Right to Second Consultation with a Lawyer

Under our Canadian Charter of Rights and Freedoms under Section 10(b) you have the right to retain and instruct counsel without delay upon arrest or detention. What does this mean really? In a nutshell, let’s say you’re arrested for sexual assault. So upon arrest, the police are going to read you from a card that you have a right to essentially phone a lawyer. So they’re going to bring you back to the police station and process you and they’re not supposed to if you asked for a lawyer, you could say no, you can waive that, right? But if you ask to speak to a lawyer, they have to make reasonable efforts as much as they can to put you in touch with a lawyer. They can put you in touch with a lawyer of your choice, which is a private lawyer. There’s also 24 hour free legal aid duty counsel it’s a 1-800 number So you’re entitled that. Then that lawyer if you ask for one, duty counsel is just fine to ask for, for example, you’re going to be able to speak to that lawyer and get legal advice before you go into an interrogation room before you give a breath sample, before you give some sort of DNA or anything like that they’re going to speak to that lawyer. That lawyer in many cases, for example on a sexual assault, or domestic assault or DUI for that matter, in a DUI they’re going to tell you to provide a breath sample otherwise just shut up and exercise your right to remain silent. Same with a sexual assault domestic do not say anything more to the police. Just be polite, but don’t discuss anything about the case and don’t give a statement. So the vexing question is are you just entitled to one phone call? Well, in many situations after you’ve talked to that lawyer, that’s your call. The right’s been exercised, but whenever you allow a second phone call, well, there’s two situations in a case called Sinclair for the Supreme Court of Canada that talks about this. The first situation is if there’s been a change in jeopardy in your Jeopardy so for example, at the time your arrest for sexual assault, for example, they arrested you for one count of sexual assault on a victim and they’ve told you about that. And you speak to a lawyer. The lawyer told you not to say anything, but you’re talking in the interview room, and something arises or more information comes to them they want to give you a lie detector test. Well, now you’re facing a change in jeopardy. You shouldn’t do the lie detector test by the way, or they want to upgrade the charges. They want to add more victims in the interview room. Here is the change in jeopardy. They have to reread your rights to counsel again, give you another opportunity to consult with a lawyer so that’s your second lawyer. So normally you just get one. But if there’s a change in jeopardy, something’s that’s going to affect you. Change your circumstances rather than the original charge lie detector test, upgrading charges. They want you to provide hair analysis or something like that, or DNA that is a change in jeopardy. Now what’s another situation? Well, if there’s something that comes to the attention of the police that the legal advice you received was deficient or you didn’t understand it. They also have to give you a right to consult with another lawyer in that situation. So and the only way that’s going to happen really see if you tell it look, I didn’t really understand that lawyer. I was nervous at the time. They were speaking quickly. They had an accent. I didn’t understand them. They weren’t a criminal lawyer. I didn’t get good legal advice. If you clearly explain that the police they have an obligation to provide you with a second consult and really, I honestly tell people look just phone duty counsel, they’re very good at this. You can speak to your private lawyer later you’re probably it’s rare that you get a hold of your own lawyer at three in the morning. Duty counsel is available. They’re going to give you the same advice as your private or heck, if you want to speak to a lawyer great, maybe they’re going to wake up at four in the morning but I often see situations where they don’t or they don’t answer the call or they’re on vacation. And the person goes ahead and give a statement when they should have spoken to duty counsel but they were insistent about their own lawyer. So don’t be afraid to contact duty counsel. Try and speak to your own lawyer too but default to duty counsel if your own lawyer is not available. So those are the situations where you’re entitled to a second consult with a lawyer. I guess I can even envision third consults where your Jeopardy changes again. I’m not sure if I’ve seen a case like that there may be a couple of cases where that’s actually happened, but it often arises and I’ve won cases, I’ve got statements thrown out and procedures thrown out and where they should have the police should have recognized there was a change of jeopardy. They were told or intimated at least that by the client that it was deficient legal advice and they want another lawyer or they were implying that and the police screwed up and we get the statements thrown out. So this is a very wide issue in Canada and this is all about rights to counsel and whether you’re entitled to a second consult with a lawyer during the process of arrest and speaking to the police.