If you have been charged with an offense and subsequently arrested, you have the right under the Canadian Charter of Rights and Freedoms, to “retain and instruct counsel without delay and to be informed of that right.”
What is the responsibility of police?
In addition to informing you of your right to speak to a lawyer, the police also have the responsibility to help you contact a lawyer – and more specifically, they have a responsibility to ensure that you can contact your choice of lawyer.
Additionally, the police may not continue interviewing you or continue conducting police procedures while you are trying to contact your lawyer. Instead, they must first provide you with a “reasonable opportunity” to contact your lawyer.
How the police help you in trying to contact your lawyer may vary between different jurisdictional police forces. In some cases, they may simply offer you a phone or access to the internet to look up the lawyer’s number. In other cases, they may try to contact your lawyer for you (if this is the case, they must be as diligent as you would be in trying to contact your lawyer).
The police may also ask you if you have a friend or family member who would know how to contact your lawyer, and then reach out to that person to get the contact information of your lawyer.
I’ve heard that I only get one phone call
Although it is a popular scenario in U.S. based television shows for the accused to get one phone call, this is not how it works in Canada. If you are arrested, you must be given “reasonable opportunity” to contact your lawyer, and in many cases this will mean making multiple calls and perhaps even speaking to multiple people to access the appropriate legal advice.
What if my lawyer doesn’t answer the phone?
If your lawyer does not answer the call or does not respond to the email, you are still entitled to a reasonable amount of time for them to call back. What is considered reasonable however may vary depending on the urgency of the police investigation and how serious the charges are.
If your lawyer does not call back, you are entitled to seek another lawyer or speak to duty counsel. If you tell the police you no longer wish to speak to a lawyer since your lawyer is not answering, they must tell you that you are still entitled to a reasonable amount of time for them to call back.
While you are waiting to hear from your lawyer, the police may not interview you or force you to participate in police procedures.
What are my responsibilities?
In exercising your right to request counsel, you are responsible to keep telling the police that you wish to speak to your lawyer, and to provide suggestions as to how the police can help you in contacting your lawyer.
If you are not diligent with this, the police may stop trying to reach your lawyer and begin interviewing you and insisting on police procedures such as a breath test in order to determine if you are past the legal blood-alcohol limit for driving. Failure to participate in a breath test after police have made reasonable attempts to contact your lawyer puts you at risk of being charged with the additional crime of refusing a breath sample.
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