If Canadian police deny or unreasonably delay your right to call a Lawyer upon arrest, it is a breach of Section 10(b) of the Charter. A criminal defence Law Firm can file a Charter Application (costing roughly $3,000 to $8,000 CAD) to have any subsequent confessions or evidence completely excluded from your trial.
Being arrested is one of the most frightening experiences a person can face. Whether you are pulled over for a suspected Summary conviction offence in Winnipeg, or arrested at your home for a major Indictable offence in Ottawa, the police hold immense power. However, under the Canadian Charter of Rights and Freedoms, you have fundamental protections. Section 10(b) guarantees your right to “retain and instruct counsel without delay.” If the police ignore this right, pressure you to speak before you get legal advice, or refuse to give you privacy on the phone, they have broken the supreme law of Canada.
Step-by-Step Process When Your Rights Are Breached
Many Canadians mistakenly believe that if the police fail to “read them their rights,” their case is automatically thrown out like in American television shows. 🖥️ In Canada, the process is much more nuanced. You must actively challenge the police conduct in a courtroom. Here is how you and your defence Lawyer handle a Section 10(b) breach.
Step 1: Exercise Your Right to Silence
If the police arrest you and deny you a phone call, or say “you can call a lawyer later,” your best defence is absolute silence. Do not argue, do not resist physically, and most importantly, do not answer their questions. Aside from providing your basic identity (name and date of birth), you have no legal obligation to speak to investigators. The police are allowed to ask questions even if you want a lawyer, but you are not forced to answer them.
Step 2: Document the Police Conduct
As soon as you are released on bail or given access to a pen and paper in detention, write down exactly what happened. 📝 Note the time of your arrest, what the officers said, how many times you asked to call a Lawyer, and their exact responses. Did they listen in on your phone call? Did they offer you a duty counsel number? These specific details will be critical evidence for your defence.
Step 3: Hire a Defence Lawyer to Review Disclosure
Once you retain a Law Firm, they will request the “Disclosure” (the evidence) from the Crown Prosecutor. Your lawyer will scrutinize the police notes, booking videos, and audio recordings from the police station. Often, booking room videos clearly show an accused person begging for a phone call while officers ignore them or pressure them into an interrogation room.
Step 4: File a Section 24(2) Charter Application
If your lawyer confirms a breach of your rights, they will file a formal application under Section 24(2) of the Charter. ⚔️ This section allows a judge to exclude evidence if it was obtained in a way that violates your constitutional rights. If the judge agrees that the police unfairly denied your right to counsel, they will likely throw out any confession you made. Without that confession, the Crown Prosecutor’s case may collapse entirely, leading to withdrawn charges or an acquittal.
How Much Does it Cost to Fight a Charter Breach in Canada?
Filing a Charter application requires extensive legal drafting and courtroom litigation. It is a highly specialized task for a criminal defence lawyer.
| Legal Action / Service | Average Cost (CAD) | Notes |
|---|---|---|
| Initial Bail Hearing | $1,000 – $3,000 | To get you out of detention |
| Reviewing Police Disclosure | $1,500 – $3,500 | Analyzing videos and police notes |
| Drafting Charter Application | $3,000 – $8,000+ | Filing the motion to exclude evidence |
| Trial Representation (Per Day) | $2,000 – $5,000 | Litigating the breach in front of a judge |
How Long Does the Process Take?
Fighting a criminal charge on constitutional grounds is not a quick process. ⏳ It typically takes 3 to 6 months just to receive the full video and audio disclosure from the police department. Filing the Charter application and waiting for a trial date can easily stretch the timeline to 12 or 18 months. However, under Canadian law (the Jordan decision), the government generally has a maximum of 18 months to bring a provincial court case to trial, or 30 months for superior court, before the charges may be stayed due to unreasonable delay.
Frequently Asked Questions (FAQ)
Do police have to read me my Miranda rights?
No. Miranda rights are strictly an American concept. In Canada, police must read you your Charter Rights. They must inform you of the reason for your arrest and your right to retain and instruct counsel without delay.
What if my personal Lawyer didn’t answer the phone?
If your specific lawyer is unavailable, the police must give you a reasonable opportunity to keep trying, or offer you contact with free Legal Aid Duty Counsel. They cannot simply say “he didn’t answer, time to talk” and rush you into an interrogation room.
Does a Charter breach mean the case is automatically dismissed?
No. A judge will only exclude the specific evidence obtained as a direct result of the breach (like a forced confession). If the Crown has plenty of other lawful evidence (like witnesses or DNA), the trial will still proceed.
Can the police force me to unlock my phone?
Generally, you have the right to remain silent, which protects you from being forced to hand over your phone password. If the police demand your passcode before you have spoken to a lawyer, calmly refuse and state you wish to exercise your right to silence.
Leave a Reply