Arrested? Right to lawyer?

Hopefully, you have never been arrested. But, maybe you have...

If you have been arrested, then you might already know a little bit about this week’s column topic: a person’s right to a lawyer (upon arrest).

You have probably seen it on television many times: someone is arrested and they are told that they have a right to speak with a lawyer. It sounds like an easy concept, right? Well, it isn’t that easy. Here it is (in a nutshell)…

Here is technical bit: section 10(b) of the Canadian Charter of Rights and Freedoms states that everyone who is arrested or detained (i.e. stopped for questioning by a police officer) is entitled to speak to a lawyer without delay (and is entitled to be informed of that right).

So, what does that mean? Well, here’s an example: Police believe that you committed a crime, be it murder, robbery, theft, or assault. Police attend at your home or your workplace and put you in handcuffs. At that point, police MUST inform you of your right to talk to a lawyer (for legal advice).

If you choose to speak with a lawyer (and why wouldn’t you?), then police must make that happen by giving you access to a telephone. Police must also tell you that you can speak to a legal aid lawyer (free of charge to you). Most provinces have set up a toll-free number, allowing people (who are arrested) to get legal advice on a 24-hour basis. As you can imagine, people are often arrested outside of “business hours”…

Now, before you speak to a lawyer (after you choose to), police CANNOT continue to question you, attempting to get statements or other evidence from you. After you speak to the lawyer, though, the police CAN continue with their questioning.

So, what happens if police continue with their questioning AFTER you choose to speak to a lawyer, but BEFORE you have had an opportunity to do so? Well, evidence (such as statements given by you to police) taken in violation of your right to a lawyer will generally be excluded (from being used at trial).

The purpose of section 10(b) is to address the HUGE vulnerability that people have when they are arrested by police (i.e. the state) and when they are deprived of their freedom/liberty. Such people are at risk of making self-incriminating (and potentially out-of-context/misleading) statements (and they should know that risk).

So, generally speaking, these are the rules. They aren’t incredibly difficult. They are important. And police need to follow them.

Before I end this week’s column, I want to address the often unfair and harsh judgement on those people who have been arrested or convicted of a criminal offence. Quite frankly, that judgement is totally UNFAIR.

I’ll explain…

There are two types of people who have criminal records: 1) those who make a logical, business-like decision to break the law; and 2) those who merely want 20 seconds of their life back…

The VAST majority of those people with criminal records fall into the latter category (and deeply regret the mistake that they made).

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought. 

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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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