The right to counsel under section 10(b) of the Charter is not triggered unless a suspect is arrested or detained. It is thus crucial for police and courts to have clear and sensible understanding of these triggering events. Defining detention has often proved to be difficult and the courts may be faulted for failing to provide good answers to two important questions: (1) in what circumstances does a detention arise when a suspect is neither physically restrained nor under a legal duty to comply with police? and (2) must police comply with section 10(b) in exercising their power of investigative detention? these failures stem, at least in part, from a reluctance to interpret section 10(b) in light of the pragmatic realities of police questioning. For the Supreme Court, the purpose of the right to counsel is to give criminal suspects a fair opportunity to exercise their right to silence and refrain from incriminating the mselves. While this interpretation is intuitively appealing, it is largely misguided. Section 10(b)’s main purpose is to help deter abusive interrogation practices, including those apt to produce false confessions. If more attention were paid to his objective, it would be easier to craft bright-line rules dictating when section 10(b) applies and when it does not. This approach would also achieve a more optimal accommodation between the police’s need to obtain reliable evidence and suspects’ interests in avoiding inhumane treatment and wrongful convictions.
"Triggering the Right to Counsel: “Detention” and Section 10 of the Charter."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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