Criminal law

Arrest

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

When a person is arrested or detained, it is important that his rights be respected. An adolescent has the following rights under the law: the right to consult a parent or another adult for assistance as soon as he is arrested, to be informed of his right to a lawyer, and to access 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.

The adolescent has the right to be assisted by the police officers in contacting a lawyer. The police officers must provide the youth with a list of lawyers, including their contact information (name, address, phone number) and/or a phone book. The officers must also allow the adolescent to use a phone and to speak with his lawyer in private in a place designated for this use.

Why is it important to consult a lawyer?

A young person has a lot to gain by consulting a lawyer. It will help him to be informed of his rights and obligations, to understand the legal nature and consequences of the alleged offence, and to know how to exercise his rights.

For example, as soon as the adolescent is arrested, he has the right to remain silent. However, in the heat of the moment, he might feel the need to justify his actions to the police. He may say things that could be used against him later on. So, according to the law, the adolescent should only talk to the police or other parties when he fully understands the consequences.

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

The law is very clear on this subject: in the minutes following an adolescent’s arrest, the police must inform him that he has the right to consult a lawyer. If the police realize that the youth does not fully understand what this means, they must explain it to him again in simpler terms. It is important for the police to be sure that the adolescent has understood his right.

Until the adolescent has had a chance to contact a lawyer, the police must stop asking him questions or using any other means to make him talk about the alleged offence.

Finally, the police must give him a real opportunity to speak to a lawyer in private. This means making the following available to the youth: an isolated location and a phone, as well as a list of lawyers with their phone numbers. In Quebec, Legal Aid offers a duty counsel service (on-call lawyers). This means that an adolescent who has been arrested can always get legal advice by calling the legal aid number. This number is generally posted somewhere in the police station.

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 it does for adults.

First of all, in order for an adolescent’s statement to the police to be used as evidence, it must have been made in the presence of his lawyer, unless the youth has renounced this right in writing. During the proceedings, the judge must inform the youth of his right to a lawyer.

Therefore, 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 the obligation to remind him of his right to be represented.

What happens when the adolescent is not represented by a lawyer at the time of his appearance in court?

When an adolescent appears before the court to plead to the charges, the judge presiding over the trial 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 Attorney General to appoint one 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. Offences do not all carry the same degree of seriousness and do not all have the same consequences. For example, if the charge is possession of cannabis, one usually faces a much less severe sentence than in a case of 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 justify the charges, then the court will immediately find him guilty;
  
  
• If the court is not convinced that the youth sufficiently understands the charges against him, it registers a not guilty plea in his name and the process follows its due course.

To learn more about court appearances, consult the Infosheet entitled A few questions about appearing before the 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 entitled “Lawyers” without knowing which professional to contact. If his parents already have their own lawyer, Victor can hire her, but he doesn’t have to do so. He can choose to find his own lawyer.

The right to a lawyer isn’t connected to the youth’s capacity to pay. Just like adults, adolescents can benefit from the legal aid program put in place to assist low-income individuals.

Victor should know that duty counsel (on-call lawyers) are available to answer his questions and give him basic legal information. This service is accessible at all times in Quebec through a 1 800 number. The police must inform the adolescent about this service and provide him with the phone number.

Once in court, if the adolescent was turned down for legal aid services and if he still requires the assistance of a lawyer, the court must assign a lawyer to him. In this case, the adolescent will not have to pay anything because the government will pay the fees.

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

Yes. In some cases, the court will allow the adolescent to be assisted by an adult who it finds to be capable of fulfilling this function.

Note that this is not automatic: the adolescent must make a request and it is up to the court to decide whether to grant permission.

1. Barreau du Québec
2. Texte de la loi