Section Ten of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Ten of the Canadian Charter of Rights and Freedoms specifies rights upon arrest
or detention
, including the rights to consult a lawyer
and the right to habeas corpus
. As a part of a broader range of legal rights guaranteed by the Charter
, section 10 rights may be limited by the Oakes test
and/or the notwithstanding clause
. However, section 10 has also spawned considerable litigation, and has made an impact in numerous cases.
In cases without physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether a reasonable person in the individual’s circumstances would conclude they had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
, the Supreme Court of Canada
considered an argument in which a person, Robert Latimer
, was told he was being "detained", but was not told he was being "arrested" and could be charged with the murder of his daughter. The Court found section 10(a) was not infringed. Section 10(a) is meant to ensure those arrested or detained are aware of the gravity of the situation. Latimer argued that since the police did not call the detention an arrest, he was not fully aware of the severity of the trouble he was in. He also claimed this was the reason why he had declined to talk to a lawyer. The Court argued the words used did not matter, but rather how the suspect can interpret the situation. Latimer could be expected to understand the seriousness of the situation since he was told he was being detained in connection with his daughter's death. The police had explicitly said the situation was serious, and had told him of rights one has when being arrested.
.
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).
Arrest
An arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...
or detention
Detention (imprisonment)
Detention is the process when a state, government or citizen lawfully holds a person by removing their freedom of liberty at that time. This can be due to criminal charges being raised against the individual as part of a prosecution or to protect a person or property...
, including the rights to consult a lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
and the right to habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
. As a part of a broader range of legal rights guaranteed by the Charter
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, section 10 rights may be limited by the Oakes test
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
and/or the notwithstanding clause
Section Thirty-three of the Canadian Charter of Rights and Freedoms
Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause , or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter...
. However, section 10 has also spawned considerable litigation, and has made an impact in numerous cases.
Text
The section reads:Detention
Section 10 is only triggered if a person is arrested or detained. The Supreme Court of Canada has stated that "detention" refers to a suspension of an individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude from the state conduct that there was no choice but to comply.In cases without physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether a reasonable person in the individual’s circumstances would conclude they had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
- The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
- The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
- The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
Explanation of arrest or detention
Section 10(a) requires that a person who is arrested or detained must be told why. In R. v. Latimer (1997)R. v. Latimer (1997)
R. v. Latimer [1997] 1 S.C.R. 217, was a decision by the Supreme Court of Canada in the controversial case of Robert Latimer, a Saskatchewan farmer convicted of murdering his disabled daughter Tracy...
, the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
considered an argument in which a person, Robert Latimer
Robert Latimer
Robert William "Bob" Latimer , a Canadian canola and wheat farmer, was convicted of second-degree murder in the death of his daughter Tracy . This case sparked a national controversy on the definition and ethics of euthanasia as well as the rights of people with disabilities, and led to two...
, was told he was being "detained", but was not told he was being "arrested" and could be charged with the murder of his daughter. The Court found section 10(a) was not infringed. Section 10(a) is meant to ensure those arrested or detained are aware of the gravity of the situation. Latimer argued that since the police did not call the detention an arrest, he was not fully aware of the severity of the trouble he was in. He also claimed this was the reason why he had declined to talk to a lawyer. The Court argued the words used did not matter, but rather how the suspect can interpret the situation. Latimer could be expected to understand the seriousness of the situation since he was told he was being detained in connection with his daughter's death. The police had explicitly said the situation was serious, and had told him of rights one has when being arrested.
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 IQIntelligence quotient
An intelligence quotient, or IQ, is a score derived from one of several different standardized tests designed to assess intelligence. When modern IQ tests are constructed, the mean score within an age group is set to 100 and the standard deviation to 15...
.
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
Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
, 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
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
, 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
Rainer Knopff
Rainer Knopff is a writer, professor of political science at the University of Calgary, Canada, and member of a group known as the Calgary School. He especially well-known for his views about the influence of judicial decisions on Canadian public policy...
write, "section 10(b) of the Charter overrules Hogan."
In R. v. Bartle
R. v. Bartle
R. v. Bartle, [1994] 3 S.C.R. 173 is a leading Supreme Court of Canada decision on the right to retain and instruct counsel under section 10 of the Canadian Charter of Rights and Freedoms...
(1994) the Supreme Court ruled that rights to be informed that one may seek counsel included rights to be told of duty counsel
Duty counsel
In Ontario, Canada a duty counsel is a lawyer paid by Legal Aid Ontario who provides limited legal services in criminal, family law and child protection matters to people who arrive at court without representation, mainly in the Ontario Court of Justice....
and how to obtain it (e.g., through a free telephone call).