canada arrest
What length of time counts as delay for the purposes of &quot;intsruct counsel without delay&quot; in Canada?
<p>Watching Canadian TV, I see that the when someone is arrested, one of the rights the arresteee is informed of is to &quot;instruct counsel without delay&quot;.  How long is &quot;delay&quot;? An hour? A day? A week? Obviously this probably varies with circumstances, but are there general guidelines?</p>

<p>The right to counsel is a constitutional right guaranteed by section 10 of the Canadian Charter of Rights and Freedoms, a part of the Canadian Constitution.</p>
<blockquote>
<ol start="10">
<li>Everyone has the right on arrest or detention</li>
</ol>
<ul>
<li>a) to be informed promptly of the reasons therefor;</li>
<li>b) <em><strong>to retain and instruct counsel without delay and to be informed of that right</strong></em>; and</li>
<li>c) to have the validity of the detention determined by way of habeas    corpus and to be released if the detention is not lawful.</li>
</ul>
</blockquote>
<p>The relevant considerations for this right, including the guideline for &quot;without delay&quot;, are discussed in <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art10b.html" rel="nofollow noreferrer">Charterpedia</a> (an analysis by the Department of Justice on Charter rights). I try to summarize it here, but you should look at the analysis if you are more interested in the details.</p>
<p>Traditionally, the right is exercised in the form of a phone call to a lawyer. The police needs to provide the access to a phone and a directory (e.g. a phonebook, a referral service provided by the law society or legal aid or even an internet directory) to enable the accused to find an appropriate lawyer.</p>
<p>This is not in general limited to one lawyer, you have the right to consult multiple counsels for advices (as long as you are being reasonably diligent in effectively exercising your right to counsel). You also have the right to contact others (e.g. family or friends) for them to help you to find a lawyer.</p>
<p>The police must refrain from questioning or collecting possibly self-incriminating evidences from the accused until the accused has an opportunity to contact a counsel and obtain advice.</p>
<p>If the police suspects (on reasonable grounds) the accused may use a phone call to destroy evidence or alert others involved in the offence, they may call the lawyer for the accused instead. They must provide a private space for the accused to consult the lawyer.</p>
<p><strong>On its face, &quot;without delay&quot; means &quot;immediately&quot;; in practice, it means &quot;immediately&quot;, but subject to other practical constraints and justified considerations for safety of the officers (e.g. search the suspect for weapons before giving them a phone) and the public (e.g. if there is a clear irremediable risk of escape) or preservation of evidence. You could call it <em>as soon as practical and possible</em>. It is unlikely for any delay more than a couple hours to be constitutional except under extraordinary circumstances (e.g. an earthquake or something that destroyed communications in the area).</strong></p>
<p>The police must (be ready to) provide justification if there is any delay between the detention and opportunity to access a lawyer. Courts have rules that the police cannot delay the exercise of the right until the accused is in a police station if there exists an earlier opportunity to provide the accused with an access to a counsel (e.g. a telephone at home).</p>
<p>Assuming or systematically setting a policy where the right to access a counsel is delayed is unconstitutional. For example, the police cannot make a policy that the accused must wait until the police finish whatever they are doing (e.g. executing a search warrant) to have a meaningful access to call a lawyer. They also can't assume that you cannot speak to a counsel because you are in a hospital.</p>
<p>In all cases, the police officer or other agents of state must <em>proactively</em> facilitate the right to access a lawyer as soon as possible. For example, if you are an accused and have a lawyer, and you don't remember their number or their phone is not working, the police must help you (to a reasonable degree and effort) to locate your lawyer (e.g. search your lawyer's name on the internet or telephone directory).</p>
<p>Like other Charter rights, under section one, they are &quot;subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.&quot; Notably, a limitation to the right to counsel without delay has been found justified in the impaired driving context, where the requirement to provide a breath sample (but not to use a breathalyzer) is possible before the suspect has an access to a lawyer.</p>
<p>The accused also needs to cooperate with the police to facilitate access to their own counsel (e.g. you cannot just keep trying to access a counsel to avoid providing a breath sample in a reasonable time).</p>
