What does it mean to have the right to legal counsel?

The right to legal counsel is the constitutional right of any person arrested or detained in Canada to retain and instruct a lawyer without delay and to be informed of that right. It is guaranteed by section 10(b) of the Canadian Charter of Rights and Freedoms, which reads: 'Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right'. The right comes alongside section 10(a) (the right to be informed promptly of the reasons for arrest) and section 10(c) (the right to challenge the detention by way of habeas corpus).

Police forces in Canada are constitutionally required to give the so-called 'rights caution' to anyone they arrest or detain. The standard wording, confirmed in R. v. Bartle (1994), informs the detained person of the right to retain and instruct counsel of their choice without delay, the right to free Legal Aid duty counsel, and the toll-free numbers to reach Legal Aid. Police must hold off questioning until the accused has had a reasonable opportunity to consult a lawyer (R. v. Manninen, 1987; R. v. Sinclair, 2010).

The right to counsel is supported by Canada's legal-aid systems. Each province and territory operates its own legal-aid plan: Legal Aid Ontario, the Legal Services Society of British Columbia, Quebec's Commission des services juridiques, and similar bodies in the other jurisdictions. Federal funding is provided through annual federal-provincial Legal Aid Agreements administered by the Department of Justice. Eligibility depends on the seriousness of the charge and the applicant's income, with criminal legal aid widely available and family and immigration legal aid more limited.

If the right to counsel is breached, evidence obtained in the breach may be excluded under section 24(2) of the Charter. The current test for exclusion was set out in R. v. Grant (2009), which directs courts to weigh the seriousness of the Charter-infringing conduct, the impact on the accused's protected interests, and society's interest in the adjudication of the case on its merits. Failure to give a clear caution, refusal of access to a chosen lawyer, and improper interrogation after invocation of the right to silence have all led to evidence exclusion.