Criminal law

Arrest

What does it mean to have a “right to a lawyer”?

When a person is detained or arrested, it is important his rights be respected.

An adolescent has the right to consult a parent or another adult for assistance as soon as he is detained or arrested.

He also has a right to be informed of his right to a lawyer and free legal services

The police officers must help an adolescent contact a lawyer by providing a list of lawyers and their contact information and/or a phone book.

The officers must also allow the adolescent to use a phone and speak with his lawyer in private place designated for that purpose.

If the adolescent needs free legal services, the police must give him the phone number of a legal aid lawyer. This number is generally posted at the police station. In Quebec, legal aid lawyers are on-call around the clock.

Why is it important to consult a lawyer?

Consulting a lawyer helps a young person understand his rights and the consequences of the offence that led to his detention or arrest.

For example, when an adolescent is arrested, he has the right to remain silent. However, in the heat of the moment, he might want to justify his actions to the police. He may say things that could be used against him later on. An adolescent should only talk to the police or other people involved when he fully understands the consequences.

When exactly does the right to a lawyer come into effect?

The law is very clear: as soon as the police stop an adolescent and prevent him from leaving or doing what he wants through their words or conduct, they must inform him that he has the right to consult a lawyer.

If the police realize that the adolescent does not fully understand what this means, they must explain it to him again in simpler terms. The police must be sure the adolescent has understood his rights.

Until the adolescent has contacted a lawyer, the police must stop asking him questions or trying to make him talk about the offence.

Do adolescents benefit from special protections regarding the right to a lawyer?

Yes. The law provides for an even broader right to a lawyer for adolescents than for adults.

First, an adolescent’s statement to the police cannot be used as evidence unless it was made in the presence of his lawyer. The only exception to this arises if the adolescent has renounced (given up) this right in writing or in a video or audio recording.

During any court proceedings following arrest, the judge must inform the adolescent of his right to a lawyer.

Returning to our example, let’s say that proceedings are launched against Victor. If he still doesn’t have a lawyer when he appears in court, the judge has an obligation to remind him of his right to be represented by a lawyer.

What happens when an adolescent is not represented by a lawyer when he appears in court to answer to the charges?

When an adolescent appears in court to tell the judge whether he is pleading guilty or not guilty to the charges, the judge must do the following:

• Inform him of his right to a lawyer and give him the opportunity to hire one.
  
  
• If the adolescent says he is unable to find a lawyer, the judge must direct him to legal aid, or order the government to appoint a lawyer for him.
  
  
• If the adolescent is not represented by a lawyer, the judge must ensure that he clearly understands the nature of the charges against him. The degree of seriousness of offences varies and they do not all have the same consequences. For example, the penalties for possession of cannabis are usually not as severe as for robbery.
  
  
• Explain to him that he can plead guilty or not guilty. If the adolescent denies his guilt, the case will go to trial. If he acknowledges his guilt and the facts support the charges, then the judge will immediately find him guilty.
  
  
• If the judge is not convinced that the young person understands the charges, the judge will register a not guilty plea in his name and the process will go forward.

To learn more about court appearances, consult the Infosheet entitled What You Need to Know About Appearing in Youth Court.

What happens when the adolescent does not know which lawyer to choose?

Chances are that Victor will aimlessly flip through the pages of the phone book section for “Lawyers” without knowing who to contact.

If his parents already have their own lawyer, Victor can hire her, but he doesn’t have to. He can choose his own lawyer.

The right to a lawyer isn’t connected to the young person’s ability to pay. Just like adults, adolescents can benefit from legal aid lawyers for low-income individuals.

Victor should know that legal aid has on-call lawyers to give him basic legal information. This service is available 24 hours a day in Quebec through a 1-800 number. The police must inform the adolescent about this service and provide him with the phone number.

Once he has to appear in court, if the adolescent was turned down for legal aid and still needs a lawyer, the court must assign a lawyer to him and the government will pay for the lawyer.

During the legal proceedings, can someone who is not a lawyer represent an adolescent?

Yes. In some cases, the judge will allow an adult whom the judge believes is suitable to assist an adolescent.

Note that this is not automatic: the adolescent must make a request to be assisted by an adult and it is up to the judge to decide whether to grant permission.

1. Barreau du Québec
2. Texte de la loi