When an individual is detained or arrested, the Charter provides a person the opportunity to retain and instruct counsel without delay. That means any lawyer you want.
But what if you don’t know any lawyers? Should a person have a right to call a third party to get the name of a lawyer or a referral while they are in custody?
While this right is a cornerstone of the justice system, the recent Ontario Superior Court of Justice ruling in R. v. Rai 2026 ONSC 567 shows where that shield begins and ends. The case specifically looks at Section 10(b) of the Charter, exploring whether a the right to contact a lawyer includes a constitutionally protected right to have a private conversation with a non-lawyer third party to obtain legal contact information.
Section 10(b) of the Charter mandates that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. The implementation of this right involves two duties: the police must make reasonable efforts to facilitate contact with counsel, and the detainee must exercise reasonable diligence in their efforts to reach that counsel.
The conflict in R. v. Rai centered on a man named Angelo (referred to as Anthony in police notes).
Upon being advised of his rights at the police detachment, Mr. Rai expressed a desire to speak to Angelo, explaining that Angelo’s phone number was stored on his phone. Mr. Rai contended that Angelo was a traffic ticket agent who worked at a firm where criminal lawyers were also employed, and he wanted to call Angelo to obtain the contact information for a specific criminal lawyer.
Mr. Rai’s central argument was that the police denied him direct, private access to his cellphone to call Angelo or his mother for this purpose. Instead, once the police confirmed that Angelo was not himself a lawyer, they offered Mr. Rai the services of duty counsel. Mr. Rai accepted duty counsel and later told police he was satisfied with the advice he received, though he argued at trial that he only said so to get it over with.
So does the state’s obligation to facilitate the right to counsel require them to allow a detainee to have a private, direct phone call with a third party who is not a lawyer?
According to the court, no.
The court held that while the police must facilitate the right to counsel of choice, this does not translate into a constitutionally protected right to a private or direct call with a non-lawyer, no matter what the purpose.
The court explained that facilitation is a flexible standard that depends on the circumstances of the case. While the police must make reasonable efforts to help a detainee find their lawyer, they often assume control of the detainee’s ability to make calls for legitimate reasons, such as officer safety, evidence preservation, and the integrity of the investigation.
In his appeal, Mr. Rai relied heavily on a lower court decision, R. v. Satar, which suggested that if a detainee needs to call a friend or relative to get a lawyer’s number, that call should generally be made by the detainee personally and in private.
But the court explicitly rejected this interpretation. It clarified that previous rulings, such as R. v. Kumarasamy, mandated that police facilitate the request, but they did not explicitly require giving the detainee direct access to a phone or the right to make the call in private to contact whomever he or she wishes.
The court ruled that reasonable efforts by the police are satisfied if the officer makes the call to the third party on the detainee’s behalf.
The officer can call the friend or relative, obtain the lawyer’s name and number, and then provide that information to the detainee. Because the information being sought, a lawyer’s name and number, is not privileged, no privacy interests are violated by having the police conduct the call.
The constitutional right to a private phone call is strictly reserved for conversations with legal counsel. Calls to third parties, even if intended to lead to a lawyer, do not attract the same level of protection. While police must help a detainee reach their chosen lawyer with the same effort and diligence that the detainee himself would apply, the police retain discretion over how that call is made to maintain safety and investigative integrity.
A detainee must provide relevant information to the authorities to help them facilitate the right to counsel. Vague requests to call non-lawyers without explaining the legal purpose may not be enough to trigger a breach if the police provide reasonable alternatives like duty counsel.
Ultimately, the Court concluded that the police had met their obligations and that Mr. Rai had failed to establish a breach of his Section 10(b) rights.
