The right to counsel of one’s choosing and the consequences of failure to enforce that right in cases of faculties impaired by alcohol or drugs

(Article 10 (b) of the Canadian Charter)

When making an arrest for driving under the influence of alcohol, a police officer must advise accused persons of their right to retain or refuse to retain the services of an attorney. It isn’t enough for the officer simply to ask them if they know a lawyer. The officer will generally read a card provided for such purposes by the police force, for example, the Quebec Provincial Police (Sûreté du Québec).

Once the officer and the accused arrive at the police station, the police will once again inform the individual of his or her rights before administering any alcohol or drug tests. If the accused does not know a lawyer, the police officer will provide him or her with telephone numbers, whether for legal aid services or for the on-call attorney service of the Bar of Quebec.

If accused persons want to call the lawyer of their choice, the police officer must give them a reasonable opportunity to do so. Police officers cannot force accused persons to retain the services of an attorney they propose if the accused have expressed their desire to retain the services of a specific attorney.

However, the right to counsel implies a certain diligence on the part of the accused and a lack of urgency to proceed with the tests. Police officers have two hours to administer the tests; therefore, the subject in custody may not unduly prolong the wait.

A police officer’s obligation to facilitate exercise of the right to counsel

Having recourse to the attorney of one’s choice implies an obligation on the part of the police to facilitate the exercise of the right to counsel. This means that, if accused persons need to call a third party to get their lawyer’s phone number, the police officer must allow them to do so.

Facilitating the exercise of the right to counsel, therefore, implies that the police must give accused persons access to their cellphone, if requested, so they may contact this third party in order to obtain their lawyer’s contact information. For their part, detained subjects must specify to the police officers the person they want to contact and the reason they want to contact him or her. Therefore, they must be diligent and collaborate in that search.

If they fail to do so, their rights will be suspended and the police officers can make them take the tests.

A question of balance between the power of the government and individual rights

The obligation of police officers with regard to the exercise of the right to an attorney of one’s choice is essential in accordance with the Canadian Charter. The Charter aims to maintain a balance between the power of the government and the rights of individuals. Without this balance, our democracy would be severely undermined.

Detained subjects often face situations without knowing all of the legal stakes involved. Therefore, they must be protected and informed of their rights. The attorney of their choosing is the one who will provide them with assistance regarding the legal challenges they are facing.

If this weren’t the case, only those who personally knew a lawyer would be able to choose their attorney, while the more vulnerable (for example, those who are dealing with the justice system for the first time) wouldn’t have the ability to choose. Arrested individuals must have the opportunity to choose a lawyer they can trust. Therefore, any violation of Article 10 (b) of the Charter would represent a grave assault on their right to this trusted relationship.

If a police officer doesn’t effectively give accused persons the opportunity to speak with the attorney of their choosing, a motion will subsequently be made during legal proceedings to exclude evidence on the grounds that there was a failure to allow the accused recourse to the lawyer of their choice.

Summary of the responsibilities of a police officer

Police officers must do the following:

  • Inform individuals of their right to counsel
  • Facilitate exercise of the right to an attorney by giving individuals a reasonable opportunity to exercise this right without delay
  • Abstain from extracting any pieces of evidence from accused persons before they’ve been given this opportunity

If it is established during legal proceedings that the police didn’t enforce their obligation to allow accused individuals recourse to the lawyer of their choice, the only remedy is to exclude evidence. The primary objective is to preserve the public’s confidence in the powers of government.

Just as accused persons cannot use ignorance of the law as a defense, a police officer cannot use it as justification for making an arrest and illegally gathering evidence.

If a particular attorney were imposed on detained individuals, how would it be in the future interests of the government to enforce these individuals’ capacity to choose their own lawyer? This would violate the fundamental principle envisaged in Article 10 (b) of the Canadian Charter, as demonstrated above.

Any questions?

If you have any questions regarding your right to counsel or if you have reason to believe that your right to an attorney wasn’t enforced, don’t hesitate to contact me. By telephone: (514) 926-0322.

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