to help you locate a lawyer. Courts of have ruled that police are not expected to speculate why a person might want to call a third-party even if it is likely the person is seeking help to obtain a lawyer. It is absolutely crucial that if you are in a situation where you want to call a third-party, you make it clear to the police that you are seeking their help to obtain lawyer.
The Northwest Territories Court of Appeal in R. v. KWJ, 2012 NWTCA 3 (which was made up of Justices from the Alberta Court of Appeal), stated:
33 Nonetheless, the detainee must be duly diligent in exercising the right to counsel: R. v. Johnston, 2004 BCCA 148, 196 BCAC 19 at para. 25, R. v. Adams(1989), 33 OAC 148, 49 CCC (3d) 100 (CA). It does not fall to the police to speculate on the reason why the respondent wanted to contact his wife, unless there are special circumstances that require them to make inquiries: R. v. Adams(1989), 33 OAC 148, 49 CCC (3d) 100 (CA), R. v. Kumric, 2006 ONCJ 24 at para. 116, R. v. Singh, 2011 ONCJ 435 at para. 69.
Implementational duty: What does a “Reasonable Opportunity to Access Counsel” mean?
The second obligation police have with respect to your right to counsel is to provide you with a reasonable opportunity to access counsel. This usually entails police taking you to the police detachment, putting you in a phone room, and providing you with a phone, phone book, and a phone number for free legal advice. Despite being provided those resources, often people do not contact a lawyer because they do not feel comfortable calling the free legal advice number, they are unsure which lawyer to call from the phone book, or they are unable to reach a lawyer. After the Supreme Court decision in Tremblay was released, subsequent provincial trial and appellate courts expanded on Tremblay. In R. v. Oester,  A.J No. 648, Fraser J. concluded that not only is a person permitted to contact a third party to assist with accessing legal counsel, the person is also entitled to privacy while contacting that third party.
Fraser J. stated:
“this principle should properly extend to those consultations between an accused and a third party intermediary who is being used for the purpose of retaining counsel on behalf of an accused. But the crucial point is that the call by an accused to a third party must ultimately be for the purpose of retaining or instructing counsel”
It is critical to receive legal advice as soon as possible after detention or arrest by police, so important that it is a right protected by our Charter of Rights and Freedoms. Far too often, people do not obtain the legal advice they need because they may not know who to call, they are under extreme stress and perhaps overwhelmed by the situation. It is important to know that you can call a family member, friend, spouse, or any other third-party who is not a lawyer but will assist you in getting in touch with one. Make it clear to the police that you need to speak to a third-party in order to assist you in obtaining a lawyer, and know that it is your right to have access to a telephone and privacy to make that call.
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