Section Ten of The Canadian Charter of Rights and Freedoms - Counsel

Counsel

The right to consult a lawyer is considered to be important, and the courts have been understanding if, even in cases in which the person arrested or detained preferred not to see any lawyer, it is later argued section 10 is violated because the arrested or detained person did not know any better. This applies, for example, to cases in which the arrested or detained person has a low IQ.

Section 10 has also been held not only to guarantee the right to see a lawyer, but also a right to be told that one may see a lawyer, a right to legal aid, and a right to be told that one may seek legal aid. Although the right to counsel itself could be found in the 1960 Canadian Bill of Rights, the right to be told that one may see counsel is new to Canadian bills of rights. Indeed, in the Bill of Rights case Hogan v. The Queen (1978), the Supreme Court found the right to be told that one may see a lawyer did not exist even in a penumbra of the Bill of Rights. "In effect," Professors F.L. Morton and Rainer Knopff write, "section 10(b) of the Charter overrules Hogan."

In R. v. Bartle (1994) the Supreme Court ruled that rights to be informed that one may seek counsel included rights to be told of duty counsel and how to obtain it (e.g., through a free telephone call).