{"id":1792,"date":"2021-11-29T13:25:17","date_gmt":"2021-11-29T18:25:17","guid":{"rendered":"https:\/\/www.avocatecriminaliste.ca\/droit-avocat-choix\/"},"modified":"2023-01-23T23:16:40","modified_gmt":"2023-01-24T04:16:40","slug":"right-to-counsel-choosing","status":"publish","type":"post","link":"https:\/\/www.avocatecriminaliste.ca\/en\/right-to-counsel-choosing\/","title":{"rendered":"The right to counsel of one\u2019s choosing"},"content":{"rendered":"

The right to counsel of one\u2019s choosing and the consequences of failure to enforce that right in cases of faculties impaired by alcohol or drugs<\/h1>\n

(Article 10 (b) of the Canadian Charter<\/a>)<\/p>\n

When making an arrest for driving under the influence of alcohol<\/a>, a police officer must advise accused persons of their right to retain or refuse to retain the services of an attorney. It isn\u2019t 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 (S\u00fbret\u00e9 du Qu\u00e9bec).<\/p>\n

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.<\/p>\n

If accused persons want to call the lawyer of their choice, the police officer must give them a reasonable opportunity<\/strong> 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.<\/p>\n

However, the right to counsel implies a certain diligence<\/strong> 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.<\/p>\n

A police officer\u2019s obligation to facilitate exercise of the right to counsel<\/h2>\n

Having recourse to the attorney of one\u2019s choice implies an obligation on the part of the police to facilitate<\/strong> the exercise of the right to counsel. This means that, if accused persons need to call a third party to get their lawyer\u2019s phone number, the police officer must allow them to do so.<\/p>\n

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\u2019s 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.<\/p>\n

If they fail to do so, their rights will be suspended and the police officers can make them take the tests.<\/p>\n

A question of balance between the power of the government and individual rights<\/h2>\n

The obligation of police officers with regard to the exercise of the right to an attorney of one\u2019s 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.<\/p>\n

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.<\/p>\n

If this weren\u2019t 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<\/a>) wouldn\u2019t 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.<\/p>\n

If a police officer doesn\u2019t 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<\/strong> on the grounds that there was a failure to allow the accused recourse to the lawyer of their choice.<\/p>\n

Summary of the responsibilities of a police officer<\/h2>\n

Police officers must do the following:<\/p>\n