Purser Law Blog

What is Section 10 of the Charter?

The Canadian Charter of Rights and Freedoms safeguards constitutional rights in Canada. Section 10 of the Charter protects individuals’ rights with respect to arrest and detention. Section 10(a) ensures that individuals and promptly informed of the reasons for their arrest or detention. Section 10(b) ensures that individuals are informed of their right to speak with a lawyer without delay and then provided with an opportunity to speak with a lawyer.

 

What is an arrest or a detention?

An arrest occurs when police engage in the “actual seizure or touching of a person’s body with a view to detention” (R v Latimer, [1997] 1 SCR 217 at paragraph 24), or when the police officer says the “words of arrest” and the individual submits to arrest. Arrest can trigger multiple different police powers, such as the ability to conduct a search incident to arrest, or sometimes to take fingerprints or a mugshot.

 

A detention occurs when an individual is psychologically or physically detained.  Psychological detention occurs when an individual assumes that they must comply with police directions, and that they have no other option available to them. A psychological detention will also occur when the law requires that an individual comply with a police direction or demand (e.g., at a traffic stop). Physical detention occurs when there is a direct interference with a person’s body or their personal belongings while that person is present.

 

After you are arrested or detained, your section 10(a) and 10(b) rights are triggered.

 

What are my rights under section 10(a) of the Charter?

Following an arrest or detention, you have the right to be promptly informed of the reasons for your arrest or detention in ordinary, plain language. There are two reasons for this. Firstly, because you are not obligated to submit to an arrest without knowing and understanding the reasons for your arrest. Secondly, you must fully understand the reasons for your arrest in order to speak with a lawyer meaningfully about your situation and get relevant legal information and advice.

Section 10(a) requires that you are properly informed whenever there is a change in your legal jeopardy. This means that if, for example, you are now at risk of going to jail if you are convicted of an offence, then you must be promptly informed of that risk. There are limited exceptions to your section 10(a) rights, such as when there is an immediate risk to public safety. If 10(a) rights are not respected, evidence obtained as a result of that violation of the Charter may not be admissible at a subsequent criminal trial. That is why it is important to contact an experienced Edmonton criminal lawyer if you have been charged with an offence.

 

What are my rights under section 10(b) of the Charter?

Following your arrest or detention, you must be informed of your right to speak with a lawyer, and that right must be facilitated by police without delay. What this means in practice is that police must provide you with information regarding the availability of free legal resources, such as Legal Aid Alberta and Duty Counsel, as well as a general idea of how those services work. You must also be provided with resources to contact a lawyer of your choosing, including access to a phone book and/or internet to look up a lawyer’s contact information.

 

You should be provided with this information immediately following your arrest or detention. The only exception to this is when you are pulled over and at the roadside. In these circumstances, police will have to consider whether it’s possible to immediately facilitate your right to speak with a lawyer.

 

After you tell police that you wish to speak to a lawyer, they must give you a reasonable opportunity to do so. This means that they must cease asking you questions until you’ve had the opportunity to speak with a lawyer and obtain legal information and advice.

 

Like section 10(a) rights under the Charter, if 10(b) rights are not respected, evidence obtained as a result of that Charter violation may not be admissible at a subsequent criminal trial. That is why it is important to contact an experienced Edmonton criminal lawyer if you have been charged with an offence.

 

What should I do if I think my section 10 rights have been breached?

The violation of section 10(a) and 10(b) rights can sometimes result in remedies under the Charter, such as the exclusion of evidence from your trial. If you believe that the police have violated your rights under section 10 of the Charter, contact an experienced Edmonton criminal lawyer at Purser Law at 780-851-7435 for a free consultation.

---