If you are arrested or detained in Ontario, one of the most important protections you have is the right to speak with a lawyer. This right is guaranteed under section 10(b) of the Canadian Charter of Rights and Freedoms, and it is not optional for police, they are constitutionally required to inform you of this right, give you a reasonable opportunity to exercise it, and stop questioning you until you have had the chance to speak with counsel.
At Karapancev Law, our criminal defence lawyers regularly see cases where a person’s right to counsel was not properly respected. When police fail to meet their obligations under section 10(b), the consequences can be significant: evidence obtained in violation of your Charter rights may be excluded from trial, which can lead to charges being withdrawn or an acquittal. Understanding how this right works, when it applies, and what to do if it is denied is essential for anyone facing criminal charges in Ontario.
What Does Section 10(b) of the Charter Actually Say?
The Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. Section 10 sets out your rights upon arrest or detention. Specifically, section 10(b) provides that everyone has the right on arrest or detention “to retain and instruct counsel without delay and to be informed of that right.”
This single sentence has been interpreted by the Supreme Court of Canada over decades of case law to create three distinct duties that police must follow. In the landmark decision of R. v. Bartle, [1994] 3 SCR 173, then-Chief Justice Lamer summarized these three duties as follows:
- The informational duty: Police must inform you of your right to retain and instruct counsel without delay, and must also inform you of the existence and availability of legal aid and duty counsel in the jurisdiction.
- The implementational duty: If you indicate that you wish to exercise your right to counsel, police must provide you with a reasonable opportunity to do so. This includes offering you access to a telephone.
- The duty to hold off: Police must refrain from questioning you or otherwise attempting to obtain evidence from you until you have had a reasonable opportunity to speak with a lawyer.
These three duties work together to ensure that when you are in the custody or control of the state, you have meaningful access to legal advice before you are asked to make decisions or provide information that could be used against you.
When Does the Right to Counsel Apply?
Your right to counsel under section 10(b) is triggered the moment you are arrested or detained. This includes obvious situations like being placed in handcuffs and taken to a police station, but it also includes less obvious situations where your liberty has been restricted.
The Supreme Court of Canada addressed the meaning of “detention” in R. v. Grant, [2009] 2 SCR 353, holding that detention refers to a suspension of an individual’s liberty interest by a significant physical or psychological restraint. Psychological detention occurs where either the individual has a legal obligation to comply with a police demand, or a reasonable person in the same circumstances would conclude that they were not free to leave.
In practical terms, your right to counsel is engaged in situations including:
- Being placed under arrest for any criminal offence.
- Being detained at the roadside in connection with a criminal investigation.
- Being held at a police station for questioning in connection with a criminal investigation.
- Being subjected to a search incident to arrest or a search under a warrant.
- Any situation where a reasonable person would conclude that they are under the control of police and not free to go.
It is important to understand that the right to counsel does not apply to every casual interaction with police. If an officer approaches you on the street and asks a general question, you are not detained unless the circumstances would make a reasonable person feel that they are not free to walk away. However, the moment the interaction escalates to a detention or arrest, your section 10(b) rights are immediately engaged.
What Police Are Required to Do Under Section 10(b)
Inform You of Your Right to Counsel
The moment you are arrested or detained, police must inform you that you have the right to retain and instruct counsel without delay. This is the informational duty, and it must be fulfilled immediately, not at some later point when it becomes more convenient.
Crucially, the Supreme Court of Canada held in R. v. Brydges, [1990] 1 SCR 190 and expanded upon in R. v. Bartle that the informational duty goes beyond simply telling you that you have a “right to a lawyer.” Police must also inform you of the existence and availability of free preliminary legal advice through duty counsel and legal aid services in the jurisdiction. In Ontario, this means police must tell you about the 24-hour toll-free duty counsel telephone line operated by Legal Aid Ontario, through which you can receive free, immediate legal advice regardless of your financial situation.
If police fail to mention the availability of duty counsel and legal aid, or fail to provide you with the toll-free telephone number, this can constitute a violation of your section 10(b) rights, even if they told you in general terms that you have a “right to a lawyer.”
Provide You with a Reasonable Opportunity to Contact a Lawyer
If you indicate that you wish to speak with a lawyer, police must provide you with a reasonable opportunity to do so. This is the implementational duty, and it requires police to offer you access to a telephone and allow you to make the call in private.
What constitutes a “reasonable opportunity” depends on the circumstances. Police are not required to wait indefinitely, but they must give you sufficient time to reach a lawyer. If your lawyer of choice is not immediately available, you are expected to exercise reasonable diligence in trying to contact them. If you cannot reach your lawyer within a reasonable time, police may suggest that you speak with duty counsel instead. However, as the Ontario Court of Appeal has emphasized, police cannot pressure you into giving up on your lawyer of choice or create the impression that duty counsel is your only option.
The Supreme Court of Canada also confirmed in R. v. Taylor, [2014] 2 SCR 495 that the implementational duty requires police to provide a telephone. However, officers are not required to hand over their personal cell phones, they must simply ensure that a telephone is available and accessible.
Stop Questioning You Until You Have Spoken with a Lawyer
Once you have indicated that you wish to speak with a lawyer, police must stop questioning you and must not attempt to obtain evidence from you until you have had a reasonable opportunity to consult with counsel. This is the duty to hold off, and it is one of the most frequently violated aspects of section 10(b) in our experience.
This duty was reinforced by the Supreme Court of Canada in R. v. G.T.D., [2018] 1 SCR 220, which held that even providing a standard caution and then asking the accused if they wish to “say anything” violates the duty to hold off if the accused has already invoked their right to counsel. Police cannot continue to question you, encourage you to make a statement, or present you with evidence in an effort to prompt a response while you are waiting to speak with your lawyer.
There are limited exceptions for urgent or dangerous circumstances, for example, where public safety is at immediate risk. But these exceptions are narrow, and police bear the burden of justifying any departure from the duty to hold off.
Your Right to Choose Your Own Lawyer
Section 10(b) protects not just the right to speak with any lawyer, but the right to retain and instruct the counsel of your choice. This means that if you have a specific lawyer you want to contact, police must give you a reasonable opportunity to reach that lawyer before proceeding with their investigation.
However, this right is not absolute. As the Supreme Court of Canada established in R. v. Willier, [2010] 2 SCR 429 and R. v. McCrimmon, [2010] 2 SCR 402, if your lawyer of choice is not available within a reasonable time, you are expected to contact another lawyer or speak with duty counsel. You cannot use the right to counsel of choice as a tool to delay the investigation indefinitely.
That said, police cannot rush you or create pressure to abandon your preferred lawyer. If you have made reasonable efforts to contact your lawyer and are waiting for a callback, police must give that process a reasonable amount of time before suggesting alternatives. If police conduct causes you to believe that waiting for your lawyer is no longer an option, this can amount to a violation of your section 10(b) rights.
Can You Waive Your Right to Counsel?
Yes, you can waive your right to counsel, but the waiver must be clear, unequivocal, and informed. This means you must understand what you are giving up before you can validly waive the right. A waiver cannot be assumed from silence, confusion, or a failure to ask for a lawyer.
At Karapancev Law, we strongly advise against waiving your right to counsel under any circumstances. Even if you believe you have nothing to hide, speaking to police without legal advice can have serious consequences. Anything you say, including statements you believe are exculpatory, can be used against you. A few minutes of conversation with a lawyer can fundamentally change how you navigate the situation.
If you have waived your right to counsel but later change your mind and wish to speak with a lawyer, you can reassert your right at any time. Police are then required to stop questioning you and provide you with a renewed opportunity to consult with counsel.
What Happens When Your Right to Counsel Is Violated?
When police violate your right to counsel under section 10(b), the primary remedy is the exclusion of evidence under section 24(2) of the Charter. This provision allows a court to exclude evidence that was “obtained in a manner” that infringed your Charter rights, where admitting the evidence would bring the administration of justice into disrepute.
The Supreme Court of Canada set out the framework for this analysis in R. v. Grant, [2009] 2 SCR 353, which requires courts to consider three factors:
- The seriousness of the Charter-infringing state conduct: Was the police conduct a deliberate or flagrant disregard of your rights, or was it a minor, good-faith error?
- The impact of the breach on your Charter-protected interests: How significantly did the violation affect your privacy, liberty, or right against self-incrimination?
- Society’s interest in adjudication on the merits: How reliable and important is the evidence to the Crown’s case? Would excluding it effectively end the prosecution?
In impaired driving cases, where breath test results are often the central evidence against the accused, a section 10(b) violation can be devastating for the Crown’s case. If the breath samples were obtained while police were questioning you or before you had a chance to speak with a lawyer, those results may be excluded. Without the breath test evidence, the Crown may have no viable path to conviction.
Similarly, in cases involving confessions or incriminating statements made to police before you had access to counsel, those statements can be challenged and potentially excluded. The right to counsel exists precisely to prevent the state from taking advantage of a person who has not had the benefit of legal advice.
The Right to Counsel in Impaired Driving Cases
Impaired driving cases present unique challenges when it comes to the right to counsel. The Criminal Code requires that breath samples be provided “forthwith”, meaning immediately or without delay. This creates a tension between the requirement for prompt breath testing and the accused’s right to speak with a lawyer before providing a sample.
The courts have generally held that the right to counsel must be facilitated as quickly as possible, but that some delay is inherent and acceptable in the process of transporting an accused to a police station and setting up the breathalyser. What is not acceptable is police deliberately delaying your access to counsel, failing to inform you of the right, or proceeding with breath testing while you are still waiting to speak with your lawyer.
In our experience defending impaired driving cases across Ontario, section 10(b) violations are among the most common and most impactful grounds for challenging breath test evidence. Common scenarios we see include:
- Police failing to mention the availability of free duty counsel or the Legal Aid Ontario toll-free number.
- Police asking the accused whether they want to “say anything” after the accused has already asked to speak with a lawyer.
- Police rushing the accused into providing a breath sample before allowing a call to counsel.
- Police creating the impression that the accused must speak with duty counsel rather than waiting for their lawyer of choice.
- Inadequate privacy during the telephone consultation with counsel.
Each of these scenarios can form the basis of a constitutional challenge that may result in the exclusion of the breath test results, the single most important piece of evidence in most impaired driving prosecutions.
When Do You Have the Right to Speak with a Lawyer Again?
In most cases, the right to counsel under section 10(b) provides for a single consultation, not ongoing access to a lawyer throughout the investigation. The Supreme Court of Canada confirmed this in R. v. Sinclair, [2010] 2 SCR 310, holding that the right to counsel is not a right to have a lawyer present during interrogation.
However, the right to a second consultation with counsel can arise in certain circumstances. The Supreme Court identified three categories of “changed circumstances” that can trigger a renewed right to consult counsel:
- New procedures: If you are subjected to new investigative procedures that were not contemplated when you first spoke with your lawyer (for example, a request to participate in a police lineup).
- Change in jeopardy: If the charges against you change or become more serious after your initial consultation (for example, if a charge is upgraded from impaired driving to impaired driving causing death).
- Undermined legal advice: If police conduct has the effect of undermining the legal advice you received during your first consultation, such as making disparaging comments about your lawyer or attempting to convince you that your lawyer’s advice was wrong.
The Supreme Court of Canada revisited this issue in R. v. Dussault, [2022] 1 SCR 87, confirming that where police conduct undermines a detainee’s confidence in the lawyer who provided advice, this can trigger the right to a second consultation. If police fail to provide that opportunity, the breach of section 10(b) may result in the exclusion of any evidence obtained after the point where the right to re-consult arose.
What You Should Do If You Are Arrested or Detained in Ontario
At Karapancev Law, we advise every client to follow these steps if they are arrested or detained by police in Ontario:
- Exercise your right to counsel immediately: Tell the officer clearly that you want to speak with a lawyer. Do not equivocate. Say the words: “I want to speak with a lawyer.”
- Ask for the duty counsel number if needed: If you do not have a criminal defence lawyer, ask for the Legal Aid Ontario toll-free duty counsel number. This service provides free, immediate legal advice 24 hours a day.
- Do not answer questions until you have spoken with a lawyer: You have the right to remain silent. You are not required to answer police questions, and anything you say can be used against you. Politely decline to answer until you have received legal advice.
- Make note of what happens: Pay attention to what police say and do, including what information they provide about your rights, how long it takes before you are given access to a phone, and whether police attempt to question you before you speak with counsel. These details may be critical to your defence.
- Contact Karapancev Law as soon as possible: Whether you speak with us at the time of your arrest or after your release, the sooner you have experienced criminal defence lawyers working on your case, the better your chances of a successful outcome.
How Our Criminal Defence Lawyers Use Section 10(b) Violations in Your Defence
At Karapancev Law, Charter challenges are a cornerstone of our defence practice. With our background as both criminal defence lawyers and former Crown prosecutors, we understand exactly what the prosecution needs to prove and where the weaknesses in their case may lie. When police have violated your right to counsel, we know how to bring a section 24(2) application to exclude the evidence and how to present the Grant analysis in the way most favourable to your case.
We have seen cases where a single section 10(b) violation, such as a failure to mention duty counsel, or a two-minute gap between the arrest and the breath demand where no right to counsel was offered, led to the exclusion of breath test evidence and a complete acquittal. These are not technicalities. They are constitutional protections that exist to keep the justice system fair, and courts take them seriously.
If you have been charged with a criminal offence in Ontario and believe your right to counsel may have been violated, contact Karapancev Law immediately for a confidential consultation. We serve clients across the Greater Toronto Area and throughout Ontario, including Toronto, Mississauga, Brampton, Newmarket, Richmond Hill, Markham, Oakville, Aurora, and Vaughan.
Contact Karapancev Law today. Your rights matter, and we are here to protect them.
Disclaimer: This article provides general legal information about the right to counsel under section 10(b) of the Canadian Charter of Rights and Freedoms as of March 2026. It does not constitute legal advice, and no lawyer-client relationship is created by reading this content. Every case is unique, and the information here may not apply to your specific circumstances. If you are facing criminal charges, you should consult with a qualified criminal defence lawyer as soon as possible.
