Section 10(b) of the Canadian Charter of Rights and Freedoms provides that everyone has the right on arrest or detention "to retain and instruct counsel without delay and to be informed of that right." It is one of the most frequently litigated Charter provisions in criminal law.
When a person is arrested or detained, the police must: inform the person that they have the right to a lawyer, inform them of the availability of duty counsel and Legal Aid, and provide them with a reasonable opportunity to contact a lawyer before the investigation continues. If the person indicates they want to speak to a specific lawyer, the police must facilitate contact with that lawyer. If the lawyer is unavailable, the police must give the person a reasonable time to try again — though not indefinitely.
Section 10(b) violations arise frequently in impaired driving cases, where the police have a limited window to obtain breath samples before the alcohol dissipates. If the police rush the right-to-counsel process, fail to hold off on taking breath samples until the accused speaks to a lawyer, or fail to re-advise the accused of their right to counsel when the investigation changes direction, the breathalyzer evidence may be excluded under section 24(2). This is one of the most effective defence strategies in DUI cases.