The Right To Counsel When Someone Is Contacted Or Detained By The Police

A criminal lawyer should be consulted anytime that someone receives a phone call from the police saying that they are going to be charged with committing a criminal offence.

It doesn’t matter whether you are guilty or not; you should consult a lawyer, especially if you are uncertain or uncomfortable about speaking to the police. People may think they only need a lawyer if they are guilty, but this is just not so. Sometimes people get a call from the police because they are a witness to an incident, or because the police want help in following up some complaint they made in the past. In that case, a lawyer is probably not necessary because you are not being accused of anything. It is only when there is an accusation and some level of discomfort that I recommend that counsel be called.

People don’t generally understand when an accused has the right to call counsel. The right to counsel is triggered upon an accused being detained or arrested, so it is very simple. Someone is arrested; he has a right to speak to a lawyer. In fact, an accused individual can call counsel at any time throughout the process. Before they are charged, people often think that calling a lawyer will make them look guilty, and that is a misconception. The police do not have to know that you called your lawyer. Remember, too, that the details of any conversation to counsel are completely privileged.

Sometimes an accused person is told right away when they are detained that they have a right to call a lawyer. But in some cases we talk about psychological detention, where you are not really told you are being detained, but you feel as if you are being detained. In that case, the police have the duty to advise you of your right to counsel. Often the police do not do so, hence the case law showing charges, in these circumstance, that are sometimes stayed or dismissed. The main point is that the police have a duty to inform an accused person of their right to counsel and they have the duty to allow the individuals to implement their call to counsel. The police have to advise them of that right, which is the informational component, and there is the implementation component; they have to make a phone available and ensure that the phone call is private.

Another important point to be aware of is the fallacy that the accused can only make one phone call. You have the right to make the number of calls to counsel you need until you feel you have received adequate legal advice. There is an issue with how long that phone call could be, however. The Charter of Rights and Freedoms does not say you have the right to instruct counsel for two hours. The Charter says you have the right to obtain and instruct counsel without delay. The accused has to be given an opportunity to call counsel immediately.

That call to counsel becomes very important because the accused will receive information from the lawyer about what to say, what not to say, what to do, what not to do and how to handle themselves in the context of either being charged or being arrested or being investigated. You may call counsel when you learn on Friday afternoon that the police want to talk to you on Monday. You have a chance to call a lawyer from your own home, on your own time, and hopefully make an appointment prior to that Monday meeting.

Often, if I get a call from someone in that situation, I will take over at that point and schedule a meeting with the police myself so that the accused person does not have to worry about dealing with the police, which can be very nerve wracking. In this way, the individual can leave it to the professional, to the lawyer, to deal with the police. This is important for a number of reasons. First, it alleviates that stress that people have when dealing with the police. Second, that person is no longer in danger of saying the wrong thing because he is not going to deal with the police officers himself, and this can be very important when it comes to a bail hearing.

If you, or someone you care about, is dealing with criminal law issues in the Ottawa, Ontario Region, contact Engel and Associates for a consultation.

This article is taken from a June 20, 2008 interview with Bruce Engel, Criminal Lawyer with Engel and Associates, an Ottawa, Ontario Criminal Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.